9911796707
TMI Blog1974 (1) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 45 of 1964 for setting aside the alienations of certain properties of the ground that these alienations were not supported by consideration and were not binding on them. The suit was dismissed by the trial court. A. S. No. 247 of 1968 was then preferred to the High Court by the said appellants. All the above three appeals were heard together by a Division Bench of this court consisting of Obul Reddi and Venkateswara Rao, JJ. The Bench gave the judgment in these appeals on 28-10-1970. In the course of the judgment, their Lordships made the following observations:-- "In this connection it is also to be borne in mind that a wife cannot herself demand a partition. But if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. Where at a partition between a father and his three sons, the wife was not allotted a share it was held that she was entitled to re-open the partition, there being no waiver merely by her not asking for a share, but that in the petition the value of the Ornaments taken by her must be taken into account. (See Mulla On Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter has come before us. 8. Mr. Traimabak Rao Deshmukh in an able argument contended that the Madras decisions cannot be said to the direct authorities on the point that in Southern India the practice of allowing shares upon partition to females has long since become absolute. He submitted that Smruti Chandrika and Saraswati Vilas do not lay down any such proposition, and even otherwise it would be contrary to Mitakshara. He submitted that even if there is conflict between the two, it is Mitakshara which would prevail even in Southern India. The Court is indebted to Mr. Deshmukh for his elaborate argument; which has helped the Court in arriving at a conclusion in the matter, albeit we are holding against him. 9. Hindu Jurists laid down the sources from which knowledge of Hindu Law is to be derived as, the Veda, the Smruti, the approved usage and what is agreeable to good conscience and desire sprung from due deliberation. The Hindu Law, however, as understood and administered today by Indian Courts is the result of many an ingredient which are to be found in the Sruti, Smruti, the commentaries and digests, judicial decisions, legislative enactments and finally customs. 10. Whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and liberal juridical norms." Then at page XXI, he goes on to say : "The Code of Manu practically ignores woman, because that was the view of the old common law. The Code of Yajnavalkya treats her as a full legal persona; it allows her to inherit property." 14. There were bound to be some variations and even conflicts between the Texts of one Smruti and another, or even between some Texts in the same Smruti. The Smruthikars themselves were conscious of this and they declared that the smruti which is opposed to Manu Smruti is not approved. But in actual practice this was not followed. Many times effect was given to texts of later smruthikars, on the ground that they are according to approved usage, as custom was always considered as more powerful and overriding sacred law. But the most salutary rule of them all was laid down by Yajnavalkya. "When two Smrutis disagree, that which follows equity guided by the people of old should prevail." It is usual to talk of the existence of several schools of Hindu Law; but strictly speaking, there are only two schools; the Dayabhaga and Mitakshara, the others like Dravida, the Mithila, the Benaras and the Maharas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. The next thing is to consider what the Smruti Chandrika or Saraswati Vilas has to say on this particular aspect. It is of course always necessary to keep in view whether the question is concluded by judicial decisions. Let us therefore examine as to what Mitakshara had to say regarding the share of mother in a partition between father and sons. The first sloka to be noticed in Mitakshara is : ............................................................................................................................. Translation as given by Golapechandra Sarkar Sastri reads : "If he make the (sons') allotments equal his wives to whom Stridhanam has not been given by the husband or the father-in-law shall be made partakers of equal allotments." It is important to note the words "....................." and another "....................:" ................................................................................................................................ Translation as given by Golapechandra Sarkar Sastri reads : "The mother also, of those dividing after the death of the father, shall take an equal share." 20. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any had been given, let him assign the half'." "10. But, if he gives the superior allotment to the eldest son, and distribute similar unequal shares to the rest, his wives do not take such portions, but receive equal shares of the aggregate from which the son's deductions have been subtracted, besides their own appropriate deductions specified by Apastambha : 'the furniture in the house and her ornaments are the wife's property'." 23. This then is the position of the original Text of the Mitakshara. Let us then see as to what Smruti Chandrika has to say in this behalf. It can be seen from the "Smruti Chandrika" translated from the original by Sri T. Krishna Swamy Iyer that Chapter II, Section I relates to partition. The relevant slokas are 37 to 39. The translation of these slokas is as follows : "37. Here, too, (that is, even in the case contemplated by the text of Hartam 'A father making a complete partition &c.' para. 31), an equal partition may be made, if that should the will of the father, for, Katyayana who explains the mode of partition during lifetime of the father by the text. "That partition is declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she possesses an interest in the partible wealth by reason of her being the widow of the deceased father, Yajnavalkya and others must be understood to have permitted her, in compromise of such interest to take wealth sufficient for her needs by way of a portion." "12. Hence, such a mother alone as is destitute of wealth, and not a mother generally, is declared in Smruti or law to be entitled to receive a share, Smruti "A mother, if she be dowerless, shall, in a partition by sons, take an equal share"." "15. By the qualifying terms "if she be dowerless', made use of text, para, 12 it is inferable that where