1. This is a suit for the partition of the estate of Netai Chand Chakravarti, a Hindu governed by the Bengal School of Hindu Law, who died on the 28th October 1901.
2. It is admitted that the estate of the deceased which it is sought to partition was acquired by him under the will of his only son, Bhola Nath Chakravarti, who predeceased him, leaving a widow the defendant Bechumonee. Bholanath had two sons--Charu Chandra and the plaintiff, Burna Chandra Chakravarti. Charu Chandra also predeceased Netai Chand Chakravarti, leaving a widow, the defendant Sarojini Debi, and a son, the defendant Dhirendra Nath Chakravarti. Netai Chand Chakravarti left a widow, the defendant Bissessuri Debi.
3. The plaint and written statements filed contain charges and countercharges which need not be discussed. The only question raised at this stage--a question not raised in the pleadings--is whether the defendants Bissessuree Debi and Bechumonee Debi or either of them are or is entitled on a partition being made between the other parties to the suit to a share, and if so what share, or only to maintenance.
4. The partition, it will be observed, which is asked for here is a partition between a grandson of Netai Chand Chakravarti (the plaintiff) and a great-grandson (the defendant Dhirendra Nath).
5. With regard to the defendant Bissessureo Debi, it is contended that a grandmother is entitled to a share on partition whether the partition takes place amongst sons and grandsons or amongst grandsons only or amongst grandsons on the one hand and the representatives of grandsons, that is, great-grandsons on the other. In support of the claim made on behalf of Bissessuree Debi to a share, a number of texts and test-books and other authorities have been referred to.
6. Sir F. Macnaghten in his 'Considerations on Hindu Law' in dealing with partition confines himself to partition made by the partitioning parties themselves, that is to partition after the death of the owner (p. 28). He points out that the right of a great-grand mother to a share of the estate upon a partition made of it by her great-grandsons is nowhere recognised in Hindu Law, but that on such a partition there is a moral obligation on the part of the great-grandsons to maintain her (pp. 28 & 51). Then he goes on to say: 'A woman's right to a share of the estate, if even one of the partitioning parties be a great-grandson, is nowhere expressly declared.' This is the position in the present case. He then refers to the case of Gooroo Persaud Base v. Seeb Chunder Bose Mac. Cons. on Hindu Law, p. 29 where the right of a woman to come in for a share upon partition made by her son and grandson was questioned. The Pundits were equally divided in their opinions, but, after making further enquiry, it was ultimately decided by the Court that the grandmother was entitled to a share, as she would have been had the partition been made by her sons. Sir F. Macnaghten states that after that decision he had consulted the Pundits of the Supreme Court on the subject of a woman's right to a share if one of the partitioning parties should he a great-grandson. The Pundits while admitting that the law was silent were of opinion that from reason and analogy she ought to have a share, but that to entitle her to a share there must be some more proximate descendant than a great-grandson party to the partition. 'I have,' he concludes, 'assigned her a share, although her great-grandsons may be the partitioned, provided some of her more immediate descendants are parties or some one more immediate descendant is a party to the partition.' If this statement-of the law is correct now it would seem to cover the case before me.
7. At p. 52 Sir F. Macnaghten states the following eases : If A having had three sons, B, C and D, by one wife, dies leaving two eons 33 and 0 and three grandsons by his son D, who had predeceased him, then in a partition A's widow would he entitled to a 1/4th share ( 29), but if B, C and D should have all died before partition and had each left sons then upon a partition among such sons their grandmother would not be entitled to a 1/4th as she would have been had either B, C or D been living at the time of partition, but she would share with her sons per capital although they would share per stirpes ( 29). So if there be three brothers, A, B and C, whose mother D and whose paternal grandmother E is also living, then on partition by A, B and C, these three brothers will each take a share, as will their mother and also; their, grandmother, as such a division gives her a share equal to that of each of her partitioning grandsons, but if A, B and C had all died leaving sons and those sons hail come to a partition, then. D being their grandmother would share with them, but E being their great-grandmother would not be entitled to any share (p. 53, 30-31).
8. After pointing out that a widow is not entitled to a share except on a partition among her own sons among themselves, and that though the woman who has one son only can never be entitled to a share of his estate, though if that son die leaving sons who divide, then she will take a share as a grandmother with her grandsons (p. 53, 32-33), Sir Francis Macnaghten shows how a grandmother upon partition of her husband's estate never can have less, but may have mere, than the mother of the parties dividing, p. 54, 34.
9. Babu Shyama Charan Sarkar in his 'Vyavastha Darpana' lays down the following propositions, referring to various tests and commentators and precedents as his authorities: 'When the paternal grandfather's estate is divided by grandsons the grandmother is entitled to a share equal to that of a grandson,' p, 523, 599, and the grandmother is entitled to take a grandson's share not only upon partition between her grandsons themselves but also upon partition between a grandson and the heirs or representatives of another grandson deceased, such person standing in the place of the deceased.'
