1. This is a civil regular first appeal virtually by the defendant Mst. Samubai, though, curiously enough, the successful plaintiff has also joined her in this, against the judgment and decree of the Civil Judge, Sirohi dated the 7th February, 1959-in a suit for partition.
2. This appellant is the mother, while the plaintiff Sheshmal and the other defendant Magan Lal, are the sons. The plaintiff Shesh Mal filed a suit for partition of the joint family property impleading the present appellant and the other brother Magan Lal as defendants to the suit. The husband of Mst. Samubai, who was the father of the other two parties, died in 1927 A. D.
The plaintiff appellant claimed a 1/3rd share o the entire family property on the footing that the present appellant Mst. Samubai was also entitled to a similar share, that is, 1/3rd apart from the remaining 1/3rd, to which, the other brother Magan Lal would be entitled. The suit was resisted by Magan Lal, his contention being that he as well as the plaintiff was entitled to a half share each, and that their mother was not entitled to any share whatever in the joint family property.
The learned trial Judge felt persuaded to accept this plea, and has consequently, passed a preliminary decree by which he has held the two brothers to be entitled to one half share each in the joint family property, and according to him, the mother was not entitled to any share therein. The mother Mst. Samubai has, therefore, come up in appeal to this Court.
3. The sole question, which, therefore, arises-for determination in this appeal is: Whether the mother is entitled to any share in the joint family property at a partition between her sons? The learned trial Judge recognised that under the ordinary Hindu Law, as it stood, a mother was entitled to a share equal to her sons when a parti-tion would take place between them. The learned Judge, however, held that this rule has now become obsolete in view of the provisions of the Hindu Adoptions and Maintenance Act LXXVIII, 1956 (hereinafter referred to as the Act of 1956).
The reasoning, which led the learned Judge to come to the conclusion to which he did, was briefly this. He held that by section 4 of the Act of 1956, save as otherwise expressly provided in this very Act, -- any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act ceased to have effect with respect to any matter for which provision was made in this Act; and further that, any other law in force immediately before the commencement of this Act also ceased to apply to Hindus in so far as it was inconsistent with any of the provisions contained in this Act.
The learned Judge, therefore, held that any law relating to the maintenance of a mother as under the old Hindu Law, or, according to any usage or custom which might have been in force before must yield to the provisions of the Act of 1956 in so tar as they be inconsistent with the provisions of this Act. To this extent, we do not consider that any fault can be found with the learned Judge, because the provisions of the said Act have been given an over-riding effect by section 4.
The learned Judge, however, went on further to hold that the right of a mother to ask for a share for herself at a partition proposed to be made between her sons, which was a right available to her under the pre-existing law, was no longer available to her, because of the over-riding nature and effect of the Act of 1956, and in coming to this conclusion, the learned Judge seems to have been greatly influenced by the consideration that the right of the mother under the Hindu Law to claim a share at an intended partition between the sons was in lieu of her right of maintenance.
This seems to have induced him to hold that as the provisions relating to the maintenance of a mother, as contained in the Act of 1956, have been given an over-riding effect by the legislature, the mother's right to claim a share by partition as before had become obsolete.
4. We have given our careful and anxious consideration to this proposition of law, and have come to the conclusion that it is extremely difficult for us to sustain it. It is true that the Act of 1956 contains certain provisions which must now govern the question of maintenance of 'aged parents,' which expression includes both the male as well as the female parent. The relevant section is Section 20. Leaving out the immaterial portion of this section, it reads as follows:
'The obligation of a person to maintain his or her aged or infirm parent.....extends in so tar as the parent.....is unable to maintain himself or herself out of his or her own earnings or otherproperty.'
It will be at once seen that this right pertains to aged or infirm parents only, and again, the right ot maintenance, which has been vouchsafed under this section, is to the extent that such parent is unable to maintain himself or herself out of his or her own earnings or other property. This right of the parent to maintenance is in essential respects not quite the sume as was available to a parent under the pre-existing law, and by virtue of Section 4 of the Act of 1956, the law as laid down in Section 20, must prevail over the earlier law.