a mother, by means of her own separate property, is able to maintain herself and perform such religious duties (requiring for their accomplishment the use of wealth) as are observable by her, she can take no share out of her husband's property. If the separate property of a mother be insufficient for the above purposes, then she, notwithstanding her possession, which, however, is not to be equal to that of a son, but less then that, proportionate to her wants." "16. Accordingly, where the estate forming the subject of par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir own necessities ; because of the meaning indicated in the attributive term-- "Who has no property of her own," namely, that the taking of share by the mother is not, as in the case of the brothers, by the rule of the division of heritage, but by the rule of suitability and yet, not by the rule of suitability in the attributive term 'equal' because of its inapplicability when the taking is of an unequal share." "113. Wherefore, combining all this, after it has been stated by Yajnavalkya, that 'If he makes equal shares, the wives must be made partakars of equal shares', it is added, 'To whomsoever women's property has not been given either by their husband or their husband's father,' that is, if women's property has been given, competency for shares does not belong to those wives." "114. Hence it is said by the author of the Chandrika; 'it is to be understood, that there is no distinct establishment of mother's division of heritage here; but only taking of such substance as she requires'." "116. It is, however, said by Aparka, that "the word 'share' in the phrase. 'If he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... males had at any time a right to take share on portion like other coparceners. In any case, prior to smruti Chandrika, there must have been for a sufficiently long time the usage, not to give any share in partition to the wife or mother. Thus even if---but we do not so hold--by some interpretation it is found that Mitakshara advocates the allotment of share on partition between father and sons or between brothers to such females, it has for all intents and purposes fallen into disuse in the South since time immemorial ---Smruti Chandrika and Saraswati Vilas, however, are explicit and rule out the idea of a share in partition to the mother or the wife. 31. That is the reason why every text book writer refers to this in clear terms. In Section 315 of Mulla's Hindu Law 13th Edition, at page 366 under the heading 'illustration', one finds a note as follows:--- "Madras state----In southern India the practice of allotting shares upon partition to females has long since become obsolete." 32. Raghavachari on Hindu Law (sixth Edition) at para 416 says:--- "But the practice of allotting shares to females has, however, become obsolete in Southern India." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artition she had not title as a coparcener and could not call for partition. What she receives is termed in the smriti Chandrika "ameam" (a portion), as distinguished from 'daya' inherited wealth. She does not, on partition, receive a share. When she takes anything it is given to her to discharge the inheritance from the obligation for her maintenance; and whether she takes anything or not, she acquires by partition no greater interest in the share which falls to the lot of her husband now that it has been separated than she had in the whole estate prior to partition." 39. In Venkatammal v. Andyappa, ((1883) ILR 6 Mad 130 at p. 134) a Bench of that Court said : "There are, no doubt, texts which favour the right of a wife or mother or a portion on partition (Vyavahara Mayukha, Chapter IV, Section 4 paras, 15, 19) and this right is recognised by Vijnaneswara (Mitakshara) Chapter 1, Section 7 , Paragraphs 1, 2 ; but inasmuch as this right does not arise, as in the case of coparceners from independent ownership, the wife or mother cannot call for partition. The portion is, in fact, an assignment by way of maintenance. Smriti Chandrika, Chapter 4, paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in Southern India and that the right survives only as a right for provision of maintenance which must not in any case exceed the share of her son." 44. Our attention, however, was drawn to Kanyalal v. Controller of Estate Duty, [1961]41ITR1(AP) , No doubt in paragraph 6 of the judgment, it is observed : "At the outset, it should be borne in mind that the appellate authority does not rest its decision on the practice of allowing a share to the mother on partition having fallen into disuse for some centuries and that the ancient texts came to be modified by the influence of custom. Even otherwise this view could not be maintained. The non-assertion of rights by the mother or the wife of a Hindu in several cases does not make such a right obsolete. It may be that in most of the cases the mother or the wife might not insist on the recognition of such a right. But that does not put an end to the claims of the mother or the wife to be allotted a share at the time of partition." 45. At first blush it creates an impression that the said observation is made applicable even to Madras school. But on a careful reading of the judgment, it would be abundantly plain that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, 13th Edition, also placed reliance on a decision of the Supreme Court in Civil Appeal No. 1048 of 1967, D/- 16-3-1970 Appeal NO. 1048 of 1967, D/- 16-3-1970 (SC). 50. After a careful perusal of the Supreme Court decision on which reliance was placed, it would be evident that the Supreme Court was not concerned with the law prevailing in Madras. In that case, the parties were governed by Banaras or Mithila School of Hindu Law. The ancestors of the parties had migrated from the North and had settled down in the former State of Hyderabad. It was not disputed before the Supreme Court that the mother did not have a share in that case. The High Court in that case had not accepted the contention that she was entitled to a share on the ground that in the written statement of the 2nd defendant there was nothing to suggest that she was claiming a share in the joint family properties. The Supreme Court pointed out that that would not be a correct approach. It was stated that as she became entitled to one-third share and merely because she had not asked for any specific share in her written statement, she should not be denied her share on a partition taking place in the absence of proof t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
