1. Adusumalli Punniah was adjusted insolvent in I. P. No. 36 of 1933 by the Sub-Court. Machilipatnam on 28-9-1934. the petitioner is the wife of A. Punniah. The Official Receiver was appointed as interim receiver. He sold the undivided one-third share of the insolvent. It was purchased by two persons. They separately filed two suits O. S No. 38 and 39 of 1956 for partition and possession of the one-third share of the insolvent in the properties which they purchased.
2. Both the suits were tried together and preliminary decrees were passed. Defendants 4 and 5 in the said suits filed appeals in the High Court, A. S. Nos. 317 and 318 of 1961.
3. Earlier the appellants in the above said appeals had filed O. S. No. 45 of 1964 for setting aside the alienations of certain properties of the ground that these alienations were not supported by consideration and were not binding on them. The suit was dismissed by the trial court. A. S. No. 247 of 1968 was then preferred to the High Court by the said appellants. All the above three appeals were heard together by a Division Bench of this court consisting of Obul Reddi and Venkateswara Rao, JJ. The Bench gave the judgment in these appeals on 28-10-1970. In the course of the judgment, their Lordships made the following observations:--
'In this connection it is also to be borne in mind that a wife cannot herself demand a partition. But if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. Where at a partition between a father and his three sons, the wife was not allotted a share it was held that she was entitled to re-open the partition, there being no waiver merely by her not asking for a share, but that in the petition the value of the Ornaments taken by her must be taken into account. (See Mulla On Hindu Law, Para, 315). It is also to be borne in mind that the mother was not made party to O. S. Nos. 38 and 39 of 1956 and therefore the question of determining the shares of the plaintiffs and their broker Venkata Gopal Rao and the mother does not arise in these suits. As already pointed out, if any remedy is available to the contesting respondents against Venkata Gopala Rao, they will be at liberty to pursue those remedies.'
4. Taking clue from the said observations, the petitioner--the wife of the insolvent Punniah filed I. A. No, 457 of 1971 in O. S. No. 38 of 1956. She also filed I. A. No. 458 of 1971 in O. S. 39 of 1956 to implead her as defendant with a view to re-open the preliminary decree passed in those suits and seek a partition of her share.
5. These petitions were resisted by the plaintiffs in the suits mainly on the ground that according to Hindu Law prevalent in South India, the wife's right to a share on a partition between her husband and her son has long since become obsolete. The petitioner, therefore, was not entitled to any share. It was also contended in the alternative that even if the wife is entitled to a share, since the suits for partition were filed by third party purchasers of the husband's share, the petitioner could not seek a share.
6. The learned Subordinate Judge, Gudivada by his judgment dated 26-4-1972 held that the petitioner, according to Hindu Law prevalent in South India, is not entitled to a share on such partition. It was also held that in the third party suits for partition, the question of impleading the petitioner as a party cannot arise. Consequently he dismissed both the petitions.
7. The petitioner aggrieved by the said order preferred these revision petitions. They first came for hearing before one of us, A. V. Krishna Rao, J. He was of the opinion that the view expressed by Obul Reddi and Venkateswara Rao, JJ. in A. S. Nos. 317 and 318 of 1961 and A. S. No. 247 of 1968, an observation from which is extracted above, requires reconsideration. The case therefore was referred to a Bench. When the matter came before the Division Bench on 10-10-1973, it thought that the question referred is important and since it was a common ground that the Division Bench decision is inconsistent with several previous Bench decisions of the Madras High Court, the case was referred to a Full Bench and that is how the matter has come before us.
8. Mr. Traimabak Rao Deshmukh in an able argument contended that the Madras decisions cannot be said to the direct authorities on the point that in Southern India the practice of allowing shares upon partition to females has long since become absolute. He submitted that Smruti Chandrika and Saraswati Vilas do not lay down any such proposition, and even otherwise it would be contrary to Mitakshara. He submitted that even if there is conflict between the two, it is Mitakshara which would prevail even in Southern India. The Court is indebted to Mr. Deshmukh for his elaborate argument; which has helped the Court in arriving at a conclusion in the matter, albeit we are holding against him.
