Richard Garth, C.J.
1. This suit was brought by the plaintiff, Mussumat Nasib Kooer, to recover a one-fifth share of the estate of her deceased husband, Baijnath Singh, under these circumstances.
2. Baijnath Singh was the head of a Mitakshara family, consisting of his two wives (the plaintiff, and one Mussumat Kasida Kooer, who is since dead) and four sons, who are the defendants in this suit, and the family were possessed of several ancestral properties.
3. Baijnath died on the 13th Aughran 1263 Fusli; and after his death, and that of Mussumat Kasida Kooer, the four brothers separated, and a partition of the family property was made by the plaintiff with the consent of her sons, the plaintiff retaining in her own possession an estate called Lodipore, upon the ground that it was her stridhan.
4. At this time, it appears the two elder brothers (the defendants 1 and 2) separated themselves from their two younger brothers (the defendants 3 and 4), who continued to live with the plaintiff; and afterwards, the defendants 1 and 2 brought a suit against the plaintiff for a partition of Lodipore, upon the ground that it was not the plaintiff's stridhan, but was subject to partition like the rest of the ancestral property. This suit was successful, and consequently the plaintiff had to give up the exclusive possession of Lodipore, which was declared to be subject to partition.
5. The plaintiff then brought this suit to recover her one-fifth share of the rest of the ancestral property. She says, that when the partition took place, she was content to forego her share, upon condition that her exclusive right to Lodipore was admitted, but as she has been now deprived of four-fifths of Lodipore, she insists upon her right to a one-fifth of the rest.
6. The lower Court has decreed her claim; and, as we consider, justly. We think it plain that she only waived her right when the partition was made upon the understanding that she was to retain Lodipore; but now that she has been deprived of that, she is justified in insisting upon her rights under the partition.
7. A question, however, has arisen upon the sixth issue, which we have thought it right to hear fully argued. The appellants (defendants 1 and 2) contend that the plaintiff is not entitled to a share in any of the properties, which have been purchased by them (or by her as the manager of the property), since the death of Baijnath out of the proceeds of the ancestral estate. They say, that although the plaintiff (as Baijnath's wife), is entitled upon partition to an equal share with a son in all the ancestral property, which came to the family through Baijnath, she is not entitled to a share either in the proceeds of that property since Baijnath's death, or in any other properties which have been purchased with those proceeds.
8. It is argued that a wife is only entitled on partition to a share of that which was her husband's, because she has to be maintained out of that property, and her share upon partition is given to her as representing, or instead of, her maintenance; but no part of the property before partition is hers; it belongs to the sons conjointly; they may spend the proceeds of it as they think proper; and whether they spend those proceeds, or hoard them up, or purchase other property with them, the wife has no part or lot in those proceeds.
9. In support of this view we have been referred to certain texts of the Mitakshara, and to an expression of opinion by Mr. Justice Mitter in the case of Gunga Pershad v. Sheodyal Singh 9 C.L.R. 417.
10. The question there was, whether in the case of a Mitakshara family, consisting of a father and sons, the sons were entitled to any share in the property which their father had purchased before their birth from the proceeds of an ancestral estate. Mr. Justice Mitter says that in his opinion they were not. He considers that property acquired out of the income of ancestral property is not property inherited, and, therefore, it the father acquired such property before the birth of his sons, they had no interest in it.
11. The view thus expressed by Mr. Justice Mitter would, if it were established law, seem in favour of the defendants' argument in the present case, because, if the proceeds of ancestral property, although hoarded up or laid out in other property by the sons, are to be considered as the self-acquired property of the sons, there would seem good reason why the mother should not have any share in them upon partition.
12. But this was only an expression of opinion by Mr. Justice Mitter and the case was decided upon another ground. In fact, that learned Judge observes, that as his opinion was opposed to a previous decision of this Court in the case of Sudanund Mohapattur v. Soorjoomoney Dayee 11 W.R. 436 he could not have overruled that decision without referring the point to a Full Bench.
13. In this case, of course, we are in the same position; and although we much respect the opinion of Mr. Justice Mitter, especially in a matter of this kind, we think we ought not to refer the point to a Full Bench, unless our own view was that Mr. Justice Mitter was right.
14. We find, however, other authorities besides the case in the 11th Weekly Reporter, which are certainly in conflict with Mr. Justice Mitter's view.
15. Macnaghten in his 'Considerations on the Hindu Law,' p. 51, lays down the law thus: 'The mother shall not be entitled to share in the property acquired by the individual exertions of one of her sons, nor in the property acquired by the joint exertions of them all, unless it shall appear that such acquisitions were made out of the patrimonial wealth, in which case she shall be entitled to share in the increase of the patrimonial wealth upon partition.'
16. And, again, on page 54 he says: 'Partition, to entitle the mother to a share, must be made of ancestorial property or of property acquired by means of ancestorial wealth.'
17. And Mr. Mayne, in his work on Hindu Law, quotes this last extract from Macnaghten as being the approved rule in such cases.
18. We think, therefore, that as these authorities seem strongly in favour of the plaintiff, and as we do not see any such reason to the contrary as would justify us in referring the question to a Full Bench, we should decide the point in favour of the plaintiff and dismiss this appeal with costs.