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TMI Blog1974 (1) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 for setting aside the alienations of certain properties of the ground that these alienations were not supported by consideration and were not binding on them. The suit was dismissed by the trial court. A. S. No. 247 of 1968 was then preferred to the High Court by the said appellants. All the above three appeals were heard together by a Division Bench of this court consisting of Obul Reddi and Venkateswara Rao, JJ. The Bench gave the judgment in these appeals on 28-10-1970. In the course of the judgment, their Lordships made the following observations:-- In this connection it is also to be borne in mind that 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 that share separately even from her husband. Where at a partition between a father and his three sons, the wife was not allotted a share it was held that she was entitled to re-open the partition, there being no waiver merely by her not asking for a share, but that in the petition the value of the Ornaments taken by her must be taken into account. (See Mulla On Hindu Law, Para, 315). It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Traimabak Rao Deshmukh in an able argument contended that the Madras decisions cannot be said to the direct authorities on the point that in Southern India the practice of allowing shares upon partition to females has long since become absolute. He submitted that Smruti Chandrika and Saraswati Vilas do not lay down any such proposition, and even otherwise it would be contrary to Mitakshara. He submitted that even if there is conflict between the two, it is Mitakshara which would prevail even in Southern India. The Court is indebted to Mr. Deshmukh for his elaborate argument; which has helped the Court in arriving at a conclusion in the matter, albeit we are holding against him. 9. Hindu Jurists laid down the sources from which knowledge of Hindu Law is to be derived as, the Veda, the Smruti, the approved usage and what is agreeable to good conscience and desire sprung from due deliberation. The Hindu Law, however, as understood and administered today by Indian Courts is the result of many an ingredient which are to be found in the Sruti, Smruti, the commentaries and digests, judicial decisions, legislative enactments and finally customs. 10. While Sruti was considered as the foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he goes on to say : The Code of Manu practically ignores woman, because that was the view of the old common law. The Code of Yajnavalkya treats her as a full legal persona; it allows her to inherit property. 14. There were bound to be some variations and even conflicts between the Texts of one Smruti and another, or even between some Texts in the same Smruti. The Smruthikars themselves were conscious of this and they declared that the smruti which is opposed to Manu Smruti is not approved. But in actual practice this was not followed. Many times effect was given to texts of later smruthikars, on the ground that they are according to approved usage, as custom was always considered as more powerful and overriding sacred law. But the most salutary rule of them all was laid down by Yajnavalkya. When two Smrutis disagree, that which follows equity guided by the people of old should prevail. It is usual to talk of the existence of several schools of Hindu Law; but strictly speaking, there are only two schools; the Dayabhaga and Mitakshara, the others like Dravida, the Mithila, the Benaras and the Maharashtra schools, being really the sub-schools of the Mithakshara differing from one an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on this particular aspect. It is of course always necessary to keep in view whether the question is concluded by judicial decisions. Let us therefore examine as to what Mitakshara had to say regarding the share of mother in a partition between father and sons. The first sloka to be noticed in Mitakshara is : ............................................................................................................................. Translation as given by Golapechandra Sarkar Sastri reads : If he make the (sons') allotments equal his wives to whom Stridhanam has not been given by the husband or the father-in-law shall be made partakers of equal allotments. It is important to note the words ..................... and another ....................: ................................................................................................................................ Translation as given by Golapechandra Sarkar Sastri reads : The mother also, of those dividing after the death of the father, shall take an equal share. 20. It is pertinent to note here also that the word amsam is used. 21. We then go to 22nd Sloka. It reads in so far as it is relevant for our purpose : ..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the son's deductions have been subtracted, besides their own appropriate deductions specified by Apastambha : 'the furniture in the house and her ornaments are the wife's property'. 23. This then is the position of the original Text of the Mitakshara. Let us then see as to what Smruti Chandrika has to say in this behalf. It can be seen from the Smruti Chandrika translated from the original by Sri T. Krishna Swamy Iyer that Chapter II, Section I relates to partition. The relevant slokas are 37 to 39. The translation of these slokas is as follows : 37. Here, too, (that is, even in the case contemplated by the text of Hartam 'A father making a complete partition c.' para. 31), an equal partition may be made, if that should the will of the father, for, Katyayana who explains the mode of partition during lifetime of the father by the text. That partition is declared legal by which the parents and brothers take the entire estate in equal shares, para 3, declares the above mode of equal partition to be of universal application. 38. I, therefore, in the instance under contemplation, the father, of his own will, should make an equal partition, then Yajnavalkya say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceive a share, Smruti A mother, if she be dowerless, shall, in a partition by sons, take an equal share . 15. By the qualifying terms if she be dowerless', made use of text, para, 12 it is inferable that where a mother, by means of her own separate property, is able to maintain herself and perform such religious duties (requiring for their accomplishment the use of wealth) as are observable by her, she can take no share out of her husband's property. If the separate property of a mother be insufficient for the above purposes, then she, notwithstanding her possession, which, however, is not to be equal to that of a son, but less then that, proportionate to her wants. 