9. Hindu Jurists laid down the sources from which knowledge of Hindu Law is to be derived as, the Veda, the Smruti, the approved usage and what is agreeable to good conscience and desire sprung from due deliberation. The Hindu Law, however, as understood and administered today by Indian Courts is the result of many an ingredient which are to be found in the Sruti, Smruti, the commentaries and digests, judicial decisions, legislative enactments and finally customs.
10. While Sruti was considered as the fountain head of law and was accepted as the original writings of great powers, the Smrutis were accepted as emanating from the Srutis and were couched in the words of Rishis or Sages. Theoretically if a text of a Smruti conflicts with Sruthi it has to be disregarded, but by an inflexible rule in Hindu jurisprudence, the Smrutis are in practice never understood as in discord with Sruti, that is Vedas because the Smrutikars never arrogated to themselves the position of law-makers but only claimed to be exponents of divine precepts of law and compilers of traditions handed down to them and clung to that position even when they introduced and reforms.
11. Out of the numerous Smrutis, the first and foremost in rank of authority is Manu Smruti. There is, however striking resemblance and agreement among the Smruties on many questions and they purport to embody one traditional law. No greater authority was attached to one than to another Smruti which was considered as of the highest authority.
12. However, Yajnavalkya Smruti is considered to be more liberal and forward looking than Manu Smruti. The Code of Yajnavalkya is in the main founded on Manu Smruthi but the treatment is seen to be more logical and synthesized. On a number of matters and particularly on the question of women's right to inheritance it is decidedly more liberal than Manu. In his treatise there is found greater recognition of the rights of women.
13. Shri K. P. Jayaswal in his Tagore Law Lectures, 1930 at page six said :
'The former (Manu) is supposed to be the foundation of the whole orthodox system of Hindu Law. Its authority is regarded as Supreme by the unanimous verdict of both the law and legal literatures of Hindu India, and as such it occupies a unique position in the legal history of the land. The latter (Yajnavalkya) is the present-day binding law of the majority of the Hindus. It is enough to say for its introduction, that the Mitakshara is a commentary on the Code Yajnavalkyan. It has, in effect, though not in name, superseded the Code of Manu. It seems clear ................... that it was with the object of superseding the orthodox but unworkable provisions of the earlier Code that Yajnavalkya's Code was promulgated. It became the accepted code of law of the Hindus not only on account of its revealing virtue but also for its advanced and liberal juridical norms.'
Then at page XXI, he goes on to say :
'The Code of Manu practically ignores woman, because that was the view of the old common law. The Code of Yajnavalkya treats her as a full legal persona; it allows her to inherit property.'
14. There were bound to be some variations and even conflicts between the Texts of one Smruti and another, or even between some Texts in the same Smruti. The Smruthikars themselves were conscious of this and they declared that the smruti which is opposed to Manu Smruti is not approved. But in actual practice this was not followed. Many times effect was given to texts of later smruthikars, on the ground that they are according to approved usage, as custom was always considered as more powerful and overriding sacred law. But the most salutary rule of them all was laid down by Yajnavalkya.
'When two Smrutis disagree, that which follows equity guided by the people of old should prevail.'
It is usual to talk of the existence of several schools of Hindu Law; but strictly speaking, there are only two schools; the Dayabhaga and Mitakshara, the others like Dravida, the Mithila, the Benaras and the Maharashtra schools, being really the sub-schools of the Mithakshara differing from one another only in minor matters.
15. Broadly speaking, the Dayabhaga school prevails in the rest of India. One of the main differences between these two principal schools of Hindu law relates to the law of inheritance.
16. Likewise, the sub-schools of Mitakshyara also differ between themselves in some matters of detail relating particularly to inheritance. There is no disagreement on any fundamental or constitutive principle. All these sub-schools acknowledge the Supreme authority of the Mitakshara but they give preference to certain treatises and to commentaries which control some passages of the Mitakshara. These minor schools therefore are not born of any diversity of doctrines such as exists in case of Mitakshara and Dayabhaga.
