1. This is a second appeal by one of the defendants from the decree passed by the learned Subordinate Judge of Agra confirming a. decree passed by a Munsif of that district in a suit brought by the plaintiff Hari Dutt for partition of certain house and shop property alleged to belong to a joint family coesisting of himself and his uncle Raghunandan Lal, defendant 1. The other two defendants in the suit are widows of deceased members of the family. The relative position of the parties will ap-Dear from the following pedigree:
Ratan Lal=Mr. Ram Piari
(dead) | defendant 2
| | |
Raghunandan Lal, Gopal Singh, Panna Lal,
defendant 1. (dead) (dead)
Krishna Ballabh, Hari Dutt,
Mt. Ram Kunwar,
2. Mt. Ram Piari is the widow of the plaintiff's grandfather who was defendant l's father. It is in controversy between the parties as to whether Mt. Ram Piari was the plaintiff's father's own mother or a step-mother; but as will presently appear it makes no difference whether she be regarded as one or the other. The plaintiff claims a half share in the family property. Defendant 2, Mt. Ram Piari, claimed a third share on the ground that she is the mother of defendant 1 and grandmother of the plaintiff. Mt. Ram Kunwar, defendant 3, claimed maintenance, being the widow of a deceased member of the joint family. Both the Courts below decreed a half share to the plaintiff, holding that Mt. Ram Piari was not entitled to a share equal to that of a son. The claim pf the widows to maintenance was rejected on. the ground that no court-fee had been paid by them. The present second appeal has been filed by Mt. Ram Piari, 3. It is conceded on all hands that, according to Hindu law, where a partition of joint family property takes place between the sons of a certain person, their mother is entitled to a share equal to that of a son. The Courts below have held that this rule cannot be extended to a case in which partition is made between one of her sons and the son of another son who had previously died. The learned advocate for the respondents referred us to Sheo-Narain v. Janki Prasad (1912) 34 All 505; but in that case the partition was to be made between the son of a widow and such sons' own son. It was held that the. lady was not entitled to a share equal; to that of a son. Babuna Kunwar v. Jagat Narain Singh : AIR1928All330 , is quite opposite. In that case it was held by a Division Bench of this Court that in the case of a partition between a son and a grandson being the son of a deceased son of a Hindu female she is entitled to a share. There is no conflict between the two cases referred to above. The first is not applicable to the circumstances before us while the second is one on all folurs. Even if Mt. Ram Piari be assumed to be the step-mother of the plain tiff' or of Raghunandan, defendant 1, she is entitled to a share equal to that of each of her husband's sons: See Har Narain v. Bishambhar Nath (1916) 38 All 83. Accordingly we hold that the view taken by the lower Court is incorrect and. that Mt. Ram Piari is entitled to a. share equal to that of the plaintiff.' and defendant 1.
3. Another point which should be taken notice of in determining the plaintiff's share is that Mt. Ram Kunwar, defendant 3, is entitled to be maintained out of the joint family property in which her deceased husband had an: interest. The decree to be passed at: this stage is only a preliminary decree. The actual division of the property is to take place hereafterand the result to be embodied in the final decree. In making actual division of the property provision should be made for the maintenance of Mt. Ram Kunwar. The plaintiff's share in the joint family property is therefore one-third of the family property, after provision for the maintenance of Mt. Ram Kunwar, defendant 3, is made.
4. The result is that this appeal is 'allowed. The decree passed by the lower Courts is modified in terms of this order. The appellant shall have her costs in all the Courts from the plaintiff-respondent.