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Sorolah Dossee and Unnopoornah Dossee Vs. Bhoobun Mohun Neoghy and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1888)ILR15Cal292
AppellantSorolah Dossee and Unnopoornah Dossee
RespondentBhoobun Mohun Neoghy and ors.
Cases ReferredBilaso v. Dina Nath
hindu law, partition - bengal school of law--partition by sons--mother's share on partition--succession to share given to a mother on partition. - w. comer petheram, c.j.1. the facts out of which the controversy in this case arises are these-rajender chunder neoghy died intestate on the 10th september, 1868, leaving three sons, ram chunder, bhoobun mobun and hurry doss, and a widow rakbal money, the mother of the three sons. ram chunder died immediately after his father, leaving a widow unnopoornah as his heir. unnopoornah sued for partition, and the property which had been that of rajender chunder was divided into four parts, of which one was allotted to unnopoornah, one each to bhoobun mohun and hurry doss, and one to their mother rakbal money. rakhal money died on the 18th february, 1884, leaving her two sons bhoobun mohun and hurry doss and her daughter-in-law unnopoornah surviving. hurry doss had since died leaving his widow.....

W. Comer Petheram, C.J.

1. The facts out of which the controversy in this case arises are these-Rajender Chunder Neoghy died intestate on the 10th September, 1868, leaving three sons, Ram Chunder, Bhoobun Mobun and Hurry Doss, and a widow Rakbal Money, the mother of the three sons. Ram Chunder died immediately after his father, leaving a widow Unnopoornah as his heir. Unnopoornah sued for partition, and the property which had been that of Rajender Chunder was divided into four parts, of which one was allotted to Unnopoornah, one each to Bhoobun Mohun and Hurry Doss, and one to their mother Rakbal Money. Rakhal Money died on the 18th February, 1884, leaving her two sons Bhoobun Mohun and Hurry Doss and her daughter-in-law Unnopoornah surviving. Hurry Doss had since died leaving his widow Sorolah his heiress. Two suits were thereupon brought, the details of which it is not necessary to examine, and were beard together before Trevelyan, J. The question for decision is shortly stated by the learned Judge to be 'whether the one-fourth share which was allotted to Rakhal Money on partition is to be divided between her surviving son Bhoobun and the widow of Hurry Doss or between Bhoobun, the widow of Hurry Doss, and Unnopoornah.'

2. The learned Judge decided that Unnopoornah was entitled to an equal share with the other two claimants; he held that when on a partition between sons a share is allotted to their mother 'when she dies the property must go back to the persons who were bound to maintain her, and who, in pursuance of that obligation, make over the property to her.' Against that decision Sorolah, the widow of Hurry Doss, has appealed. The only other case with which we are acquainted in which the same precise question arose is an unreported case heard before Pigot, J., in which that learned Judge, though he did not base the decision of the matter before him on that ground, expressed a decided opinion, after argument, to the effect that on the death of the mother her share goes to the persons who at the time of her death are the heirs of her husband. We have to say on this appeal which is the correct view.

3. The contention on the part of the appellants may be summarized thus. A wife by marriage takes an interest in her husband's estate, and that interest does not cease for all purposes upon his death, even if he leave sons. Although partition be made by the sons after the father's death, it is still the father's estate that is partitioned. The share allotted to the mother is not a new estate created by the partition, but the partition defines and gives effect to the right which has all along been in her. She takes it by inheritance, and accordingly, like all property inherited by a widow as such, it goes on her death to those who are then the heirs of her husband.

4. The contention on the other side was, that a wife during her husband's life is ordinarily entitled only to be maintained by him ; that after his death her right as against her sons is no greater ; that the share which is allotted to her on a partition between her sons is allotted in lieu or in satisfaction of the general claim to maintenance which she has previously had; and that on her death that share reverts to those who were liable for her maintenance, and out of whose estates the share was taken.