16. Accordingly, where the estate forming the subject of partition is large, the mother, though destitute of separate property is not to take an equal share, but such an inferior share as may be sufficient to meet her own wants. The condition imposed by the expression. 'If she be dowerless' shows that the taking of a share by the mother is on account of her necessity and not in right of inheritance as in the case with brothers. 17. By a mother taking not a fixed share but only so much as the stands in ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kars of equal shares', it is added, 'To whomsoever women's property has not been given either by their husband or their husband's father,' that is, if women's property has been given, competency for shares does not belong to those wives. 114. Hence it is said by the author of the Chandrika; 'it is to be understood, that there is no distinct establishment of mother's division of heritage here; but only taking of such substance as she requires'. 116. It is, however, said by Aparka, that the word 'share' in the phrase. 'If he make equal shares; has the meaning of 'a portion of the wealth to the divided; and, therefore, since there is no share taking for wives, the meaning is that something is to be given according to their husband's pleasure. 117. Therefore, though in all the three schools women have not the right to divide heritage, they have the right to take a share. Its proportionate limit, when there is women's property, and when there is none, is to be understood as that which is stated above. 29. What is it that follows from a close and careful reading of the Mitakshara text on the one hand and the Smruti Chandrika and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. That is the reason why every text book writer refers to this in clear terms. In Section 315 of Mulla's Hindu Law 13th Edition, at page 366 under the heading 'illustration', one finds a note as follows:--- Madras state----In southern India the practice of allotting shares upon partition to females has long since become obsolete. 32. Raghavachari on Hindu Law (sixth Edition) at para 416 says:--- But the practice of allotting shares to females has, however, become obsolete in Southern India. 33. It is relevant to notice some other observations of the said learned author at pages 416 and 417: The share allotted to a Hindu woman on partition among her sons is an interest in lieu of her right to maintenance which is carved out of the shares of the coparceners, and at the death of the woman, her share goes back to and becomes part of the shares out of which it came. A share given to a woman on partition is in lieu of maintenance. The share given to mother reverts to the family members on her death and is divisible between them as joint family property. If she has already received some property from her husband or father-in-law, that well also be taken into consideration in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aras, 15, 19) and this right is recognised by Vijnaneswara (Mitakshara) Chapter 1, Section 7 , Paragraphs 1, 2 ; but inasmuch as this right does not arise, as in the case of coparceners from independent ownership, the wife or mother cannot call for partition. The portion is, in fact, an assignment by way of maintenance. Smriti Chandrika, Chapter 4, paragraphs 8-17 . 40. In Mari v. Chinnammal, ((1885) ILR 8 Mad 107 at p. 123) a Full Bench of the Madras High Court observed : It must not, however, be overlooked that the right of a mother to a share was regarded by Nanda Pandita, not as a right of heritage, but a right to a provision. Account was to be taken of property which she had already received, and, if it was insufficient for her maintenance, an allotment was to be made to her so as to provide her with a sufficiency for her wants, which allotment could never be in excess of a son's share but which would be less than a son's share if the property so large that a son's share would be more than suffice for her needs. (Smriti Chandrika, Ch. IV, Ss. 9-17). Although the Madhaviya disputes the correctness of the opinion that mothers are not entitled to a share, but only to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claims of the mother or the wife to be allotted a share at the time of partition. 45. At first blush it creates an impression that the said observation is made applicable even to Madras school. But on a careful reading of the judgment, it would be abundantly plain that it is not so. This observation therefore has to be read in the context of the facts of that case. That was a case in which a Marwari family had migrated from the Northern India to Hyderabad in the south and lived there for a considerably long time. The Assistant Controller of Estate Duty found that the family due to its long stay in Hyderabad State was deemed to have adopted the local customs and as such was governed by the Madras School of Mitakshara Law . The Central Board of Revenue on appeal also found that it has been admitted that the forefathers of the deceased and migrated to the Hyderabad State and had settled down there and had since adopted some of the local customs and manners. 46. This finding of the two Tribunals, however, was rejected by the High Court. It was held that the party is governed by the Banaras School and not the Madras School. They brought their personal law to Hyderabad State, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct approach. It was stated that as she became entitled to one-third share and merely because she had not asked for any specific share in her written statement, she should not be denied her share on a partition taking place in the absence of proof that there had been any abandonment or waiver of her rights and interest. It would thus be evident that the ancestors of the parties in the said case were migrants to the Nizam's Dominions and prima facie they had carried their personal law with them and had not adopted the Madras School. It is only on that assumption that the said decision was given. 51. Unfortunately, while noticing Section 315 at page 365 of Mulla's Hindu Law, the foot-note given under the heading 'illustration' as extracted above was not noticed by the Bench of this Court in the above said two cases. If that portion and the previous decisions of the Madras High Court and the text-books on Hindu Law had been brought to the notice of the learned Judges, we are sure that such an observation extracted above in the first case and the decision given in the second case referred to above would not have been made and given by the said Bench of this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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