Authored By : William Comer Petheram, John Freeman Norris

William Comer Petheram, C.J. and John Freeman Norris, J.

1. Rama Nath Goswami, a Hindu governed by the law of theBengal school, and possessed of considerable property, died on the 12th ofOctober 1884, leaving two sons, Debendro Nath Goswami and Jogendro Nath Goswamiand a widow Barahi Debi. Amongst the properties left by him was an undividedtwo-sixths share in two houses at Barrackpore.

2. On the 13th of April 1886, one of the sons, Debendro NathGoswami, sold and conveyed an equal undivided one-sixth share in these housesto the plaintiff Debkamini Debi. A question was raised whether or not she was abenamidar for her husband; but as he has since been added as a plaintiff, thatquestion is not now material.

3. She had before acquired shares in the houses equal tofour-sixths, so that after the purchase of April 13th, 1876, she was the ownerof the whole sixteen annas, except the undivided one-sixth which had beeninherited by Jogendro Nath from his father Rama Nath. On the 16th of September1889, the present action was brought by the plaintiff Debkamini Debi againstJogendro Nath Goswami to obtain separate possession by partition of a shareequal to five-sixths of the two houses.

4. On the 13th of May 1890, Barahi Debi, the widow of RamaNath, was, at her own request, added as a defendant in the suit. She put in awritten statement in which she claimed that the property could not bepartitioned, as she had a lien upon it for her maintenance, or that, if it werepartitioned, a share in it equal to that of each of her sons should be allottedto her.

5. The Subordinate Judge has decreed the suit against bothJogendro Nath and Barahi Debi, and against that decree Barahi Debi alone hasappealed.

6. The first contention which has been made before us, onher behalf, is that the suit must be dismissed because the plaintiff does notclaim to have the whole estate of Rama Nath partitioned, but only these twohouses; no authority has been cited before us in support of the proposition,that where a fractional share in a property which forms part of a joint estatehas been sold, the purchaser cannot obtain separate possession of the share hehas bought without partitioning the whole joint estate, and I think that togive effect to it would practically amount to a refusal to allow the purchaserof such a share to obtain separate possession of it at all; and this would, inmy opinion, not only be inequitable, but would greatly diminish the value ofproperty held in this way. I think that this contention must fail.

7. The next contention--and that is the one which has beenmost strongly pressed upon us--is, that if any portion of her husbands estateis partitioned, the widow is entitled to have a share of it equal to that ofeach of her sons allotted to her, and that consequently the one-third share inthese houses which was left by Rama Nath must be divided, not into two shares,but into three, of which one must be allotted to the plaintiff. The law on thissubject is to be found in the judgment of this Court in the case of SorolahDossee v. Dhoobun Mohun Neoghy I.L.R. 15 Cal. 292 [LQ/CalHC/1888/11] . It is there laid down thatupon a partition between sons of their fathers estate, their mother takes ashare equal to a sons share, but that she takes it from her sons in lieu of,or byway of provision for, that maintenance for which they and their estatesare already bound. In other words, when the sons partition the estate out ofwhich the widow is entitled to be maintained, a share must be set apart for herduring life. It is evident that to bring this right into existence, there mustbe a partition of the estate in the sense that it ceases to exist as a jointestate; but it has never been held, and I am not prepared to hold, that thisright in the widow comes into existence whenever any property which forms oneitem of the joint estate is divided, if notwithstanding such division the mainestate remains undivided. Of course every case must be determined by its ownfacts, and there may well be cases in which the main body of the familyproperty is divided leaving only a small portion joint, and in such a case nodoubt the sons would have partitioned the property among themselves, and theright of the widow to have a share set apart for her maintenance would comeinto existence. That, however, is evidently not the present case; here there isno suggestion that these houses are anything more than a small outlying pieceof property, or that the bulk of the family estate does not remain undivided,or that it is not ample for the support of the widow. In my opinion, therefore,this is not such a partition of the family property among the sons as bringsthis right of the widow into existence, and I think that the Subordinate Judgewas right in the conclusion at which he arrived, and that this appeal must bedismissed with costs.

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Debkamini Debi and Ors. vs. Barahi Debi (22.12.1892 - CALHC)