17. It is now proper to consider what the Dravida or Madras School is. It is also known as the school of Southern India. It leans heavily on the smruti Chandrika which it must be remembered is intended to supplement and not replace or abrogate the Mitakshara. All along it had commanding influence and sway in the South. It is an exposition on the law of inheritance and was considered by Colebrooke to be a work of uncommon excellence. The Smruti Chandrika, which is a Nibandha a digest-- is accepted in the South in point of authority next only to the Mitakshara. The interpretations and opinions expressed in Smruti Chandrika are considered most probably to be tinged by established usages or views which found general favour in the South and this accounted for the very high authority wielded by this work in the South. It is relevant to note that the Smruti Chandrika is most freely quoted as a high authority in the works of almost all writers who flourished after the twelfth century and is appreciated by all the High Courts as a valuable source of Hindu Law.
18. Among other works which are regarded as authorities in South India. Saraswati Vilas is one and it ranks high in Madras School. The Saraswati Vilas presents a picture of the actual working of the law and not merely a series of abstract statements of old rules. It has constantly been referred to in various decisions of the Courts in South India.
19. Broadly speaking, therefore, the first thing for us is to inquire what the Mitakshara has laid down on the question for consideration, or under our enquiry. The next thing is to consider what the Smruti Chandrika or Saraswati Vilas has to say on this particular aspect. It is of course always necessary to keep in view whether the question is concluded by judicial decisions. Let us therefore examine as to what Mitakshara had to say regarding the share of mother in a partition between father and sons.
The first sloka to be noticed in Mitakshara is :...........................................................................................................................
Translation as given by Golapechandra Sarkar Sastri reads :
'If he make the (sons') allotments equal his wives to whom Stridhanam has not been given by the husband or the father-in-law shall be made partakers of equal allotments.'
It is important to note the words '.....................' and another '....................:'..............................................................................................................................
Translation as given by Golapechandra Sarkar Sastri reads :
'The mother also, of those dividing after the death of the father, shall take an equal share.'
20. It is pertinent to note here also that the word 'amsam' is used.
21. We then go to 22nd Sloka. It reads in so far as it is relevant for our purpose :...................................................................................................................................
'Yes, the wife's ownership in the (husband's) property is certainly shown by the text, but not the absence of partition. Because after having declared--- 'also in respect of the ownership of property' (the age) declared its reason (by saying) because in the husband's absence in a distant place, Manu and other sages do not ordain (the commission of) theft in the case of necessary gift (made by the wife) i.e. gift which must be made, such as feeding of a religious mendicant giving of aims to beggars, and the like, therefore ownership of the (husband's) property is vested in the wife also, otherwise there would be theft (when such gift is made). Hence there may certainly be a partition of property, (but) by the husband's desire, and not by her own desire, on which a share is allotted to the wife also (separately from that of the husband) as will be declared (by Yajnavalkya, ii. 116) later on the text--'. If he makes the shares equal, his wives to whom no Stridhana has been given by the husband or the father-in-law must be made partakars of equal shares:'
In this sloka we find the words '......................' and '...................' are used.
22. It is perhaps profitable to refer to 'The law of Inheritance from the Mitakshara' by H. T. Colebrooke. At page 261, he says:
'8. Two sorts of partition at the pleasure of the father have been state, namely, equal and unequal. The author adds a particular rule in the case of equal partition ; If he makes the allotment equal, his wives, to whom no separate property has been given by the husband or the father-in-law, must be rendered partakars of like portions.'
'9. When the father, by his own choice, makes all his sons partakars 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 to sons. But, if the separate property have been given to a woman, the author subsequently directs half a share to be allotted to her: 'Or if any had been given, let him assign the half'.'
'10. But, if he gives the superior allotment to the eldest son, and distribute similar unequal shares to the rest, his wives do not take such portions, but receive equal shares of the aggregate from which the son's deductions have been subtracted, besides their own appropriate deductions specified by Apastambha : 'the furniture in the house and her ornaments are the wife's property'.'
