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Vithal Ramkrishna Vs. Prahlad Ramkrishna - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 218 of 1912
Judge
Reported inAIR1915Bom85; (1915)17BOMLR361
AppellantVithal Ramkrishna
RespondentPrahlad Ramkrishna
Excerpt:
.....a step-grand-mother is entitled to a share in the family estate when it is partitioned among her grandsons. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court..........for a partition of the family estate. among other things the defendants urged that gangabai-their grand-mother-was entitled to a share of the property, that she was a necessary party to the suit and that the property in suit was acquired by sitaram.2. the learned first class subordinate judge of dhulia held that the grand-mother was not entitled to any share in the property according to hindu law, and accordingly disallowed the objection. he decided the other issues in the suit, and passed a decree for the partition of the estate in favour of the plaintiffs. it was held that bai parvati was entitled to an equal share with the sons of ramkrishna. the defendants have appealed against the decree and renewed their objection that gaugabai is a necessary party to the suit, as she is entitled.....
Judgment:

Shah, J.

1. The interesting question of Hindu law argued in this appeal arises out of the following facts :-One Sitaram died leaving a son Rarnkrishna and a widow Gangabai, the step-mother of Rarnkrishna. Ramkrishna died in 1892 leaving three sons Vithal, Vishnu and Pandharinath by his first wife, who is dead, and two sons-Prahlad and Dinanath by his second wife, Bai Parvati, who is alive. Prahlad and Dinanath with their mother Parvati sued the other three sons of Ramkrishna for a partition of the family estate. Among other things the defendants urged that Gangabai-their grand-mother-was entitled to a share of the property, that she was a necessary party to the suit and that the property in suit was acquired by Sitaram.

2. The learned First Class Subordinate Judge of Dhulia held that the grand-mother was not entitled to any share in the property according to Hindu law, and accordingly disallowed the objection. He decided the other issues in the suit, and passed a decree for the partition of the estate in favour of the plaintiffs. It was held that Bai Parvati was entitled to an equal share with the sons of Ramkrishna. The defendants have appealed against the decree and renewed their objection that Gaugabai is a necessary party to the suit, as she is entitled to a share in the property in suit according to Hindu law.

3. We have had the point argued without going into the other questions arising in this appeal. The argument has proceeded on the footing that the property in suit is ancestral family property (i.e., it was ancestral in the hands of Ramkrishna), and I have considered the question of law on that basis. I say nothing as to whether the whole property in suit was ancestral in the hands of Ramkrishna in fact or not.

4. The question whether Gangabai is a necessary party or not depends upon the view we take of her right to a share in the family property. The point that arises is whether a step-grand-mother is entitled to a share in the family estate when it is to be partitioned among her grand-sons. It is a point of first impression so far as Western India is concerned. The parties are governed by the Mitakshara law.

5. Mr. Nadkarni, for the appellant, argues that the word mala used in Yajnavalkya's text (II.123) is illustrative of a class and is not restricted to the natural mother according to its literal meaning. He relies upon the text of Vyasa, which is translated in Mandlik's Hindu Law, at page 44, as follows :- 'The sonless wives of the father are declared equal sharers; and so are all paternal grand-mothers declared equal to the mother.' It is also urged by him that the author of the Vyavahara Mayukha is in favour of allowing a share to the grand-mother in accordance with Vyasa's text, and that, in the absence of any indication to the contrary in the Mitakshara the Vyavahara Mayukha should be read as supplementing the Mitakshara on the point.

6. On behalf of the respondents, it is argued by Mr. Gadgil that, there is no reason to attach any weight to Vyasa's text and that Nilakantha does not express any opinion in favour of that text in the Vyavahara Mayukha. He further relies upon the circumstance that there is no reported case in which the right of a grand-mother to a share in the property on a partition among her grand-sons is recognized in this Presidency, and argues that her right, if any, has been obsolete long since.

7. I have carefully considered these arguments, and though the point does not appear to me to be free from difficulty, I am of opinion that the grand-mother is entitled to a share in the ancestral estate on a division thereof among her grand-sons.

8. In the first place, Vijnaneshwara himself does not limit the word mala to a natural mother, but gives an extended meaning to it by including all the wives of the father (i.e. step-mothers also). This is clear from the words used by him in introducing this part of Yajnavalkya's text: see Mitakshara, Chap. I, Section VII, para 1: Stokes' Hindu Law Books, p. 397. That is how these words of Vijnaneshwara have been interpreted by this Court in determining the right of a step-mother to a share in the estate on a division thereof among the sons. I am not unmindful of the alternative reading, which substitutes the word matuh ( of mother ) for the word patneenam (of wives) in the latter part of the introductory words. But even the use of the word matuh there would make no difference in the meaning, which Vijnaneshwara otherwise indicates fairly clearly.

9. Then comes the text of Vyasa the meaning of which is clear, and upon which the appellants naturally rely. The question is not about the meaning of the verse but about the effect to be given to it. Vijnaneshwara, in his commentary on verses Nos. 4 and 5 of Yajnavalkya in the Achara Adhyaya, points out generally the authority of the Smriti writers, and says that as each of the Smritis is authoritative, the points not mentioned in one may be supplied from the others, but if one contradicts the other there is an option.

