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Babuna Kunwar Vs. Jagat NaraIn Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1928All330
AppellantBabuna Kunwar
RespondentJagat NaraIn Singh and anr.
Cases ReferredSheo Narain v. Janki
Excerpt:
- - the case before us is, clearly, not the same as was submitted for the consideration of the full bench. 4. probably a better translation would be as follows:.....of sham narain. the family possessed joint property. by an award, obtained at the instance of jagat narain and sham narain, the family property was divided equally between the uncle and nephew. babuna kunwar, thereupon, asked for a share but was refused. she then instituted the suit, out of which this appeal has arisen, for the separation of a third share for her. sham narain alone defended the suit. his case was that the plaintiff was not entitled to any share under the shastras and that she was possessed of considerable property being her stridhan, and, therefore, she did not require any other property for her maintenance. the court below held that the plaintiff had no property which could support her and that, in the circumstances of the case, the plaintiff could not get a share.....
Judgment:

Mukerji, J.

1. One Bhagirathi Singh, a Hindu governed by the Mitakshara law, died, leaving him surviving a widow, Mt. Babuna Kunwar, a son, Jagat Narain and another son, since deceased, Jai Gobind, the father of Sham Narain. The family possessed joint property. By an award, obtained at the instance of Jagat Narain and Sham Narain, the family property was divided equally between the uncle and nephew. Babuna Kunwar, thereupon, asked for a share but was refused. She then instituted the suit, out of which this appeal has arisen, for the separation of a third share for her. Sham Narain alone defended the suit. His case was that the plaintiff was not entitled to any share under the shastras and that she was possessed of considerable property being her stridhan, and, therefore, she did not require any other property for her maintenance. The Court below held that the plaintiff had no property which could support her and that, in the circumstances of the case, the plaintiff could not get a share and that she must look to her son, Jagat Narain, for her support.

2. The plaintiff has appealed. No attempt has been made, on behalf of Sham Narain, to support the decree of the Court below on the ground that the plaintiff possessed property sufficient for her maintenance. The only question which we have to decide in this appeal is whether in the case of a partition between a son and a grandson of a female the latter is entitled to a share, the grandson being the son of a son who is other than the surviving one.

3. The learned Subordinate Judge was of opinion that the present case was governed by the Full Bench case of Sheo Narain v. Janki [1912] 34 All. 505. In that case the facts were materially different, inasmuch as the partition was between the female claimant's son and his own sons. The learned Judges pointed out that there were two texts of the sage Yagyavalka relied upon by the author of Mitakshara and these considered only two cases of partition. One case was when the father was alive and the partition proceeded in his life-time, and the other case was when he was dead and the descendants proceeded to divide the property among themselves. In the former case, they pointed out, the 'father's wife' took, as such, a share. In the latter case, the 'mother' took, as such, a share. It was further stated that Vinjyaneswara did not contemplate the case of a partition between a father and his own sons, and did not provide for a share for the father's mother in such a case. The case before us is, clearly, not the same as was submitted for the consideration of the Full Bench. Here, as already stated, the partition is between a grandson and paternal uncle of the grandson. The case falls within the four corners of the text which contemplates a partition 'on the death of the father.' Colebrook in his translation of the Mitakshara, translate the next of Yagyavalka bearing on the point in the following language:

Of heirs dividing after the death of the father let the mother also take an equal share.

4. Probably a better translation would be as follows:

When there is a partition on the death of the father, let the mother take an equal share.

5. It is agreed on all hands that, if this text applies, the plaintiff would be entitled to a third share. In our opinion there can be no doubt that this text is directly applicable. Although, strictly speaking, in a joint Hindu family governed by the Mitakshara law, every male member in the family is the owner of every portion of the joint family property, still it is the head of the family who is supposed to 'own' the entire property. The passage quoted above occurs after Vinjyaneswara has discussed the separate and joint family properties. It seems to us to be clear that when he was speaking of the division of father's property, he was speaking both as regards the separate and the joint family property. The only question material, therefore, is who is the person that should be called the father in the present case. The point seems to us to be so clear as not to admit of any two opinions. Sham Narain and Jagat Narain, when they divided the family property, did not seek the division of Jai Gobind's property. Sham Narain, stepping into the shoes of Jai Gobind, claimed an equal share with Jagat Narain. Jagat Narain's father Bhagirathi was, therefore, the father on whose death the partition has taken place. In this view the plaintiff, as the mother of Jai Gobind and Jagat Narain, would be entitled to a share equal to that of her sons. Thus she would be entitled to a third share in the property.

6. The case of Kanhaiya Lal v. Gaura : AIR1925All19 has been brought to our notice. In this case the grandsons of one Nain Sukh by his only son Chhunni, claimed a partition between themselves. The question was whether Nain Sukh's widow (the grandmother of the claimants for partition) was entitled to a share. It was held that she was. The case of Sheo Narain v. Janki [1912] 34 All. 505 was distinguished. But we need not consider that case. It may or may not support the case of the plaintiff before us. We are of opinion that on the text quoted in the Full Bench case aforesaid the plaintiff is entitled to the share claimed. We allow the appeal, set aside the decree of the Court below and decree the plaintiff's claim for a third share. The contesting defendant will pay the appellant's costs in both the Courts. S.J.


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