JUDGMENT Das Gupta, J. - In this suit the parties have settled all their disputes except one matter which is to be decided by me. The point which has been left to my decision is whether in the circumstances of this case the grand-mother of the Defendant is a necessary party to the suit and whether the grand-mother is entitled to a share on partition. 2. The premises in question being No. 20, Gopal Krishna Lane, Calcutta originally belonged to one Surendra Nath Mitra, a Hindu governed by the Dayabhaga School. The said Surendra Nath Mitra died intestate on or about November 3, 1942, leaving the Plaintiff, his second wife and the Defendant, his only son by a predeceased wife as his heirs and legal representatives him surviving. 3. The Plaintiff claims partition of the premises in this suit and the Defendant has taken the point that the mother of Surendra Nath Mitra who is alive should have been made a party to the suit because on partition of the premises in question between the Plaintiff and the Defendant, she would be entitled to a share in the premises. 4. Mr. Basu appearing on behalf of the Plaintiff contends that the mother of Surendra Nath Mitra is not a necessary party and she is not entitled to a share on partition. Shortly put, his point is that the property being the property of Surendra Nath Mitra and not of his father and the parties claiming partition before me being the heirs of Surendra Nath Mitra, the grand-mother, that is, the mother of Surendra Nath Mitra is not entitled to a share on partition of such property, or in other words, if the property had been an ancestral property coming down from the father of Surendra Nath Mitra then the grand-mother would have been entitled to a share on partition, but not otherwise. 5. The law on this point has been the subject-matter of several decisions of this Court. As early as 1869 it was held by Bayley and Glover, JJ., in Puddum Mookhee Dossee v. Rayee Monee Dossee 12 W.R. 409 (1869) that on a division of an estate, the Hindu Law recognises the right of the grand-mother to maintenance, but not her title to any share in the estate. While delivering judgment, Bayley. As early as 1869 it was held by Bayley and Glover, JJ., in Puddum Mookhee Dossee v. Rayee Monee Dossee 12 W.R. 409 (1869) that on a division of an estate, the Hindu Law recognises the right of the grand-mother to maintenance, but not her title to any share in the estate. While delivering judgment, Bayley. J., observed as follows:-- To my mind there is no law laid down by Macnaghten in the above passage to the effect that in a division of the estate the grandmother is entitled to a share, or to what share; but the principle laid down is that she is not to be left to go from door to door, bat has a right of maintenance. 6. In a subsequent application for review of that decision Bayley, J., again held as follows:-- Proceeding, then, to the merits of the case, it is contended that although the partition took place after the death of the sons, it is to be treated as if the partition was made in their lifetime The partition was, as a fact, made by the widows of the sons, and we asked to be shown authority declaring that, under that state of things, i.e. partition made after the death of the sons, the grandmother is entitled to a one-fifth share in the property. In support of this, section 2, clause 2 Chapter 1 of the Dayabhaga, is quoted to us; but that Chapter, it seems to us, applies to partition made by the sons, that is, in their lifetime. In this view, we reject this application with costs." Rayee Monee Dossee v. Puddum Mookhee Dossee 13 W.R. p. 66 (1870). 7. In Sibboosoondary Dabia v. Bussoomutty Dabia ILR 7 Cal. p. 191 (1881), Wilson, J., had to consider this point. His Lordship distinguished the facts of the cases of Puddum Mookhee Dossee v. Rayee Monee Dossee (1) and Rayee Monee Dossee v. Puddum Mookhee Dossee 13 W.R. p. 66 (1870) from those which were before him on the ground that in those cases partition was exclusively amongst the grand-sons and grand-mother was not entitled to a share while the case before him was not a partition amongst grand-sons., In that case the Plaintiff filed a suit for a share in the property of her deceased husband. The Plaintiff was the sole widow of one Suttya Prosunno Ghosal who died on the 15th July, 1851, intestate leaving him surviving the Plaintiff, and two sons by her, Suttya Runjan Ghosal and Suttya Krishna Ghosal both of whom had since died. At the time of his death, Suttya Prosunno Ghosal was entitled to a fifth share in certain properties and his brothers were entitled to the remaining shares. The eldest son of the Plaintiff died on the 15th November, 1857, and thereafter in the year 1871 one of the brothers of the husband of the Plaintiff instituted a suit for partition against the other co-sharers including Suttya Krishna Ghosal the surviving son of the Plaintiff and a decree for partition was made in the year 1872 inter alia declaring the share of Suttya Krishna Ghosal subject to the right of the Plaintiff to maintenance out of such portion of his share as was derived from his father Sattya Prosonna Ghosal. Thereafter the said Suttya Krishna Ghosal died leaving his widow and minor sons. The Plaintiff instituted the said suit for a share of the estate of her husband, namely, Suttya Prosunna Ghosal. 8. While delivering judgment his Lordship held as follows:-- The suit came on for settlement of issues, and the only question which arises is whether such a suit will lie under the circumstances. It appears to me that the whole weight of authority is in favour of the plaintiff. The earlier cases cited in Mayne, sec. 404 and in Bilaso v. Dinanath ILR 8 All. (1880), and Sreemutty Dossee v. Kumal Deb an unreported Case No. 285 of 1877. delivered by Pontifex J are on all fours with the present case; whilst, on the other hand, there are the cases reported in Puddum Mookhee Dossee V. Rayee Monee Dossee 12 W.R. 309 (1869), and Rayee Monee Dossee V. Puddum Mookhee Dossee 13 W.B. 66 (1870). It is not necessary to say, whether this can or cannot be reconciled with the other authorities,--it is sufficient to say that it is distinguishable; in that case the partition was exclusively amongst the grand sons and the grandmother was not entitled to a share The present case, as also the case before Pontifex J. is not a partition amongst grandsons. The decree will therefore direct that the plaintiff is entitled to an equal share with the defendant....... 9. The decree will therefore direct that the plaintiff is entitled to an equal share with the defendant....... 