,rs'kka izR;sda izkek.;sfi lkdkM{kk.kkekdkM{kk ifjiwj.keU;r% fdz;rsA fojkss?ksrq fodYi%

10. I have stated the rule enunciated by Vijnaneshwara with the substance thereof in my own words. Yajnavalkya is silent as to the right of a grand-mother, and it seems to me that Vyasa's text can be used to supplement Yajnavalkya's Smriti. Vyasa is unquestionably a Smriti-writer of authority and though we have not the advantage of reading his verse with reference to the context in the original Smriti, the full text of which is not available, there can be no doubt about the verse, which is quoted by other commentators. I do not consider it any strained application of the rule laid down by Vijnaneshwara to give effect to Vyasa's text as supplementing the rules laid down by Yajnavalkya. It seems to me that taking the Mitakshara by itself with the text of Vyasa it is difficult to say that Vijnaneshwara would not allow a share to the grand-mother.

11. This conclusion seems to fit in with the scheme of the Yajnavalkya Smriti on this point. The wives get shares if the division takes place during their husband's life-time, they become entitled to shares equally with their sons, if the division takes place after their husband's death under verses 115 and 123 of the Vyavahara Adhyaya of Yajnavalkya, and there is nothing unreasonable or incongruous in their obtaining shares equally with their grand-sons if the division happens to be effected by their grand-sons.

12. It may be mentioned that the view, which I take of the Mitakshara on this point, is by no means singular. A commentator like Apararka on the Yajnavalkya Smriti comes to the conclusion that the word mala is to be taken as indicating step-mother and others and quotes Vyasa's text in support thereof: see Anandasharma, Sanskrit Series, Vol. 46, p. 730. In the Balambhatti, which is a commentary on the Mitakshara the same view as to a grand-mother's right to a share is accepted. I refer to these works as showing merely that the view I take of the Mitakshara is a reasonably possible view and not as suggesting that; they ought to form a basis for adopting that view. In Bengal the same conclusion as to the right of the grand-mother to a share under the Mitakshara is accepted: see Badri Roy v. Bhugwat Narain Dobey I.L.R. (1882) Cal. 649.

13. The fact, however, remains that Vijnaneshwara is silent as to the right of the grand-mother. In such a case we can and must invoke the aid of the Vyavahara Mayukha and try to harmonise it with the Mitakshara if and so far as it may be reasonably possible to do so.

14. This brings me to the Vyavahara Mayukha. On a careful perusal of Chap. IV, Section IV, paras 18 and 19 (Stokes' Hindu Law Books at page 52 or Mandlik's Hindu Law at page 44), it is clear that Nilakantha brings in the step-mother and the grand-mothers on the authority of Vyasa's text. I am unable to accept the suggestion made on behalf of the respondents that Nilakantha simply quotes the text of Vyasa but expresses no opinion of his own. The verse is introduced to point out the share of the step-mother and the grand-mother, and at the end, the author says that by the word sarvah (all) even paternal step-grand-mothers are included. It is true that Nilakantha does not in terms indicate his approval of Vyasa's rule; but I think it is clear from the context that he favours Vyasa's view, and apparently quotes Vyasa to justify the inclusion of step-mothers and grand-mothers. At least it is safe to say that Nilakantha does not bring in the step-mother except under the authority of Vyasa, and to that extent, Nilakantha has been understood by this Court as confirming the Mitakshara view in the case of Damodardas Maneklal v. Ultamram Maneklal I.L.R. (1892) BOM. 271. I consider it reasonably possible to harmonise the Mayukha and the Mitakshara on this point and I think that ought to be done.

15. The only argument of some weight that remains to be noticed is that the right of the grand-mother is obsolete. This argument is based upon the absence of any reported case recognising the right of the grand-mother. This argument was used when the question as to the step-mother's right to an equal share with the sons came to be considered for the first time. Sir Charles Sargent C.J., however, rejected it, and it seems to me that his observations on this point in the case of Damodardas Maneklal v. Uttamram Maneklal I.L.R. (1892) 17 BOM. 271. apply with greater force to the case of a grand-mother. In Western India the right of a mother to a share on a partition after the death of the father is not treated as obsolete, and I see no reason to suppose that the right of the grand-mother is anymore obsolete than that of the mother. I am unable to see any valid reason for refusing to recognise the one while recognising the other.

16. Mr. Gadgil has relied upon the case of Sheo Nayain v. Janki Prasad I.L.R. (1912) All. 505 in support of his argument. It is not necessary to examine the reasons given by the learned Judges in support of the conclusion they arrived at as they expressly declined to consider such a case as we have to decide. They observed as follows after referring to the text of Vyasa:- 'Therefore if in any case the grand mother would be given a share, it would be in the event of a partition between sons after the father's death. On this point we express no opinion as the case before us is not one of partition after the father's demise.

17. It follows, therefore, that Gangabai, the step-grand-mother, is entitled to a share in the family estate with her grand-sons, and is a necessary party to the partition suit. The plaintiffs should be allowed to join her as a defendant now.

18. I do not wish to say anything as to the extent of her share, as the point is not argued, and as it is not desirable to deal with it in the absence of the grand-mother. The determination of the extent of a grand-mother's share may present difficulties according to the varying conditions, under which the partition may come to be effected. But, in my opinion, this is a simple case of its kind and need not present any difficulty.

19. The result, therefore, is that the decree of the lower Court is reversed and the case sent back to the lower Court for disposal according to law, after Gangabai has been joined as a defendant.

20. All costs to be costs in the suit.

Heaton, J.

21. I agree.


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