1. This appeal is against the decree for partition and other connected reliefs obtained by a mother against her son and an alienee from the son. The alienee who was the second defendant in the suit has filed this appeal. Subsequent to the filing of the appeal the appellant i.e., the alienee (defendant 2) and the alienor respondent 2 (defendant 1) died and their legal representatives have been brought on record. Defendant 1 died leaving his mother, plaintiff (respondent 1) and his widow surviving him. Hence the plaintiff (respondent 1) represents herself and is also one of the legal representatives of her son in this appeal.
2. The property described in the plaint schedule consists of six items of land and a house. The plaintiff's case was that they were the joint family property of her husband find her son, that on the death of her husband her son became the sole surviving coparcener and that she became entitled to a share. This, as originally claimed in the plaint, was a one-fourth share. By a later application for amendment the claim was altered to a one-third share.
While defendant I did not dispute the plaintiff's claim to a share against him as a sole surviving coparcener, he contended that there had been an arrangement between him and his mother under which she was allowed to retain some jewels and other movables and be in possession of some items of land during her lifetime. Defendant 2, however, put forward the case that as defendant 1 and his father were not on good terms with each other they became divided and lived separately and that consequently the suit schedule items of property devolved on defendant 1 by succession and not by survivorship.
He also pleaded that the sale of three of the lands in the plaint schedule by defendant 1 in his favour was for family necessity and benefit. Both the defendants also contended that an area of 16 guntas forming part of the same survey number as that in which item number 3 of the plaint schedule is situated should also have been included. The learned Subordinate Judge who tried the suit has upheld the plaintiff's claim and made a decree for partition and possession as prayed for.
3. The second defendant's legal representatives urged before this Court the same grounds as constituted the second defendant's defence in the Court below. They have also adopted one of the pleas urged by defendant 1 viz., that an arrangement had been arrived at between him and his mother under which some items of properly were allotted to her for her enjoyment during her lifetime and that she was allowed to retain some jewels. It may be stated that none of the grounds has any substance.
No evidence has been adduced to show that defendant 1 and his father were divided. It is not even suggested that defendant 1 got any item of property at the division. It has already been mentioned above that defendant 1 himself admitted in his written statement that he succeeded to the family property as the sole surviving coparcener. It is thus seen that the appellants' contention that the property devolved on defendant 1 by succession is unfounded.
4. As regards the alleged arrangement between defendant 1 and his mother the plaintiff, defendant 1's case was that such an arrangement came into existence after the plaintiff had filed her suit in the Court of the. Munsilf of Hunsur and before she represented that plaint to the Court of the Subordinate Judge, Mysore, in consequence of the former Court finding that the suit was beyond its jurisdiction.
Apart from the fact that the lower Court rightly refused to place reliance upon the interested evidence of the witnesses examined to support defendant 1's version in regard to this matter, it is quite improbable that defendant 1 would not have taken the precaution to have the arrangement evidenced by a document when matters had already reached the stage of Court proceedings. Further, such an arrangement would be essentially inconsistent with defendant 2's stand which was that all the property devolved on defendant 1 by succession as heir to his father.
5. As regards the alienation by defendant 1 in favour of defendant 2 having been for legal necessity and benefit of the estate, the case put forward by defendant 2 is that part of the proceeds went towards the expenses of the obsequies ceremonies relating to the death of defendant 1's father. Apart from the circumstance that this could only be a very small part of the sale proceeds there is no independent evidence in regard to it.
Further, the plaintiff became vested with a right to her share of the joint family property immediately it passed on to defendant 1 as the sole surviving coparcener. Hence any alienation by defendant 1 could not ipso facto bind her interests. In regard to the additional area of 16 guntas in Section No. 81/1, in which item 3 of plaint 'A' schedule is situated, the plaintiffs case is that she acquired it in her own right under Ex. B. That document is a registered sale-deed which came into existence nearly three decades prior to the institution of the suit.
The document is in plaintiffs name and no evidence worth mentioning has been let in to show that the purchase was benami. The mere fact that the khata is in the name of the plaintiff's husband is not enough to hold that the land really, belonged to him.
6. The learned Advocate for the appellants contends that Narasamma, the widow of the plaintiff's husband's brother, and the sons of Chikkachari, another brother of the plaintiff's husband, have not been made parties. This contention relates to the relief prayed for by the plaintiff and granted by the lower Court in relation to the plaint 'C' schedule property. That property has been allotted to Narasamma for her maintenance during her lifetime under the partition deed, Ex. A.
It is seen from that document that after Naras-amma's lifetime plaintiff's husband and Chikkachari were entitled to share that land. There could obviously be no partition in praesenti and the decree granted is for its partition after Narasamma's death. It is true that Chikkachari's sons also have an interest in the property. But failure to make them parties cannot affect the interests of the present appellants.
