W. Comer Petheram, C.J. and Norris, J.
1. Rama Nath Goswami, a Hindu governed by the law of the Bengal school, and possessed of considerable property, died on the 12th of October 1884, leaving two sons, Debendro Nath Goswami and Jogendro Nath Goswami and a widow Barahi Debi. Amongst the properties left by him was an undivided two-sixths share in two houses at Barrackpore.
2. On the 13th of April 1886, one of the sons, Debendro Nath Goswami, sold and conveyed an equal undivided one-sixth share in these houses to the plaintiff Debkamini Debi. A question was raised whether or not she was a benamidar for her husband; but as he has since been added as a plaintiff, that question is not now material.
3. She had before acquired shares in the houses equal to four-sixths, so that after the purchase of April 13th, 1876, she was the owner of the whole sixteen annas, except the undivided one-sixth which had been inherited by Jogendro Nath from his father Rama Nath. On the 16th of September 1889, the present action was brought by the plaintiff Debkamini Debi against Jogendro Nath Goswami to obtain separate possession by partition of a share equal to five-sixths of the two houses.
4. On the 13th of May 1890, Barahi Debi, the widow of Rama Nath, was, at her own request, added as a defendant in the suit. She put in a written statement in which she claimed that the property could not be partitioned, as she had a lien upon it for her maintenance, or that, if it were partitioned, a share in it equal to that of each of her sons should be allotted to her.
5. The Subordinate Judge has decreed the suit against both Jogendro Nath and Barahi Debi, and against that decree Barahi Debi alone has appealed.
6. The first contention which has been made before us, on her behalf, is that the suit must be dismissed because the plaintiff does not claim to have the whole estate of Rama Nath partitioned, but only these two houses; no authority has been cited before us in support of the proposition, that where a fractional share in a property which forms part of a joint estate has been sold, the purchaser cannot obtain separate possession of the share he has bought without partitioning the whole joint estate, and I think that to give effect to it would practically amount to a refusal to allow the purchaser of such a share to obtain separate possession of it at all; and this would, in my opinion, not only be inequitable, but would greatly diminish the value of property held in this way. I think that this contention must fail.
7. The next contention--and that is the one which has been most strongly pressed upon us--is, that if any portion of her husband's estate is partitioned, the widow is entitled to have a share of it equal to that of each of her sons allotted to her, and that consequently the one-third share in these houses which was left by Rama Nath must be divided, not into two shares, but into three, of which one must be allotted to the plaintiff. The law on this subject is to be found in the judgment of this Court in the case of Sorolah Dossee v. Dhoobun Mohun Neoghy I.L.R. 15 Cal. 292. It is there laid down that upon a partition between sons of their father's estate, their mother takes a share equal to a son's share, but that she takes it from her sons in lieu of, or byway of provision for, that maintenance for which they and their estates are already bound. In other words, when the sons partition the estate out of which the widow is entitled to be maintained, a share must be set apart for her during life. It is evident that to bring this right into existence, there must be a partition of the estate in the sense that it ceases to exist as a joint estate; but it has never been held, and I am not prepared to hold, that this right in the widow comes into existence whenever any property which forms one item of the joint estate is divided, if notwithstanding such division the main estate remains undivided. Of course every case must be determined by its own facts, and there may well be cases in which the main body of the family property is divided leaving only a small portion joint, and in such a case no doubt the sons would have partitioned the property among themselves, and the right of the widow to have a share set apart for her maintenance would come into existence. That, however, is evidently not the present case; here there is no suggestion that these houses are anything more than a small outlying piece of property, or that the bulk of the family estate does not remain undivided, or that it is not ample for the support of the widow. In my opinion, therefore, this is not such a partition of the family property among the sons as brings this right of the widow into existence, and I think that the Subordinate Judge was right in the conclusion at which he arrived, and that this appeal must be dismissed with costs.