JUDGMENT S.P. Khare, J. 1. This is a second appeal under section 100 C.P.C. The following substantial questions of law were formulated at the time of the admission of this appeal by order dated 15.12.1986 :- (1) Whether under the facts and circumstances of the case, the rejection of the application for examining Smt. Darya Dulaiya, Defendant no. 4 on commission was rightly dismissed. (2) Whether the suit for declaration simpliciter is maintainable or not. (3) Whether failure to ask for the share in the property, by defendant no. 4, amounts to waiver. 2. The facts relevant for the decision of the questions referred above are that Baijnath was possessed of agricultural lands as ancestral property. He had five sons one daughter and a wife whose name was Darya Dulaiya. Plaintiff Kamta Prasad is his eldest son. There was a partition of the coparcenary property in which Baijnath got 9.46 acres of land in village Naukheda Tehsil Khurai, District Sagar. His wife was not given any share in the partition. After the death of Baijnath the question arose whether the plaintiff Kamta Prasad is entitled to 1/7th share in the lands left by his father. The trial Court and first appellate Court have upheld his claim. The contention of the appellants is that the earlier partition was not binding on the widown of Baijnath as she was legally entitled to a share equal to that of a son and now the lands left by her husband are exclusively her property and plaintiff Kamta Prasad is not entitled to any share in it. 3. The widown of Baijnath has also died during the pendency of this appeal. The name of Ramkumar has been substituted in her place on the basis of a will executed by her in his favour. 4. The question No. 1 mentioned above now does not arise because of the death of the widow. The suit for declaration was maintainable and on the basis of that declaration there can be actual partition between the co-sharers under Section 178 of the M.P. Land Revenue Code, 1959. That is the answer to question No. 2. The real point for determination is question no. 3. The suit for declaration was maintainable and on the basis of that declaration there can be actual partition between the co-sharers under Section 178 of the M.P. Land Revenue Code, 1959. That is the answer to question No. 2. The real point for determination is question no. 3. According to Mulla's Hindu Law, 15th Edition pages 435-437, 315 wife-A wife cannot herself demand a partition but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy the share separately even from her husband. 5. There is no waiver or relinquishment of the right conferred upon the mother by any registered document. Simply because she kept quiet at the time of partition that would not tantamount to waiver of her legal right. Her case was that she did not claim partition on the understanding that the share allotted to her husband Baijnath would belong to her on his death. It is stated in the amended plaint that the wife of Baijnath was not given any share in the partition as she had a lot of "stridhan". It is well known that stridhan is the personal property of the woman. That would not extinguish legal share in the joint family property. Now Section 6, 8 and 10 of the Hindu Succession Act, 1956 would come into play. The decision of this Court in Putrobal Vs. Lalchand 1994 MPLJ 286 thereon is very relevant in the present case and the share have to be worked out accordingly. 6. Baijnath was allotted 9.46 acres of land as 1/7th share. In the absence of any other particulars it can be presumed that others must have been given the same amount of land as 1/7th share. As the said partition is not binding on the widow there will have to be a notional partition shortly before the death of Baijnath treating the entire property as joint family property. In that case there would be eight shares instead of seven. The mother would have to be given 1/8th share i.e. 8.28 acres of land approximately and the same amount of land would go to each of the remaining seven sharers. Baijnath would also get 8.28 acres of land and on his death this 8.28 acres of land left by him would be divided amongst his seven heirs. The mother would have to be given 1/8th share i.e. 8.28 acres of land approximately and the same amount of land would go to each of the remaining seven sharers. Baijnath would also get 8.28 acres of land and on his death this 8.28 acres of land left by him would be divided amongst his seven heirs. That would be 1.18 acres to each of them. Plaintiff Kamta Prasad has already got 9.46 acres. He should have been given 8.28 acres as 1/8th share. Therefore, 9.46 acres 8.28 acres = 1.18 acres. He is already having that much area as excess in the partition. Therefore, he is not entitled to any more land out of the lands left by Baijnath. In simple arithmetic it can be expressed as 1/7-1/56 + 1/56 = 1/7. No other heir is claiming any share in the lands left by him. Kamta Prasad alone had filed the suit. 7. In the result the appeal is allowed. The judgment and decree of the trial Court and the first appellate Court are set aside and the suit of the plaintiff is dismissed. Costs as incurred. Appeal allowed