HIRA LAL MANDAL Vs. SHANKAR LAL MANDAL

JUDGEMENT

(1.) This suit for partition has been instituted in the following circumstances. One Kritti Bash Mandal died in January 1918. He was survived by his widow, Sm. Nistarini Dasi and by his two sons, the plaintiff Hira Lal, and Chuni Lal, who died in May 1933, leaving a widow and three sons. After the death of Kritti Bash the present plaintiff instituted partition proceedings against his brother, Chuni Lal and his mother, Nistarini. The subject-matter of the partition proceedings was the estate of Kritti Bash. In her written statement Nistarini claimed one-third of the properties left by Kritti Bash "according to the estate of a Hindu mother on partition amongst her sons." A preliminary decree for partition was made on 20 April 1928. The commissioner appointed in the partition suit duly made his award, which was confirmed on 18 July 1928. Under the award Nistarini was allotted certain of the immovable properties belonging to Kritti Bash "to be held and enjoyed by her as a Hindu widow during the term of her natural life."

(2.) On 25 June 1928, Chuni Lal mortgaged his interest in the properties allotted to Nistarini on partition, and the mortgagee's interest has now passed by assignment to a lady of the name of Manuja Bala Dasi, who is defendant 5 in this suit. On 5 October 1931 Chuni Lal was adjudicated an insolvent, and in May 1933 the plaintiff was also adjudicated. Chuni Lal had not obtained an order of discharge at the time of his death, but the plaintiff was discharged on 17 March 1936. Nistarini died in September 1936. Meanwhile, defendant 5, Mamija Bala, had instituted a mortgage suit on the mortgage executed by Chuni Lal on 25 June 1928, and the mortgaged property was finally sold to Manuja Bala by the Registrar on 10 March 1937, the sale being confirmed on 11 November of that year. The present suit was filed on 8th April 1937, the defendants being the three minor sons of Chuni Lal, Chuni Lal's widow, and the mortgagee Manuja Bala. The property of which partition is sought is that which Nistarini obtained under the award in the partition suit, and the plaintiff submits that he is entitled to one half thereof, and the sons of Chuni Lal to the other half. The minor defendants, the sons of Chuni Lai, support the plaintiff, but the relief asked for is opposed by the defendant Manuja Bala. Her contention is briefly this, that the plaintiff has no interest in the properties which are sought to be partitioned, because his right, title, and interest therein vested in the Official Assignee, when he was adjudicated an insolvent, by reason of the provisions of Section 17, Presidency Towns, Insolvency Act.

(3.) The soundness of this contention depends on the nature of the estate which Nistarini obtained under the partition decree. According to the plaintiff, by reason of that decree she became the owner of the properties allotted to her, subject to certain restrictions on alienation due to the fact that she was a Hindu widow, and that the plaintiff obtained no interest in the properties until the death of Nistarini; in other words he had no interest in the properties on 23 May 1933, when he was adjudicated insolvent, and, accordingly the properties never vested in the Official Assignee in any way. At the time of the death of Nistarini, the plaintiff's insolvency had come to an end as he had obtained his unconditional discharge six months before that date. The contention of the mortgagee defendant is that on the death of Kritti Bash his property passed to his sons, and his widow had no interest therein. The effect of the partition proceedings, however, was to give her certain properties in lieu of maintenance, such properties being temporarily excised as it were from the estate of her sons, to whom they would revert at her death. There are certain special circumstances in this case, which, according to the plaintiff, preclude the mortgagee defendant from raising these points. First, it is said that the partition decree itself declares Nistarini's estate in the property to be the estate of a Hindu widow, and that by this is meant that she was granted under the decree the same right as she would have had if she had inherited the estate of her husband as a childless Hindu widow. It is said that the so called reversioners to the estate of a childless Hindu widow have no more than a spes successionis to the estate inherited by her from her deceased husband, so long as she lives. In my opinion, the phraseology of the award and of the partition decree does not affect the matter. The decree must be read in the light of the proceedings in which it was passed. Having regard to the fact that the award is the award of a commissioner, and made inter partes, I do not think that the description of the interest awarded to Nistarini as that of a Hindu widow indicates that she was judicially given more extensive rights than those to which she is entitled under the law.