5. In order to estimate the correctness of either of these views it is necessary, I think, to enquire briefly what is the nature of the interest that a wife takes in her husband's estate during his life, and as against his sons after his death; what is the nature of the estate that the sons take by inheritance from their father ; and how these two interests are to be reconciled with, or are controlled by, one another.

6. It is specially important to bear in mind while examining these questions that we have to do with the Bengal law, not the Hindu law of any other schools. As to the nature of the right of a widow, when her husband has left sons, the various schools differ, or may differ widely. Thus, according to the Bengal school, a widow can claim a share on partition if her sons divide the patrimony amongst themselves. In Southern India this seems not to be so. In Bengal the right to a share is given only to a mother as against her own sons, a childless widow has no such right against her step-sons. It is by no means clear that this is so under all the schools. In Bengal it is settled that the share allotted to a mother does not become absolutely hers, so as to pass to her stridhun heirs. The Privy Council in Bhugwandeen Doobey v. Myna Baee 11 M.I.A. 514 point out that under the Benares law this is an open question. And turning to the other aspect of the matter, the interest taken by the sons as heirs, the principle governing inheritance is not wholly the same under the Bengal school and the other schools; the rules of inheritance are not always the same; and it may well be doubted whether the conceptions embodied in the ordinary terminology of the subject are the same in the different schools. There is reason for saying that the very word Day a, or Inheritance, has been used by some authors in a sense not co-extensive with that which it bears under the Bengal law.

7. The title of the wife is based ultimately upon two propositions; that a wife takes by her marriage an interest in her husband's estate; and that on a partition of the ancestral estate between sons their mother takes a share equal to a son's share. The text often referred to and cited by Jagannatha (Section 415, 1 Col. Dig. p. 541, Madras Edition) says: 'Wealth is common to the married pair.' Jimuta Vahana (Dayabhaga, Oh. XI, Section 1, para. 26) speaks of 'the wife's right in her husband's property accruing to her from her marriage.' The Daya Tattwa, Ch. VI (I cite from the English Edition of Golap Chundra Sarkar, Calcutta, 1874), says: Section 7.--'Also in discussing wife's right her right is declared to extend during his lifetime to every property belonging to her husband; also in the Shradha Veveka it is declared ' that property lies between husband and wife,' i.e., belongs to two masters, namely, husband and wife.' Section 10.--'Therefore, as the prohibition, namely, 'there is no partition between husband and wife,' implies the existence of previous property, consequently the common right of both over the same property is indicated.' Section 11.--'Otherwise, in the absence of the common right of both, partition itself would be unreasonable; consequently there would not have been the prohibitory proposition.' Section 12.--'This is also the meaning of the unity (of husband and wife) declared by Laghu Harita, 'because she attains to unity (with her husband) through clarified butter, sacred texts, offerings and religious observances.' All the Bengal authorities accept the rule embodied in the text of Vrihaspati cited in the Dayabhaga, Ch. III, Section 2, para. 29 : 'When partition is made by brethren of the whole blood, after the demise of the father, an equal share must be given to the mother, for the text expresses, 'the mother should be an equal sharer.' But again, if there be any tenet of the Bengal law laid down clearly and without hesitation, it is, that sons, grandsons or great grandsons in the male line take the whole estate of their ancestor, take it on his death, and take it by inheritance in the strictest sense of the term.

8. We have thus three propositions which, whatever their meaning may be, all rest upon unquestionable authority-that a wife takes by marriage an interest in her husband's property; that sons take by inheritance the whole of their father's estate; that upon a partition between sons of their father's estate their mother takes a share equal to a son's share. It seems to me desirable to enquire how the first and second of these propositions are related, to one another, for on this depends the principles by which we should be guided in applying the third proposition, and the conclusions which we should draw from it.

9. I propose first to examine shortly the nature and characteristics of a wife's interest in her husband's estate on the one hand, and of a son's interest in his deceased father's estate on the other, looked at from a purely practical point of view, discarding as far as may be all controversial matter, and postponing all questions of principle or theory.