23. This then is the position of the original Text of the Mitakshara. Let us then see as to what Smruti Chandrika has to say in this behalf. It can be seen from the 'Smruti Chandrika' translated from the original by Sri T. Krishna Swamy Iyer that Chapter II, Section I relates to partition. The relevant slokas are 37 to 39. The translation of these slokas is as follows :
'37. Here, too, (that is, even in the case contemplated by the text of Hartam 'A father making a complete partition &c.;' para. 31), an equal partition may be made, if that should the will of the father, for, Katyayana who explains the mode of partition during lifetime of the father by the text. 'That partition is declared legal by which the parents and brothers take the entire estate in equal shares, para 3, declares the above mode of equal partition to be of universal application.'
'38. I, therefore, in the instance under contemplation, the father, of his own will, should make an equal partition, then Yajnavalkya says. If he make the allotments equal, his wives to whom no separate property had been given by the husband or the father-in-law, must be rendered partakars of like portions.'
'39. The meaning of this text, that where a father, even where he is old, chooses to render all, inclusive of himself, partakers of equal portions, then he ought to take, on account of each of his wives, a share equal to that taken by himself. Hence the doubt whether the above text of Yajnavalkya is not opposed to a passage of Harita, which declares :
'Partition does not take place between a wife and her lord,' is also removed. Thus, every thing is rendered right.'
24. We then proceed to see Chapter IV which relates to 'Shares allotted to provide for widows etc.'
25. In the 7th sloka, reference is made to the objections and arguments on the question of women's share on partition. It reads :
'Here, however, an objection arises. If females are incompetent to inherit, how then did Yajnavalkya say 'Of heirs dividing after the death of the father let the mother also take an equal share. How did Vyasa said : 'Even childless wives of the father are pronounced equal shares, and so also are all the paternal grandmothers : they are declared equal to mothers' : and Vishnu, too, 'Mothers receive allotments according to the shares of sons, and so do unmarried daughters'?
These passages providing shares for mothers and the like must be incorrect, should the females be incompetent to inherit.
'8. The reply is, they are fully correct. With regard to those that are incompetent to inherit, passages directing the allotment to them of heritage (Daya) may be incorrect, but not those which simply direct portions (Ameam) to be given to them. Ameam signifies a portion and not (a share in) in the heritage (Daya). We find it inserted (in law books) even out of property belonging in common to several.'
'9. Although the mother is disentitled to a partition of the heritage from want of property in the same, yet, since she possesses an interest in the partible wealth by reason of her being the widow of the deceased father, Yajnavalkya and others must be understood to have permitted her, in compromise of such interest to take wealth sufficient for her needs by way of a portion.'
'12. Hence, such a mother alone as is destitute of wealth, and not a mother generally, is declared in Smruti or law to be entitled to receive a share, Smruti 'A mother, if she be dowerless, shall, in a partition by sons, take an equal share'.'
'15. By the qualifying terms 'if she be dowerless', made use of text, para, 12 it is inferrable that where a mother, by means of her own separate property, is able to maintain herself and perform such religious duties (requiring for their accomplishment the use of wealth) as are observable by her, she can take no share out of her husband's property. If the separate property of a mother be insufficient for the above purposes, then she, notwithstanding her possession, which, however, is not to be equal to that of a son, but less then that, proportionate to her wants.'
'16. Accordingly, where the estate forming the subject of partition is large, the mother, though destitute of separate property is not to take an equal share, but such an inferior share as may be sufficient to meet her own wants. The condition imposed by the expression. 'If she be dowerless' shows that the taking of a share by the mother is on account of her necessity and not in right of inheritance as in the case with brothers.'
'17. By a mother taking not a fixed share but only so much as the stands in need of, the word 'equal' used in the text, para, 12 is not rendered useless; for the word serves to debar her, where the partible estate is small, from claiming more than the share of a son, on the score of its being needed by her.'