7. Another contention urged on behalf of the appellants is that the partition deed Ex. A indicates the existence of other items of property belonging to the family than those mentioned in the plaint schedule. But no evidence has been let in to indicate that any other item still continues to belong to the family. We thus see no substance in this contention either. Equally untenable is the contention that the plaintiff has failed to bring into the hotchpot the jewels and other movables belonging to the family in her possession, since no reliable evidence has been adduced in regard to this matter.
8. The only other question that remains for consideration is the share to which the plaintiff is entitled. While the plaintiff claims she is entitled to a third share the defendants contend that she is only entitled to a fourth share. This right to a share is given by Section 8 of the Mysore Hindu Women's Rights Act. Section 8(2)(a) provides that a widow's share shall be one-half of what her husband, if he were alive, would receive as his share and Section 8(2)(b) provides that the mother's share shall be one-half of the share of a son. if she has a son alive, and in any other case, one-half of what her husband, if he were alive, would receive as his share.
It is contended for the appellants that it is Section 8(2)(a) that applies. The learned Advocate for the appellants relied upon the decision reported in Manche Gowda v. Basamma, ILR 1953 Mys 604: (AIR 1954 Mys 88) (A). That decision no doubt clearly supports the appellants' contention. That was a case in which the step-mother brought a suit for partition and possession against her step-son who was the sole surviving coparcener. It was held by Vasudevamurthy J. that Section 8(2)(a) applied to the case and that the plaintiff was entitled to a one-fourth share and not to a one-third share.
As Section 8(3) provides that the term 'mother' includes a step-mother, it will be seen that the question that arose in that case was identical with the one before us. We, however, find it difficult, with great respect, to accept the view of the learned Judge in the face of the clear wording of Section 8(2)(b).
The considerations which weighed with the learned Judge in arriving at the view he took appear to he as follows: (i) Nowhere in the section has any female relative been awarded more than one-half or one-fourth of the share of a husband or a son or a brother or a father and it is not clear why if a mother is claiming a share from her only son she should be given a larger share than what she would have been entitled to, had she been claiming from others like her daughter-in-law or a brother of her husband or his widow or her father-in-law; (ii) the word 'mother' appears in Section 8(l)(a) as well as in Section 8(l)(b).
In Section 8(l)(a) the case of a partition of joint family property between a person and a sort or sons' mother, his unmarried daughters and the widows & unmarried daughters of predeceased undivided sons and brothers who have left no male issue has been provided for. In Section 8 (1) (b) the case of partition of joint-family property among brothers, their mother their unmarried daughters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue has been similarly provided for.
From this it has to he gathered that Section 8 (2) (b) and (c) were meant to apply to the case of a partition between a person or classes of persons envisaged in Section 8 (1) (a) and (b) while Clause 2 (a), is more appropriate to apply where the widow is claiming a share as against a sole surviving coparcener like her son.
(iii) The son has obviously a better and stronger claim for consideration than others as he would have to perform the ceremonies of his father and mother and other religious rites and perpetuate the family line and maintain the family prestige. It is unlikely that the Legislature would not have taken into consideration the very important position occupied by the son, his onerous duties and responsibilities both religious and secular.
(iv) The literal construction sought to be placed upon Section 8 (2) (a) and (b) would lead to a result which would defeat the Legislature's intention as pointed out in regard to the construction of another provision of the Act, Section 10 (2) (g) in the case reported in 15 Mys LJ 85. If Section 8 (2) (a) and (b) are properly construed the meaning that flows from them is that in the case of a mother, she gets one-half of the share which a son would have got if a son of hers was alive on the date of the partition if she is claiming the share as a mother as against several sons and grandsons; while in any other case or where she is claiming as a widow of a deceased husband she would be entitled to one-half of what her husband, if he were alive, would receive as his share.
9. The first reason given above is not in itself decisive, for the section also provides how the fraction is to be calculated in varying circumstances. As regards the second reason we are, with great respect, unable to see any such correlation between Sub-sections 2 (b) and (c) of Section 8 and Sub-sections 1 (a) and (b) of that section as the learned Judge mentions, nor can we see any reason to confine the operation of Sub-section 2 (a) of that section to a case where the widow is claiming a share against a sole surviving coparcener.
Clause 1 of Section 8 describes the females entitled to a share at a partition and does not deal with the shares they have to get. Clause 2 deals with the question of fixing the shares. In dealing with the respective subject matters of the two clauses the Legislature has made appropriate sub-divisions. In Clause 1, Sub-section (a) deals with the case of a person who has female relatives but there is no other male member except that person's own issue. Sub-section (b) deals with a partition amongst brothers.