10. If we look at the matter thus it will appear that a wife's interest in her husband's estate is of a very indeterminate character; she may take everything, or she may take very little, according as events turn out. As long as her husband lives she is ordinarily entitled merely to be maintained by him, and cannot claim any share of his estate or any voice in its management. He has full power of alienation while he lives; and, subject to any question of her maintenance, full power of disposition by will. Should he, however, during his life elect to partition his estate between himself and his sons, it would seem that a wife should be allowed a share equal to a son's, if she be without male issue, but not otherwise. When her husband dies she may survive him, and there may be no sons, grandsons or great grandsons in the male line, and then she takes the whole estate as heir. She may survive and have no sons, but there may be sons by another wife, in which case she is entitled, and will ever remain entitled, to maintenance, and no more. She may survive and have one son, in which case her right is, and as long at least as her son lives must always remain the same, a right to maintenance, She may survive and have several sons, and in this case, as long as her sons continue in the normal condition of a joint family, she is entitled to maintenance only; but if her sons partition among themselves she takes a share; and the same thing results if her grandsons partition. Thus, whatever the principle applicable to the matter may be, the wife's interest in her husband's estate resolves itself in fact into a right to maintenance, except in the absence of lineal male heirs, in which case she takes the inheritance, and in two cases-one occurring in her husband's lifetime, the other after his death-in which she takes a share.

11. The wife's right to maintenance after her husband's death is, in one sense, undoubtedly a charge upon the estate, and she may sue to enforce it and have it secured. But it is not a charge in the fullest sense of the term, because it does not in every case necessarily bind any part of the property in the hands of a purchaser. If there be two groups of sons by different mothers, and those groups separate each from the other, the maintenance of a widow is a charge on her own sons' property, not on her stepsons.' If her sons do partition it has long been the settled law in Bengal that her share is taken out of their shares, not out of her step-sons, And she has in no case a right herself to initiate a partition.

12. The nature of her right in the share when allotted was long a subject of controversy. Writers of high authority maintained that it vested in her absolutely and passed after her death to her heirs as stridhun. It is now settled in Bengal that this is not so, but that on her death it goes back in some sense to her husband's family. It is settled, also, that the mother has, at any rate, no greater right of alienation over a share so allotted than over property inherited from her husband. There is some authority at least for supposing that she has no less power.

13. It thus appears that a mother's interest in a share allotted to her is at least very closely analogous to, if not identical with, that which she takes in property inherited from her husband, while many of the other incidents connected with her right point in a different direction.

14. Looking from the same point of view at a son's rights in the estate which he inherits from his father, there can be no doubt that for all ordinary purposes the son is absolute owner of his father's estate, and can do what he pleases with it.

