1. Shamji Premji, a Bhatia, died intestate on the 26th July 1898, leaving him surviving two sons Nathoo Shamji and Dharmsey Shamji, and property which, is alleged to have been of the value of upwards of a lakh of rupees.
2. After the death of Shamji, his sons Nathoo and Dharmsey, being desirous of partitioning the estate, referred the question of partition to the arbitration of Mr. Vithaldas Damodar Thakeraey and that gentleman made his award on the 18th July 1905.
3. The present suit was filed on the 24th November 1905 by one of Nathoo's sons Jairam against Nathoo and his two brothers, Nathoo's other sons, Mathuradas and Lakhmidas, for the partition of that portion of Shamji's estate which fell to Nathoo's share; and by an amendment, Motibai, wife of Nathoo, was added as a party to the suit.
4. The first two questions which are raised in the issues 1 and 2 may be quickly disposed of.
5. The first issue is whether the first defendant is possessed of any ancestral property over and above that mentioned in the award referred to in the plaint; and the second issue is whether the award is not binding on the plaintiff.
6. Mr. Mankar, who appears for the plaintiff, has stated that the plaintiff is willing to accept the award. He also admits that there is some ancestral property] and it appears to me that as a consequence of the plaintiff's acceptance of the award he must be bound by the finding of the arbitrator as to the amount of the ancestral property. Therefore, no question can arise as to whether there is any ancestral property over and above that mentioned in the award.
7. The third and fourth issues may be taken together. They relate to the right of the defendants Nos. 2 and 3 to have a sum set apart for those ceremonies which are bound to take place in the course of the life of every Hindu, if he lives long enough, before the property is partitioned. The ceremonies are the thread ceremony, the betrothal ceremony and the 'marriage ceremony. The second and the third defendants have not yet been married or betrothed, and the third defendant has not as yet had his thread ceremony performed.
8. Mr. Mankar in his opening contended that the sons of Nathoo were not entitled to have any prospective provision made for their ceremonies, inasmuch as they were sharers; but in his reply he cited a passage from Mayne's Hindu Law, which entirely bears out the argument, addressed by Mr. Setlur, based on the texts of Yajnavalkya and of Mitakshara. The passage I refer to is in these words: 'Having ascertained what property there is to divide, the next step is to ascertain its. amount. For this purpose it is necessary first to deduct all claims against the united family for debts due by it, or for charges on account of maintenance, marriages or family ceremonies, which it would have had to provide for, if it remained united. When these are set aside, an account must be taken of the entire family property in the hands of all the different members.' (See Section 470 of Mayne's Hindu Law, 6th edition.)
9. I am, therefore, of opinion that the defendants 2 and 3 are entitled to have a sura sot apart from the family property sufficient to defray the expenses of those ceremonies which have not been performed in the case of each of them, the sum set apart being calculated according to the extent of the family property; and there will be a reference to the Commissioner to ascertain what sum should be so set apart, having regard to the extent of the family property. It is necessary, however, that a direction should he given to the Commissioner in the case of the second defendant that in deciding what sum should be set apart he shall deduct Rs. 1,928 which is the sum allowed to the second defendant by the arbitrator in respect of an entry made to the second defendant's credit in the books of his grandfather Shamji with reference to his marriage expenses.
10. The fifth and the seventh issues relate to the fourth defendant, who is the wife of the first defendant, and it is admitted that she is entitled on partition to a share, equal to that of the plaintiff; but on the other hand there must be deducted from that share the value of any stridhan, received by her as a gift from her father-in-law or her husband. Mr. Setlur, who appears for her, admits her liability to this deduction.
11. That is sufficient to dispose of the issues which have been raised, but Mr. Mankar has contended that if issues 3 and 4 arc found in favour of the second and third defendants, the plaintiffs children, a son and a daughter, should be added as parties to the suit and an enquiry should be directed as to the amount which should be allowed for the prospective ceremonies of the son and for the marriage of the daughter of the plaintiff.
12. I do not think that Mr. Mankar has made out sufficiently clearly that the plaintiff's children would be entitled to have any such sums set apart on a partition between their grandfather, father and uncles. The proposition is contrary to the answer of the Shastris given in Strange's Hindu Law, Volume 2, page 286, which relates to the exclusion of a nephew in a partition between brothers. The compiler of Strange's Hindu Law explains the answer of the Shastris by a reference to a passage in the Mitakshara, which expressly mentions brothers but makes no mention of brother's sons. That passage from Strange's Hindu Law appears to have been adopted as a correct statement of the law in West and Buhler at page 782, and Mr. Mankar has not been able to refer me to any authority differing from Strange, and 'West and Buhler on this point. The right of the plaintiff's daughter to share would seem to depend upon similar considerations to that of the plaintiff's son; and as in the Mitakshara sisters are mentioned whose marriage ceremonies have to be provided for on a partition between brothers but no mention is made of nieces, I think by parity of reasoning the niece, i, e., in this case the plaintiff's daughter, would be excluded from a right to have the expenses of her marriage set apart from the joint family funds before partition is made between her grandfather, father and uncles.
13. There will, therefore, be a reference to the Commissioner in the terms mentioned in my judgment on the third and fourth issues and to ascertain the amount of stridhan to be deducted from the fourth defendant's share.
14. The costs up to date will come out of the family funds, Further costs and directions reserved.
15. Defendant 1 appointed Receiver of the family property without security and without remuneration to sell the shares and apply the proceeds towards satisfaction of Dharamsey's decree on the award and to mortgage the immoveable property for such further terms as may be necessary to satisfy the decree.