The main legal point established in the judgment is the determination of joint family property and the applicability of the Benares School and the Madras School of law in the context of Hindu law.

Hidayatullah, J—This is an appeal from the judgment and decree of the Additional District Judge, Chanda, in a suit for partition and separate possession of property of a joint Hindu family. The plaintiff (now respondent 1) Vithal is the son of one Naganna Tumurwar Komti, and the defendants (who were originally two) viz. (1) Mt. Shiwoo Bai and (2) Ramloo are the widow of Naganna and the step-brother of Vithal respectively. During the course of the trial one Mt. Saraswati Bai, the widow of Laxman, a deceased brother of Vithal, was added as a party but as she only wants maintenance, this appeal involves no claim or relief against her.

2. The learned Additional District Judge framed 30 issues embracing all the controversies in the suit but in civil Revision No. 33 of 1940 arising out of these proceedings Pollock J. pointed out the desirability of passing a preliminary decree under Order 20, Rule 18(2), Civil P.C., and leaving the ascertainment and partition of the joint family assets to what are popularly called 'final decree proceedings'. After this parties also made an application to the Court, requesting that only the first nine issues be tried and decided, since they desired to refer the remaining dispute to an arbitration.

3. The first nine issues were accordingly tried by the Court below. These issues can be divided into two parts. The first part deals with the law applicable to the parties and the position of the mother as a sharer in a partition among her sons and the second deals with the question whether the property in the possession of the parties was joint family property or property acquired by the joint efforts of the three sons of Naganna after his death. Many sub-issues under these two heads were necessarily considered and the Court of first instance gave its findings that the parties are governed by the Benares School and not by the Madras School of law and that the mother is, therefore, entitled to a share equal to that of a son in a partition among her sons. The learned Judge of the Court below further held that the property was joint family property, though as I shall show later, both the issue which was drawn up and the finding on it, were somewhat inaccurately expressed.

4. Now the position of the mother is quite clear in so far as the Benaras School is concerned. She is not entitled to claim a partition on her own account but in a partition between the sons, she is entitled to a share. Such a share is allowed by texts in the Smritis and the text in Yajnavalkya runs as follows: ''Of heirs dividing after the death of the father, let the mother also take an equal share:'' Yajnavalkya ii, 123, 124. The Commentary of Vijnaneswara on this text is: Of heirs making a partition after the decease of the father, the mother shall take share equal to that of her son provided no stridhana has been given to her. But if any had been received by her, she is entitled to half a share, as will be explained:'' Mitakshara Chap. I, Section 7 paras 1 and 2.

5. This right of the mother is recognised almost all over India except in Madras. The Madras School is primarily governed by the commentary of Devannabhatta known as Smriti Chandrika which the Privy Council has held to have a position analogous to that of Vyvahara Mayukha in Bombay: see Vedachala Mudaliar v. Subramania Chettiar, 1922 AIR(PC) 33. In Smriti Chandrika the text relied on runs: ''A mother, if she be dowerless, shall, in a partition by sons, take an equal share;'' and the commentary of Devannabhatta runs:

The meaning is that, during partition by sons, subsequent to the decease of the father, the mother will take an equal share only where she has no dower; i.e. her own separate property.... Accordingly where the estate forming the subject of partition is large, the mother, though destitute of property is not to take an equal share, but such an inferior share as may be sufficient to meet her own wants.'' (Setlur Hindu Law Books on Inheritance 19.11 at p. 234.) Simil