15. I propose next to enquire on what principle Bengal lawyers have dealt with the two seemingly conflicting propositions, that a wife takes an interest in her husband's estate by marriage, and that his lineal heirs in the male line take his whole inheritance, and the inferences that they have thence drawn, or constrained us to draw, as to the nature of a mother's interest in a share allotted to her. The question is dealt with by Jimuta Vahana in Ch. XI, Section 1. The chapter relates to 'the succession to the estate of one who leaves no male issue,' and the section to 'the widow's right of succession.' In maintaining that right he has begun by citing in Section 2 the text of Vrihaspati that 'a wife is declared by the wise to be half the body of her husband equally sharing the fruit of pure and impure acts.' Of him whose wife is not deceased half the body survives. How then should another take his property while his body is alive? Let the wife of a deceased man who left no male issue take his share, notwithstanding kinsmen-a father, a mother, or uterine brother-be present.' In the course of the discussion he cites, 15, certain texts in favour of the brother's claim, and rejects them. In 19 he states a view put forward by supporters of those texts--'some reconcile the contradiction by saying that the preferable right of the brother supposes him either to be not separated or to be re-united, and the widow's right of succession is relative to the estate of one who was separated from his co-heirs, and not reunited to them.' He examines and refutes various arguments put forward in support of that view. Particularly he says in 25: 'But it is said this inference is deduced from reasoning. Thus, in the instance of re-union (or in that of a subsisting co-parcenary), the same goods which appertain to one brother belong to another likewise. In such case, when the right of one ceases by his demise, those goods belong exclusively to the survivor, since his ownership is not divested. They do not belong to the widow, for her right ceases on the demise of her husband ; in like manner as his property devolves not on her, if sons or other (male descendants) be left.' In 26, Jimuta Vahana gives his answer to this : 'That argument is futile. It is not true that in the instance of re-union and of a subsisting co-parcenary what belongs to one appertains also to the other parcener. But the property is refered severally to unascertained portions of the aggregate. Both parceners have not a proprietary right to the whole, for there is no proof to establis their ownership of the whole, as has been said before (when defining the term partition of heritage). Nor is there any proof of the position that the wife's right in her husband's property accruing to her from her marriage ceases on his demise. But the cessation of the widows right of property, if there be male issue, appears only from the law ordaining the succession of male issue.' Shortly stated, the view expressed in this passage seems to me to be this: that neither son nor brother takes by survivorship so as on this ground to exclude the widow, but that each takes when he does take by inheritance; and that the reason why the widow takes after the son, but before the brother, is because the existence of the son puts an end to her right derived from marriage, but that the existence of a brother does not do so. It is thus an essential part of the argument that upon the death of a husband, leaving male issue, his wife's interest in his property acquired by marriage ceases, and the issue take the whole, while, if the husband die without male issue, the wife's interest does not cease. And the author thus negatives the view that the share which she takes on a partition between her sons comes to her either by inheritance from her husband, or in continuation of any interest previously vested in her.

16. The difficulty of reconciling an interest taken by a wife by reason of marriage with the exclusive inheritance of her son has been felt by other minds later than Jimuta Vahana, and his mode of reconciling them has not always been considered satisfactory. The remarks of Peacock C. J., in Nobin Chunder Chuckerbutty v. Issur Chundar Chuckerbutty 9 W.R. 505 (508) : B.L.R. Sup. Vol. 1008 illustrate this. But, satisfactory or not, the doctrines of the Dayabhaga are the law which we have to administer; Gurn Gobind Shaha Mandal v. Anand Lal Ghose Mazumudar 5 B.L.R. 15.

17. The right of a mother to take a share upon a partition between her sons and the incidents of that right are much considered by Jagannatha. The discussion is to be found mainly in Book V, Chapter II, as 83 to 89. In the course of that discussion most of the points which I have already mentioned as settled points under the Bengal law may be found stated. Upon other points opinions are cited from authors of that and other schools; but it is not always easy to collect what the view of the learned author himself is. The part of the discussion most directly relevant to the present case occurs in the notes to ; Section 87, in the paragraph beginning with the words 'whether the share be equal, etc.' (2 Col. Dig., p. 250, Madras Edition, 1874). The precise question there under discussion is, whether the share allotted to a wife or mother on partition becomes hers absolutely with free power of alienation, and passes to her own heirs, or whether it is subject to the restraint upon alienation usually incident to property taken by women by inheritance from males, and reverts to the estate of the husband or father. This question has since been answered in Bengal in the latter sense, at any rate in the case of an allotment to a mother. In the course of the discussion opinions are cited from many authors bearing more or less closely upon the question now before us. But those authors belong to various schools, and their views are very conflicting. At the close of the discussion Jagannatha says (p. 252): 'Such is the answer given by some lawyers to the question proposed.' He then cites a passage from Bhavadeva, and adds: 'Although the mother survived, the son has property in the paternal estate after the demise of his father, of whom the principal right was predicated; and the mother's right, which is subordinate, neither resists nor is resisted by any other. Accordingly though the first wife has property in her husband's estate, another, subsequently married, has also property in the same estate.'

