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Beti Kuar and ors. Vs. Janki Kuar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.908
AppellantBeti Kuar and ors.
RespondentJanki Kuar
Excerpt:
hindu law - mitakshara partition among sons--mother's share--mere severance of interest, no division by metes and bounds--mother not entitled to share--mother's right to compel partition. - - 1).'this, in our opinion, implies an actual division of the family property, that is, a completed partition under which there is a division of interest as well as separate possession. further, even if it be assumed that she became entitled to a third share when her two sons agreed to hold the property in defined shares, as this severance of interest took place some time prior to 1892, that is more than 12 years before the institution of the suit, her right to the share has clearly become extinct by the operation of limitation. for these reasons we hold that the suit brought by her was bound to fail..........the contention on behalf of the appellants is, that as there was a partition between the sons of duni kunwar she as their mother acquired a third share in the property, that such share was, in accordance with the rulings of this court, her stridhan and passed on her death to her personal heir, namely, the appellant laraiti kunwar and that the appellant is entitled to a decree for a one-sixth share claimed in the alternative by duni kunwar in the second prayer of her plaint. in our opinion this contention is without force. a.s we have stated in our judgment in jwala prasad v. janki kuar 7 a.l.j. 975 : 7 ind. cas. 905, there was no actual partition between the sons of duni kunwar, although by reason of the arrangement under which they held the property after gurdyal singh had come of.....
Judgment:

1. The facts of this case are stated in the judgment just, now delivered in Jwala Pershad v. Janki Kunr 7 A.L.J. 975 : 7 Ind. Cas. 905. The contention on behalf of the appellants is, that as there was a partition between the sons of Duni Kunwar she as their mother acquired a third share in the property, that such share was, in accordance with the rulings of this Court, her stridhan and passed on her death to her personal heir, namely, the appellant Laraiti Kunwar and that the appellant is entitled to a decree for a one-sixth share claimed in the alternative by Duni Kunwar in the second prayer of her plaint. In our opinion this contention is without force. A.s we have stated in our judgment in Jwala Prasad v. Janki Kuar 7 A.L.J. 975 : 7 Ind. Cas. 905, there was no actual partition between the sons of Duni Kunwar, although by reason of the arrangement under which they held the property after Gurdyal Singh had come of age, there was a disruption of the joint family within the meaning of the rulings of their Lordships of the Privy Council. Indeed it was never asserted that a third share was assigned to Duni Kunwar at any such partition. On the contrary, under an agreement dated the 8th of September, 1893, entered into between Duni Kunwar and the two widows of her sons, the name of Janki Kunwar was to be recorded in respect of a half share, that of Raniji in respect of one-fourth, and that of Duni Kunwar in regard to the remaining one-fourth. This agreement negatives the allegation that Duni Kunwar obtained a third share by partition. No doubt under the Mitakshara upon a partition being made by sons after the death of their father the mother is entitled to a share equal to that of a son. But we are of opinion that she would obtain such a share only if an actual partition took place between the sons. The text of Yajanvalkya on this point is this:-- 'Of heirs dividing after the death of the father, let the mother also take an equal share (Mitakshara, Chapter I, Section 7, para. 1).' This, in our opinion, implies an actual division of the family property, that is, a completed partition under which there is a division of interest as well as separate possession. We do not think that a mere severance of interest where no actual division of the property takes place confers on the mother a right to a share equal to that of each of her sons. It has been held that a mother has no right to compel a partition. See Bilaso v. Dina Nath 31 C. 262 : 6 Bom. L.R. 1. 31 I.A. 10 : 14 M.L.J. 8 : 8 C.W.N. 146 (P.C.) it is only when the sons, actually divide the property and effect a complete partition that the mother can get a share. There is nothing in the Mitakshara from which we may infer that upon a mere severance of the joint status of a Hindu, family a mother can claim a share. As there was no such partition in the present case, Duni Kunwar never obtained a share, ft is true that her name was recorded in regard to fourth share after the death of her sons hut that was with the consent of the sons' widows and not by reason of her having obtained a share upon a partition between her sons. Further, even if it be assumed that she became entitled to a third share when her two sons agreed to hold the property in defined shares, as this severance of interest took place some time prior to 1892, that is more than 12 years before the institution of the suit, her right to the share has clearly become extinct by the operation of limitation. The learned counsel for the appellants has relied upon the decision of the Privy Council in Ganesh Dutt Thakoor v. Jewach Thakoorain 31 C. 262 : 6 Bom. L.R. 1. : 31 I.A. 10 : 14 M.L.J. 8 : 8 C.W.N. 146 (P.C). That case has, in our opinion, no bearing on the present question. In that ease when a suit was brought for partition of the share of a son it was held that at such a partition the mother would get a share, and her share was assigned to her although she had not obtained it before. That case, therefore, does not help the appellants. Moreover, under the agreement of the 8th of September, 1893 referred to above, Duni Kunwar acquiesced in the arrangement where a fourth share was assigned to her and as she was admittedly in possession of a fourth share at the date of the suit she had no cause of action. For these reasons we hold that the suit brought by her was bound to fail and has been rightly dismissed by the Court below. We accordingly dismiss this appeal with costs including fees on the higher scale. Janki Kunwar and Shyam Bihari respondents will get separate sets of costs.


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