1. The only question which arises in this appeal is whether a grandmother gets a share in the family property on a partition between her grandsons only. One Nainsukh Das was the owner of the property in question. On his death ho left a widow Mt. Gaura, defendant, and a son Chunni Lal. Chunni Lal has since died leaving a widow. Mt. Har Kuar, and two sons, Kanhaiya Lal and Makhan Lal. The point for consideration is whether in a partition between Kanhaiya Lai and Makhan Lal, Mt. Gaura gets any share in the property which originally belonged to her deceased husband Nainsukh Das.
2. The trial Court, as well as the lower appellate Court, came to the conclusion that she was entitled to a share under the Mitakshara law. That view has been affirmed by a learned Judge of this Court, who himself is well acquainted with the provisions of the Hindu Law.
3. The question raised in this appeal is however not a very easy one to decide, and it is therefore) necessary to consider the authorities in some detail.
4. Taking the case law first it may be stated that the case of Shoo Dyal Tewaree v. Judoonath Tewaree 9 W.R. 61 is no authority in support of the defendants' contention. The text of the Mitakshara, quoted at page 62 by Mitter J., was paraphrased as meaning:
The mother or grandmother, as the case may ho, hi entitled to it share when sons or grandsons divide the family estate between themselves.
5. The point however did not at all arise in the oaso and it was only conceded for the sake of argument that the grandmother was entitled to a share.
6. In the case of Pudum Mookhee Dossee v. Rayee Monee Dossee 12 W.R. 409 and subsequently in the case of Rayee Monee Dossed v. Puddum Mookhee Dossee 13 W.R. 66 the rule was laid clown that on a partition between the sons sifter the death of the father, the grandmother was not entitled to a share. No clear authority had been cited before the learned Judges, and the case also was one under the Dayabhaga law.
7. In the case of Sibbosoondery Debia v. Bussoomutty Debia (1881) 7 Cal. 191 and in the case of Badri Roy v. Bhugwat Narain Dobey (1882) 8 Cal. 649 it was held that a grandmother was entitled to a share. But both these cases were under the Duyabhaga law, and were cases of a partition not exclusively amongst grandsons, but one to which the son also was a party.
In the case of Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) 15 Cal. 292 it was merely held that the mother was entitled to a share.
8. In the case of Purna Chandra Chakravarti v. Sarojini Debi (1904) 31 Cal. 1065 Henderson, J,. after an exhaustive review of numerous authorities, came to the conclusion that the grandmother was entitled to a share. Referring to the case in 12 W.E. 409, he remarked:
That as the report of the case was not clear, he sent for the record, and from that it appeared that the partition was apparently a partition between the widows representing their respective husbands, and that it was not a partition among grandsons, but rather in the nature of a partition among sons.
9. The case before Henderson, J., was one in which a grandson was suing for a partition of the property left by his grandfather, the plaintiff's own father being dead. It was held that the widow of the grandfather was entitled to a share. Had not the case been one under the Dayabhaga law, it would have been directly in point.
10. On the other hand in the case of Radha Kishen Man v. Bachhaman (1881) 3 All. 118 which has been subsequently followed in the Full Bench case of Sheo Narain v. Janki Prasad (1912) 34 All. 505 it was laid down that upon a partition between a father and his sons, that is when the father is alive the grandmother (that is the father's mother) does not get a share in the ease of a family governor by the Benares School of the Mitaksbara law. It is to be noted that the present ease admittedly is not one of a partition during the life-time of the father.
11. In the case of Har Narain v. Bishambhur Nath (1916) 36 All. 83 it was merely decided that a step-mother is entitled to a share just as much as a natural mother.
12. In the casa of Vithal Ramkrishna v. Prahlad Ramkrishna (1915) 39 Bom. 373, which was in fact a case under the Mitakshara law, it was hold that a step-grandmother was entitled to a share at a partition between her step-grandsons exclusively, her own husband and her stop-son being dead. Though the case was under the Mitakshara law, Shah, J., who delivered the principal judgment in the case, came to the conclusion that the Mitakshara was altogether silent as to the right of the grand-mother. In that view he felt justified in invoking the aid of the Mayukha. In consequence of this, it may be said that the case is not a clear authority on the point.
