1. This is an appeal from a decree of the First Class Subordinate Judge of Jalgaon in a suit by the adopted son of one Trimbak and by the latter's widow the adoptive mother against T'rimbak's cousins and a nephew, the defendants, for partition of the family lands and other property. The precise relationship of Trimbak with the defendants will be apparent from the following genealogical table:--
Ekoba (dead) Kautik (dead)
| = Guntabali (exhibit 159)
| | | Trimbak (died on
Jyotiram Baliram Bajirao (dead) August 5, 1927)
(Defendant No. 1) (Defendant No. 2) | =Narmadabai
Pandalik (Plaintiff No. 2)
(Defendant No. 3) |
Plaintiff No. 1-
The principal dispute relates to the legality and validity of the adoption of Ramchandra, plaintiff No. 1, said to have been made on March 31, 1935. The factum of adoption, although not disputed here, was disputed in the trial Court. The evidence on that point is sufficient and reliable and we accept the conclusion of the learned trial Judge that the plaintiff was duly adopted.
2. Among the numerous other defences raised to the plaintiff's claim were, first, that according to the caste custom amongst the Tilone Kunbis to which sect the parties belong, the only person, who could be legally and properly adopted is the person born in the same gotra or family of the adopter and inasmuch as plaintiff No. 1 does not belong to the adopter's family--his family name or gotra being Ahire whilst that of the defendants' is Borase--the adoption is illegal; secondly, that the deceased Trimbak, who succumbed to cholera after a few days' illness, had some hours before his end expressly communicated to his mother Guntabai that he intended to prohibit his wife from making any adoption to him and that in consequence the adoptive mother was incompetent to make the adoption; thirdly, that a few months prior to the alleged adoption all the defendants had separated and divided the ancestral property in their hands and had terminated the coparcenery and that consequently the plaintiff could not upon adoption become a member of any subsisting coparcenary or participate in its property; and, lastly, that the. suit must fail because the plaintiff's grandmother Guntabai, who it is said would be entitled to a share on partition between the plaintiff, the adopted grandson, and the other collaterals of his father, was not impleaded as defendant. The first three objections involve pure questions of fact. The learned Subordinate Judge has disallowed them holding that the special caste custom, the alleged prohibition and the extinction of the coparcenary were not established. On the question of law involved in the last point he found that the plaintiff's grandmother was not entitled to a share on partition and was therefore not a necessary party to the suit. Accordingly the plaintiffs' suit was decreed.
3. In this appeal by the defendants against that decree it will be convenient to deal with the questions of fact first. [His Lordship dealt with the questions of fact and agreed with the conclusions reached by the Subordinate Judge. The point of law was then dealt with as follows]:--
4. Then there remains the question as to the maintainability of this action for want of necessary parties. The basis of that argument is that according to the Mitakshara law, which admittedly governs the parties, they being residents of Khandesh, the grandmother Guntabai is entitled to a share upon partition between her adopted grandson and his collaterals and that therefore the failure to implead her was fatal. The question whether Guntabai was a necessary party must depend upon the view whether the assumption underlying the argument is correct. The point that can be formulated upon the facts is as follows. Is a grandmother under the Mitakshara law entitled to a share in the family estate upon partition between her grandson on the one part and his adoptive father's collaterals or cousins on the other? That is a point of first impression so far as this Court is concerned. There is no direct authority bearing upon it of any other High Court in Western India. The question has to be determined by reference to the Mitakshara law. Mr. Thakor for the appellants has not been able to cite any direct text bearing out his contention. His argument is that inasmuch as there is no text directly opposed to it, his point should be conceded upon the general rules as to partition during the lifetime of the father and after his death. There is no specific rule which sets apart a share to a Hindu female in any circumstances other than those contained in the Mitakshara (Ch. I, Section II, pl. 8 and 9) dealing with partition among the sons during the lifetime of the father (Stokes' Translation of Hindu Law, p. 379):--
Two sorts of partition at the pleasure of the father have been stated; namely equal and unequal. (See Yajnavalkya 2, V. 115).
The text of Yajnavalkya contains a specific rule in the case of equal partition:--
If he (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.
