T. Ameer Ali, J.

1. This is a suit for partition. The plaintiff is apurchaser from one of the sons of Chooni Lal Mullick, who died in 1892, leavingfour sons, Manick Lal Mullick, Gopessur Mullick, Johur Lal Mullick and AmritaLal Mullick and a widow Sreemutty Nitcomoni Dassee. He left a house No. 3/2,Gopal Chunders Lane, the partition of which is sought in this suit, and itappears on the evidence that this is the only property he left. The share ofJohur Lal Mullick his come to the plaintiff Amrito Lall Mitter by virtue of asale under a mortgage decree. The sale certificate has been put in. The shareof Gopessur has come into the hands of the Ghose defendants under a salecertificate, which also has been put in. The plaintiff seeks to have apartition of the property, and his contention is that he is entitled to aone-fourth share, in spite of the fact that the widow of Chooni Lall Mullick isalive, and is entitled under the law to a share of the ancestral property upona partition of the same among the sons of the original holders. The questionhas been argued with considerable ingenuity on behalf of the plaintiff and theGhose defendants, and it has been suggested that the right of a mother toobtain a share upon partition comes into existence when the partition takesplace among the sons; when a share is conveyed by the son to a purchaser theright of the mother does not follow that share. That, in substance, Iunderstand to be the argument. But it is further contended that only in case offraud on the part of a son, of which the purchaser has cognizance, any questionrelating to the share of the mother can arise. The effect of acceding to thiscontention would be to reduce the provision of the law, by which the motherbecomes entitled to a share, to a nullity. Two cases were cited: Jugger NathSamunt v. Odhiranee Narain Koomaree (1873) 20 W.R 126, Sorolah Dossee v.Bhoobun Mohun Neoghy I.L.R(1886) 15 Cal., 292 [LQ/CalHC/1888/11] , in support of the contention.The passages to which I have been referred in those judgments, and which I amafraid have been somewhat strained to give colour to the argument must, in myopinion, be read with the facts with which the learned Judges were theredealing.

2. The case really in point is that of Jogendra ChunderGhose v. Fulkumari Dassi, ante p. 77. Both Mr. B.C. Mitter and Mr. Chakravartitried to argue that the views expressed by Banerjee, J., were mere obiterdicta. In my opinion, the dictum of a judge of his learning and intimateknowledge of Hindu law would have considerable weight even if it went beyondthe requirements of the case itself, but I think the views expressed by theChief Justice and Banerjee, J., are decisive on the point and not merely obiterdicta. The learned Chief Justice points out that there were two points in thecase:

(1) Whether or not the purchaser from a Hindu son Stands inthe same position as the son himself.

(2) Whether in that particular case a transfer having beenmade after a partition suit, the purchaser was not bound.

3. The Chief Justice, as well as Banerjee, J., held on boththese points against the very contention in this case. They first dealt withthe general principle and then with the facts. The second point does not arisein the case before me. I have to deal with the first point only. I may say Ihave given the case my best consideration. I can only express my entire concurrencewith the view of the law taken in Jogendra Chunder Ghose v. Fulkumari Dassi. Toput it shortly in the language used by the learned Chief Justice, the positionof a purchaser from a son is exactly that of a son himself. He has the samerights and takes it subject to the same liabilities as those of the person fromwhom he purchased. And as a mother is entitled under the law to be maintainedout of the joint family property, if anything is done affecting that right, forinstance by the sale of any particular share by any of her sons, her rightcomes into existence.

4. That being my view, 1 hold the plaintiff is entitled to aone-fifth share as purchaser from Johur Lall Mullick and the Ghose defendantsto a one-fifth as purchasers of Gopessurs share, Manick and Amrito to aone-fifth each and Nitomoni to the remaining one-fifth for her life; after herdeath the sons and purchasers would be entitled to her share. I make adeclaration to that effect and the usual decree for partition.

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Amrita Lal Mitter vs.Manick Lal Mullick and Ors. (20.03.1900- CALHC)