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1951 Supreme(Nagpur) 113
HIGH COURT OF NAGPUR
K Kaushalendra Rao, Deo
BABURAO SUKHDEO AND ANOTHER – Appellant
Versus
BAI SAVITRIBAI – Respondent
First Appeal No. 57 of 1945
Decided on : 19-11-1951
P G Phadke, R A Dubey, Advocates
Gold ornaments received by a Hindu wife from her husband during coverture are not her stridhan and should be taken into account in determining her share in the partition of the joint family property.
Headnote:
HINDU LAW - PARTITION - STEP-MOTHER - SHARE - ORNAMENTS RECEIVED AS GIFT FROM HUSBAND - WHETHER TO BE TAKEN INTO ACCOUNT IN DETERMINING SHARE.
Fact of the Case:
The plaintiffs, through their next friend, filed a suit for partition against their stepmother, the defendant. The plaintiffs challenged the lower court's finding that certain gold ornaments and silver items were the defendant's stridhan. The defendant claimed that the gold ornaments were made from money she possessed before her remarriage, while the plaintiffs argued that these ornaments should be considered in determining the defendant's share.
Finding of the Court:
The court held that the gold ornaments were not the defendant's stridhan and should be taken into account in determining her share. The court found that the defendant had not provided sufficient evidence to support her claim that the ornaments were purchased with her own money.
Issues: 1. Whether the gold ornaments received by the defendant from her husband during coverture were her stridhan. 2. Whether the gold ornaments should be taken into account in determining the defendant's share in the partition.
Ratio Decidendi: 1. Under Hindu law, a mother is entitled to a share in the joint family property only if the sons effect partition among themselves. 2. The share that a mother receives is in lieu of maintenance and anything she may have received from her husband would be taken into account in computing her share. 3. The Hindu Women's Rights to Property Act (XVIII of 1937) gives a Hindu widow the same share in her husband's separate property as a son, but this does not include property that she received as a gift from her husband during coverture.
Final Decision: The court modified the lower court's decree by reducing the amount payable to the defendant from Rs. 427-10-0 to Rs. 190-1-9. The court also directed the parties to bear their own costs.
1. This is an appeal against the preliminary decree in a suit for partition instituted by the plaintiffs-appellants through their next friend against the defendant-respondent who is their step-mother.
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 defendants 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 and 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, 1942 ILR(Nag) 534and JAIRAM v. NATHU, 1907 ILR(Bom) 54, referred to in Mullas 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 Womens 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, 1889 16 ILR(PC) 758 and PARBATI DEVI v. BANSIDHAR,1943 ILR(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 and VERAMDAS v. KALIANJI,1939 ILR(Kar) 693; which are based on KISHORI MOHUN v. MONI MOHUN, 12 Cal 165, where the father by his will, 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 could not exclude the widow from being entitled to is 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 Yaj navalkya, 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 his 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 again the half. The half, meaning so much as, with what had been before given as separate property stridhana, will make it equal to a sons share. But if her property be already more than much share, no share belongs to her.
The basic idea is to provide for the maintenance of the wife or widow. She is entitled to such maintena
