1. One Biddya Ram died possessed of a 20 biswas mahal in mouza Sarah Basaulia and also a house and two enclosures, situated in the same village. He died about 30 years ago leaving two widows, namely, Mussammat Gita and Mussammat Mulo, who thereupon became entitled to his property to the extent of Hindu widows estates. Musammat Mulo on the 7th of February 1908 executed a deed of gift of her entire share in the property in favour of the plaintiffs. The plaintiffs applied in the Revenue Court for mutation of names in respect of the zemindari property and also sought delivery of possession of a share in the house by partition. Musammat Gita objected to the mutation applied for and refused to deliver up possession of any portion of the house or to allow partition of it. It is stated and not denied that Mussammat Gita also executed a deed of gift in favour of the defendant Sri Ram not merely of her share of the property but of the entire zemindari property and the house and its enclosures.
2. The suit out of which this appeal has arisen was instituted by the plaintiffs for the purposes of obtaining a declaration that under the deed of gift to them of the 7th of February 1908 they are entitled to 10 biswas out of the 20 biswas mahal in question and of having a partition of the house and the enclosures.
3. The Court of first instance gave a decree to the plaintiffs but upon appeal the learned District Judge set aside the decree of the Court below and dismissed the plaintiffs' claim, on the ground that Musammat Mulo had no authority to part with her life-interest in any portion of the property without the consent of her co-widow. The learned Judge in his judgment observes as follows: The ruling in the case of Ram Piyari v. Mulchand 7 A. 114 is supported by the authority of the Privy Council and has not so far been overruled. It may appear strange that a co-widow cannot part with her life-interest in a property held jointly with other co-widows, but such is the enunciation of the law. I do- not believe that Mr. Mayne is correct in stating as a general rule of law that it has been held that a widow can alienate her life-interest as against her, co-widows just as she can against her reversioners. Mr. Mayne's statement of the law on the subject is to be found in paragraph 554 of his work on Hindu Law, at page 752, VII Edition. It runs as follows:
Where several widows hold an estate jointly, or where one holds as manager for the others, each has a right to her proportionate share of the produce of the property, and of the benefits derivable from its enjoyment. And the widows may be placed in possession of separate portions of the property either by agreement among themselves, or by decree of Court, where, from the nature of the property, or from the conduct of the co-widows, such a separate possession appears to be the only effectual mode of securing to each the full enjoyment of her rights. Bat no partition can be effected between them, whether by consent or by adverse decree, which would convert the joint estate into an estate in severalty, and put an end to the right of survivorship.
4. There are two objects which may be attained by partition. The one is to get rid of the right of survivorship in joint property, and the other to obtain a division of the joint property for the purpose of more convenient enjoyment of it without affecting any right of survivorship and without creating a right in the estate in severalty. It is clear that one of two widows cannot either by agreement, or by recourse to law, obtain a partition of joint property which will prejudice the right of survivorship of her co-widow or the rights of the reversioners after the death of the survivor of the widows. But the question before us is, whether or not a donee of one of two widows can obtain from the Court a decree for partition of joint property which will have effect during the lives of the widows. According to Mr. Mayne such a partition may be carried out.
5. The case of Ram Piyari v. Mulchand 7 A. 114 has been strenously relied upon as a ruling which supports the contention of the respondents that there cannot be a partition between widows of a deceased Hindu which will be effectual during their joint lives. The facts of that case, shortly stated, are these, one Badridayal was the owner of a house. He died leaving two widows Chandan Kunwar and Ram Piyari and a daughter by Chandan Kunwar. On the death of Badridayal his estate passed to his widows, between whom there had been no partition. On the 29th November 1892 Chandan Kunwar sold the house to Mulchand but Mulchand did not succeed in obtaining possession of the property and he thereupon, on the 28th of May 1883, sued his vendor and others for possession of it. He did not implead Musammat Ram Piyari but she was made a defendant at her own request. The claim of Mulchand was to obtain possession of the entire house. Mahmood and Duthoit, JJ., held that one of the widows was not competent to alienate the property which she had so derived from her husband and without the consent of the other even for purposes of legal necessity. The learned Judges quote several rulings of their Lordships of the Privy Council and amongst others the ruling in Bhagwandeen Doobey v. Myna Bai 11 M.I.A. 487 : 9 W.R. 23 in supporting the view taken by them. In that case their Lordships stated the law as follows: 'The estate of two widows who take their husband's property by inheritance is one estate. The right of survivorship is so strong that the survivor takes the whole property to the exclusion of daughters of the deceased widow. They are, therefore, in the strictest sense co-parceners, and between undivided co-parceners there can be no alienation by one without the consent of the other.' This passage from their Lordships' judgment is quoted as authority for the proposition that between co-widows there cannot be partition, nor can one widow alienate her share for her life without the consent of her co-widow. It appears to us that what was intended by their Lordships by the word 'alienation' in the passage, which we have quoted, is alienation of the absolute interest in property and not the alienation of a widow's life-estate. Referring to Bhagwandeen Doobey v. Myna Bai 11 M.I.A. 487 : 9 W.R. 23 their Lordships in the subsequent case of Gajapathi Nilamani v. Gajapathi Radhamani 1 M. 290 : 4 I.A. 212. 1 C.L.R. 97 carefully guard themselves against expressing any opinion as to the right of Hindu widows to partition property which has devolved upon them for life They say: 'Guarding themselves against being supposed to affirm by this order that either widow has power to dispose of the one-fourth share of the estate allotted to her, or that they have any right to a partition in the proper sense of the term are not disposed to vary the form of the order under which one-fourth of the profits of the estate will go to each widow during their joint lives, their respective rights by survivorship and otherwise remaining unaffected.' It appears to us that the decision in Ram Piyari v. Mulchand 7 A. 114 is not an authority for the proposition which has been contended for by the learned Vakil for the respondents.