26. It is now necessary to consider 'Saraswati Vilas' on this question.
27. Like Smruti Chandrika refers to objection and arguments relating to the question under enquiry in para. 7 extracted above. Saraswathi Vilas also refers to the similar objections and arguments in paragraph 100 of Foulkes Work and then in para, 101 it is said :
'If fitness for heritage does not belong to women, to speak of the share taking of mothers, daughters & c., would then be incorrect.'
28. In paragraph 102, then it is observed :
'Not so, some say, that the word 'share', here, does not refer to a division of the heritage, but refers to a portion of the aggregate wealth; and, therefore, there is no fault in the statement.'
'107. Hence another law-code says, 'A mother who has no property of her own shall take an equal share in a division by sons.'
'110. By the use of the attributive term, 'who has no property of her own, 'it is evident, that where she has property of her own, with which she can provide her maintenance and perform the ceremonies which appertain to her and require property for their performance, she does not take a share. And it follows, that when she is unable to provide he maintenance and perform the ceremonies which require property, though she may have property of her own, she does not take an equal share, but she takes a suitable smaller share.'
'111. Thus the conclusion is, that when the property to be divided is very great, the mother and the rest, though destitute of property, do not take an equal share, but they take only a smaller share, such a share as is equal to their own necessities ; because of the meaning indicated in the attributive term-- 'Who has no property of her own,' namely, that the taking of share by the mother is not, as in the case of the brothers, by the rule of the division of heritage, but by the rule of suitability and yet, not by the rule of suitability in the attributive term 'equal' because of its inapplicability when the taking is of an unequal share.'
'113. Wherefore, combining all this, after it has been stated by Yajnavalkya, that 'If he makes equal shares, the wives must be made partakars of equal shares', it is added, 'To whomsoever women's property has not been given either by their husband or their husband's father,' that is, if women's property has been given, competency for shares does not belong to those wives.'
'114. Hence it is said by the author of the Chandrika; 'it is to be understood, that there is no distinct establishment of mother's division of heritage here; but only taking of such substance as she requires'.'
'116. It is, however, said by Aparka, that 'the word 'share' in the phrase. 'If he make equal shares; has the meaning of 'a portion of the wealth to the divided; and, therefore, since there is no share taking for wives, the meaning is that something is to be given according to their husband's pleasure.'
'117. Therefore, though in all the three schools women have not the right to divide heritage, they have the right to take a share. Its proportionate limit, when there is women's property, and when there is none, is to be understood as that which is stated above.'
29. What is it that follows from a close and careful reading of the Mitakshara text on the one hand and the Smruti Chandrika and Saraswati Vilas on the other It is this:
1. Mother or wife is not a coparcener.
2. Mother or wife has no right to demand a portion.
3. Partition can be at the father's or husband's desire not at the desire of the mother or the wife. In such a case, if the father or husband makes the share equal, then the mother or wife would be a partaker of equal share. This is subject to the condition that she has not been given property by her husband or father-in-law. If she has enough, then she would not get any allotment of the property to her.
4. More or less the same rule applies if a partition between sons takes place after the death of the father.
5. If the word 'asma' appearing in the Miltakshara is understood to mean 'portion' and not 'share' as is understood by Smruti Chandrika and Saraswati Vilas, then there would be no conflict between these three texts. Upto this point, there is thus unanimity amongst all the three text writers. Since the Mitakshara is silent on some of the aspects, the following appear prominently in the Saraswati Vilas but it logically flows from the text of Mitakshara.
6. If the mother or the wife has her own property, then she will get only a proportionate share, but no case more that what the son gets.
7. The portion allotted to the mother or wife is for her maintenance and for performance of such religious rites as require property. Thus there is no distinct establishment of a mother's division of heritage, but only a taking of such substance as she requires for the said purpose.
