Purna Chandra Chukravarti v. Surojinee Dabee — 1903 DIGILAW 103 (CAL)

JUDGMENT Henderson, J. - This is a suit for the partition of the estate of Netai Chand Chuckerbutty, a Hindu governed by the Bengal School of Hindu Law, who died on the 20th October 1901. 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, Bholanath Chuckerbutty, who predeceased him leaving a widow the Defendant Bechumonee. Bholanath had two sons, Charu Chandra and the Plaintiff, Puma Chundra Chuckerbutty. Charu Chandra also predeceased Netai Chand Chuckerbutty leaving a widow the Defendant Surojinee Dabee and a son, the Defendant Dhirendra Nath Chuckerbutty. Netai Chand Chuckerbutty left a widow the Defendant Bissessuree Dabee. The plaint and written statements filed contain charges and counter-charges which need not be discussed. The only question raised at this stage--a question not raised in the pleadings--is whether the Defendants Bissessuree Dabee and Bechumonee Dabee 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. 2. The partition, it will be observed, which is asked for here is a partition between a grandson of Netai Chand Chuckerbutty (the Plaintiff) and a great grandson (the Defendant Dhirendra Nath). 3. With regard to the Defendant Bissessuree Dabee, 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. 4. In support of the claim made on behalf of Bissessuree Dabee to a share a number of texts and text-books and other authorities have been referred to. 5. Sir Francis 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 grandmother 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 and 51). He points out that the right of a great grandmother 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 and 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 Prosad Bose v. Seeb Chandra Bose Macnaughten on Hindu Law, 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 Francis 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 be 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 petitioners, 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. 6. "I have" he concludes, "assigned her a share although her great grandsons may be the petitioners, 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. 6. At page 52 Sir Francis Macnaghten states the following cases:--If A having had three sons, B, C, and D, by one wife, dies leaving two sons B and C and three grandsons by his son D who had predeceased him, then, in a partition A's widow would be entitled to a th share ( 28); 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 th, as she would have been had either B, C or D been living at the time of the partition, but she would share with her sons per capita 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 bad all died leaving sons and those sons had 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). 7. 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 more, than the mother of the parties dividing (p. 54, 34). 8. 8. Babu Shama Charan Sarkar, in his "Vyavastha Durpana," lays down the following propositions referring to various texts 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." 9. Mr. Mayne also (Hindu Law, 480, 481) and other modern text-writers favour the right of a grandmother to a share on partition among her male descendants. But on the other hand, it is said that Sir Francis Macnaghten and Babu Shama Charan Sarkar, Mr. Mayne and others who have followed him have in considering the bearing of the texts 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. 10. 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 property of the father ceases and the other while the right of property endures in him by his choice (Chap. I, 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. 11. 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 Shama Charan Sarkar in support of the two propositions which I have quoted from his book. 12. The first authority referred to by Babu Shama Charan Sarkar in support of his first proposition is the text set out in the Dayabhaga, Chap. III, sec. 12. The first authority referred to by Babu Shama Charan Sarkar in support of his first proposition is the text set out in the Dayabhaga, Chap. III, sec. 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 sons." 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." Vyasa likewise says, "Mothers receive allotments according to the shares of sons and so do unmarried daughters." In Colebrook's translation of the Dayabhaga there is a note from the commentary of Sri Krishna which suggests 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 a piece at a distribution made by the father, but this is erroneous for it is inconsistent with the remark that the word 'mother' does not signify stepmother ( 30)." The note, however, appears 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. 13. The next authority quoted by Babu Shama 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 ids heirs respectively. 14. 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. 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 Vyasa 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 grandmothers are declared to be equal to mothers.'" 15. 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 sec. 14 where it is stated that the phrase "fathers' wives" in the text of Vyasa is to be construed "when the father distributes his property, his wives, etc." 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 sec. 17 the author had already dealt with another case of partition after the death of the father declaring that, in the case of partition by the sons, stepmothers (without male issue) were not entitled to any shares. 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 bad already been declared in the previous chapter. 16. The next authority relied upon by Babu Shama Charan Sarkar is the Daya Krama Sangraha. Here again partition by the father and partition after his death are separately dealt with. In Chap. But the rights of the mother and grandmother to share in a distribution after the death of the father bad already been declared in the previous chapter. 