18. In a later part of the Digest, Book V, Chapter VIII, Section 414 (p. 541, Madras Edition, 1874), Jagannatha reeur3 to the subject; and, speaking clearly with reference to the passage from the Dayabhaga already cited, he says: 'According to the opinion of Jimuta Vahana, since the wife has an interest in the wealth of her husband during his life, and since there is nothing to annul her property after his decease, how can her husband's brother and the rest in any instance have a claim to the estate? To this it is answered no, for it is established that her property is actually lost by the lapse of her husband's right. Accordingly the property of the wife is divested even when the effects are given away by her lord. Those who affirm that the allotment of a share to the mother, when partition is made among sons, is founded on her ownership of the father's estate, because she was his wife, accordingly contend that a share of the distributed wealth must be alloted to a wife of the father, whether she has or has not a son, and whether partition be made before or after the death of the father.' Whatever uncertainty there may be about the earlier passages of the Digest, this passage seems to me to assert that a wife's interest in her husband's estate is actually lost by the lapse of her husband's right, which, having regard to the words of Jimuta Vahana on which Jagannatha bases his reasoning, seem to mean by the death of the husband leaving lineal heirs in the male line. And he confirms this by showing that the contraryview--the view 'that the allotment of a share to the mother, when partition is made among sons, is founded on her ownership of the father's estate, because she was his wife'--would lead to conclusions which the Bengal school of lawyers has always rejected. Some more recent Bengal authorities remain to be considered. The case of Sheo Dyal Tewaree v. Judoonath Tewaree 9 W.R. 61 and the other appeals disposed of with it arose out of proceedings taken by means of several suits for the partition of an estate. Among the sharers were an uncle and nephew, and one Golaba, the mother of one and grandmother of the other, claimed a share. By the decree it was awarded to her ; but no actual allotment had been made and no separate enjoyment had, when Golaba died before the appeal came on for hearing. A person alleging herself to be devisee of Golaba came forward to claim her share. The case was one governed by the Benares school of law, and she relied, I suppose, upon the contention which the Privy Oouncil showed to be open in 11 Moore's I.A. at p. 514. Loch and D.N. Mitter, JJ., held that the bare decree gave Golaba no title, and therefore the question as to the devolution of any share of hers did not arise. In delivering judgment D.N. Mitter, J., said : 'It is quite clear that the share which ought to have been allowed to Golaba was merged in the general estate, conceding, for the sake o argument, that she was entitled to any share under the Hindu law as it is administered in the Benares school. The text of the Mitakshara that has been referred to merely says: 'Of heirs dividing after the death of the father let the mother also take a share,' or in other words, the mother or grandmother as the case might be, is entitled to a share, when sons or grandsons divided the family estate between themselves. But the mother or the grandmother can never be recognised as the owner of such a share until the division has been actually made. She has no pre-existing vested right in the estate except a right of maintenance. She may acquire property by partition, for partition is one of the recognized modes of acquiring property under the Hindu law. But partition in her case is the sole cause of her right to the property. It follows therefore that the effect cannot precede the cause.' The Court seems to me here to lay down, and to lay down not by way of dictum, or mere expression of opinion, but as the ground of decision, that when a mother takes a share on partition her title arises from the partition alone, and that she had no pre-existing vested right except a right of maintenance. And if this be so under the Benares law, it seems to be more clear that it must be so under that of Bengal, because the Bengal law is more positive in restricting the mother's right than the Benares law.

19. In the last edition of Shama Churn Sircar's Vyavastha Darpana, Section 598, the learned author says: 'The share which is given to a mother on the partition as above is given to her in lieu of maintenance, and means allowing also for the performance of religious acts, and it reverts after death to those heirs of her husband out of whose portion that share was allotted to her.' The writer goes on to cite a passage as from Jagannatha ; but there is some mistake here, for there is no such passage in the Digest, and the opinion expressed must therefore be taken simply as that of Shama Churn Sircar.

