Norman Kemp, Kt., Ag. C.J.
1. The facts of this case have been set out in the judgment of the learned trial Judge. The point of law in the appeal does not appear to have been decided in this Presidency, There are two questions for our decision: (1) whether on the partition between Vasudeo and his father Sagarmal, Jamnabai, the widow of Sagarmal's adoptive father Mahadeo, is entitled to a share and (2) whether the sum of Rs. 20,000 allotted to Bai Chandabai under the consent decree in suit No. 43 of 1912 reverted after her death to the joint family estate or became the separate property of Sagarmal and Motilal and the two sons of Haribax. We are only concerned with the latter question so far as Sagarmal is concerned. The genealogical tree of the family is at page 8 of the paper-book.
2. Now, Mahadeo died in 1919 before Vasudeo was born. The latter is now about six years old and Sagarmal, therefore, was on Mahadeo's death the sole owner of the whole of the family property. He-is, therefore, the person who must for the purposes of determining question (1) before us be regarded as the 'father' referred to in the rules for partition in the Hindu texts. As my brother Murphy has pointed out Mahadeo was at no time the sole owner of the property ; for Sagarmal had been adopted by him at the date of the partition in the consent decree in suit No. 43 of 1912. The parties are Rajput Banias from Bikaner and it is conceded for the purposes of the argument that they are governed by the Mitakshara.
3. The Mitakshara, Chapter I, Section 2, states the text of Yajnaval-kya thus:-
If he (the 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,
and the comment upon it is
When the father, by his own unique, 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.
4. This refers to partition in the father's lifetime.
5. Partition, after the father's deatli is dealt with in the Mitakshara Chapter I, see. 7, placitum 1, in the following terms :-
Of heirs dividing after the death of the fattier lot the mother also take an equal share.
6. No mention is here made of the grandmother but the contention on behalf of the appellant is that Mahadeo is the ' father ' who would be referred to in the text. This is not so. In the case before us, as I have pointed out, Sagarmal is the father and the partition must be considered as having been made in his lifetime. Presumably, therefore, the Mitakshara excludes the father's mother from any share in the partition. She would, of course, have a right to maintenance.
7. Reliance is placed on the text of Vyasa:-
The sonless wives of the father are declared equal sharers ; and so are all paternal grandmothers declared equal to the mother.
and it is argued that this text can be applied to supply the omission, as it is alleged to be, in the Mitakshara. The Dayabhaga and the Mayukha have been referred to as authorities which have borrowed from Vyasa including the particular text which I have referred to and it is pointed out that in some instances the Mitakushara also has relied on Vyasa. But Vyasa's text would only bring in the grandmother when the partition was after the father's death and that is not the case here. I, therefore, think that Bai Jamnabai is not entitled to any share on the partition between Sagarmal and Vasudeo.
8. This case must be distinguished from those in which there is a partition between collaterals, e.g., a deceased father's son and the son of a son who predeceases the father, grandsons, etc..
9. I will now deal with the authorities cited in the arguments. Sibbosoondery Dabia v. Bussoomutty Dabia I.L.R. (1881) Cal. 191 was a case under the Dayabhaga which adopts V.yasa's text on this point. There the grandmother was held entitled to a share. Badri Hoy v. Bhugwat Narain Dobey I.L.R. (1882) Cal 649 was, it seems, also a case governed by the Dayabhaga. . The Full Bench decision of Sheo Narain v. Janhi Prasad I.L.R. (1912) All. 505 supports the respondent's case. In Kanhaiya Lal v. Gawra I.L.R. (1924) All. 127 the partition was between grandsons. In the case before us the father Sagarmal is alive and the partition is between him and his son. In Babuna Kunwar v. Jagat Narain Singh I.L.R.(1927) All. 532 the partition was between a brother and a predeceased brother's son and the mother therefore received the share of a son. This was a partition between collaterals after the father's death. Krishna Lal Jha v. Nandeshwar Jha (1918) 4 P. L. J. 38 was a case under the Mithila and was a partition between a grandmother, father, his wives and his sons. The Court relied on two concurrent authorities which could be applied there and which had borrowed the text of Vyasa. Vithul Ramhrishna v. Prahlad Bamkrishna 17 Bom. L.R. 361 was a case from Dhulia where the law applicable was the Mitakshara and the Mayukha. As we have seen the Mayukha borrows the text of Vyasa. It was a case of a partition between grandsons and, therefore, not applicable to the present case.
