1. This suit was brought for the partition of the estate left by one Mokoond Lall Misser, who died in Joist 1285 (May 1878), leaving him surviving two widows,--viz., Mussamut Senabutty Misrain and Belashbutty Misrain; Madho, a son; Josoda, a daughter by Senabutty; Damoodur Misser and Keshub Misser, sons; Bhuggobutty, daughter by Belashbutty. At the time when the suit was brought, Madho, Josoda, and Keshub were minors, and they are still minors. Bhuggobutty is not a party to the suit; she is admittedly not entitled to any share in the estate, she having been married during her father's lifetime. The plaintiffs are Senabutty and her minor son and daughter through herself as guardian. The plaintiff's prayer is, that the estate be divided into six equal shares, and three of these shares be allotted to them.
2. The defendants, viz., Belashbutty and her sons, contend, (i) that the suit cannot proceed, because no sufficient ground has been stated which would justify a partition on behalf of a minor; (ii) that the widows and the unmarried daughter are not entitled to any share; (iii) that, conceding that the widows are entitled to shares, Mussamut Senabutty having received stridhun from her husband, her share should be subject to deduction to the value of that stridhun. With reference to the second ground of defence it is stated, that the widows are only entitled to maintenance, and the unmarried daughter is entitled only to an amount sufficient to defray her marriage expenses. It is further stated, that 2a. 13g. lc. 1k. share of Mouza Bishenpore Bahas, purchased by Mokoond Lall in the name of Senabutty, was given to her as stridhun.
3. The lower Court has awarded one-fourth of a sixth share to the unmarried daughter for her marriage expenses and for her maintenance till her marriage, and dividing the residue into five equal parts, has allotted two of them to Madho and Senabutty. The defendants have preferred this appeal.
4. The first question raised before us is, that the partition should not be decreed in this case, because it is not shown that there has been any malversation of the minor's property.
5. The true rule upon this point is, we think, correctly laid down in Mayne on Hindu Law. He says (Section 400): 'But a suit cannot be brought by or on behalf of a minor to enforce partition, unless on the ground of malversation, or some other circumstances which make it for his interest that his share should be set aside and secured for him.'
6. We think sufficient grounds have been shown to justify a decree for partition. It is proved to our satisfaction that there have been constant disputes and differences between the two branches of the family. In this state of things, it is but natural to find that the joint estate should be mismanaged. This is deposed to by a witness examined by the defendants themselves. Witness Bagesuri says: 'When both the brothers who are parties in this suit agree, then the collection is made, otherwise the collection is stopped. Such is also the case with ziraat,--that is, when the parties in this suit agree, then the cultivation is made, otherwise it is stopped. This state of things exists since Assin last year. The dispute is growing more serious daily, and it has not abated. The parties to this suit have separated in mess since last year. I, by guess, say that the two co-wives are not on good terms with each other.' Moreover, the appeal is valued at Rs. 9,799-5-3, the estate sought to be partitioned being of the value of Rs. 27,992. The defendants valued the appeal, questioning the lower Court's decree only, so far as it allows shares to Senabutty and Josoda. This objection must, therefore, fail.
7. As regards the share allowed to the daughter Josoda, the law on this subject is thus laid down in Vyvada Chintamoni, which is the highest authority in districts governed by Mithila law (see page 248). Menu says: 'To the unmarried daughters by the same mother, let their brothers give portions out of their own allotments respectively according to the classes of their several mothers; let each give a fourth part of his own distinct share; and they who refuse to give it shall be degraded.
8. Their own allotments mean the allotments of the brothers. Therefore the meaning is, that a quarter of the share ordained for a brother of the class to which she belongs should be given to a maiden sister.
9. Here the mention of a quarter is not essential. Property sufficient to defray the expenses of the nuptials should be given, for this is ordained by Vishnu.' &c;, &c.;
10. There is conflicting evidence adduced by the parties as to the expenses incurred in the marriage of Bhuggobutty, the eldest daughter, which took place in the year 1276 (1869). The lower Court finds that about 1,000 rupees were spent on that marriage. In that finding we agree. But that marriage took place twelve years ago. Having regard to the general rise in prices, to celebrate a marriage now in the style in which the marriage of Bhuggobutty was celebrated in the year 1276, the expenses would be now nearly double. Then again it is proved, that Bhuggobutty, since her marriage, has been residing in her father's house. It is, therefore, probable that she has not been married to a person in good circumstances of life. To secure a better match for Josoda, the family would have to spend more than what was spent on the marriage of the eldest sister. Having regard to all these circumstances, we think that the decision of the lower Court allowing one-twenty-fourth share of the estate (i.e., property worth Rs. 3,000) to Josoda is correct. We may suggest here that the lower Court in its final decree should provide, if that is practicable, that Rs. 3,000 be paid out of the estate to the guardian of the minor Josoda to be applied to her marriage expenses.
11. The next question is--Whether Mussamut Senabutty is entitled to a share, and if entitled to a share, to what share? It has been urged on behalf of the appellants that, under Hindu law, a widow is not entitled to any share out of the portion allotted to her step-sons, and in support of this contention, the learned Counsel for the appellants relies upon Cally Churn Mullick v. Janova Dassee 1 Ind. Jur. N.S. 284 which is a Bengal case. There is a difference upon this point between the Dayabhaga and Vyvada Chintamoni and other cognate works on Hindu law of the Mitakshara school.
12. According to the Bengal school, a step-mother having no issue is not entitled to any share. But according to the other school, she is entitled to a share.