20. In the late case of Kedar Nath Coondo Chowdhry v. Hemangini Dassi 13 C. 336 the actual point for decision was whether a widow, after a partition between her own son and sons of another wife of her husband, could claim to have her maintenance charged on the estate of her step-sons, and it was held by the Chief Justice and Ghose, J., that she could not. In the judgment which was delivered by Ghose, J., it is said at page 341: 'When the Hindu law prescribes a share being allotted to a woman after her husband's death, upon a partition among her sons, it is a share which is given to her simply in lieu of maintenance, and not because she is a co-parcener in the estate, or that she has any preexisting rights, and the share which is thus given to her reverts upon her death to those heirs of her husband out of whose portion the said share was taken.' And in support of this are cited the passage just mentioned from Shama Churn Sircar, a case in Strange's Hindu Law and the case already mentioned of Sheo Dyal Tewaree v. Judoonath Tewaree.

21. We were referred in argument to West and Buller's Hindu Law of Inheritance, 3rd edition, pp. 67, 237, 297, 303 and the following pages, 781, 819, where an immense number of conflicting opinions gathered from writers of all schools of Hindu law are brought together bearing upon the mother's right to a share in a partition between sons, and the subject is discussed in many aspects. But I do not find any expression of opinion by the learned authors which assists us in ascertaining the Bengal law upon the question now before us.

22. Much stress was also laid upon the case of Lakshman Ramchandra Joshi v. Satyabhamabai 2 B. 494. The question in that case was as to the extent to which, and the persons against whom, a mother has an actual charge for her maintenance upon the ancestral estate of her sons, where no partition has taken place between them. So far the case does not directly bear upon the point before us. But West, J., in his judgment examines the whole subject of a widow's right in connection with her husband's estate very fully, and he examines it under the Bengal system of law as well as the others. The passage most directly bearing upon the matter before us is at page 507. Speaking of the mother's right to an allotment, on a partition between sons or their representatives, he says: 'This is to be referred to the wife's right in her husband's property acquired by her marriage. As to this there is no proof, the Dayabhaga says Chapter IX, Section 1, para. 26 ' that it ceases on her husband's death. But the cessation of the widow's right of property, if there be male issue, appears only from the law ordaining the succession of mala issue.' Jimuta Vahana in this way makes out that, while the widow's right to her husband's whole share or whole estate subsists in spite of the survival of other undivided co-parceners, it is extinguished by the superior right of a son, grandson, or great grandson, through the operation of the special texts in their favour. In Bengal, then, it seems that the widow has a complete proprietorship, subject to restriction ON waste, as against other co-parceners; no proprietorship at all as against sons. Yet in Bengal, as in the provinces governed by the Mitakshara, 'when partition is made by brothers of the whole blood after the demise of the father, an equal share must be given to the mother.' The mother's ownership, which has, according to this view, been extinguished, revives again on a partition amongst her sons. Their ownership in the meantime is complete.' Great weight is due to any opinion of that learned Judge on a question of Hindu law; the opinion, however, here expressed did not form the ground of decision, but is upon a point collateral. I should not have ventured to comment upon the language used in thus stating a proposition the substantial correctness of which is not open to doubt, but that the precise words have been relied upon in argument. As those words have been relied upon, I must say that I thick it is more in accordance with the text of the Dayabhaga in the passage cited, and with the current of the Bengal authorities to say, not that on partition an old right revives, but that on partition a new right arises.

23. The case of Bilaso v. Dina Nath 3 A. 88 was also relied upon. The question in that case was whether, under Mitakshara law, a mother's right to claim a share on partition was good, not only against her sons, but against a purchaser at an execution sale of the undivided interest of one of the sons. That question was answered in the affirmative. It is unnecessary to enquire whether the same rule would prevail in Bengal; some of the reasoning on which the decision was based would not, I think, be applicable in a case governed by Bengal law.