30. What inevitably follows is that if these features coupled with the features mentioned infra are taken into account, it will be difficult to hold that in the South these females had at any time a right to take share on portion like other coparceners. In any case, prior to smruti Chandrika, there must have been for a sufficiently long time the usage, not to give any share in partition to the wife or mother. Thus even if---but we do not so hold--by some interpretation it is found that Mitakshara advocates the allotment of share on partition between father and sons or between brothers to such females, it has for all intents and purposes fallen into disuse in the South since time immemorial ---Smruti Chandrika and Saraswati Vilas, however, are explicit and rule out the idea of a share in partition to the mother or the wife.
31. That is the reason why every text book writer refers to this in clear terms. In Section 315 of Mulla's Hindu Law 13th Edition, at page 366 under the heading 'illustration', one finds a note as follows:---
'Madras state----In southern India the practice of allotting shares upon partition to females has long since become obsolete.'
32. Raghavachari on Hindu Law (sixth Edition) at para 416 says:---
'But the practice of allotting shares to females has, however, become obsolete in Southern India.'
33. It is relevant to notice some other observations of the said learned author at pages 416 and 417:
'The share allotted to a Hindu woman on partition among her sons is an interest in lieu of her right to maintenance which is carved out of the shares of the coparceners, and at the death of the woman, her share goes back to and becomes part of the shares out of which it came.'
'A share given to a woman on partition is in lieu of maintenance.'
'The share given to mother reverts to the family members on her death and is divisible between them as joint family property.'
'If she has already received some property from her husband or father-in-law, that well also be taken into consideration in ascertaining whether her share is equal to that of a son.'
34. Mayne on Hindu Law and Usage, 11th Edition, at page 351 says :--
'In Southern India, the rules of the Mitakshara law allotting a share upon partition to wives, widows, mothers and grandmothers have long since become obsolete owing to the influence of the Smriti Chandrika and the Saraswathi Vilas which follows it and Aparaka.'
35. J. Duncan M. Derrett on 'Introduction to Modern Hindu Law' at page 306 observes :
'In any event the rule cannot be followed in Madras and other States where woman (other than women of families governed by the Benares School) do not take shares at a partition at Mitakshara Law (apart from the statute).'
36. T. Strange on Hindu Law, Volume I, at page 189 states :
'Her share, if assigned to her, being in the nature of alimony, and differing in point of title from her stridhana, or what is emphatically called the peculiar property of a woman, is resumable, if necessary be her husband.'
37. It is thus manifest that the above said text books also lend considerable support to the view which we have taken on appreciating the original texts of Mitakshara, Smruti Chandrika and Saraswati Vilas. The decisions of the Madras High Court are also to the same effect as we will see immediately.
38. In Ramappa Naicken v. Sithammal, ((1878) ILR 2 Mad 182 at p. 186) the Full Bench held :
'By the law of the Mitakshara it is indeed directed that a share should, on partition, be set aside for the mother, but her right to a share is plainly distinguishable from the right of the father or the sons. Before partition she had not title as a coparcener and could not call for partition. What she receives is termed in the smriti Chandrika 'ameam' (a portion), as distinguished from 'daya' inherited wealth. She does not, on partition, receive a share. When she takes anything it is given to her to discharge the inheritance from the obligation for her maintenance; and whether she takes anything or not, she acquires by partition no greater interest in the share which falls to the lot of her husband now that it has been separated than she had in the whole estate prior to partition.'
39. In Venkatammal v. Andyappa, ((1883) ILR 6 Mad 130 at p. 134) a Bench of that Court said :
'There are, no doubt, texts which favour the right of a wife or mother or a portion on partition (Vyavahara Mayukha, Chapter IV, Section 4 paras, 15, 19) and this right is recognised by Vijnaneswara (Mitakshara) Chapter 1, Section 7, Paragraphs 1, 2 ; but inasmuch as this right does not arise, as in the case of coparceners from independent ownership, the wife or mother cannot call for partition.
The portion is, in fact, an assignment by way of maintenance. Smriti Chandrika, Chapter 4, paragraphs 8-17'.