10. The second question refers to the sum of Rs. 20,000 allotted to Bai Chandabai by the consent decree in suit No. 43 of 1912. By that consent decree after Chandabai's death the sum of Rs. 20,000 and its accretions over which Bai Chandabai in her lifetime had entire power of disposal was to be divided into three parts after provision for Chandabai's funeral and obsequial ceremonies, and one part was to be given to Motilal, son of Ramdeo, one to Sagarmal, son of Mahacleo, and one to Dwarkadas and Shridhar sons of Haribax, Now, this sum of Rs. 20,000 was allotted to Bai Chandabai under the consent decree as her stridhan and whether or not it would as such after her death revert to the family estate (see Krishna Lal Jha v. Nandeshwar Jha (1918) 4 P. L. J. 38 and Bohi Mangal Prasad Singh v. Makadeo Prasad Singh 14 Bom. L.R. 220, P.C. it appears clear that the intention in the consent decree was that in the present case the money should not so revert. Ramdeo and Mahadeo were alive on the date of the consent decree and yet after Chandabai's death what was left by her was to go, not to Ramdeo and Mahadeo and the sons of Haribax who died in 1908, but to Chandabai's grandsons, one-third going to each branch, One would have expected that if the money were to go to the family estate the consent decree would have provided for one-third to go to Ramdeo, one-third to Mahadeo and the remaining one-third to Haribax's sons. I, therefore, think that Sagarmal took his one-third absolutely.
11. The suit was filed on behalf of Vasudeo Sagarmal, a minor, for partition of joint family property, against his father Sagarmal, his mother Bai Gutki, and his paternal grandmother Bai Jamnabai, widow of Mahadeo.
12. The learned trial Judge has held that defendant No. 1 is entitled absolutely to his share of a sum of Rs. 20,000 now said to have much increased, and that defendant No. 3, the grand-mother, is not entitled to a share in the partition ; and that partition should be decreed on this basis.
13. Defendant No. 3, the grandmother, is the appellant. The two points above mentioned are the ones raised in the appeal. I think both must be found against the appellant.
14. The family estate was settled by a consent partition decree of July 22, 1912, to which all the members of the family then alive and whose pedigree is shown in Exhibit A, were parties. Defendant Sagarmal and his father were given a joint one-fourth share in the estate of Gulraj, Sagarmal's grandfather. Gulraj's wife Chandabai was then alive, and the decree provided :-
(Thirdly) pay to the 5th defendant Chandabai the sum of Rs. 20,000 as her Stridhan over which and over all accumulations whereof the said Chandabai shall have full rights of ownership so as to dispose of the same during her life, or by will.
15. By a later provision in the decree it is ordered that:-
On the death of the 5th defendant, Chandabai, in the event of her dying without leaving a will, a sum of Rs. 8000 shall be expended out of the property come to her share in terms of this consent decree on the funeral and obsequial ceremonies after her death, and the rest of the property as also a fourth share of the balance in the hands of the said special commissioners set apart for the said fifth defendant Chandabai for life as hereinafter provided and the fourth share of the residue of the joint property given of the 5th defendant Chandabai for life as hereinbefore provided be divided among ... the fourth defendant Sagarmal.
16. Concisely put, the provisions of the decree were, that Sagarmal and his father Mahadeo, then living, should get a joint fourth share of the joint family property, but that on the death of Ohandabai, Sagarmal alone should get a share in the property which had been sot apart at that partition for her.
17. Sagarmal's father Mahadeo died in 1919, and Chandabai in 1921-22. The plaintiff Vasudeo, we are told, is now about six years old.
18. The first point involves the question, whether defendant No. 1 takes his share of the sum set apart for Chandabai, personally or as part of his ancestral family property, for in the former case it would not be liable to partition and in the latter it would be.
19. It is true that this sum originates in the family property, but the provisions of the consent decree quoted above have the effect of converting it into Chandabai's stridhan, while those as to its ultimate disposal give it to Sagarmal personally. It is for this reason that the learned trial Judge has found that this money was given to Sagarmal as his own separate property and that Vasudeo has no interest in it. I think that the learned Judge is right and that appellant fails on this point.
20. The second one involves a question of Hindu law. That is, whether on a partition sought by the son from his father in a family governed by the Mitakshara, the remaining members of the family being the son's mother, and his grandmother, the last is entitled to any share The finding on these facts now challenged is that the grandmother is not entitled to a share,
21. The original home of the partitioning family was Bikaner, a Bajputana State, and admittedly the law governing them is the Mitakshara unqualified by any of the other sources of Hindu law. The grandmother's claim to a share is based on three lines of argument. The first depends on the assumption that the property being divided is Mahadeo's, and that the partition being one come to after his death, she gets a share as the 'mother.' The second is that though the Mitakshara does not mention the 'grandmother,' she must be taken as part of the denotation of the word ' mother,' on the strength of a text of Vyasa, because of the rule that where one Smriti is silent, recourse may be had to another authoritative source of Hindu law. The third argument is based on the rulings of the Calcutta and Patna High Courts, and two recent rulings of the Allahabad High Court, the Full Bench case of that Court being against the present contention.
22. As to the first point, the texts are as follows :-
23. In the Mitakshara Ch. I, Section II, the rule of Yajnavalkya is stated to be:-
If he (the 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.
and the author of the Mitakshara's comment is:-
When the father of his own choice makes all his sons partakers of equal portions, his wives to whom peculiar property has not been given by the husband or by their father-in-law, must be made participants of shares equal to those of sons.
