SRIMATI HEMANGINI DASI Vs. KEDAR NATH KUDU CHOWDHRY

JUDGEMENT

(1.) APPELLANT is the widow of Tara Churn Kundu, who died on the 19th of April, 1865. He left one son, Hurrish Chunder, by the Appellant, and two sons, Kedar Nath (the Respondent) and Annoda Pershad, by another wife, who died before him. Annoda Pershad died in June, 1882, leaving a will by which Kedar Nath was appointed executor of his estate. The suit was brought on the 13th of September, 1884, by the Appellant, against Kedar Nath in his own right and as executor to the estate of Annoda Pershad, and against Hurrish Chunder, and the plaint prayed to have it held that the Plaintiff was entitled to get Rs. 500 a month from the properties left by her husband, for the expenses of her religious acts and her maintenance, and that the Rs. 500 a month might be declared to be a charge upon the whole of his estate. It also prayed for a decree for Rs. 3016. 9. 3. 1. 1 krant, on account of maintenance for the past six months and one day. After the institution of the suit, and before the filing, on the 6th December, 1884, of a written statement by Kedar Nath, Hurrish Chunder, who attained his majority on the 3rd of November, 1882, instituted two suits against Kedar Nath and others, members of another branch of the family who were co-sharers with Tara Churn in different properties, for a partition of the joint family property. This was stated in the written statement of Kedar Nath, and it was pleaded that if the Plaintiff was entitled to any maintenance her claim to it would lie against her son, to be paid out of his share of the joint property which would be allotted to him after partition. On the 20th of February, 1886, decrees for partition were made in those suits. The judgment of the High Court on appeal from the Subordinate Judge was given on the 29th of July, 1886, and they held, contrary to the decision of the Subordinate Judge, that subsequently to the decree for partition the Plaintiff was entitled to maintenance only against the share allotted to her son; and as to the claim for past maintenance, which was for the period since the family had separated in food and worship, she having been maintained in the family of her son could not claim maintenance from her step-sons or their shares? though her son might possibly claim contribution. Accordingly they dismissed the suit as against Kedar Nath.

(2.) THE decision as to the arrears has not been questioned before their Lordships, and they entertain no doubt that the High Court was right in taking into consideration the decree for partition. The main question is one upon which there is no distinct text in the Hindu law books. So long as the estate left by Tara Churn remained joint and undivided the Plaintiff was no doubt entitled to claim her maintenance out of the whole estate. Does that right continue to exist after partition, or is there substituted for it a right to maintenance out of her son's share? According to the Dayabhaga, ch. 3, Section 1, v. 12, 13, where there are many sons of one man by different mothers, but equal in number and alike by class, partition may be made by the allotment of shares to the mothers, and while the mother lives the sons have not power to make a partition among themselves without her consent. In this case the mother seems to take on behalf of her sons. It would seem to follow that, after such a partition, a mother's right to maintenance would be out of the share she took, and not out of shares taken by the other mothers.

(3.) THE Subordinate Judge, in his judgment, said the question who was to give the maintenance never properly arose in that suit in the absence of Luchapriah, and if any such question was then decided it was an obiter dictum. The question did arise between Atmaram and his half brothers, and if the contention of the present Appellant that the maintenance is a charge upon the estate and to be taken into account in making the partition is right, the Court should have provided for it. The case appears to be a direct authority upon the question in this appeal. Then there is a case reported at p. 75 where a man had three sons by his first wife, two by his second, and two by his third, and all survived him. In a suit for partition it was declared, in accordance with the authority in Col. Dig. before noticed, that the first wife was entitled to one fourth of the three seven parts of her sons, and the second wife to one third of the two seven parts of her sons. Nothing is said as to the third wife, one of whose sons had died, and she was his heir.