Stanley Batchelor, Kt., Acting C.J.
1. At some time before 1900 one Bhikaji died, leaving a widow Yeshodabai, the 2nd defendant in the suit. Bhikaji left also two sons, Kaoji, the 1st defendant, and Laxman, who died in 1900. Laxman's son Anant was the plaintiff'. The suit was brought for partition and possession of the plaintiff's one-half share in the estate of Bhikaji. The properties involved are partly moveable and partly immoveable. Of the various defences raised, we are concerned only with that which was embodied in the fifth issue in the Court of trial. That issue raised the question whether the second defendant, that is, the widow Yeshodabai, was entitled to a third share in the family property. The learned trial Judge answered that question in the affirmative, and accordingly he decreed to the plaintiff' a one-third share only, and not a half. That decree was a preliminary decree, and was made, on the 27th October 1913. Before any final decree could be passed, that is to say, on the 7th of June 1914, the second defendant Yeshodabai died. On the 19th January 1915, the plaintiff applied to the Court praying that, owing to the removal of Yeshodabai by death, his share should be held to have increased to one moiety, and the decree should be amended. By an order, dated the 27th July 1915, this application was granted by the learned Subordinate Judge, who amended the decree accordingly.
2. From this amended decree the present appeal is brought by the first defendant, and the object of It is to obtain from this Court a declaration that the plaintiff is not entitled to so much as a half share. We have had from the learned counsel engaged an interesting argument upon the question whether the share, which Yeshodabai is supposed to have taken in the circumstances of this litigation, should or should not be regarded as her technical stridhan, and it has been much debated whether this question is covered by the authority of the Privy Council decision in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh I.L.R. (1911) All. 234.. Upon this question, however, it is not necessary for us now to pronounce any opinion, and we consequently refrain from doing so.
3. With regard to the second point urged by Mr. Jayakar, namely, that the remedy which the plaintiff sought to get by his application of the 19th January 1915, could only be obtained by the institution of a separate suit, it appears to me that this contention ought not to prevail. It is clear that when Yeshodabai died, the cause of action survived, and her heirs would have to be brought on the record; the Court would, I think, be bound under Order XXII, Rule 5 to make inquiry as to who those heirs were in case any dispute arose upon the subject.
4. But the appeal, in my opinion, fails upon another ground. It is noteworthy, though the fact is not necessary for my decision, that the decree under appeal does not contain a provision assigning a separate share to Yeshodabai, and it is manifest from the manner in which the litigation was conducted that Yeshodabai was not pursuing any interest of her own, but was merely used by the first defendant as a convenient means of reducing the extent of the plaintiff's share. These are circumstances which I think, are worth mentioning, though they are not essential to my decision, which I prefer to rest on the broad ground of the principle to be presently stated. That principle seems to me to be clear, intelligible, and, on the authorities to which I shall refer, established beyond question. Any particular case of hardship owing to exceptional delay between the decree and the actual partition may be left for decision when it arises, but this case certainly falls within the principle and, in my judgment, ought to be decided on that ground. I will assume, therefore, in Mr. Jayakar's favour that the suit and the preliminary decree made in it, effected a severance of interests between the plaintiff and the first defendant, and did, in substance, assign a third share to Yeshodahai. That, however, is not in my view enough to justify the appellant's contention that she took that third share so as to transmit it to her heirs. Her right to a share, as I understand it. accrues only when a partition has actually been made. That is the view which, upon a consideration of the text of the Mitakshara, was adopted by Mr. Justice Dwarkanath Mitter and Mr. Justice Loch in Shea Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R. 61 where Mr. Justice Mitter, in delivering the judgment of the Court, said : ' The text of the Mitakshara that has been referred to merely says, 'of heirs dividing after the death of the father, let the mother also take a share', or in other words, the mother or grand-mother, as the case might be, is entitled to a share, when sons or grandsons divided the family estate between themselves. But the mother or the grand-mother can never be recognised as the owner of such a share, until the division has been actually made. She has no pre-existing vested right in the estate except a right of maintenance. She may acquire property by partition, for partition is one of the recognized modes of acquiring property under the Hindoo Law. But partition, in her case, is the sole cause of her right to the property. It follows, therefore, that the effect cannot precede the cause'.