24. Partition after the father's death is discussed in Section VII (1) of the Mitakshara and the relevant passage is :-
Of heirs dividing after the death of the father let the mother also take .in equal share.
25. The grandmother is not mentioned here, but the argument has been that Section VII (1) applies, on the ground that the property being divided was Mahadeo's; that he is the person to whom the word 'father' applies ; and that she is therefore entitled to a share. It seems that to adopt this view would be to do violence to the rule, and the facts.
26. The point of departure in a partition is always some single person, spoken of in connection with the ancestral property, who divides with his descendants, or whose descendants divide after his death; and that the property should be treated from the same standpoint of a departure from unity is also, I think, necessarily within the limits of the concept of partition. It is, in fact, the only possible method and any other would lead to great difficulties. The shares are shares in the property of the 'father ' in each case.
27. On the facts, Mahadeo, and his son Sagarmal, took over, as among themselves, an undivided share of the original family property by the partition decree of 1912. Mahadeo died in 1919j without a further partition, and Sagarmal was left as the sole holder, till plaintiff was born about six years ago, when he became a coparcener. The partition is between plaintiff and Sagarmal, and since Sagarmal intervened as the sole holder, between Mahadeo and plaintiff, Sagarmal must, I think, be taken as the ' father' whose property is being divided.. This argument must, therefore, fail.
28. The second one appears to be no stronger. It also depends partly on the assumption that the partition is being made after the father's death. Vyasa's test is :-
The father's sonless wives however shall be made equal sharers, as also the paternal grandmothers for they are declared to be equal to mothers.
29. As has been held in the adjacent case reported in Sheo Narair v. Janki Prasada I.L.R. (1912) All. 505 that the relevant part of this text appears to apply to the case of a partition after the father's death. It, I believe, really refers to two cases ; the first clause with its reference to ' wives' contemplating a partition in the father's lifetime ; and the second which refers to a 'mother ' to one after his death. If I am correct in this view this authority does not apply in itself. But assuming that it would, it does not follow that we are entitled to eke out the Mitakshara's silence by having recourse to it. It has been pointed out that the author of the Mitakshara sometimes quotes Vyasa's text as an authority, and when he does not, it appears to follow that he has considered and rejected it. In any case, I do not think we would be justified in adding to it. There remains the last line of argument based or the decisions of the Courts in India. Three of those are the decisions of the High Court of Calcutta. They are the cases of Sib-bosoondery Babia v. Bussoomuity Dabia I.L.R. (1881) Cal. 191 and Badri Boy v. Bhwgwat Narain Dobey I.L.R. (1882) Cal. 649. The first of these rulings was given in the case of a partition taking place between grandsons and the law applied was the Dayabhaga, which in this matter follows Vyasa's text. The second was that of a partition between collaterals in different degrees and the grandmother was held to have a share. This was deemed to be a case governed by the Mitakshara ; but whether this was so or not, is doubtful on the report, to any case, the facts are not those of this case.
30. The next case relied on is to be found in Krishna Lal Jha v. Nandeshwar Jha (1918) 4 P. L. J. 38. This was a partition under the Mithila law and the dicta of two other commentators of equal authority in that province were relied on, that is Vivada Batnakara and Vivada Chintamani. The two later Allahabad decisions are to be found in Kanhdiyu Lal v. Gavra I.L.R. (1924) All. 127 which was one of a partition between grandsons and similar in its facts to the one of Vilhal Ramkrishna v. Prahlad Ramhrishna 17 Bom. L.R. 361, and Babuna Kwnwar v. Jagat Narain Singh I.L.R. (1927) All. 532, where again the partition was between an uncle and a nephew, the uncle's father being dead.
31. The Bombay case was from Khandesh and involved a partition between grandsons, and Shah J., who delivered the principal judgment, distinguished the ruling in Sheo Narain v. Janki Prasad I.L.R. (1912) All. 505 when harmonizing the rule of the Mitakshara with that of the Mayukha.
32. I thus come to the last case cited to us, viz., Sheo Narain v. Janki Prasad. This was a decision of the Full Bench on strictly analogous facts involving the instance of a partition between a father and two sons, and the decision is based on the authority of the Mitakshara and is, that in the case of such a partition, the grandmother, that is the father's mother, does not get a share. The reasons given for the decision govern the point before us, and it is the only authority to be found in the reports on this precise point. I think that the learned Judge's decision is correct and that it should be confirmed and the appeal dismissed with costs.
Kemp Ag. C.J.
33. The order of the lower Court is affirmed including its order as to costs. The appeal is dismissed and the appellant is to pay to respondent No. 2 his costs and such costs to Vasudeo and Gutki as would have been occasioned by the same counsel being briefed for both of them, as was the case in the lower Court. If the Taxing Master considers that there were any increased costs in consequence of separate counsel being briefed in the appeal he would disallow those against the appellant.