Vijnaneswara in his exposition of that text says:--
When the father, by his own choice, 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. But, if separate property have been given to a woman, the author subsequently directs half a share to be allotted to her. 'Or if any had been given, let him assign the half',
5. In the text and the commentary the only female who is declared to be entitled to a share is the wife (patni) of the father. It is not disputed that that term would not include a mother of the father and the text therefore has no application to the present case.
6. As to division after the father's death--here there is no father alive--the Mitakshara (Ch. I, Section VII, pl. 1) says as follows (see Stokes' Translation of Hindu Law, p. 397):--
When a distribution is made during the life of the father, the participation of his wives equally with his sons, has been directed. ('If he make the allotments equal, his wives must be rendered partakers of like portions'.).... Of heirs dividing after the death of the father, let the; mother also take an equal share. (See Yajnavalkya 2, 123.)
The word used in this connection is 'mata' which according to the interpretation in a series of decisions has been deemed to include a grandmother and even a step-grandmother (see Vithal Ramkrishna v. Prahlad Ramkrishna (1915) I.L.R. 39 Bom. 373 for, it has been held that the word mata is illustrative of a class andi not restricted to the natural mother according to its literal meaning. That rendering of the term is based upon the text of Vyasa, which is translated in Mandlik's Hindu Law at p. 44 as follows:--
The sonless wives of the father are declared equal sharers; and so are all paternal grandmothers declared equal to the mlother.
7. From the above it is clear that both Yajnavalkya and Vijnaneswara make a distinction between two sets of partitions, one during the lifetime of the father and the other after his demise. In the former case it is clear upon authority that the wife alone comes in for a share. She comes in as a wife of the father and not the mother of the son. In such a case the grandmother has no place because patni can never mean a grandmother. She only comes in when the partition is after the demise of the father. The raison d'etre underlying the distinction is very difficult to appreciate. But the texts do, as a matter of fact, observe that distinction. Therefore the question arises whether, having regard to the fact that the father is dead and the partition is now sought after his demise, the grandmother can take a share upon partition in the circumstances of this case.
8. Now the text of Vyasa referred to has been interpreted as restricting the claim of the grandmother and the mother to a share upon a division after the death of the father between the sons and the grandsons inter se. The question whether a grandmother was entitled to a share on partition between a father and son arose in Jamnabai v. Vasudeo Sagarmal (1929) I.L.R. 54 Bom. 417 and it was held that she was not entitled, upon the text of Vyasa, to a share because it was a partition during the lifetime of the father. The law under the Bengal and Mithila school is different for she has been held entitled to a share on such a partition (see Purna Chandra Chakravrti v. Sarojini Debi (1904) I.L.R. 31 Cal. 1065. The cases referred to in argument and which were decided under the Mitakshara law show that on a partition of the property between the sons and grandsons, that is, between a son or sons and the son or sons of a deceased son, the mother would receive a share with the son. That would be a partition between the descendants of the mother after the father's death and it would be covered by the express text of Yajnavalkya (see Babuna Kunwar v. Jagat Nerain Singh (1927) I.L.R. 50 All. 532. The grandmother is held entitled to a share where the partition is made after the death of the father between her grandsons (see Sheo Narain v. Janki Prasad (1912) I.L.R. 34 All. 505 F.B).
9. Mr. Thakor has argued that as this is a case of partition after the demise of the father, the grandmother would be entitled to a share upon the text of Vyasa because the direct descendants of her deceased husband would be one of the parties to the division and it would not matter if the other parties are not directly descended from her husband. The texts in terms do not support Mr. Thakor's argument. In order to entitle a grandmother to a share the texts postulate a division between the direct descendants inter se of her deceased husband provided that the dividing parties are not related to one an other as father and son. Where, as here, the division takes place between the grandson on the one hand and other collaterals, who are not the direct descendants of the deceased grandfather, on the other, Vyasa's text in our opinion will not apply.
10. In that view of the matter, we do not think plaintiff No. 1's grandmother Guntabai was a necessary party to this action. It would have been desirable to make her a party having regard to her right to maintenance. But the omission to join her is not fatal to the suit. It will be sufficient to say that the property which is allotted to the share of plaintiff No, 1 would be subject to her maintenance and also to the maintenance of plaintiff No. 2. With that qualification we think the lower Court's decree must be confirmed and this appeal dismissed with costs (one set only).