5. Mr. Jayakar has called our attention to the circumstance that in the original text, the word used here for 'division', namely, 'Vibhag', is the same word as is used in the earlier placitum, where the author is speaking of the distribution made during the life of the father, and counsel has contended that, since, as between male members of the family, vihhag in the sense of a mere severance of interest would suffice to vest separate shares in the male coparceners, it should be held that, upon such severance, the mother also would take her share in full proprietorship. As, however, the word occurs in this placitum, it appears to me, without making any pretension to Sanskrit scholarship, that it may well bear the other meaning, the meaning, that is to say, which is ascribed to it by that learned Hindu Judge, Mr. Justice Dwarkanath Mitter. It must be remembered also in this context that although, when a partition is made, the mother is entitled to claim her share, she is not entitled at any time to compel a partition. I see no reason, therefore, to infer from the actual words of the text, on which Mr. Jayakar has relied, that the view accepted by Mr. Justice Dwarkanath Mitter ought to be abandoned. In this opinion I am confirmed by the fact that the same view independently commended itself to Sir John Stanley and another Hindu Judge, Mr. Justice Banerji, in Beti Kunwar v. Janki Kunwar I.L.R (1910) All. 118. There the same interpretation was put upon the same text from the Mitakshara, though it so happened that Sheo Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R. 61 was not cited to the learned Judges. In this Allahabad case the question that had to be considered was whether Duni Kunwar, the mother of Kalka Prasad and Gur Dayal, took a share on an alleged partition between these two sons. The learned Judges found that in fact there had been no actual partition between these two sons of Duni Kunwar, although by reason of an arrangement which they had made, there was a disruption of the joint family within the meaning of the rulings of their Lordships of the Privy Council, and in this state of the facts the learned Judges say : 'No doubt under the Mitakshara upon a partition being made by sons after the death of their father the mother is entitled to a share equal to that of a son. But we are of opinion that she would obtain such share only if an actual partition took place between the sons. The text of Yajnavalkya on this point is this :-'Of heirs dividing after the death of the father, let the mother also take an equal share.'. This in our opinion implies an actual division of the family property, that is, a completed partition under which there is a division of interest as well as separate possession. We do not think that a mere severance of interest where no actual division of the property takes place confers on the mother a right to a share equal to that of each of her sons...It is only when the sons actually divide the property and effect a complete partition that the mother can get a share. There is nothing in the Mitakshara from which wo may infer that upon a mere severance of the joint status of a Hindu family a mother can claim a share.
6. It is plain that, unless we are prepared to depart from these weighty authorities, we must hold here that when Yeshodabai died she was not the owner of a share, and I can see no reason why we should not follow the judgments which I have cited. The earlier of them was pronounced so long ago as 1808, and it is not suggested that there has ever been any contrary decision by any of the High Courts. It follows, therefore, that no share in Bhikaji's estate ever passed to the ownership of Yeshodabai. In other words, the share which Yeshodabai would have taken, if an actual partition had been effected, was never severed from the estate of Bhikaji, and, consequently, remains now an integral part of that estate available for division. The result is that the properties must be divided half and half between the plaintiff and the first defendant. The appeal, therefore, must be dismissed with costs and a decree made as I have indicated. For purposes of pleader's fees the costs should be assessed on Rs. 4,000.
1. I am of the same opinion.
2. I wish to add that on the facts of this case I am satisfied that Yeshodabai had not become owner of her share in the estate of Bhikaji at the time of her death.
3. The question, therefore, whether on her death it would go to her heirs as part of her stridhan or to her husband's heirs as if it was property inherited from her husband does not arise : and I express no opinion on that question, though it has been argued at some length.
4. In the present case there was no provision as to her share in the preliminary decree; the plaintiff had taken no steps to proceed with the division of the property by metes and bounds after the preliminary decree and before her death, and Yeshodabai had taken no steps after the preliminary decree to obtain her share. The estate of Bhikaji was, therefore, divisible between the plaintiff and defendant No. 1 on her death without any reference to her share. This view is supported by the decisions in Sheo Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R. 61 and Bell Kunwar v. Janki Kvnwar I.L.R. (1910) All 118. With reference to these cases Mr. Jayakar has argued that the word 'Vibhaga' in the original text (Mitakshara, Oh. 1, a. 7, placita 1 and 2) should be understood as meaning severance of interest and not necessarily actual division by metes and bounds, and has relied upon the case of Girja Bai v. Sadanhiv Dhundiraj (1916) L.R. 43 IndAp 151 : 18 Bom. L.R. 021. The point, however, to be considered in the case is whether Yeshodabai had taken her share before her death. The text undoubtedly gives her the right to take an equal share, when the sons divide the property. But in order that it may become part of her property, as distinguished from the estate of her husband, she must take her share. In this case the grand-son did proceed to divide the property by tiling the suit, though do steps were taken to have the property divided by metes and bounds after the preliminary decree and before her death. Yeshodabai, however, had not taken any effective steps to secure her share. She claimed it in the written statement, but did not press for it at the time of the preliminary decree. She did nothing subsequently during her life-time to obtain her share. It is clear, therefore, that in fact she did not take her share, and that it was not severed from Bhikaji's estate.
5. It is not necessary to define precisely as to when the mother can be said to take her share, so as to make it part of her estate, quite apart from the question whether it would be non-technical stridhan in her hands or whether it would be property inherited from her husband. The question must be decided with reference to the facts of each case. Assuming, without deciding, that the actual division by metes and bounds may not be essential for this purpose, it is clear that in the present case Yeshodabai did not take her share as contemplated by the text, and that the property of Bhikaji became liable to division on her death in equal shares between the plaintiff and defendant No. 1.