Sub-section (c) extends the principles of division to other coparceners. This is obviously a logical arrangement and is intended to include all categories of cases. Sub-section (d) deals with the case of a sole surviving coparcener as the Legislature thought it necessary to confer a vested right for a share on a female in such a case.
As regards Clause 2 of that section, Sub-section (a) deals with the case of widows, Sub-section (b) deals specifically with the case of a mother who, of course, must also he a widow as otherwise she would not be entitled to a share; Sub-section (c) deals with females whose right is derived by birth and not by marriage. This again appears to be a logical way of making categories in the context of the subject matter of Clause 2. It is thus seen there is no necessary or discernible correlation between any of the Sub-sections under Clause 1 and sub-sections under. Clause (2).
The third reason given by the learned Judge seems to us to relate more to legislative policy than to an interpretation of the language of the provisions themselves. It is no doubt true that the son occupies an important position in the scheme of the Hindu Law. As regards the son's stronger claim for consideration against his mother than those more distantly related like a daughter-in-law, or the brother of her husband, or her father-in-law, it is no doubt one possible view.
But it is equally possible that, as between a mother and her son the mother's case might be regarded as susceptible of more generous treatment, than in dealing with the interests of those more distantly related. As regards the fourth reason, the consideration mentioned in regard to the third reason which appears to have weighed with the learned Judge would also indicate that no question of defeating the intention of the Legislature or leading to an absurdity really arises.
It is a case of choosing between two equally possible views, and not a case of patent absurdity as was the case in Govinda Rao v. Chandra Bai, 15 Mys LJ 85 (B). In that case it was held, and if we may say so with great respect, rightly held, that a literal construction of Section 10 (2) (b) would prevent a daughter from her taking her share of her father's properly as stridhana because of her own existence.
10. In the light of what is stated above, we do not see our way to read into Sections 8 (2) (a) and 8(2) (b) as meaning, as the learned Judge concludes, that the mother is to get one-half of the share which a son would get when there are several sons and grandsons while in any other case she would be entitled to one-half of what her husband, if he were alive, would receive as his share.
In fact, if that were the intention of the Legislature, it appears to us that it would have been made amply clear that the mother would get one-half of the share which a son would get only if there were more sons than one at the time of partition.
11. Coming hack to Section 8 (2) itself Sub-sections (a) and (b) deal with the cases of widows. Sub-section (a) deals with widows generally while Sub-section (b) deals with the specific case of a widow who is also a mother having a son or sons alive. When the additional condition of the widow also being the mother of a living son or sons is satisfied, there can be no doubt that the provision specifically meant for such a contingency will apply, and not the general provision.
It may also be mentioned that under proviso 3 to Section 8, a female entitled to a share in any property in one capacity of relationship shall not be entitled to claim a further or additional share in the same property in any other capacity. If a female Qualifies herself for a share as a widow and also as a mother, she is entitled to claim only in one capacity and in the absence of any specific provision she is entitled to claim the larger share i.e., as a mother. We are accordingly led to dissent from and overrule the view taken in the above decision of this Court.
12. It is lastly urged by the learned Advocate for the Appellants that as the suit is one for partition his clients should be allowed to retain possession of the lands by allotting them to first defendant's share. There can be no legal objection to this course since all the parties interested in the property are parties to the partition suit. But we are not satisfied that the evidence on record justifies our allotting to defendant 1's share all the items of property sold by him to defendant 2.
The parties were not agreed about the relative values of the items of the plaint schedule. It is in evidence that defendant 1 owns lands all around some of the items of the property sold to him in the plaint schedule and it would obviously be equitable to allow the Appellants to retain as much of these lauds, as is possibly consistent with their valuation.
When we suggested that a Commissioner might be appointed for the purpose of valuation and a division and allotment effected in the above manner in relation to the valuation the learned Advocate for the Respondents, while not conceding the appellants' right to such a course or agreeing to it, did not advance any objection. We think this is a fit case where such a course should be adopted.
13. We accordingly confirm the decree of the lower Court except for the modification that in allotting her one-third share of the plaint schedule items of property to the plaintiff-respondent 1, the Court below shall appoint a Commissioner for valuing the plaint schedule items of property and that in partitioning the property after considering the valuation, the Appellants shall be allowed to retain the whole or as large a part of items 1 and 4 of plaint schedule A and plaint schedule B item as they can be reasonably and equitably allowed to retain in respect of defendant 2's two-thirds share, The Appellants will pay the costs of Respondent 1 in this appeal. Advocate's fee Rs. 100/-.
14. Order accordingly.