JAMNABAI Vs. VASUDEO SAGARMAL

JUDGEMENT

(1.) The facts of this case have been set out in the judgment of the learned trial Judge. The point of law in the appeal does not appear to have been decided in this Presidency, There are two questions for our decision: (1) whether on the partition between Vasudeo and his father Sagarmal, Jamnabai, the widow of Sagarmal's adoptive father Mahadeo, is entitled to a share and (2) whether the sum of Rs. 20,000 allotted to Bai Chandabai under the consent decree in suit No. 43 of 1912 reverted after her death to the joint family estate or became the separate property of Sagarmal and Motilal and the two sons of Haribax. We are only concerned with the latter question so far as Sagarmal is concerned. The genealogical tree of the family is at page 8 of the paper-book.

(2.) Now, Mahadeo died in 1919 before Vasudeo was born. The latter is now about six years old and Sagarmal, therefore, was on Mahadeo's death the sole owner of the whole of the family property. He-is, therefore, the person who must for the purposes of determining question (1) before us be regarded as the "father" referred to in the rules for partition in the Hindu texts. As my brother Murphy has pointed out Mahadeo was at no time the sole owner of the property ; for Sagarmal had been adopted by him at the date of the partition in the consent decree in suit No. 43 of 1912. The parties are Rajput Banias from Bikaner and it is conceded for the purposes of the argument that they are governed by the Mitakshara.

(3.) The Mitakshara, Chapter I, Section 2, states the text of Yajnaval-kya thus:- If he (the father) makes the allotments equal, his wives, to whom no separate property has been given by the husband or the father-in-law, must be rendered partakers of like portions, and the comment upon it is When the father, by his own unique, makes all his sons partakers of equal portions, his wives, to whom peculiar property had not been given by their husband, or by their father-in-law, must be made participant of shares equal to those of sons.