Be that as it may, we fail to find anything in this section or in any other part of the Act of 1956 whereunder the right of a mother to claim a share equal to that of the sons at an impending partition between the latter, has been taken away. In tact, there is no provision whatsoever in the Act of 1956 which would seem, in our opinion, to have any bearing on this particular right of the mother.
5. We are conscious of the traditional view according to which the right of a mother to claim a share of joint family property at a partition between the sons is in lieu of her right of maintenance (see Hemangini Dasi v. Kedarnath Kundu Chow-dhry, ILR 16 Cal 758 (PC)), and not on account ot any right of inheritance as such. This may have been so. But with profound respect whether the same view can hold good today in view of the Hindu Succession Act 1956 to which we propose to refer hereafter in some detail is more than we are prepared to accept.
The crucial point to our mind, however, upon which the determination of the question before us depends is whether the law of maintenance tor a mother as contained in the Act of 1956 debars her from claiming any right to her usual share at an intended partition between the sons by an express provision or by necessaiy intendment arising out of the provisions contained in the Act. Now it was nobody's case even before the trial Judge that the Act of 1956 makes any express provision in this regard.
We further think that there is nothing in the provisions of this Act which can or must by necessary implication justify us in holding that a mother in the situation we are called upon to consider does stand deprived of her right to claim her share of the joint family property of which she was in unquestionable enjoyment before the Act of 1956 was passed. We are, therefore, definitely disposed to hold that in respect of matters, for which no express provision is to be found, or which cannot be read into the Act of 1956 by irresistible implication, the old law must remain arid continue to be applicable as before.
If our analysis of the provisions relating to the maintenance of a mother as contained in Section 20 or other provisions of the Act or 1956, is correct, as we think it is, then we have no hesitation in saying that there is nothing therein which would militate against the right of a mother to claim a share at a partition between the sons. And if this is so, section 4 of this Act of 1956 cannot possibly stand in the way of such a right being given effect to, if it is available to her under the ordinary Hindu Law.
We also wish to point out that the recent trend in our country, with respect to the rights of women, has undoubtedly been to enlarge them, so far as their economic or proprietary status in a Hindu family goes, and under the Hindu Succession Act 30 of 1956, a mother has been classified as an heir or Class I, vide Sections 8, 9 and 10, read with the relevant schedule, and under Section 14 of the same Act, it has been provided that any property possessed by a famale Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
The Hindu Succession Act came into force on the 17th June, 1956, while the Act of 1956 came into force later on the 21st December in the same year, and We find it impossible to accept that the right, which a Hindu mother enjoyed under the old Hindu Law, and which generally speaking, has been greatly bettered under the Hindu Succession Act of 1956, was adversely affected in the matter of her right to claim a partition by anything con-tained in the Act of 1956, which, as we have already discussed above, contains no provision whatever affecting that right of her.
6. For the reasons mentioned above, we are unable to agree with the conclusion of the learned trial Judge that the appellant, who is the mother in this case, stands deprived of her right to claim a share of the joint family property at the impending partition between her sons by the provisions of the Act of 1956. It may be that should she later ask for any maintenance from her sons under the provisions of Section 20 of the Act of 1956, her right in that connection may be affected in so far as she is able to maintain herself out of the property, which she receives at the partition, but to hold that because of such a right of maintenance she cannot ask for her share at any partition between her sons, is a proposition from which we entirely dissent.
The result is that we allow this appeal, and,setting aside the judgment and decree of the trialCourt, hold that the defendant-appellant would beentitled to a l/3rd share in the joint family propertyalong with her sons, the other parties to this litiga-tion, who would likewise have l/3rd share each.As this appeal has not been opposed in this Court,we would make no order as to costs.