Iqbal Ahmad, J.
1. This is a defendants' appeal against an amended preliminary decree in a partition suit and arises under the following circumstances : One Annumal died leaving four sons and a widow as would appear from the following pedigree.
(For pedigree see page 290.)
2. Of the four sons of Annumal, Shiam Lai died first leaving a son named Sant Kumar and thereafter Earn Kishore died on 26th July 1937, leaving his widow Janak Dulari plaintiff-respondent and certain daughters. It is common ground that till the date of the death of Earn Kishore the family was a joint Hindu family. After the death of Earn Kishore, Janak Dulari filed a suit for partition on 15th September 1937, impleading Sri Gopal, Bharat Kishore, Mt. Daropdi, Sant Kumar and Earn Kali as defendants 1 to 5 respectively. Earn Kali was impleaded as a defendant simply because her name was entered as against some items of the property for her consolation and this fact is immaterial for the decision of the present appeal. The suit for partition was brought by Janak Dulari on the allegation that she
Annumal = Mt. Daropdi (deft. 3)
| | | |
Shiam Lal Ram Kishore Sri Gopal Bharat Kishore
= = (deft. 1) (deft. 2)
Ram Kali (widow) (widow) Janak Dulari
(deft. 5) (Plff.)
Sant Kumar --------------
(deft. 4) | |
Shanti Devi Ram Kali
was entitled to claim partition by virtue of the provisions of the Hindu Women's Eights to Property Act (18 [XVIII] of 1937). She claimed that she was entitled to a one-fourth share in the family property. The provisions of the said Act that are relevant for the purposes of the present appeal are contained in Sub-sections (2) and (3) of Section 3 of the Act which run as follows:
(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.
The defendants contested the suit, inter alia on the ground that Mt. Daropdi, the mother of Earn Kishore, was, on partition, entitled to a share equal to that of the sons, and, as such, Janak Dulari was entitled only to a one-fifth and not to a one-fourth share. This contention of the defendants was, as it was bound to be, given effect to by the trial Court and a preliminary decree for partition awarding one-fifth share to Janak Dulari in the family property was passed on 2lst March 1910. Thereafter proceedings for the preparation of the final decree commenced and during the progress of those proceedings Daropdi died on 14th June 1940. Janak Dulari then on 15th July 1940, filed an application for amendment of the plaint praying that the name of Mt. Daropdi be removed from the array of the defendants and that her share be declared by the preliminary decree to be one-fourth instead of one-fifth. This application of Janak Dulari was opposed by the defendants who maintained that as Janak Dulari was not an heir of Daropdi, she was not entitled to get anything out of the share to which Daropdi was declared entitled by the preliminary decree. The defendants further alleged that Daropdi continued to live jointly with them and, as such, they were entitled to her one-fifth share as it had not yet been partitioned. These contentions of the defendants were overruled by the Court below and that Court held that 'on account of the death of Mt. Daropdi the share of the plaintiff has increased to one-fourth in place of one-fifth' and ordered that the preliminary decree and all other relevant papers on the record be-amended accordingly. The preliminary decree was, therefore, amended by declaring Janak Dulari's share as one-fourth and it is against this amended decree that the appeal is directed. It may be mentioned here that originally the appeal was filed in this Court as a first appeal from the order directing, amendment of the preliminary decree but on application filed by the appellants and on the deficiency in the court-fee on the memorandum of appeal being made good, the first appeal from order was converted, into a regular first appeal against the amended decree.
3. It was contended by the appellants' counsel that Janak Dulari must be deemed to have separated from the rest of the family when she filed the suit for partition andi accordingly Daropdi's one-fifth share in the family property passed on her death to the defendants by right of survivorship, and, as-such, Janak Dulari remained entitled only to one-fifth share. In our judgment this-contention is without force. It is not, and. cannot be, disputed that by virtue of the-provisions of Sub-sections (2) and (3) of Section 3, Hindu. Women's Eights to Property Act, on the death of Earn Kishore, Janak Dulari became entitled to the same interest in the family property as Earn Kishore had at the time of his-death and that she was entitled to claim partition of that interest. On the date of his death Earn Kishore's interest in the family property, as one of the four sons of Annumal, was to the extent of one-fourth and Janak Dulari, therefore, on Earn Kishore's death acquired, that interest and could claim partition of that interest. It is equally manifest that, on partition between the sons, a share equal to that of the sons has to be allotted to the mother and it cannot be disputed that, if division of the property had actually taken place in Daropdi's lifetime, a one-fifth share would have had to be set apart for Daropdi and in that event Janak Dulari could get only a one-fifth share. But, as stated before Daropdi died during the pendency of the partition suit and before the passing of the final decree. It is this fact which, in our judgment, entitled Janak Dulari to a one-fourth share in the family property when the actual division takes place. Even though a mother is entitled to a share on partition, it is well settled that no right to such a share is conferred upon her by a mere severance of the joint status of the family, and that she becomes entitled to a share only when the members of the joint family divide the family estate between themselves by metes and bounds : vide Beti Kunwar v. Janki Kunwar ('11) 33 All. 118 and Pratapmull Agarwala v. Dhanabati Bibi . In the case before us, Daropdi died before the preparation of the final decree and before the partition had been effected by metes and bounds. Daropdi, therefore, did not become entitled to any share in the family property. This being so, Janak Dulari's share in the family property remained one-fourth and this is what has been declared to be her share by the amended preliminary decree. That decree is, therefore, perfectly correct and this appeal must fail. We may observe that the question as to what would have been the effect on the respective rights of the parties on Daropdi's death, if she had died after actual division had taken place does not arise in the present case, and, as such, we refrain from expressing any opinion on that point. The appeal is. dismissed with costs.