13. This being the state of the judicial pronouncements it is necessary to consider the texts themselves. It is a well-settled rule that in these Provinces the Mitakshara by Vijnaneswara is of paramount authority. But the Mitakshara is a mere commentary on the Yajnavalkya, which is by no means an exhaustive work. Vijnaneswara has made his commentary more comprehensive by quoting from the institutes 6f other Rishis and Smriti writers as well. The Mitakshara being a commentary on an incomplete treatise is itself on some points rot exhaustive. Vijnaneswara has himself pointed out that each of the Smriti writers was authoritative, and that the point not mentioned in one can be supplied from the others. Similarly the Mitakshara is not the only commentary which can be properly received.
14. Where the Mitakshara is silent, or is doubtful, other books of authority can legitimately be referred to. As to the Viromitrodaya, their Lordships of the Privy Council in the case of Gridhari Lall Roy v. Bengal Government (1867-69) 12 M.I.A. 448 remarked that it was stated by Mr. Colebrooke and others to be a treatise of high authority at Benares, and was properly receivable as an exposition of what may have been left doubtful by the Mitakshara, and declaratory of the law of the Benares School. But where the Mitakshara lays down a rule clearly, then, oven though it contradicts other books of authority, it has to he followed in those Provinces.
15. It is, therefore, necessary to examine whether there is anything in the Mitakshara itself bearing on the question before us. The scheme of the first chapter of the Mitakshara is as follows:
Section 1 deals with certain general notions relating to inheritance, partition and property.
Section 2 deals with partition. Paragraph 1 quotes a text from the Yajnavalkya allowing a father to separate his sons at his pleasure, either the eldest with the best share, or all with equal shares. Paragraphs 3, 4 and 5 refer to the unequal shares.
Paragraph 7 states that there are four periods of partition, three in the lifetime of the father, and one after his death.
Paragraph 8 quotas a text from the Yajnavalkya : 'If ho makes the allotments equal, his wives, to whom no separate property has boon given by the husband or the father-in-law, must be rendered partakers of like portions.'
Paragraph 9 refers to the case when the father, by his own choice, makes all his sons partakers of equal portions. It is not necessary to refer to the other paragraphs.
Section 3 deals with the case of partition a the fourth period, namely, the partition after the father's decease. A text of the Yajnavalkya is quoted : 'Let sons divide equally both the effects and the debts, after their two parents,' In this section it is pointed out that though Manu had authorised an unequal distribution, such sin act was abhorred by the world. Section 4 deals with effects not liable to partition with which we are not concerned. Section 5 deals with the equal rights of father and son in property ancestral. Paragraph 1 begins by saying : 'The distribution of the paternal estate among sons has been shown; the author next propounds a special rule concerning the division of the grandfather's effects by grandsons'. Paragraph 7 expressly states that the text of the Yajnavalkya quoted in Section 2, paragraph 1 relates to property acquired by the father himself.
16. It would therefore look as if Section 2 was dealing with the partition of the property which belonged to the father himself, and not one which bad belonged to the deceased grandfather. Whether the text of the Yajnavalkya quoted in Section 2, paragraph 8 referred to the self-acquired property of the father only, and not the ancestral property in his hands, is a point on which it is unnecessary in this case to express an opinion.
17. In the Full Bench case of Sheo Narain v. Jakin Prasad (1912) 34 All. 505 it was certainly assumed that the text applied to both ancestral and self-acquired properties, and was the only text applicable when the partition was to be effected after the lifetime of the father himself.
18. Section 6 deals with the rights of a posthumous son and of one born after the partition, and with such rights we are not con-corned in the present case.
19. Section 7, paragraphs 1 and 2, are as follows:
When a distribution is made during the life of the father, participation of his wives, equally with his sons, has been directed. (If he makes the allotments equal, his wives must be rendered partakers of like portions).
20. The author now proceeds to declare their equal participation : when the separation takes place after the demise of the father:
Of heirs dividing after the death of the father, let the mother also take an equal share.
Of heirs separating after the decease of the father, the mother shall take a share equal to that of son; provided no separate property had been given to her. But, if any had been received by her she is entitled to half a share, as will be explained.
21. In our opinion the word 'father' used in the Yajnavalkya, as well as in the Mitakshara quoted above, does no only mean the deceased father of the son who are partitioning the property. It may very well also mean the father who owned the property, and who is now dead. Similarly the word 'mother' need not mean only the mother of the sons partitioning the property. (Certainly it does not mean only their natural mother, as the step-mother has been held to be entitled to a share). It may just as well mean the wife of the father who owned the property, and who is now dead. On this interpretation it would follow that if certain property belonged to the deceased owner, then his wife would be entitled to a share when the partition of that property between the heirs takes place after his death. As to who the heirs are has to be gathered from Section 5, under which the sons and grandsons take equal shares in the grandfather's effects.