10. Mr. Mayne also (Hindu Law, 480, 481) and other modern text-writers favor the right of a grandmother to a share on partition among her male descendants. But on the other hand is said that Sir Francis Macnaghten and Babu Shyama Charan Sarkar, Mr. Mayne and others who have followed him have, in considering the bearing of the texts is dealing-with the right of a grandmother, all erred in consequence of having failed to bear in mind the distinction between a partition by the father in his lifetime and a partition among his male descendants after his death and to observe whether the texts had reference to one mode of partition or the other.
11. In this connection it has been pointed out that in the Dayabhaga it is said that there are properly only two periods during which partition may be made, namely, one after the propesty of the father ceases and the other while the right of property endures in him--by his choice (Chap. I, 3 38, 39, 44); that is to say, that partition may be made by the father during his lifetime or by his heirs after his death. Chap. II deals with 'partition made by a father of property ancestral and his own acquisition,' while Chap. III deals with 'partition made by brothers' after their father's death.
12. With a view to show that the. criticism on the modern writers upon the Hindu Law is justified, attention has been drawn to the authorities cited by the writers mentioned and especially to those, cited by Babu Shyama Charan Sarkar in support of the two propositions which I have quoted from his book.
13. The first authority referred to by Babu Shyama Charan Sarkar in support of his first proposition is the text set out in the Dayabhaga Chap, III, Section II, 32, namely, 'Wives of the father (meaning stepmothers) who have no male issue, not those who are mothers of sons, must be tendered equal shares with the eons. So. Vyasa ordains, 'Even childless wives of the father are pronounced equal sharers and so are all paternal grandmothers. They are declared equal to mothers. Yyasa likewise says: 'Mothers receive allotments according to the shares of sons and so do unmarried, daughters.' In Colebrooke's translation of the Dayabhaga there is a note from the commentary of Sreekrishna which suggest that the text itself does not relate to partition after the death of the father. It is as follows: 'A certain author supposes this to relate to partition made by sons because the father's wives whether mothers of sons or childless take one share apiece at a distribution made by the father, but this is erroneous, for it is inconsistent with the mark that the word mother does not signify stepmother ( 30).' The note, however, appeals from its context to apply to the first portion of the text only. In Chap. II of the Dayabhaga, Vyasa is not quoted nor is the right of a grandmother, under any circumstances, to a share with grandsons mentioned.
14. The next authority quoted by Babu Shyama Charan Sarkar for his first proposition is the Dayatattwa. In dealing with partition the author follows the arrangement of the Dayabhaga, devoting separate chapters to partition by the father himself and to partition by his heirs respectively.
15. The text relied upon is the following: 'When partition is made by the grandsons of the property of their father a share ought to be allotted, to the grandmother in the same manner as a share is given to the mother (when paternal property is divided),' Dayatattwa II, 19. This text occurs in Chap. II which deals with partition by the father. Previously in the same chapter the author had quoted the text of Vyasa as being applicable to a partition 'by the father in his lifetime. Thus in paragraph 13 he declares: 'When the father effects the distribution he should allot to his sonless wife a share equal to that of a son because Yyasa declares: 'But the father's wives who are without male issue are declared to be entitled to equal shares with his sons and all the grandmother are declared to be equal to mothers.'
16. That the first part at least of the text of Vyasa has in the opinion of the author reference to a partition by the father is made clear by 14 where it is stated that the phrase 'father's wives' in the text of Vyasa is to be construed 'when the father distributes his property to his wives, &c.;' Although the paragraph ( 19) of the Dayatattwa, which declares the right of a grandmother to a share, finds place in the chapter relating to partition by the father, it obviously refers to a partition by the grandsons after the death of the father. In 17 the author had already dealt with another case of partition after the death, of the fattier, declaring that in the case of partition by the sons stepmothers (without male issue) were not entitled to any shaves. In Chap. III of the Dayatattwa which deals with the partition by brothers the position of the grandmother is not referred to, nor is any portion of the text of Vyasa quoted as having any application in case of partition after the death of the owner. But the rights of the mother and grandmother to share' in a distribution after the death, of the father had already been declared in the previous chapter.
