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Hushensab Rajesab Allabaxar Vs. Basappa Puradappa Hallikeri - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 413 of 1927
Judge
Reported in(1932)34BOMLR1325; 140Ind.Cas.736
AppellantHushensab Rajesab Allabaxar
RespondentBasappa Puradappa Hallikeri
DispositionAppeal dismissed
Excerpt:
hindu law-mitakshara-partition-partition between father and son-mother entitled to a share.; under the mitakshara on a partition of ancestral property between the father and his son the mother is entitled to a share equal to that of the son, but from that share must be deducted the value of any stridhan received by her as a gift from her father-in-law or her husband.; pursid narain sing v. hanooman sahay (1880) i.l.r. 5 cal. 845, dular koeri v. dwarkanath misser (1904) i.l.r. 32 cal. 234, partap singh v. dalip singh (1930) i.l.r. 52 all. 596, damodardas maneklal v. uttamram maneklal (1892) i.l.r. 17 bom. 271,286-7. jairam v. nathu (1906) i.l.r. 31 bom. 54 : s.c. 8 bom. l.r. 632. and hasbanna devanna v. devanna sannappa (1924) i.l.r. 48 bom. 468 : s.c. 26 bom. l.r. 424, followed. - .....alienations of defendants nos. 2, 4 and 7 were not binding on plaintiffs, and awarded two-thirds share by partition to plaintiff no. 1, the son, and plaintiff no. 2, the wife of defendant no. 1. this appeal is filed by defendant no. 7,2. the first question urged on behalf of the appellant is that there were antecedent debts of the father, defendant no. 1, for whose payment the sale-deeds were passed in favour of the vendors of the appellant, and therefore the sale-deeds were binding on plaintiff no. 1. the learned subordinate judge found that there was a sale-deed in favour of one amritappa on july 17,1919. defendant no. 7's vendors were one parvatibai and mohodin, the sale-deed in favour of parvatibai was passed on august 2, 1920, in respect of the western half of survey no. 265, and.....
Judgment:

Patkar, J.

1. In this case the plaintiffs sued for partition of their two-thirds share against the defendants. Plaintiff No. 1 is the son of defendant No. 1; plaintiff No. 2 is the mother of plaintiff No. 1, and defendants Nos. 2 to 7 are the alienees of the father, defendant No. 1. The learned Subordinate Judge held that the alienations of defendants Nos. 2, 4 and 7 were not binding on plaintiffs, and awarded two-thirds share by partition to plaintiff No. 1, the son, and plaintiff No. 2, the wife of defendant No. 1. This appeal is filed by defendant No. 7,

2. The first question urged on behalf of the appellant is that there were antecedent debts of the father, defendant No. 1, for whose payment the sale-deeds were passed in favour of the vendors of the appellant, and therefore the sale-deeds were binding on plaintiff No. 1. The learned Subordinate Judge found that there was a sale-deed in favour of one Amritappa on July 17,1919. Defendant No. 7's vendors were one Parvatibai and Mohodin, The sale-deed in favour of Parvatibai was passed on August 2, 1920, in respect of the western half of survey No. 265, and the sale-deed in favour of Mohodin was dated June 23,1921, in respect of the other half of Survey No. 265. The learned Judge observed that though it was alleged that there was a reconveyance from Amritappa, and defendant No. 1 incurred debts in order to get the re-conveyance, no evidence was led to prove those debts. He, therefore, came to the conclusion that it was not proved that the sales to the appellant's vendors Parvatibai and Mohodin were made to discharge any antecedent debts. It would, therefore, follow that the sale-deeds in favour of Parvatibai and Mohodin are not binding on plaintiff No. 1, and, therefore, the sale-deed in favour of defendant No. 7 is not also binding on the plaintiff.

3. The other question urged on behalf of the appellant is that plaintiff No. 2, the wife of defendant No. 1, is not entitled to a share in the property.

4. It appears from the authorities that during the lifetime of the father the mother is entitled to a share when a suit is brought by the son for partition, and the share is equal to that of a son, but from that share must be deducted the value of any stridhan received by her as a gift from her father-in-law or her husband. See Pursid Narain Sing v. HanoomanSahay I.L.R. (1880) Cal. 845 Dular Koeri v. Dwarkanath Misser I.L.R. (1904) Cal. 234 and Partap Singh v. DalipSingh I.L.R. (1930) All. 596 The same view was taken by this Court in Damodardas Maneklal v. UttamramManeklal I.L.R. (1892) Bom. 271 and Jairam v. Nathu I.L.R. (1906) Bom. 54 : 8 Bom. L R. 632 The last case was followed in Hosbanna Devanna v. Devanna Sannappa I.L.R. (1924) Bom. 468 where it was held that under the Mitakshara, on a partition between the father and his sons, the step-mother is entitled to a share.

5. The rule that the mother is entitled to a share at partition during the father's lifetime is deduced from the texts in theMitakshara, Ch. I, s, 2, pl, 8 and 9, and Ch. I, Section 7, pl J, Gharpure's translation, pages 184 and 202, and Mayukha, Ch, IV, a 4, pi 15, Gharpure's translation, p. 56. The mother is entitled to a share in the partition of ancestral estate even after the death of the father: see Yadnyavalkya, verse 123 and Mitakshara Ch. 1, s. VII, pl. 2, harpure's translation, p. 203, and Mayukha, Ch. IV, s. IV, pi. 18 and 19, Gharpure's translation, p. 57.

6. I think, therefore, that the view of the lower Court that the plaintiffs are entitled to two-thirds share in this partition suit is correct.

7. We would, therefore, dismiss the appeal with costs.

Nanavati, J.

8. I agree.


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