6. Now, turning to the case of Sundar v. Musammat Parbati 16 I.A. 180 : 12 A. 51 we find an express statement of their Lordships of the Privy Council upon this question. In that case one Baldeo Sahai died leaving two widows and possessed of moveable and immoveable property. This property he had bequeathed to one Praimsukh, his sister's son whom, it is said, he had previously adopted and who died a minor shortly after the death of Baldeo Sahai. The widows took, possession of the property after the death of Praimsukh. A suit was brought by one of the widows for partition of the property of which they were so possessed and it was contended that the other widow was not competent to maintain a suit for partition of the estate. In the course of the judgment of their Lordships delivered by Lord Watson, he observes that the only issue which it was necessary to consider was the sixth which was in these terms: Has the plaintiff aright to have the property in dispute divided in equal shares as she claims?' We may observe here that the learned Judges of this Court Petheram, C.J. and Brodhurst,' J., had held that she had no such right overruling the decision of the Subordinate Judge. In the course of the judgment Lord Watson remarked: 'Their Lordships are at a loss to understand, at all events to appreciate, the grounds upon which the Chief Justice (Petheram, C.J.,) endeavours to differentiate between the authorities which he cites, the import of which he correctly states and the position of the parties to this action. Their (i.e., the two widows) possession was lawfully obtained, in this sense, that it was not procured by force or fraud but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of Praimsukh, or Baldeo Sahai, one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants is in the field, and the widows have, therefore, each of them an estate or interest in respect of her possession which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them. It is impossible to hold that a joint estate is not also partible.... ' This appears to us to be a clear authority for the contention of the learned Counsel for the appellants that Hindu widows who become entitled to an estate for their lives on the death of their husbands are entitled to have a partition of their interests.
7. In the Madras High Court, in the case of Kanni Ammal v. Ammakannu Ammal 23 M. 504 the facts of which are substantially on all fours with the case before us, Shephard and Benson, J.T., held that partition may be enforced by one of two sisters. In that case a party purchased certain property from one of two sisters jointly entitled to their deceased father's estate under the Hindu Law and re-sold it, whereupon the other daughter sued for a declaration that the sales were invalid as against her, and prayed that the property might be restored to her and her sisters, or that there might be a partition of it. It was held that she was entitled to partition. The learned Judges in their judgment, after quoting a number of authorities, observe: Having regard to those authorities we must hold that, while one of two daughters cannot by alienation alter the character of the daughter's estate so far as concerns the right of survivorship or the rights of reversioners, she may alienate her interest in the property or have that interest taken and sold in execution of a decree against her. She may also, subject to the same condition, demand a partition of the property.' This decision appears to us to be in accordance with the rulings of the Privy Council and to be consonant with Hindu Law.
8. For these reasons we must allow the appeal. We observe that the Court of first instance in its decree declared the plaintiff entitled to get profits to the extent of the share of Musammat Mulo. In their plaint they do not ask for mesne profits. It may be said that by this decree mesne profits were awarded but such was evidently not intended. We, therefore, think it right to delete from the decree of the Court of first instance the words and that they are entitled to get profits to the extent of that share'. We accordingly set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance with this modification, namely, that the words and that they are entitled, to get profits to the extent of that share' be deleted and a clause inserted to the effect that any partition of the house or zemindari property which may be carried out under this decree shall not operate so as to prejudice the reversionary heirs or the right of the surviving widow to enjoy the entire property during her life after the death of her co-widow. The rights of the plaintiffs shall only enure during the life-time of their donor. We direct that the parties shall bear their own costs in the lower Appellate Court and that the appellants shall have their costs of this appeal including fees in this Court on the higher scale.