16. The next authority relied upon by Babu Shama Charan Sarkar is the Daya Krama 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 manner 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 text 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 them." 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 sharers" 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). 17. The remaining authority relied upon by Babu Shama 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. VI, 22). 17. The remaining authority relied upon by Babu Shama 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 text 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. 18. The second proposition laid down by Babu Shama Charan Sarkar is based on the authority of Sir Francis Macnaghten's "Considerations on Hindu Law," pp. 51-53. 19. A passage was quoted from Strange's Hindu Law, Vol. I, page 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 "Vyasa : 3 Dig., p. 12." The passage, 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. 20. An examination of the authorities cited by Babu Shama 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 modern writers have been in any way misled by this circumstance. 21. The case of Sibu Sundari Dabee v. Bosoomati Dabee I. L. R. 7 Cal. 191 (1881) was quoted as authority for the proposition taken up in this case by the Defendant Bissessuree Dabee. 21. The case of Sibu Sundari Dabee v. Bosoomati Dabee I. L. R. 7 Cal. 191 (1881) was quoted as authority for the proposition taken up in this case by the Defendant Bissessuree Dabee. There the Plaintiff, who was the sole widow of Sattya Prosunno Ghoshal, who died leaving him surviving the Plaintiff and two sons by her, sued her granddaughter who was the daughter and sole heiress of her elder son Sattya Ranjan who died in 1857, and the widow and infant son a 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 case Wilson, J., distinguished the case of Puddum Mookhee Dassi v. Rayeemonee Dassi 12 W. R. 409 (1869) ; on review, 13 W. R. 66 (1870), 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 Ram Mohan died leaving four sons and a widow Raymonee Dassi and that on the death of all 4 sons their widows divided the property into 5 parts of which Raymonee Dassi took one. The report of the case is not clear, and I sent for the record and from that it appears that one Ram Mohan died leaving four sons and a widow Raymonee Dassi and that on the death of all 4 sons their widows divided the property into 5 parts of which Raymonee Dassi took one. Subsequently the Plaintiff who was the daughter of one of the sons sued after the death of her mother claiming to be entitled to a one-fourth and not a one-fifth 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 of 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 in Sibu Sundari Dabee v. Bosoomati Dabee I. L. R. 7 Cal. 191 (1881) was quoted with approval by Mitter, J., in delivering the judgment of the Court in Badri Roy v. Bhugwat I. L. R. 8 Cal. 649, p. 652 (1882) which, however, was a Mitakshara case. In a subsequent ase Surolah Dassi v. Bhoobun Mohun Neoghy I. L. R. 15 Cal. 292 (1888), Wilson, J., in discussing the nature and character of a wife's interest in her husband's estate, after pointing out that if her sons partition among themselves she takes a share, added, "and the same thing results if her grandsons partition." 22. It has been so far admitted that on a partition among sons the mother takes an equal share and that in a case of a partition between sons and grandsons the mother takes the share of a son, but it is said, that none of the cases referred to by the text-writers have gone beyond this point. To take the oases cited by Mr. Mayne with reference to the right on partition of a grandmother in his " Hindu" Law," 48 :--In the case of Sreemotte Jeeomonee v. Attaram S. C. Sarkar's Precedents, p. 743 ; Macnaughten on Hindu Law, p. 64, the partition was made between two sons, the grandmother as heiress of her grandson, and a widow as heiress of a deceased son. In Jugomohan Haldar v. Sawdamoyee Dassi I. L. R. 3 Cal 149, Torit Bhutan v. Tara Prasunno I. L. R. 4 Cal. 756 (1879), the only question was as to the right of the mother to a partition among sons. In Kristo Bhabiney Dossee v. Ashutosh Bose Mallik I. L. R. 13 Cal. 39 (1886) the partition was between the widow and heiress of a son and the son of his deceased half-brother and the mother-in-law of the Plaintiff and the right of the mother-in-law to a share with the Plaintiff was not disputed. In Cally Charan Mallik v. Janova Dassi 1 Ind. Jur. N. S. 284 (1866) the partition was between sons by different wives. In Gooroo Prosad v. Seeb Chandra Macnaughten on Hindu Law, pp. 29, 44 the partition was between sons and grandsons. 23. No case has been cited in winch in a partition between grandsons and great grandsons the grandmother has been given a share, but as pointed out by Sir Francis Macnaghten "Considerations on Hindu Law, p. 30," from reason and analogy she ought to have a share. Babu Shama Charan Sarkar, Mr. Mayne, West and Buhler (3rd Ed., pp. 677 and 780) and apparently Mr. Jolley (Tagore Lectures, 1883, pp. 103 and 137) seem to favour the same view. Another argument against that view has been used. It is said that, in Bengal at least, a woman can only inherit under some express text and Gour Gobind v. Anand Lal 5 B. L. R. 36 (1871) and Mayne's Hindu Law, 517, Babu Golap Chandra Sarkar, 2nd Ed., p. 255, No. 4, quoting Bandhyana were referred to. 34. It is said that the only text which can be said to give the grandmother a share in the inheritance is that of Vyasa. And it is contended that that text is not mandatory certainly not so far as the stepmother is concerned and therefore not sufficient to create any right in a grandmother to a share in the inheritance. Partition is certainly one of the recognised modes of acquiring property and in the Dayabhaga which deals with inheritance