13. Jimutavahana says (chap. iii, Section 2, vv. 29 and 30): '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. For the text expresses: the mother should be made an equal sharer.
14. Since the term 'mother' intends the natural parent, it cannot also mean a step-mother. For a word employed once cannot bear the literal and metaphorical senses at the same time.
15. But Vachaspati Misser (Vyvada Chintamoni), quoting another text of Vrihaspati, says on the same subject: 'On the death of the father, the mother (janani) has a claim to an equal share with her own sons. Mothers (matara) take the same share; and the unmarried daughters each a fourth of a share.
Mother (janani) means one who has male issue: mothers (matara) mean step-mothers who have no male issue. These females shall have equal shares with the sons.
16. The author of the Mitakshara on the same subject says: 'When a distribution is made during the life of the father, the participation of his wives equally with his sons has been directed ('If he make the allotments equal, his wives must be rendered partakers of like portions.') The author now proceeds to declare their equal participation, when the separation takes place after the demise of the father, text cxxiii-a--'Of heirs dividing after the death of the father, let the mother also take an equal share'' Mitakshara, chap. i, Section 7, v. l. Although in this passage it is not explained whether the term 'mother' includes step-mother, yet that that is his opinion is clear, because he says, that the rule of law is the same whether the partition is effected by the father during his lifetime or after his death by the sons. From verse 8, chap. i, Section 2, it is evident that, on a partition during the father's lifetime, all his wives receive shares. That this is the meaning of the author of the Mitakshara appears further clear from the discussion upon the subject in question by Sreekissen Tarkalunkar in Dayakrama Sangraha, and by the author of the Viramitrodaya.
17. In chap. vii of Dyakrama Sangraha, Sreekissen, after laying down the law in the same way as his great master, viz., Jimutavahana, says in paras. 7 and 8: 'But the followers of the Mithila school assert, that the word 'mother' in this text of Vrihaspati,--'The mother should, on the decease of the husband, be made an equal sharer with her sons'--intends also the stepmother, in support of which opinion they adduced the following text of that author of the same import. In his default, the mother is an equal sharer with her sons; mothers are equal sharers with them, and daughters are entitled to a fourth part:
In his default'--In default of the father, when a partition is about to be made by grandsons.
The mother'--She who has male offspring.--'Mothers,' step-mothers destitute of male offspring; all these are sharers in equal proportions with their sons.
18. A similar view is taken in the following passage of Viramitrodaya, to be found at page 80 (Ch. II, pt. 1, sec. 19): 'That all the wives of the father, whether sonless or having sons, are entitled to shares equally with the sons, even in partition after the father's demise, appears to be the opinion of the learned author of the Mitakshara, since he introduces the text of Yajnavalkya--namely, 'The mothers also of those effecting partition after the demise, &c.;' with these remarks: it has been ordained that the wives are entitled to shares equally with the sons in partition during the lifetime of the father. Now the sage declares that the wives are entitled to shares equally with the sons in partition after the demise of the father.'
Accordingly also the author of the Madanaratna says: 'The use of the term indicates also the sonless step-mothers, as also the paternal grandmothers, agreeably to the text of Vyasa. The father's sonless wives, &c.; '
19. According to Vyavahara Mayukha (see chap. iv, v. 4) and Smriti Chundrika (see chap. iv) the word 'mother' includes step-mother.
20. Thus, according to Vyvada Chintamoni of Vachaspati Misser and all the leading authorities of the Mitakshara school, both mothers and step-mothers are equal sharers with the sons; therefore, the lower Court is right in its decision upon this point.
21. The next objection urged before us is, that the plaintiff', Mussamut Senabutty, having received stridhun from her husband, is not entitled to a full share on partition. The defendants' allegation, that 2a. 13g. 1c. 1k. share of Bishenpore Bahas was purchased by Mokoond Lall for Senabutty, is not made out. The plaintiffs, on the other hand, state that the kobala by which the purchase is said to have been effected, was merely a benami transaction.
22. We think that the lower Court is right in holding that it was a benami transaction; therefore this appeal fails upon all the grounds taken before us.
23. But the decree that has been passed seems to us to be open to objection. It is to the following effect: 'Accordingly I give the plaintiff's a modified decree, and they shall take by an actual partition the real and personal properties of Mokoond Misser as mentioned in the plaint to the extent of six-annas sixteen gandas share. The revenue-paying estates to be partitioned by the Collector, and in case he refuse to do so, they shall be partitioned by the Civil Court Ameen. Other properties also, moveable and immoveable, to be divided between the parties, and plaintiffs shall get according to their share now decreed. In case any moveable property cannot be found or partitioned, the plaintiffs will get their proportionate costs with interest at 6 per cent, per annum from this day till realized from the defendants, and their proportionate costs, with similar interest, should be borne by the plaintiff's.'
24. The direction as to the partition of the revenue-paying estates seems to us to be erroneous. These estates must be partitioned through the Collector; they cannot be partitioned by metes and bounds by the Civil Court Ameen. Then also if the shares of these revenue-paying estates belonging to this family are themselves not separate estates, but are mere fractional shares of integral estates, they cannot be partitioned in the absence of the other cosharers, If there be any estate or estates in this predicament, partition by metes and bounds of these estates cannot be effected in this suit. The lower Court must adopt some other equitable mode of partitioning the shares. As regards the shares to be allotted to the two widows, it should be made clear in the decree that they are allotted to them in lieu of their maintenance; the proprietary right in them shall remain vested in the sons subject to the widows retaining possession and enjoying the profits during their respective lives.
25. The respondents are entitled to recover the costs of this appeal from the appellants.