BALDEODAS BAJORIA Vs. SAROJINI DASI

JUDGEMENT

(1.) This is an appeal by defendants Nos. 4 and 5, which arises out of a suit for partition. A preliminary decree has been made by the learned Subordinate Judge and the appeal is directed against that preliminary decree. The property, which is the subject-matter of this appeal, originally belonged to two brothers; Harinarayan and Haribangsha. Haribangsha died in the year 1900, leaving him surviving his widow and three sons. Harinarayan got his share partitioned in the year 1905. The three sons of Haribangsha purchased the share of Harinarayan, which had been partitioned previously, by a conveyance dated the 31 of May, 1922. On that very day, the three brothers mortgaged the entire interest in the house to a third person, with which we are not concerned in this litigation. On the 12 of October, 1923, these three brothers again mortgaged the property to defendant No. 5. On the 1 of September, 1924, these three brothers again executed a mortgage of this very property in favour of their mother. The defendant No. 5 brought a suit on his mortgage on the 10 of November, 1924, and a preliminary decree was made on the 22nd of January, 1923. In the meantime, defendant No. 4 was appointed Receiver by an order of the Court in accordance with the terms contained in the indenture of mortgage dated the 12 of October, 1923. The Receiver remained in possession of the property on behalf of the mortgagors and the mortgagee. The present suit for partition was brought by one of the sons of Haribangsha on the 17 of April, 1925, and two items of properties were included in his suit. There is no dispute with regard to item No. 1, with which the present appellants have no concern and the whole dispute centres round item No. 2, which had been mortgaged to defendant No. 5. During the pendency of this suit for partition a final decree in the mortgage suit of defendant No. 5 was made on the 19 of March, 1926, and the property was sold on the 7 August, 1926, and purchased by defendant No. 5, as the lower Court finds and as is contended for on behalf of the respondent. But it is alleged that there were other purchasers who were trustees with regard to some charitable trust: that, however, is a matter with which we are not concerned and this was not discussed in the Court below. The Receiver was discharged by the order of the Court and the defendant No. 5 took possession of the disputed property as purchaser. In the partition suit the two brothers of the plaintiff were defendants Nos. 1 and 2 and his mother was defendant No. 3, defendant No. 4 was the Receiver and defendant No. 5 was the mortgagee who subsequently became the purchaser.

(2.) The question, which is in debate in this Court and which was the subject-matter of dispute in the Court below, is whether the mother is entitled to a fourth share of the property including property No. 2 according to the provisions of the Hindu Law, on a partition being made among the sons. There is one small matter which has not been much debated that a half share of the property is not the ancestral property of the brothers and, therefore, if the widow of Haribangsha is entitled to a share on a partition between her sons she would get only a fourth share of the half share of item No. 2. But the real controversy is whether she would get any share under the circumstances of this case. The learned Subordinate Judge has held that the plaintiff and the defendants Nos. 1 and 2 have got no subsisting right to property No. 2, which has been described as the Strand Road premises, and their suit for partition with regard to that plot must fail. He has, however, made a decree to this effect that defendant No. 3, the mother would get a fourth share of both the properties Nos. 1 and 2 and the plaintiff and defendants Nos. 1 to 3 would each get a fourth share of the property No. 1. As I have already stated, that, assuming that the learned Judge is right, the lady would be entitled to get an eighth share of the property No. 2. But it is contended, on behalf of the appellants, that, under the circumstances of this case, the lady would be entitled to get no share in property No. 2. Their case is that the principle of Hindu Law, upon which the learned Subordinate Judge has relied, is not. applicable in this cape and that his decision is, therefore, liable to be reversed. On behalf of the respondents, reliance is placed upon the well-known case of Jogendra Chunder Ghose V/s. Fulkumari Dassi 27 C. 77 : 4 C.W.N. 254. In that case Mr. Justice Banerjee laid, down the principle on which, according to the Hindu Law, the mother is entitled to get a share on a partition made among the sons born of her womb of the property inherited from the father. The learned Judge, after quoting the text from Dayabhaga, observes: "With reference to the above passage from the Dayabhaga, it has been held, and it must now be taken as settled law, that the mother's right to claim a share arises only when her sons come to a partition, in other words, that she cannot enforce her claim to a share so long her sons remain joint and do not ask for partition. But there is nothing said in this passage, or in any other authoritative text of Hindu Law, as to a mother's right to a share on partition being so absolutely non-existent before partition, that it may be defeated by any of her sons alienating his share before coming to a partition."

(3.) He then proceeds in this way: "In my opinion, the correct view to take of this right would be to hold that it is an inchoate right as long as no partition is come to amongst the sons, and it becomes actually enforceable only when the sons come to a partition; or in other word s, that the right, when it becomes enforceable by reasons of a partition being come to among the sons, is enforceable, not only as against the sons, and as regards so much only of the joint property as at the date of partition is in the hands of the sons, but also as against any person deriving title from any of sons, and as regards the property to which they may have so derived title, subject to certain qualifications and limitations."