1. The dispute in this appeal relates to a one-third share of the village Sewai Raghunathpur. An application was made by the defendant-respondent for a partition of that share in the Revenue Court. It was opposed by the plaintiffs, who own another one-third share in the same village. Their contention was that the defendant held only a life-interest therein and was entitled to get the profits of that share for her life but was not entitled to claim a partition.
2. The Revenue Court directed the objectors to get the Question of proprietary title determined by the Civil Court and the present suit was consequently filed by them for a declaration that the defendant had only a life interest in the disputed property and was not entitled to claim a partition. The Court below found against them and dismissed the suit.
3. The entire two-thirds share belonged originally to Bisheshar Nath, the father of the defendant respondent. On the 19th March 1888 he executed a Will, by virtue of which he devised his entire property in favour of his nephew, Parmanand, with the exception of certain interests, which he had reserved in favour of his wife, Musammat Champa Kuer, and his daughter, Musammat Mohini Kuer, and another person named Bhagga Lal. Musammat Champa Kuer, and Musammat Mohini Kuer were allowed the said two-thirds share in the village Sawai Raghunathpur in equal parts with full power to realize and enjoy the profits of their respective shares in any way they liked but they were not given any authority to make a transfer of the property bequeathed to them. On the death of Mumammat Champa Kuer, her share was to devolve on Parmanand or his sons and heirs and on the death of Musammat Mohini Kuer, the share given to her was to devolve on her own sons or grand-sons, if any, or if she had no mela issue or grand-sons, on Parmanand or his sons and heirs. On the death of Bisbeshar Nath, the names of Musammat Champa Kuer and Musammat Mohini Kuer were enter in the revenue papers. On the death of Musammat Champa Kuer, her share devolved on Hanuman Prasad, the son of Parmanand, and is now in the possession of the plaintiffs.
4. The Court below found that short of being given a power of transfer, Musammat Mohini Kuer was entitled to enjoy all the rights of a Zemindar, and her right to enjoy her share in any way she liked included a right to claim a partition of that share.
5. Under Section 107 of the U. P. Land Revenue Act (II of 1901) a recorded co sharer is entitled to apply for partition. But where that share i8 in the possession of a mortgages, no application for partition either by the mortgagor or the mortgagee can be entertained unless both join in applying for partition. The expression 'co-sharer' has not been defined anywhere by the Act, hut reading Section 107 with Section 32 and Section 111, there can be no doubt that the co-sharer, who is entitled to apply for partition, must be a recorded co-sharer of some kind of proprietary interest in the mahel and not a person entitled merely to collect rents or realize a share of the profits on behalf of the proprietor, such as a mortgagee, lessee, or thekadar, or an assignee of the rents. A Hindu widow in possession of an estate, which has devolved on her by inheritance from her husband, represents the estate and combines in herself for certain purposes the interests of herself and the reversionary body, whom she represents. A Muhammadan widow, who is in possession in lieu of dower, similarly combines her interest as an heir, if any, with that of the other hairs, whose share she holds in her possession in lieu of her dower debt for her life. In either case her interest is such as to entitle her to claim -a partition against her recorded co-sharers, which would bind her as much, in the absence of fraud or collusion, as those who succeed to the property on her death, The interest, which a daughter receives under a devise from her father, though limited in character, is similarly such as will entitle her to claim a partition, because she represents herself as much as those who are likely to succeed to her on her death. She is not a more as-ignee of the profits. She is a proprietor for the time being, though only of a limited interest, the can manage the property in any way she likes, and let it out to any person to whom she chooses and short of making a transfer, she possesses all proprietary rights, including a right to hold the property in severalty or to enjoy it jointly with her co-sharers, as may suit her interests. In Bhoop Singh v. Phool Kower 2 Agra H. C. Rule 368. and Jhunna Kuar v Chain Sukh A. 400 : A. W. N. (1881) 8 : 2 Ind. Dec. (n. s.) 221. it was accordingly held that a childless Hindu widow, who succeeds to her deceased husband's share in a mahal, such share having been his separated property, was as much entitled as any other recorded co-sharer to claim a perfect partition of her share, if her name was recorded, though she might not be competent to alienate the same except for certain limited purposes. In Habibullah v. Kushimba 3 A, L. J, 481, A. W, N, (1906) 109., it was held that a Muhammadan widow in possession of the estate of her husband in lieu of her dower, was similarly entitled to claim a partition of her share, if she was a recorded co-sharer in respect is that share. A similar view has been taken in Mahadeo Singh v. Deo Koer9 0. C. 63.
6. In a separated family the right of each co-widow of a defeated person to enjoy the property of her deceased husband separately by partition among themselves hag been recognized Sundar v. Parbati 12 A. 51 : 16 I. A. 186 : 5 Sar. P. C. J. 448 : 6 Ind. Dec, (n. a.) 782 (P.C.) and Hari Narayan v. Vitai31 B. 560 : 9 Bom, L. Rule 1049. In Burga Butt v. Gita 9 Ind. Cas. 498 : 33 A. 443 : 8 A, L, J. 220. it has been laid down that what-ever limitations there might be upon the power of alienation of one of two co widow sauting as such to a life interest in the husband's estate, (here is nothing to prevent them from effecting a partition of such estate to secure a proper enjoyment of their interests. The right of a Collector to disallow a partition under Section 109 remains unaffected.
7. The interest, which devolved on Musammat Mohini Kunwar, from her father, under the devise, is such an interest as would entitle her to claim a partition thereof for the purpose of securing a better enjoyment of the same, for, as pointed out in Raghubir, Singh v. Janki Knar 52 Ind. Cas, 11 : 22 0. C. 117 at p. 120 : 6 0. L. 282. her position might otherwise be rendered precarious, as it would be within the power of her co-share to prevent her from realizing her share of the probates and to appeal her to starve, until she is in a position to sue for her share of the profi s and recover the same, if she gets a decree. The decision in Neman V. Jas Kunwar 21 Ind Cas. 419 : 35 A. 527 : 11 C.L. .1. 833. and Kailashi Kunwar v. Badri Prashad21 Ind, Cas.49 : 35 A. 548 : l1 A, L, J. 840. do not apply, for in both these cases, the name of the widow who had applied for partition, had merely been entered for her consolation or as a provision for her maintenance with the consent or acquiescence of the persons belonging to the joint family, from whom she could not have claimed anything but maintenance, and her position was at best that of a mere assignee of the profits in lieu of maintenance for her life.
8. There is nothing in the Will executed by Bisheshar Nath to indicate that Musam nat Mohini Kuer was granted a share in lieu of her maintenance. In fast a daughter is not entitled to claim maintenance from her father after she is married and attains majority. She is a widow and has no male issue, bub she in to all intents and purposes a recorded co-sharer, though she has no right to transfer her share, and there is no reason why she should not be allowed to claim a partition thereof.
9. The appeal, therefore, fails and is dismissed with costs.