NAGPUR HIGH COURT (DB)
K. Kaushalendra Rao And Deo, JJ.
First Appeal No. 57 of 1945. D/d. 19.11.1951.
For the Appellants :- R.A. Dubey, Advocate.
Baburao Sukhdeo and another - Plaintiffs-Appellants.
Bai Savitribai - Defendant-Respondent
for Respondent :- P.G. Phadke, Advocate.
2. The appellants attacked the finding of the lower Court that the gold ornaments Items 1, 2, 3 and 6, and the silver 'todas', Item No. 8, in defendant's Schedule No. 2, were her 'stridhan.' The lower Court found that the silver 'todas' were gifted to the respondent at the time of her marriage and the gold ornaments were gifted to her during coverture. The learned counsel for the respondent contends that the gold ornaments were prepared out of the amount which she possessed before her remarriage with plaintiffs' father Sukhdeo. The lower Court was not impressed with the sole testimony of the respondent end there is no ground to take a different view
3. The learned counsel for the appellants however contends that these ornaments should be taken into account in determining the share of the respondent. According to him the respondent as a mother is entitled to a share equal to that of a son and the property which she received as gift from her husband must be taken into account to make up that share. Reliance is placed on 'Radhabai V. Pandharinath Bapu', I.L.R (1942) Nag 534 and 'Ja.I.Ram V. Nathu', 31 Bom 54, referred to in Mulla's Hindu Law, 10th Edition, Section 315, page 399. In both these cases the son had instituted a suit for partition against his father and the wife was held entitled to a share. In the Nagpur case the gold ornaments which were taken into account in settling the share of the wife were apparently assumed to be the family property. The wife did not evidently contend that it was her 'stridhan' and it must be excluded from partition. In the Bombay case the point was not decided as the wife accepted her liability for the deduction of the ornaments in her possession.
4. Under the Hindu Law, before the passing of the Hindu Women's Rights to property Act (XVIII of 1937), a mother was entitled to a share only in case the sons effected partition between themselves and this share she received in lieu of maintenance or by way of provision for her maintenance for which the joint family estate was already bound. 'Hemangini Dasi V. Kedarnath Kundu', 16 Cal 758 (Pc) and 'Parbati Devi V. Bansidhar', I.L.R (1943) All 810. She herself was not competent to bring an action for partition of the joint family property. When a share is thus held in lieu of maintenance to her, anything which she may have received from her husband would be taken into account in computation of her share. See 'Parbati Devi V. Bansidhar (Supra) and "Tikamdas V. Kalianji', I.L.R (1939) Kar 693; which are based on 'Kishori Mohun V. Moni Mohun', 12 Cal 165, where the father by his will, after bequeathing a legacy to his widow, directed that the estate should be divided amongst the sons in accordance with the shastras' after the youngest son had attained majority. It was held that this did not exclude the widow from being entitled to a share upon partition and in such partition the legacy should be taken into consideration in ascertaining the amount of her share.
5. Reference may be made to the statement in Vyavahara Mayukha, based upon the text of Yajnavalkya, Chapter IV, Section VI, placitum 15 :
- "In a case of equal partition between a father and his sons, a share belongs also to the wife : says Yajnavalkya: 'if he makes the allotments equal, his wives, to whom no separate property had been given by the husband or the father-in-law, must be rendered partakers of like portions.' If any had been given, they are only to get half, for he adds : 'Or if any had been given, let him assign the half.' The half, meaning so much as, with what had been before given as separate property stridhana, will make it equal to a son's share. But if her property be already more than such share, no share belongs to her."
6. Under the Hindu Women's Rights to Property Act (XVIII of 1937), when a Hindu governed by the Benares school, as in the instant case, dies intestate, leaving separate property, his widow is entitled in respect of the property of which he dies intestate, to the same share as his son, and if he dies having at the time of his death an interest in the Hindu joint family property, his widow shall have in the property the same interest as he himself had. No doubt, this interest is what is known as Hindu Woman's Estate, with this exception that she has the same right for claiming partition as a male owner has. The widow has thus the statutory right to the interest of her husband at his death in the joint family properties or in his separate properties in respect of which he dies intestate, notwithstanding any rule of Hindu Law or custom to the contrary. The ornaments in dispute being the separate property of the defendant and not the joint family property or the separate property of her husband at his death, cannot be taken into account in determining her share in the property left by Sukhdeo, whether that property was joint family property or his separate property.
7. The learned counsel for the respondents conceded grounds 9 to 11 of the memorandum of appeal. Consequently the amount payable to the defendant is reduced from Rs. 427-10-0 to Rs. 209-1-0.
8. Now remains the question of costs. The plaintiffs incurred Rs. 108-8-0 as costs of the suit. An amount of Rs. 351/- was deducted from the assets as expenses and remuneration of the receiver. The learned counsel for the appellants contends that the amount of Rs. 351/- should have been debited to the defendant alone. There is no substance in this contention. The cost of realizing the family assets and their distribution should ordinarily come out of the estate. The learned counsel, however, contends that in view of the lower Court's finding that the defendant was attempting to squander the estate of Sukhdeo soon after his death without any regard to the interest of the minors, an appointment of receiver was absolutely necessary to protect their interests. Consequently the defendant must pay the amount of Rs. 351/-. The plaintiffs' next friend did not give any notice to the defendant before instituting the suit for partition.
The defendant did not dispute the plaintiffs' share in the joint family property. She only claimed certain ornaments as her 'stridhan' and her defence was substantially accepted. The plaintiffs had made a very exaggerated claim and they have succeeded to the extent of one-third of it. Expenses and remuneration of a commissioner would have been necessary to realize and divide the movable assets. That work was done by the receiver. If the other costs were awarded according to the success and failure, the plaintiffs will have to pay the costs of the defendant. Under these circumstances we do not think it necessary to interfere with the discretion of the lower Court in debiting the receiver's expenses and remuneration to the joint family assets and directing the parties to bear their costs as incurred.
9. The decree of the lower Court is modified by substituting Rs. 209-1-0 for Rs. 427-10-0, wherever it occurs in the decree. The appeal substantially fails. The arithmetical mistakes which the respondent admitted at the outset could have been got corrected under Section 52, Civil Procedure Code. Under the circumstances the appellants must bear their costs of appeal and pay those of the respondent.