40. In Mari v. Chinnammal, ((1885) ILR 8 Mad 107 at p. 123) a Full Bench of the Madras High Court observed :
'It must not, however, be overlooked that the right of a mother to a share was regarded by Nanda Pandita, not as a right of heritage, but a right to a provision. Account was to be taken of property which she had already received, and, if it was insufficient for her maintenance, an allotment was to be made to her so as to provide her with a sufficiency for her wants, which allotment could never be in excess of a son's share but which would be less than a son's share if the property so large that a son's share would be more than suffice for her needs. (Smriti Chandrika, Ch. IV, Ss. 9-17). Although the Madhaviya disputes the correctness of the opinion that mothers are not entitled to a share, but only to so much as may be necessary for their maintenance (Dayavibhaga, S. 22), the doctrine of Nanda Pandita is noticed without dissent in the Saraswati Vilas, S. 114, and has become established law in this Presidency (Mayne, Hindu Law S. 402).'
41. In Subramaniam Chetti v. Arunachalam Chetty (1905) ILR 28 Mad 1, a Full Bench of the Madras High Court observed at page 8 :--
'Considering that the right of mother to a share in a partition between the sons is not enforced in this presidency, the question whether the view of the Calcutta High Court or the Allahabad High Court is correct, in so far as this Court is concerned, is of no practical importance.'
42. Patanjali Sastri, J., (as he then was), speaking for the Bench in Thangavelu v. Court of Wards, Madras, (1946) 2 Mad LJ 143 at p. 148 = (AIR 1947 Mad 38) observed :
'No doubt, as pointed out in Mayne's Hindu Law (10th Edition) at page 543, the rules of wives, widows, mothers and grandmothers have become obsolete in Southern India owing to the influence of Smriti Chandrika and the Saraswathi Vilas, but in the northern provinces the Rules are still in force.'
43. Govindarajachari J., speaking for the Bench in Audemma v. Varadareddi, (1948) 1 Mad LJ 30 at p. 35 = (AIR 1949 Mad 31) said :--
'It may be pointed out that at one time under the law of the Mitakshara Hindu mother was, at the partition of coparcenery property, entitled to be allotted a share equal to that of her son or step-son, and that the practice of allotting shares upon partition to females has long since become obsolete in Southern India and that the right survives only as a right for provision of maintenance which must not in any case exceed the share of her son.'
44. Our attention, however, was drawn to Kanyalal v. Controller of Estate Duty, : 41ITR1(AP) , No doubt in paragraph 6 of the judgment, it is observed :
'At the outset, it should be borne in mind that the appellate authority does not rest its decision on the practice of allowing a share to the mother on partition having fallen into disuse for some centuries and that the ancient texts came to be modified by the influence of custom. Even otherwise this view could not be maintained. The non-assertion of rights by the mother or the wife of a Hindu in several cases does not make such a right obsolete. It may be that in most of the cases the mother or the wife might not insist on the recognition of such a right. But that does not put an end to the claims of the mother or the wife to be allotted a share at the time of partition.'
45. At first blush it creates an impression that the said observation is made applicable even to Madras school. But on a careful reading of the judgment, it would be abundantly plain that it is not so. This observation therefore has to be read in the context of the facts of that case. That was a case in which a Marwari family had migrated from the Northern India to Hyderabad in the south and lived there for a considerably long time. The Assistant Controller of Estate Duty found that 'the family due to its long stay in Hyderabad State was deemed to have adopted the local customs and as such was governed by the Madras School of Mitakshara Law'. The Central Board of Revenue on appeal also found that 'it has been admitted that the forefathers of the deceased and migrated to the Hyderabad State and had settled down there and had since adopted some of the local customs and manners.
46. This finding of the two Tribunals, however, was rejected by the High Court. It was held that the party is governed by the Beneras School and not the Madras School. They brought their personal law to Hyderabad State, and that they continued to be governed by their original personal law of Benaras School. It is in this background if one looks to what is stated in paragraph 6 extracted above, then there will be no difficulty in holding that the said observations have nothing to do whatsoever with the law prevailing in the Madras in the Madras School, where it is already seen that the practice to allot shares on partition to females has long become obsolete.
