Lindsay and Kanhaiya Lal, JJ.
1. The dispute in this appeal relates to a one-third share of the village Sewai Raghunathpur. An application was made by the defendant respondent for a partition of that share in the Revenue Court. It was opposed by the plaintiffs, who own another one-third share in the same village. Their contention was that the defendant held only a life-interest therein and was entitled to get the profits of that share for her life but was not entitled to claim a partition.
2. The Revenue Court directed the objectors to get the question of proprietary title determined by the Civil Court; and the present suit was consequently filed by them for a declaration that the defendant had only a life-interest in the disputed property and was not entitled to claim a partition. The court below found against them and dismissed the suit.
3. The entire two-thirds share belonged originally to Bisheshar Nath, the father of the defendant respondent. On the 19th of March, 1888, he executed a will, by virtue of which he devised his entire property in favour of his nephew Parmanand, with the exception of certain interests, which he had reserved in favour of his wife, Musammat Champa Kunwar, and his daughter, Musammat Mohini Kunwar, and another person named Bhaggu Lal. Musammat Champa Kunwar and Musammat Mohini Kunwar were allowed the said two-thirds share in the village Sewai Raghunathpur in equal parts with full power to realize and enjoy the profits of their respective shares in any way they liked; but they were not given any authority to make a transfer of the property bequeathed to them. On the death of Musammat Champa Kunwar, her share was to devolve on Parmanand or his sons and heirs; and on the death of Musammat Mohini Kunwar, the share given to her was to devolve on her own sons or grandsons, if any, or if she had no male issue or grandsons, on Parmanand or his sons and heirs. On the death of Bisheshar Nath, the names of Musammat Champa Kunwar and Musammat Mohini Kunwar were entered in the revenue papers. On the death of Musammat Champa Kunwar, her share devolved on Hanuman Prasad, the son of Parmanand, and is now in the possession of the plaintiffs.
4. The court below found that, short of being given a power of transfer, Musammat Mohini Kunwar was entitled to enjoy, all the rights of a zamindar, and her right to enjoy her share in any way she liked included a right to claim a partition of that share.
5. Under Section 107 of the U.P. Land Revenue Act (III of 1901) a recorded co-sharer is entitled to apply for partition. But where that share is in the possession of a mortgagee, no application for partition either by the mortgagor or the mortgagee can be entertained unless both join in applying for partition. The expression 'co-sharer' has not been defined anywhere by the Act, but reading Section 107 with Section 32 and Section 111, there can be no doubt that the co-sharer who is entitled to apply for partition must be a recorded co-sharer of some kind of proprietary interest in the mahal and not a person entitled merely to collect rents or realize a share of the profits on behalf of the proprietor, such as a mortgagee, lessee, or the kadar, or an assignee of the rents. A Hindu widow in possession of an estate, which has devolved on her by inheritance from her husband, represents the estate and combines in herself for certain purposes the interests of herself and the reversionary body, whom she represents. A Muhammadan widow, who is in possession in lieu of dower, similarly combines her interest as an heir, if any, with that of the other heirs, whose shares she holds in her possession in lieu of her dower debt for her life. In either case her interest is such as to entitle her to claim a partition against her recorded co-sharers, which would bind her as much, in the absence of fraud or collusion, as those who succeed to the property on her death. The interest, which a daughter receives under a devise from her father, though limited in character, is similarly such as will entitle her to claim a partition, because she represents herself as much as those who are likely to succeed to her on her death. She is not a mere assignee of the profits. She is a proprietor for the time being, though only of a limited interest. She can manage the property in any way she likes, and let it out to any person to whom she chooses and, short of making a transfer, she possesses all proprietary rights, including a right to hold the property in severalty or to enjoy it jointly with her co-sharers, as may suit her interests. In Bhoop Singh v. Musammat Phool Kower (1867) N.W.P. H.C. Rep. 368 and Jhunna Kuar v. Chain Sukh (1881) I.L.R. 3 All. 400 it was accordingly held that a childless Hindu widow, who succeeds to her deceased husband's share in a mahal, such share having been his separated property, was as much entitled as any other recorded co-sharer to claim a perfect partition of her share, if her name was recorded, though she might not be competent to alienate the same except for certain limited purposes. In Habib-ulla v. Kushimba (1906) 3 A.L.J. 481 it was held that a Muhammadan widow in possession of the estate of her husband in lieu of her dower, was similarly entitled to claim a partition of her share, if she was a recorded co-sharer in respect of that share. A similar view has been taken in Mahadeo Singh v. Musammat Deo Koer (1905) 9 Oudh Cases, 53.
6. In a separated family the right of each co-widow of a deceased person to enjoy the property of her deceased husband separately by partition among themselves has been recognized: Sundar v. Parbati (1889) I.L.R. 12 All. 51 and Hari Narayan Jog v. Vitai (1907) I.L.R. 31 Bom. 560. In Durga Dat v. Gita (1911) I.L.R. 33 All. 443 it has been laid down that whatever limitations there might be upon the power of alienation of one of two co-widows succeeding as such to a life-interest in the husband's estate, there is nothing to prevent them from effecting a partition of such estate to secure a proper enjoyment of their interests. The right of a Collector to disallow a partition under Section 109 remains unaffected.
7. The interest which devolved on Musammat Mohini Kunwar from her father under the devise is such an interest as would entitle her to claim a partition thereof for the purpose of securing a better enjoyment of the same, for, as pointed out in Raghubir Singh v. Janki Kuar (1919) 22 Oudh Cases 117 (120) her position might otherwise be rendered precarious, as it would be within the power of her co-sharers to prevent her from realizing her share of the profits and to compel her to starve, until she is in a position to sue for her share of the profits and recover the same, if she gets a decree. The decisions in Pema v. Jas Kunwar (1913) I.L.R. 35 All., 527 and Kailashi Kunwar v. Badri Prasad (1913) I.L.R. 35 All. 548 do not apply, for in both these cases the name of the widow, who had applied for partition, had merely been entered for her consolation or as a provision for her maintenance with the consent or acquiescence of the persons belonging to the joint family, from whom she could not have claimed anything but maintenance, and her position was at best that of a mere assignee of the profits in lieu of maintenance for her life.
8. There is nothing in the will executed by Bisheshar Nath to indicate that Musammat Mohini Kunwar was granted a share in lieu of her maintenance. In fact a daughter is not entitled to claim maintenance from her father after she is married and has attained majority. She is a widow and has no male issue, but she is to all intents and purposes a recorded co-sharer, though she has no right to transfer her share, and there is no reason why she should not be allowed to claim a partition thereof.
9. The appeal, therefore, fails and is dismissed with costs.