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Bishambhar Nath and anr. Vs. Har NaraIn and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Judge
Reported in(1916)ILR39All83
AppellantBishambhar Nath and anr.
RespondentHar NaraIn and anr.
Excerpt:
hindu law - mitahshara--partition--share of step-mother. - .....partition brought by bishambhar nath and musammat chiraunji against har narain and his son aniba prasad. bishambhar nath is the brother of har naraia, musammat chiraunji is the mother of bishambhar nath and step-mother of har narain. the only point which arises in the appeal is the sharu to which musammat chiraunji is entitled upon partition. the defendants contend that she is only entitled to a share out of the share allotted, on partition, to her son. on the other hand, the plaintiffs contend that the property must be divided into three parts, one part should be allotted to bishambhar nath, one part to musammat chiraunji and a third part to har narain. the court below has acceded to the contention of the plaintiffs. the defendants have appealed. reliance was placed on the case of.....
Judgment:

Henry Richards, C.J. and Muhammad Rafiq, J.

1. This appeal is connected with First Appeal No. 355 of 1914. It is a suit for partition brought by Bishambhar Nath and Musammat Chiraunji against Har Narain and his son Aniba Prasad. Bishambhar Nath is the brother of Har Naraia, Musammat Chiraunji is the mother of Bishambhar Nath and step-mother of Har Narain. The only point which arises in the appeal is the sharu to which Musammat Chiraunji is entitled upon partition. The defendants contend that she is only entitled to a share out of the share allotted, on partition, to her son. On the other hand, the plaintiffs contend that the property must be divided into three parts, one part should be allotted to Bishambhar Nath, one part to Musammat Chiraunji and a third part to Har Narain. The court below has acceded to the contention of the plaintiffs. The defendants have appealed. Reliance was placed on the case of Hemangini Dasi v. Kedarnath Kundu Chowdhry (1889) I.L.R. 16 Calc. 758. This no doubt would be an authority in the appellant's favour if the present was not a case governed by the Benares School of Law (i.e. Mitakshara), but it is quite clear that the case cited was one under the Bengal School of law, namely, the Dayabhaga, This appears from the Judgment in the case of Chowdhry Thahur Prasad Skahi v. Bhagbati Koer (1905) I C.L.J. 142 (143). On the other hand, there are several authorities in favour of the plaintiff which refer to the Mitakshara School of law, see Damoodur Misser v. Senabutty Misrain (1892) I.L.R. 17 Bom. 271; Damodardas Maneklal v. Uttamram Maneklal (1892) I.L.R. 17 Bom. 271. The same point was expressly deeided by this Court in the case of Mathura Prasad v. Deoka Weekly Notes 1890 p. 124. In our opinion the view taken by the court below was correct and should be affirmed. We dismiss the appeal with costs.


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