Vishwa Nath vs Prem Nath and another

Jaswant Singh, J.—This civil first appeal is directed against the judgment dated September 10, 1973 of Thakur J. whereby be passed a

preliminary decree in a suit for partition of the joint family properly brought by the appellant against his brother, Prem Nath and his mother Mst.

Godawari respondents Nos. 1 and 2 herein.

Appearing in support of the appeal. Mr. C.M. Gupta, has raised the following points:

That the appellant and respondent No. 1 were entitled to a half share each and Mst. Godawari, respondent No. 2, was not entitled under Hindu

Law to any share in the joint family property, and the learned Single Judge, has erred in holding that she was entitled to a share equal to that of a

son.

That in any event since under the ordinary Hindu law a mother could claim her share in the joint family property on partition between the sons

equal to that of a son in lieu of her right of maintenance and u/s 20 of Hindu Adoptions and Maintenance Act, the provisions of which have an

overriding effect in respect of the matters dealt with in the Act, the appellant and respondent No. I are bound to maintain their Mother, Mst.

Godawari during her lifetime the learned Single judge has erred in recognizing her share in the property.

That the learned Single Judge has erred in not granting (a) a share to the appellant in Truck No. 1815 JKA and (b) a decree for rendition of

accounts in regard to the rents accruing from the joint family property.

So far as the first contention raised by Mr. C.M. Gupta is concerned, we are unable to accede to the same. A conjoint reading of Paras 316

and 353 of the Hindu Law by Mulla, 1970 Edition, would show that although a mother cannot compel a partition so long as the sons are united,

she is entitled to a share equal to that of a son in the coparcenary property if a partition takes place between the sons. The contention of Mr. Gupta

that since the mother is not a coparcener she cannot be given a share in the property, is. in our opinion, not well founded. A mother though not a

coparcener with the sons is certainly entitled to a share equal to that of a son. on partition in view of the aforesaid provisions of Hindu Law. The

first contention raised by Mr. Gupta, is, therefore, repelled.

The second contention raised by Mr. C.M. Gupta though attractive at first sight is equally unfounded. Apart from the fact that no such

contention seems to have been urged on behalf of the appellant before the learned Single Judge we would like to observe that the fact that Section

20 of the Hindu Adoptions and Maintenance Act casts an obligation on a Hindu to maintain his aged and infirm parent who is unable to maintain

himself or herself out of his or her own earnings or property does not disentitle a mother to share in the joint family property on a partition between

the sons. There is nothing in the said Act to affect a mother's right to claim a share in the property on partition between her sons which is available

to her under the ordinary Hindu Law. A contention similar to the one raised before us was also raised in Mst. Samu Bai and Another Vs. Shahji

Magan Lal, but was repelled by a Bench of the Rajasthan High Court with the following observations:

We have given our careful and anxious consideration to this proposition of law and have come to the conclusion that it is extremely difficult for us

to sustain it. It is true that the Act of 1956 contains certain provisions which must now govern the question of maintenance of ""aged parents"" which

expression includes both the male as well as the female parent.

The relevant section is Section 20. Leaving out the immaterial portion of this section, it reads as follows:

The obligation of a person to maintain his or her aged or infirm parent........extends in so far as the parent..........is unableto maintain himself or

herself out of his or her own earnings or other property.

It will be at once seen that this right pertains to aged or infirm parents only, and again, the right of maintenance, which has been vouchsafed under

this section, is to the extent that such parent is unable to maintain himself or herself out of his or her own earnings or other property. This right of

the parent to maintenance is in essential respects not quite the same as was available to a parent under the pre-existing law and by virtue of Section

4 of the Act of 1956, the law as laid down in Section 20 must prevail over the earlier law.

Be that as it may, we fail to find anything in this section or in any other part of the Act of 1956 whereunder the right of a mother to claim a share

equal to that of the sons at an impending partition between the latter, has been taken away. In fact there is no provision whatsoever in the Act of

1956 which would seem in our opinion to have any bearing on this particular right of the mother.

We are conscious of the traditional view according to which the right of a mother to claim a share of joint family property at a partition between the

sons is in lieu of her right of maintenance (See Hemangini Dasi v. Kedarnath Kundu, ILR (1889) Cal 758 (PC)), and not on account of any right in

inheritance as such. This may have been so. But with profound respect whether the same view can hold good today in view of the Hindu

Succession Act, 1956, to which we propose to refer hereafter in some detail is more than we are prepared to accept.

The crucial point to our mind, however, upon which the determination of the question before us depends is whether the law of maintenance for a

mother as contained in the Act of 1956 debars her from claiming any right to her usual share at an intended partition between the sons by an

express provision or by necessary intendment arising out of the provisions contained in the Act. Now if was nobody's ease even before the trial

Judge that the Act of 1956 makes any express provision in this regard. We further think that there is nothing in the provisions of the Act which can

or must by necessary implication justify us in holding that a mother in the situation we are called upon to consider does stand deprived of her right

to claim her share of the joint family property of which she was in unquestionable enjoyment before the Act of 1956 was passed. We are,

therefore, definitely disposed to hold that in respect of matters, for which no express provision is to be found, or which cannot be read into the Act

of 1956 by irresistible implication, the old law must remain and continue to be applicable as before.

