Judgement

APPEAL from a judgment of the High Court and the decree made thereon (July 29, 1886) modifying a decree of the second Subordinate Judge of Hooghly (April 11, 1885). The facts are stated in the judgment of their Lordships. The report of the case in the Court below will be found in Ind. L. E. 13 Calc. 336. The question raised in this appeal was whether the effect of a partition between the Plaintiffs step-son and step-grandchildren on the one side, and her own and only son on the other, by which the last takes a separate third share, is or not by Hindu law to discharge the step-childrens two-third shares from the Plaintiffs previously existing claim for maintenance, and to limit it to the share of her own son, both in matter of amount and security.

The Subordinate Judge referred to the case relied on by the Respondent of Jeeomony Dossee v. Atmaram Ghose (Cited at page 64 of Sir F. Macnaghten’s “consideration on Hindu Law”), where a question is stated to have been raised as to whether a mother (not a party to the suit) of an only son was entitled on partition between her son and her step-sons to a separate share, and it was " understood and determined " that she was not so entitled, but must look to her son for maintenance. He was of opinion that, as the mother in question in that case was not a party to that suit, there could have been no decision, or more than an obiter dictum, as to her right to a share, and that the question as to her right to maintenance never properly arose in her absence.

The High Court held, " that up to the time of the decree for partition defining the separate shares of the members of the family, the Plaintiff would be entitled to claim her maintenance against the whole estate, and subsequent thereto against the share allotted to her son," but that, as after the separation in February, 188tf, the Plaintiff had received her maintenance from her own son alone, she could therefore have no claim for it against her step-sons, with " the result therefore that so far as her step-sons are concerned this suit must fail."

The reasons of the High Court for arriving at that conclusion on a question which the learned Judges stated to " be one almost of the first impression, there being no distinct text in the Hindu law books, nor any distinct authority on the matter," are as follow—

"The parties to the suit are governed by the Bengal school of law, and we have to determine what, under the law as it is administered in Bengal, the true rights of the Plaintiff are in respect to the maintenance claimed by her.

"The rights of a Hindu widow, as a widow, arise out of the marriage; and upon the death of her husband, in the event of there being no sons, she succeeds under particular texts to the estate left by her husband. Where the husband leaves a son or sons, all that she is entitled to is maintenance out of the. estate. When, during the lifetime of her husband, there is a partition pf the family property, she gets, if she is sonless, but not if she has a son (and in which case alone her son is entitled to a share), an equal share with the sons of her husband ; but where there is no such partition during the lifetime of her husband, what she is entitled to get, when the estate, upon her husbands death, passes to the sons, whether she has a son or sons born of her or not, is only maintenance out of the estate.

"And when the Hindu law prescribes a share being allotted to a woman after her husbands death upon a partition amongst her sons, it is a share which is given to her simply in lieu of maintenance, and not because she is a coparcener in the estate, or that she has any pre-existing rights ; and the share which is thus given to her, reverts, upon her death, to those heirs of her husband out of whose portion the said share was taken.

" (See Shama Churns Vyavastha Darpana, ed. 1883, pp. 487, 488, 521, 522, and the authorities quoted therein; Strange, Hindu Law, ed. 1830, vol. ii., p. 307, and Sheo Dyal Tewaree v.