24. The conclusion which I draw from the Bengal authorities is that a wife's interest in her husband's estate given to her by marriage ceases upon the death of her husband leaving lineal heirs in the male line; that such heirs take the whole estate; and that the share which a mother takes on a partition among her sons she does not take from her husband, either by inheritance, or by way of survivorship in continuation of any pre-existing interest; but that she takes it from her sons in lieu of, or by way of provision for, that maintenance for which they and their estates are already bound. I think it follows as a necessary inference that, on her death, that share does not descend as if she had inherited it from her husband, but goes back to her sons from whom she received it. And this is the conclusion drawn by Shama Churn Sircar and by Ghose, J., in the passages already cited.

25. It is true that throughout the controversy which once prevailed in Bengal, and which still, perhaps, exists in some other schools of law, as to whether a mother takes her share absolutely or only for life, we constantly find the question asked in this way,-whether her share goes on her death to her heirs or the heirs of her husband. Such expressions in such a context do not, I think, afford us any assistance; it would have been irrelevant to the matter in hand to enquire what heirs of the husband take. And I have therefore not thought it necessary to examine those various opinions in detail. The heirs of the husband might be, as the appellant contends, those who would have been his heirs if he had died when his widow died. They might be all those who at bis death were in fact his heirs. They might be all those among the latter group who by inheritance, followed and defined by partition, took the particular property in question, and out of whose shares the mother's allotment was taken. The two latter groups would, in the present case, be identical. But, as will be shown later on, it might be otherwise if there were sons by different mothers. The last of these three views, I think, is the true one on principle and on authority.

26. If we were to accept the view contended for by the appellants, and hold that when a mother dies the share, allotted to her on a partition between her sons, goes to the heirs of her husband to be ascertained at her death, we should be led, of necessity, to come consequences which it is difficult to accept. We must, in the first place, either say that, on the death of a father, his sons do not inherit his whole estate, a doctrine which seems to me wholly repugnant to the Hindu law current in Bengal; or else we must say that the same property can descend by inheritance twice from the same man to male heirs. Secondly, we must say that two different groups of male persons may be the heirs of the same man.

27. In congruities, it was contended, also follow from the opposite view. It was said that that view involves the idea of a life estate in the mother with a vested reversion in her sons or their representatives, and that such a combination of interests, arising by operation of law, is not elsewhere known to the Hindu law. This may be so, but such a combination is certainly admissible when it arises by act of the parties, and this was freely admitted; and I am disposed to think that the apparent difficulty arises mainly from the application of the language of English law to the affairs of persons living under Hindu law.

28. A second incongruity pointed out as arising from the same view, is, to my mind, of somewhat greater weight. In the treatises with which we are familiar, property vested in Hindu women is regarded as of two kinds; property inherited from a male person, which descends to those who are his heirs at the date of the death of the female inheritor; and stridhun, which descends to her own heirs. The share allotted to a mother on a partition among her sons is confessedly her property; yet on the view in question it neither is stridhun, nor descends as property inherited from a male. I think this an argument not without force. Perhaps the answer may be that woman's property is ordinarily treated of under head of inheritance, and therefore a kind of property, which on her death is not a subject of inheritance, might naturally not be discussed. It may be observed in this connection that the rule which I think the true one, though not a rule of inheritance, follows the analogy of the law of inheritance, for it makes a mother's share revert on her death to the last male owners.

29. If we are at liberty to consider this matter from the point of view of convenience, there can, I think, be no doubt which rule is the more convenient. In the present case there has been only one group of sons, and the question is merely whether the mother's share is to go back to all her sons or their representatives, or only to her surviving sons. But there may well be two groups of sons by two mothers. And the rule contended for by the appellant would, on the death of either mother, who had obtained a share on a partition amongst her sons, take her portion which had been carved out of her own sons' share alone, and divide it rateably between sons and step-sons.

30. I think the view taken by the learned Judge who heard the case is correct, and that this appeal should be dismissed with costs.

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