47. By now it must have been clear that the observations extracted above of the Bench of this Court made in A. S. Nos. 317 and 318 of 1964 and A. S. No. 247 of 1948, D/- 28-10-1970 are, with due respect, erroneous.
48. Our attention was also invited to another unreported decision of the same Bench given in A. S. Nos. 101 of 1967, 111 of 1967 and A. A. O. NO. 176 of 1967 on 4-8-1971. In that case, their Lordships observed that the case before them was one where the sons were seeking partition from the father and the mother had not asked for any share, though the suit was filed by her on behalf of her minor sons as their next friend. Their Lordships held that notwithstanding that the plaintiff, mother in that suit, had not specifically chosen to ask for a share for herself, it was incumbent upon the Court to provide an equal share to her along with her two sons, the plaintiffs, and her husband.
49. In support of the said opinion, their Lordships, apart from relying upon Section 315 of Mulla's Hindu Law, 13th Edition, also placed reliance on a decision of the Supreme Court in Civil Appeal No. 1048 of 1967, D/- 16-3-1970 Appeal NO. 1048 of 1967, D/- 16-3-1970 (SC).
50. After a careful perusal of the Supreme Court decision on which reliance was placed, it would be evident that the Supreme Court was not concerned with the law prevailing in Madras. In that case, the parties were governed by Benaras or Mithila School of Hindu Law. The ancestors of the parties had migrated from the North and had settled down in the former State of Hyderabad. It was not disputed before the Supreme Court that the mother did not have a share in that case. The High Court in that case had not accepted the contention that she was entitled to a share on the ground that in the written statement of the 2nd defendant there was nothing to suggest that she was claiming a share in the joint family properties. The Supreme Court pointed out that that would not be a correct approach. It was stated that as she became entitled to one-third share and merely because she had not asked for any specific share in her written statement, she should not be denied her share on a partition taking place in the absence of proof that there had been any abandonment or waiver of her rights and interest. It would thus be evident that the ancestors of the parties in the said case were migrants to the Nizam's Dominions and prima facie they had carried their personal law with them and had not adopted the Madras School. It is only on that assumption that the said decision was given.
51. Unfortunately, while noticing Section 315 at page 365 of Mulla's Hindu Law, the foot-note given under the heading 'illustration' as extracted above was not noticed by the Bench of this Court in the above said two cases. If that portion and the previous decisions of the Madras High Court and the text-books on Hindu Law had been brought to the notice of the learned Judges, we are sure that such an observation extracted above in the first case and the decision given in the second case referred to above would not have been made and given by the said Bench of this Court. With due respect to the learned Judges who decided the two cases, we are unable to agree with the view expressed therein.
52. Bearing in mind the facts of this case, it is quite relevant to note that even otherwise the mere institution of suits for partition by a member of the joint family or even the passing of a preliminary decree therein does not make any of those females the owner of a share in the family property so long as no actual division of the joint property is made. What should follow is that the allotment of a share to the mother in a partition between her sons, even in the instant suits out of which these revisions arise are treated to be so, would not defeat the right of auction purchasers which had accrued prior to the decrees in the partition suit when the auction was in execution of a decree binding on the family as in the case undisputably here. See Jamuna Devi v. Mangal Das, (AIR 1946 Pat 306).
53. We are, however, of the clear opinion that since the parties are governed by the Madras School, the wife or mother cannot claim any share in the joint family property as the practice of allotting shares to females, even if it existed at some distant period of time, has become obsolete in Southern India. We have, therefore, after consideration and paying, we hope, due attention to the points put forward by the learned Advocate for the petitioner, felt compelled to reject them. It may be that some of the Madras decisions might have made observations coming as they by a side wind, but their value or even binding nature cannot be overlooked.
54. For the aforesaid reasons, we think that the petitions to implead them as parties the suits filed by the revision petitioners were rightly dismissed by the Subordinate Judge, Gudivada. We find no merit in the revision petitions. They are accordingly dismissed with costs.
55. Revisions dismissed.