it is discussed in detail but is partition a mode of inheritance ? In Sarolah Dassee v. Bhoobun Mohun Neoghy I. L. R. 15 Cal. Partition is certainly one of the recognised modes of acquiring property and in the Dayabhaga which deals with inheritance it is discussed in detail but is partition a mode of inheritance ? In Sarolah Dassee v. Bhoobun Mohun Neoghy I. L. R. 15 Cal. 292 (1888) the nature and characteristics of the mother's right was much considered and the conclusion to be drawn from the Bengal authorities, as pointed out by Wilson, J., in that case would appear to be that the share which a mother takes on a partition among her sons, she does not take from the husband either by inheritance or by way of survivorship in continuation of any previous interest but that she takes it from her sons in lieu of maintenance or by way of provision for that maintenance for which they and their estate were already bound. This would seem to be an answer to this contention based on the idea of an inheritance. 35. A further argument which was used remains to be considered. The first part of the text of Vyasa puts the grandmother in the same position as a stepmother. In Bengal a stepmother has never been recognised as being entitled to a share in a partition after the death of the father. Inasmuch therefore as the right of the grandmother to share with sons and grandsons depends on the text which gives a share to stepmothers it is argued that the text is merely directory and not mandatory. But it has been observed that Raghu Nundun, the author of the Dayatattwa, after pointing out that the first part of the text of Vyasa must be read as having reference to the distribution by the father of his property (Chap. II, 515) goes on to state that in a case of partition by the sons the stepmothers (without male issue) are not entitled to any share, and that when partition is made by the grandsons of the property of the grandfather a share to be allotted to the grandmothers in the same manner as a share is given to the mother when paternal property is divided (Chap. II, sec. 19). 36. II, sec. 19). 36. The portion of the text of Vyasa which refers to the position of the grandmother has been accepted by the authors of the Dayatattwa and Daya Kram Sangraha and modern writers on Hindu Law as applying to partition after the death of the owner of the estate and the weight of authority certainly is, at all events, indirectly in favour of the grandmother taking a share in such a case as the present. I would therefore held that the Defendant, Bissessuree Dabee, is entitled to a share. 37. With regard to Bechumonee the contention on the one hand is that, she is not entitled to a share because the property now to be partitioned was originally the property of her husband Bholanath and as he was an only son she could never have been entitled to a share with him. All she could have been entitled to was maintenance. It is said that when the property was by her husband's Will transferred to Netai Chand Chuckerbutty he took it subject to her right of maintenance and that is all she is entitled to have out of it now. On the other hand, reliance is placed on the following passage quoted by Mr. Mayne in his "Hindu Law," sec. 481, from Sir Francis Macnaghten's "Considerations on Hindu Law," "partition to entitle a mother to a share must be made of ancestral property or of property acquired by ancestral wealth. Therefore if the property had been acquired A, the father of B and C, and B and C come to a division of it, then the mother (the widow of A) shall, but the grandmother shall not, take a share of it. And if the estate shall have been acquired by B and C themselves neither their mother nor grandmother will be entitled to a share upon partition," This passage was adopted by the Court in Isree Pershad Sing v. Nasib Kooer I. L. R. 10 Cal. 1017 (1884). In the present case Netai Chand Chuckerbutty taking the property under the Will of his son was to use the language of the English law, a purchaser, and the property must be treated in the hands of his heirs as ancestral. 1017 (1884). In the present case Netai Chand Chuckerbutty taking the property under the Will of his son was to use the language of the English law, a purchaser, and the property must be treated in the hands of his heirs as ancestral. Had the division been between his sons their grandmother apparently would not have taken a share although their mother would but the partition now sought is not between the sons of Netai but between the grandson (the Plaintiff) and the Defendant Dhirendra, the representative of a predeceased son, in which case it would seem the Defendant Beehumonee as the mother of the Plaintiff and the grandmother of the Defendant Dhirendra would on the strength of the text quoted be entitled to a share. 38. I hold, therefore, that the Defendant Bechumonee Dabee is also entitled to a share on the partition. 39. Assuming that the Defendants Bissessuree Dabee and Bechumonee Dabee are entitled to shares there has been no contention as to the manner in which the shares should be computed. In the first place the property must be divided between the Plaintiff Purna Chandra and the representatives of his brother, the Defendant Biesessuree Dabee getting a share equal to the shares taken by the Plaintiff and the representatives of his deceased brother respectively. Accordingly the Defendant Bissessuri will take one-third share. But the Defendant Bechumonee Dabee is entitled" to have an 'equal share in the remaining two-third with her son the Plaintiff and the Defendant Dhirendra the representative of her deceased son. She will therefore take 1/3rd of 2/3rd or 2/9th of the estate, while her son and the Defendant Dhirendra will each take 2/9th. The Defendants Bissessuree Dabee and Bechumonee Dabee will take their shares for such a estate as is allowed by Hindu law. The shares of the parties having thus been declared there will be the usual decree for partition with the usual directions and accounts and order as to costs.