22. In the present case Nainsukh Das was the original owner of the property. Partition has taken place after his death. It so happens that his son Chunni Lal is also dead, but the heirs of Nainsukh Das are his grandsons, Kanhaiya Lal and Makhan Lal. In a partition between them f the widow of Nainsukh Das is entitled to f a share. Yajnavalkya's text is:
Of heirs dividing after the death of the father, let the mother also take an equal share.
23. When the original owner was Nainsukh Das and the property has come down from him, there is no reason why he should not be included in the expression 'father,' and his wife in the expression 'mother.'
24. It is noteworthy that in the text from the Yajnavalkya last quoted, the words are not 'of sons dividing after the death of the father', but the words are 'of heirs, etc.' According to this interpretation it would follow that in a case of a partition after the death of the original owner, his widow, if alive, would be entitled to a share. It is contended strongly on behalf of the plaintiff that the logical result of this interpretation would be to hold that the Allahabad Full Bench case proceeded on a wrong interpretation. Our answer to this objection is that in the case a clear distinction was drawn between a partition during the life time of the father which admittedly is not the case here, as both the grandfather and the father are dead and the case when a partition takes place after the death of the father. The Full Bench thought that the text applicable to the case before them was the text quoted in Chapter I, Section 2 whereas admittedly that text cannot apply to the case before us. Here the case comes under Section 7, and the only point which we have to consider is whether this section disallows a share to a grandmother. We are of opinion that it is possible to interpret Section 7 paragraphs 1 and 2, so as to give the widow of the owner a share when a partition takes place after his death among his grandsons, even though the owner's own son is also dead.
25. As we have had no access to the original texts, but have had to depend on translations only, it is not possible to say positively that this interpretation is necessarily correct. At the same time we are prepared to hold that there is nothing in Section 7 which expressly prohibits the grandmother from getting any share.
26. We have already stated that where the Mitakshara is silent, or where its text is doubtful, other books of authority may be properly relied upon. The Viromitrodaya, which is a commentary on the Mitakshara, quotes a text of Vyasa, another Smriti writer, namely,
The sonless wives of the father are declared equal partakers. Grandmothers are also declared to be equal to mothers.
27. Having quoted this text he proceeds to consider whether step-mothers are entitled to a share, but he does not comment on the right of grandmothers to an equal share with the mothers. It is contended by the learned Advocate for the plaintiff that the Viromitrodaya has simply quoted the text of Vyasa, but has not necessarily approved of it. We are unable to accept this contention. Unfortunately the treatise of Vyasa is not available, and only passages from it are to be found quoted in various commentaries. It is therefore a matter of some difficulty to interpret the text of Vyasa when isolated from its context. The Allahabad Full Bench in the case referred to above when referring to this text of Vyasa, remarked:
It must be borne in mind that Vyasa evidently refers to the case of a partition between sons after the demise of the father, when the mother of those effecting the partition gets a share, and declares that grandmothers being 'equal to mothers' are like the mother entitled to a share.
28. The learned Judges however expressed no definite opinion on the question, which has directly arisen in the present case, because that was not before them. We may also remark that the text of Vyasa has been quoted in the Dayabhaga and the Mayukha, and that under those systems of law, a grandmother's right to a share is recognized. Even, if therefore the Mitakshara is silent or doubtful, it is proper to supplement it by Vyasa's text as quoted in the Viromitrodaya.
29. We may also note that amongst modem English Commentators, the balance of authority is in favour of giving the grandmother a share. Sir F. McNaughten, in his Considerations on Hindu Law, has stated that after consulting the Pandits, he assigned her a share, although her great-grandsons may be the practitioners, provided some of her more immediate descendants are parties, or some one more immediate descendant is a party to the partition. Shama Charan Sirkar has also assigned her a share, and Mayne in his Hindu Law has followed MoNaughten.
30. In West and Buhler's Hindu Law, 4th edition, Page 712 the paternal grandmother and step-grandmother have been given a share.
31. Ghose in his Hindu Law, part I, page 298, has allowed a share to the grandmother both under the Mitakshara and the Dayabhaga law, and has thought that there was little justification for a divergence of opinion.
32. It is unnecessary to quote latrr textbook writers whose opinions are based on the previous rulings and authorities.
33. We are therefore of opinion that the view taken by the learned Judge of this Court, and the Courts below, must be affirmed.
34. The appeal accordingly fails and is hereby dismissed with costs including in this Court fees on the higher scale.