Under Mitakshara law, a female member of a joint Hindu family does not become the owner of a share mentioned in a partition decree until an actual division of the property is made.

Judgement

Appeal (No. 28 of 1935) from a decree of the High Court in its appellate jurisdiction (June 5, 1934) reversing a decree of the High Court in its original civil jurisdiction (December 1, 1933),

The appellants, who carried on business as moneylenders, lent money to a father and son, who constituted a joint Hindu family, on the security of property belonging to them. A suit on the mortgages brought by the appellants was settled and a consent decree made. About a year before that decree a preliminary decree for partition was passed by the High Court in a partition suit which had been filed by the son against his father and mother. The preliminary decree in that suit allotted a one-third share of the joint family property to the mother, Dhanabati. No actual division of the property was in fact made.

The appellants alleged (inter alia) that the partition had been made with the object of saving from the mortgages the share allotted to the mother, and they claimed (inter alia) a declaration that the mortgages and the decree in the mortgage suit were binding upon her.

The facts appear from the judgment of the Judicial Committee.

Buckland J. held that at the time of the institution of the mortgage suit the wife was only entitled to maintenance, and that therefore the question whether the institution of the partition suit amounted to a severance affecting the status of the family did not arise, and that all the persons who had any actual interest at the time in the mortgaged property were in fact parties to the mortgage suit, and he made a declaratory decree in favour of the appellants.

An appeal by Dhanabati was allowed by the High Court in its appellate jurisdiction (Costello and Lort-Williams JJ.). Lort-Williams J., in a judgment with which Costello J. agreed, held that Dhanabati, by reason of the institution of the partition suit, had a right to claim her share and therefore had a beneficial interest in the property mortgaged and a right to redeem, and was a necessary party in the mortgage suit, and that she had had no opportunity of contesting the validity of the mortgages or the terms of the compromise decree, and that therefore the plaintiffs were not entitled to the declarations they claimed. The appeal is reported at ( 1934) I. L. R. 61 C. 1056.

1935. Oct. 18. Dunne K.C. and Wallach for the appellants. On partition the female of a family governed by the Mitakshara has no right other than maintenance until actual distribution. Dhanabatis right as owner could only arise at the time of actual division, and till then she was only entitled to maintenance. " Partition " has often been used in relation to separation of status, and in Bengal partition can only be applicable to distribution, because there is always a division of status in the Bengal system. They are only tenants in common. No son under the Bengal system has a right to claim partition against his father. It is clear from the authorities that a widow has no right in the family property; the male members have the sole right, and she has a right to maintenance. A widow has no right whatever to claim partition. There must be an unequivocal declaration of intention to separate, and the moment that was manifest that constituted separation. Lort-Williams J. in his judgment said " Dhanabati, by reason of the institution of the partition suit, had a right to claim her share " it has been held over and over again that a woman has no right to claim her share by partition. Sheo Dyal Tewaree v. Judoonath Tewaree (( 1868) 9 W. R. 61.) decided that there can be no separation in status until you have got the actual partition. That has been overruled, and there can be separation in status by intention. What has not been overruled is that where a woman wants to claim a right in the property she has no right in or to it until the actual division gives her a share. [Reference was made to Raoji Bhikaji Kondkar v. Anant Laxman Kondkar (( 1918) I. L. R. 42 B. 535.), and Beti Kunwar v.