9. The matter was elaborately discussed in Purna Chandra Chakraverti v. Sarojini Debi ILR 31 Cal. 1085 (1904) and after considering all the authorities and the relevant texts on the point Henderson, J., came to the conclusion that on the facts of that particular case the grand-mother was entitled to a share on partition but as I said just now, his Lordship came to that conclusion on the facts and circumstances of that case. In that case Bholanath the only son of Netai predeceased him having devised all his property by will to his father Netai. Netai thereafter died leaving his widow and widow of his predeceased son, a grand-son and a great grand-son son of a predeceased grand-son him surviving. The grand-son Purna filed a suit for partition making the widows of Bholanath and Netai parties and it was held that grand-mother and mother of the Plaintiff were both entitled to shares on partition. His Lordship at the end of his judgment laid down the principle clearly which should govern cases where grand-mother claims a share on partition amongst the descendants of her husband. Mis Lordship stated as follows:-- 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 by A the father of B and C, and B and C came to a division of it then the mother (the widow of A) shall, but the grand-mother shall not take a share of it. And if the estate shall have been acquired by B and C themselves neither their mother nor grand-mother will be entitled to a share upon partition. 10. This passage has been adopted by the Court in Isree Pershad Singh v. Nasi Kooer ILR 10 Cal. (1834). This it seems to me that the proposition which Mr. Basu wants me to accept was the very proposition which was laid down by his Lordship Mr. Justice Henderson in Purna Chandra Chakraverti v. Sarojini Debi ILR 31 Cal 1035 (1904) and he may to that conclusion after fully considering all the authorities and the texts on the point. Mr. Das appearing on behalf of the Defendant has relied on a decision of Provash Ch. Roy v. Prokash Ch. Justice Henderson in Purna Chandra Chakraverti v. Sarojini Debi ILR 31 Cal 1035 (1904) and he may to that conclusion after fully considering all the authorities and the texts on the point. Mr. Das appearing on behalf of the Defendant has relied on a decision of Provash Ch. Roy v. Prokash Ch. Roy 50 C.W.N. 559 (1945). It seems to me what was decided by S.R. Das, J., in that case was that a person is bound to maintain his aged parents, unmarried daughters, minor sons and his virtuous wives and this obligation being legal is peremptory and can be enforced in a Court of Law. The duty of maintaining other relations is left to the conscience and good sense of the person and arises when the person has separate property and if he has no property then there is not even any moral obligation. To my mind his Lordship did not consider or had no occasion to consider the point which is being agitated before me in this suit. Mr. Das has contended before me that if the mother before the passing of the Hindu Women's Rights to Property Act, was merely entitled to a provision for maintenance and if because of that right she gets on partition a share in lieu of such maintenance then why should not the grand-mother on the same principle be allowed to have a share on the partition of the property. To my mind it seems that the widow of a deceased has been given a special privilege under Hindu Law and on the death of her husband if there is a partition amongst the sons of the deceased husband of the estate of her husband, the widow would get a share on such partition and this right has been extended even in that case of a partition not amongst sons but amongst her grand-sons or the descendants of her husband and the widow still continues to get a share in lieu of her right of maintenance out of the estate of her deceased husband. But this special privilege to my mind has been given to the widow of the person whose estate is going to be divided and it is on that principle that the widow of a particular person would be entitled whenever a partition takes place, to a share in the estate of her deceased husband. But this special privilege to my mind has been given to the widow of the person whose estate is going to be divided and it is on that principle that the widow of a particular person would be entitled whenever a partition takes place, to a share in the estate of her deceased husband. But it does not follow that if the estate of her deceased husband is not the subject-matter of partition even if the partition takes place amongst sons or grand-sons or other descendants of her husband, then the widow would have a share in the subject-matter of such partition. That being so, I am in agreement with Mr. Basu in his contention, namely, that if the property which is the subject-matter of the partition is not the property of her deceased husband then the widow is not entitled to a share on partition of that property even if such partition takes place amongst the descendants of her husband. So far as the parties to this suit are concerned it is conceded that the property in suit belonged to Surendra Nath Mitra and not to the father of Surendra Nath Mitra; that being so the mother of Surendra Nath Mitra on partition of that property amongst his heirs is not entitled to a share on partition. I do not express any opinion as to the right of the grand-mother to claim maintenance against the estate of Surendra Nath Mitra in the hands of his heirs. If she has got such a right she would be entitled to enforce the same in a properly constituted suit for that purpose. 11. Mr. Das has contended that in any event the grand-mother is a necessary party to this suit. I am unable to accept that contention. Even assuming that the grand-mother in this case has got a right of maintenance out of the estate of the deceased in a suit for partition under Hindu Law, a person who is entitled to a provision for maintenance may be a proper party but not a necessary party in the sense that the suit cannot go on in the absence of such a party, vide Mullah on Hindu Law, Art. 333, p. 424. That being so, the grand-mother was not a necessary party to the suit and this suit will not fail in the absence of the grand-mother. 12. That being so, the grand-mother was not a necessary party to the suit and this suit will not fail in the absence of the grand-mother. 12. There will be a preliminary partition decree by consent of parties. Mr. R.N. Mitter (senior) a member of the Bar is appointed Commissioner of Partition and also as Special Referee to go into the account and to find out the assets and liabilities of the estate of Surendra Nath Mitra deceased. He is to get the usual remuneration. By consent it is declared that the plumbing business mentioned in the plaint belongs to the Defendant. In taking the account which I have mentioned before nothing relating to that business should be taken into consideration. Costs as in a partition suit. Mr. Mitter to act on Counsel's endorsement.