G.P. Bhutt, J.
1. This is plaintiff Smt. Laltabai's appeal from the decree passed by the Civil Judge, Class I, Balaghat, dismissing her suit (No. 30A of 1952) for declaration under Order 21 Rule 63, Civil Procedure Code.
2. Respondents 3 and 4, Samrathmal and Ratanchand, obtained a decree for Rupees 16079/- against respondent 2 Khanderao in civil suit No. 13-B of 1949 of the Court of Additional District Judge, Balaghat. In execution of their decree, they attached two houses situate in the town of Balaghat. The houses were purchased in Court auction by respondent 3 Samrathmal for Rs. 7000/-. The sale, however, has not yet been confirmed.
3. The appellant is the mother of respondents 1 and 2, Krishnarao and Khanderao. She and respondent 1 preferred an objection under Order 21, Rule 58 of the Code of Civil Procedure, to the attachment of their 2/3rd share in the two houses. The objection having been dismissed, the appellant filed the present suit under Order 21, Rule 63 of the Code for declaration that she has 1/3rd share in the houses, which is not liable to attachment and sale in execution of the decree of respondents 3 and 4 against respondent 2. The suit was dismissed. Hence this appeal.
4. It was not disputed before us that two houses in suit and several villages were ancestral properties in the hands of respondents 1 and 2. They effected partition of the properties on 31-12-1945, in which the two houses in suit fell to the share of respondent 2. Each of them executed in favour of the other a document, dated 4-1-1946, embodying the terms of the petition.
These documents contained a statement that the two brothers had reserved one village each for the maintenance of their mother. The case of the appellant was that she did not agree to this arrangement and claimed that a separate 1/3rd share in all the properties should be allotted to her. It is on this ground that she claims release of the houses from attachment to the extent of her 1/3rd share.
5. It was urged before us on behalf of respondents 3 and 4 that the appellant had acquiesced in the division of the properties as made by her two sons and accordingly she was not entitled to any share in the houses attached. It was also urged on the authority of Mt. Bhiwra v. Mt. Renuka, ILR 1949 Nag 400: (AIR 1952 Nag 215), that as she was not allotted any share in the partition and was not given separate possession thereof, she has no right in the family estate except for maintenance for which she was already allotted two villages by her sons.
6. It is no doubt true that the appellant was present at the time of the partition. She, however, denied that she consented to accept the two villages for her maintenance. Her evidence is supported by Ganpatrao (P. W. 4) who was the attesting witness of the deeds, dated 4-1-1946, which embody the terms of the partition.
It is true that she did not claim partition of her share in the family estate so long, but that by itself does not lead to an inference of her acquiescence in the partition as effected by her sons. This argument, therefore, has no force.
7. It is no doubt true that the mother under the Mitakshara law has no right to demand partition of the joint family property. She is, however, entitled to a share equal to that of a son, if a partition takes place between the sons. It cannot be disputed, as laid down by their Lordships of the Privy Council in Pratapmull Agarwalla v. Dhanabati, ILR 63 Cal 691: (AIR 1936 PC 20), that until, actual distribution of the family property is made, she has no right to a share.
Therefore, if there is no actual division of the family property by metes and bounds and there is merely a severance of interest between the sons, her right to a share docs not come into existence. However, the reference to division of property by their Lordships is obviously to its distribution between the sons, for the sons cannot defeat the right of the mother merely by their omission to apportion her share and place her in its possession.
With the utmost respect, therefore, it appears to us that in ILR (1949) Nag 400: (AIR 1952 Nag 215) (supra), an unduly extended meaning has been given to the pronouncement of their Lordships, when it is observed that the mother gets no ownership in the share, allotted to her on partition, till it is actually handed over to her and she is placed in its possession.
That, however, was not the ratio decidendi of the case. In that case, the father was alive when one of his two sons instituted a suit for partition. He died during the pendency of the suit when dispute arose as to the extent of the share which his two widows were entitled to get on partition. That was not, therefore, a ease where the sons had actually divided the estate.
On page 412 (of ILR Nag): (at p. 219 of AIR), their Lordships observed that if that was the case, the decision would have been otherwise. That case is not, therefore, authority for the proposition that until the mother is given a separate share in the family estate at the time of the partition between her sons and is actually placed in its possession, she has no other right except that of maintenance.
8. The right of the mother to a share in thejoint family property on partition between her sons, cannot be lost except by acquiescence or until it is extinguished by a valid transfer or surrender. In Ganesh Dutt Thakoor v. Jewach Thakoprain, ILR 31 Cal 262, their Lordships of thePrivy Council laid down that if the mother hasnot consented to relinquish her share or acquiescedin the partition, she cannot be bound by the partition effected by her sons.
It is no doubt true that, in that case, it was also observed that the partition is not rendered invalid by the omission to reserve a share for the mother, but that only means that the partition would be binding between the sons, for obviously one who was not a consenting party to the partition cannot validly be bound by it. The appellant, who was not a consenting party to the partition, cannot, therefore, be deprived of her share in the houses in suit, the right to which accrued to her on the division of the joint family estate between her sons.
9. In view of the above, the decision of theLower Court is not correct and is reversed.The appeal is accordingly allowed and it is declared that the appellant is entitled to 1/3rd share inthe house in suit and that her share is not liableto be attached and sold in execution of the decreeof respondents 3 and 4 against respondent 2. Costsof the appeal and of the suit shall be borne by respondents 3 and 4. Counsel's fee Rs. 75/-.