17. The next authority relied upon by Babu Shyama Charan Sarkar is the Dayakrama Sangraha. Here again partition by the father and partition after his death are separately dealt with. In Chap. VII dealing with partition by brothers after the father's decease, after declaring the right of the mother, but not of the stepmother to participate, the author declares that in like mariner in a partition about to be made of the grandfather's wealth by grandsons the grandmother must be made an equal sharer, and reference is made to the latter part of the same test of Vyasa. He goes on to say 'by the expression similar to, mothers' in the text 'all grandmothers are pronounced similar to mothers it is shown that as the mother is entitled to an equal share on a partition of her husband's wealth made by her own son so in a partition about to be made of the grandfather's wealth by grandsons the grandmother has an equal share with thorn.' The author therefore treats the latter part of the text of Vyasa as being applicable to partition after the death of the owner The first portion, however, of the text, 'Even childless wives of the father are pronounced equal to shares' is referred to in Chap. VI--'Of partition made by the father' as having reference to a partition by the father himself, Chap. VI, 22.
18. The remaining authority relied upon by Babu Shyama Charan Sarkar is Colebrooke's Digest, Vol. III, p. 270. Although the passage referred to is in the chapter on partition made by the father in his lifetime, it is obvious that the commentator refers not only to partition before, but to partition after, the death of the father. The passage is as follows: 'When partition is made by the father he must give to such wives as have no male issue an equal share with his sons; and when partition is, made among sons or grandsons they must allot to their natural mother or grandmother a share equal with themselves.' The test of Vyasa is set out in the same chapter at p. 12 with the comment (clearly referring to the first part of it) that there is no difficulty in referring it to partition by a father.
19. The second proposition laid down by Babu Shyama Charan Sarkar is based on the authority of Sir Francis Macnaghten's 'Considerations on Hindu Law,' pp. 51--53.
20. A passage was quoted from Strange's Hindu Law, Vol. I, p. 190, as supporting the right of grandmother to a share. 'Wives of the paternal grandfather have the same claim with the father,' and the authority referred to by Sir Thomas Strange is 'Yyasa: 3 Dig. p. 12.' The pass ago, no doubt, occurs in the first portion of Chap. IX in which the author, as is apparent from the context, is discussing partition in the lifetime of the father, and it is therefore said that it is not really an authority for the right claimed.
21. An examination of the authorities cited by Babu Shyama Charan Sarkar would seem to show that, while Jimuta Vahana and the commentators on the Dayabhaga profess to treat the subject of partition in the lifetime of the father separately from, that of partition after his death, they have not kept them altogether distinct and in my opinion it has not been shown that the modem writers have been in any way misled by this circumstance.
22. The case of Sibboo Soondery v. Bussoomutty (1881) I.L.R. 7 Calc. 191 was quoted as authority for the position taken up in this case by the defendant Bissessuree Debi. There the plaintiff, who was the sole widow of Sattya Prosanna Ghosal who died leaving him surviving the plaintiff and two sons by her sued her, granddaughter who was the daughter end sole heiress of her elder son, Sattya Runjun, who died in 1857, and the widow and infant sons of her younger son, Sattya Krishna, who died in 1880, for a declaration that she was entitled to a share in the properties of her deceased husband equal to those of her granddaughter and grandsons A suit for partition had been instituted in 1871 and a decree had been made declaring the shares of the parties and excluding the plaintiff from participating as a sharer. She was not a party to that suit, but her son Sattya Krishna and her granddaughter; as the heiress of her elder son, were parties. That suit was clearly not a suit for partition exclusively among grandsons. It was instituted and the decree was made in the lifetime of her younger, son and the widow of her eldest son as his heir represented him. When the plaintiff instituted her suit the partition proceedings had not been concluded. The plaintiff was held to be entitled to a share with her granddaughter and grandsons. In that owe Wilson J. distinguished the case of Puddum Mookhee Dossee v. Rayeemonee Dossee (1869) 12 W.R. 409 : (1870) 13 W.R. 66, the case on which the plaintiff in the present case relies as showing that a grandmother is not entitled to a share with grandsons--on the ground that that case was a case of partition exclusively among grandsons. The report of the case is not clear and I sent for the record and from that it appears that one Rammohun died leaving four sons and a widow. Rayemonee Dassee, and that on the death of all four sons their widows divided the property into five parts, of which Rayemonee Dassee took one. Subsequently the plaintiff who was the daughter of one of the sons sued, after the death of her mother, claiming to he entitled to a 1/4th and not a 1/5th share and seeking to recover the difference and it was held that the grandmother had no right to a share. The partition was apparently a partition between the widows representing their respective husbands, one of them having a daughter. It was not a partition, among grandsons. It was rather in the nature o a partition among sons. No one appeared for the grandmother at the first hearing and no precedent appears to have been cited in review. The case Sibboo Soondery Dabia v. Bassoomutty Dabia (1881) I.L.R. 7 Calc. 191 was quoted with approval by Mitter J. in delivering the Judgment of the Court in Badri Roy v. Bhugwat (1882) I.L.R. 8 Calc. (sic) which, however, was a Mitakshara case. In a subsequent case Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) I.L.R. 15 Calc. 292.