If our analysis of the provisions relating to the maintenance of a mother as contained in Section 20 or other provisions of the Act of 1956. is

correct, as we think it is, then we have no hesitation in saying that there is nothing therein which would militate against the right of a mother to claim

a share at a partition between the sons. And if this is so, Section 4 of this Act of 1956 cannot possibly stand in the way of such a right being given

effect to, if it is available to her under the ordinary Hindu Law.

We also wish to point out that the recent trend in our country with respect to the rights of women has undoubtedly been to enlarge them, so far as

their economic or proprietary status in a Hindu family goes, and under the Hindu Succession Act, 30 of 1956 a mother has been classified as an

heir of Class I, vide Sections 8, 9 and 10, read with the relevant Schedule, and u/s 11 of the same Act, it has been provided that any property

possessed by a female Hindu, whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as

a limited owner.

The Hindu Succession Act came into force on the 17th June, 1956, while the Act of 1936, came into force later on the 21st December in the same

year, and we find it impossible to accept that the right, which a Hindu mother enjoyed under the old Hindu Law and which generally speaking, has

been greatly bettered under the Hindu Succession Act of 1956, was adversely affected in the matter of her right to claim a partition by anything

contained in the Act of 1956, which as we have already discussed above, contains no provision whatever affecting the right of her.

For the reasons mentioned above, we are unable to agree with the conclusions of the learned trial Judge that the appellant, who is mother in this

case, stands deprived of her right to claim a share of the joint family property at the impending partition between her sons by the provisions of the

Act of 1956. It may be that should she later ask for any maintenance from her sons under the provisions of Section 20 of the Act of 1956 her right

in that connection may be affected in so far as she is able to maintain herself out of the property, which she receives at the Partition but to hold that

because of such a right of maintenance, she cannot ask for her share at any partition between her sons, is a proposition from which we entirely

dissent."" In view of the above discussion we are of the opinion that the learned Single Judge was right in recognizing the share of Mst. Godawari in

the joint family property.

So far as Mr. C.M. Gupta's contention regarding the share in truck No. 1815 JKA is concerned. Prem Nath, respondent who is present in

person has stated before us that he shall as soon as the appeals pending against the grant of compensation in respect of the truck are disposed of

pay to the appellant a sum of Rs. 1,000/- in lieu of his share. The appellant who is present in person has accepted this offer. The learned Single

Judge shall, therefore, while passing a final decree make a mention of this fact in the decree.

The last contention raised by Mr. C.M. Gupta, cannot also be sustained. It will be well at this stage to refer to the following observations made

in this behalf by the learned Single Judge with which we entirely agree.

In the plaint a relief of rendition of accounts has also been sought. There is no allegation in the plaint that the defendant while acting as a Karta of

the family has in any way been guilty of any such conduct in dealing with the joint family funds which could render him liable to tender accounts. In

fact the plaint is wholly silent about this aspect. There is no evidence to show that any amount which the defendant obtained on behalf of the family

has not been accounted for. There is no issue regarding the liability of the defendant to render accounts. In the absence of specific allegations in the

plaint, and substantial evidence justifying a decree for rendition of accounts in favour of the plaintiff against the defendant, the relief for rendition of

accounts cannot be granted.

The law on the subject is contained in Paragraph 23 of the Hindu Law by Mulla, 1970 Edition. According to that paragraph in the absence of

proof of misappropriation or fraudulent and improper conversion by the Manager of a joint family estate, a coparcener seeking partition is not

entitled to require the Manage to account for his past dealings with the family property. So far as, however the income or rent accruing from the

property from and after the institution of the suit is concerned, it is well settled that since the institution of a suit for partition amounts to a severance

of the joint status, the Manager is hound to account for ail receipts and expenses from the date of the institution of the suit. Mr. I.D. Grover has in

this connection drawn our attention to an order passed by Bhat, J. on April 1971 as also to an order dated April 20, 1972 passed by one of us.

The first order contains the agreement of the learned counsel for the parties to the effect that the plaintiff appellant would recover 1/3rd share of the

rents from the tenants and the remaining 2(sic)3rd share would be recovered by the defendants namely the present respondents. In the second

order dated April 20, 1972 the appellant was expressly permitted to realize the rents from Om Prakash student, Thakur Dass, Labu Ram, and Om

Prakash son of Sunder Dass subject to final adjustment between the parties and the defendants respondents were allowed the liberty to realize

rents from the rest of the tenants of the joint family property subject to final adjustment between the parties. The learned counsel for the

respondents has submitted before us that his clients have not realized the share of the rents due to the appellant under the aforesaid orders and that

he i.e. the appellant may continue to realize rents from the aforesaid tenants. In view of this submission the parties shall furnish accounts of the rents

realized by them from the tenants of the property before the learned Single Judge who would while passing the final decree make adjustment

between, the parties keeping the aforesaid orders in view.

With these observations the appeal is dismissed, but without any order as to costs. The parties are directed to appear before the learned Single

Judge for further directions on December 20, 1974.

Mian Jalal-Ud-Din, J.

I agree.