William Comer Petheram, C.J.

1. The facts out of which the controversy in this casearises are these-Rajender Chunder Neoghy died intestate on the 10th September,1868, leaving three sons, Ram Chunder, Bhoobun Mobun and Hurry Doss, and awidow Rakbal Money, the mother of the three sons. Ram Chunder died immediatelyafter his father, leaving a widow Unnopoornah as his heir. Unnopoornah sued forpartition, and the property which had been that of Rajender Chunder was dividedinto four parts, of which one was allotted to Unnopoornah, one each to BhoobunMohun and Hurry Doss, and one to their mother Rakbal Money. Rakhal Money diedon the 18th February, 1884, leaving her two sons Bhoobun Mohun and Hurry Dossand her daughter-in-law Unnopoornah surviving. Hurry Doss had since diedleaving his widow Sorolah his heiress. Two suits were thereupon brought, thedetails of which it is not necessary to examine, and were beard together beforeTrevelyan, J. The question for decision is shortly stated by the learned Judgeto be "whether the one-fourth share which was allotted to Rakhal Money onpartition is to be divided between her surviving son Bhoobun and the widow ofHurry Doss or between Bhoobun, the widow of Hurry Doss, and Unnopoornah."

2. The learned Judge decided that Unnopoornah was entitledto an equal share with the other two claimants; he held that when on apartition between sons a share is allotted to their mother "when she diesthe property must go back to the persons who were bound to maintain her, andwho, in pursuance of that obligation, make over the property to her."Against that decision Sorolah, the widow of Hurry Doss, has appealed. The onlyother case with which we are acquainted in which the same precise questionarose is an unreported case heard before Pigot, J., in which that learnedJudge, though he did not base the decision of the matter before him on thatground, expressed a decided opinion, after argument, to the effect that on thedeath of the mother her share goes to the persons who at the time of her deathare the heirs of her husband. We have to say on this appeal which is thecorrect view.

3. The contention on the part of the appellants may besummarized thus. A wife by marriage takes an interest in her husbands estate,and that interest does not cease for all purposes upon his death, even if heleave sons. Although partition be made by the sons after the fathers death, itis still the fathers estate that is partitioned. The share allotted to themother is not a new estate created by the partition, but the partition definesand gives effect to the right which has all along been in her. She takes it byinheritance, and accordingly, like all property inherited by a widow as such,it goes on her death to those who are then the heirs of her husband.

4. The contention on the other side was, that a wife duringher husbands life is ordinarily entitled only to be maintained by him ; thatafter his death her right as against her sons is no greater ; that the sharewhich is allotted to her on a partition between her sons is allotted in lieu orin satisfaction of the general claim to maintenance which she has previouslyhad; and that on her death that share reverts to those who were liable for hermaintenance, and out of whose estates the share was taken.

5. In order to estimate the correctness of either of theseviews it is necessary, I think, to enquire briefly what is the nature of theinterest that a wife takes in her husbands estate during his life, and asagainst his sons after his death; what is the nature of the estate that thesons take by inheritance from their father ; and how these two interests are tobe reconciled with, or are controlled by, one another.

6. It is specially important to bear in mind while examiningthese questions that we have to do with the Bengal law, not the Hindu law of anyother schools. As to the nature of the right of a widow, when her husband hasleft sons, the various schools differ, or may differ widely. Thus, according tothe Bengal school, a widow can claim a share on partition if her sons dividethe patrimony amongst themselves. In Southern India this seems not to be so. InBengal the right to a share is given only to a mother as against her own sons,a childless widow has no such right against her step-sons. It is by no meansclear that this is so under all the schools. In Bengal it is settled that theshare allotted to a mother does not become absolutely hers, so as to pass toher stridhun heirs. The Privy Council in Bhugwandeen Doobey v. Myna Baee 11M.I.A. 514 point out that under the Benares law this is an open question. Andturning to the other aspect of the matter, the interest taken by the sons asheirs, the principle governing inheritance is not wholly the same under theBengal school and the other schools; the rules of inheritance are not alwaysthe same; and it may well be doubted whether the conceptions embodied in theordinary terminology of the subject are the same in the different schools.There is reason for saying that the very word Day a, or Inheritance, has beenused by some authors in a sense not co-extensive with that which it bears underthe Bengal law.

7. The title of the wife is based ultimately upon twopropositions; that a wife takes by her marriage an interest in her husbandsestate; and that on a partition of the ancestral estate between sons theirmother takes a share equal to a sons share. The text often referred to andcited by Jagannatha (Section 415, 1 Col. Dig. p. 541, Madras Edition) says:"Wealth is common to the married pair." Jimuta Vahana (Dayabhaga, Oh.XI, Section 1, para. 26) speaks of "the wifes right in her husbandsproperty accruing to her from her marriage." The Daya Tattwa, Ch. VI (Icite from the English Edition of Golap Chundra Sarkar, Calcutta, 1874), says:Section 7.--"Also in discussing wifes right her right is declared toextend during his lifetime to every property belonging to her husband; also inthe Shradha Veveka it is declared that property lies between husband andwife, i.e., belongs to two masters, namely, husband and wife." Section10.--"Therefore, as the prohibition, namely, there is no partitionbetween husband and wife, implies the existence of previous property,consequently the common right of both over the same property isindicated." Section 11.--"Otherwise, in the absence of the commonright of both, partition itself would be unreasonable; consequently there wouldnot have been the prohibitory proposition." Section 12.--"This isalso the meaning of the unity (of husband and wife) declared by Laghu Harita,because she attains to unity (with her husband) through clarified butter,sacred texts, offerings and religious observances." All the Bengalauthorities accept the rule embodied in the text of Vrihaspati cited in theDayabhaga, Ch. III, Section 2, para. 29 : "When partition is made bybrethren of the whole blood, after the demise of the father, an equal sharemust be given to the mother, for the text expresses, the mother should be anequal sharer. But again, if there be any tenet of the Bengal law laid downclearly and without hesitation, it is, that sons, grandsons or great grandsonsin the male line take the whole estate of their ancestor, take it on his death,and take it by inheritance in the strictest sense of the term.

8. We have thus three propositions which, whatever theirmeaning may be, all rest upon unquestionable authority-that a wife takes bymarriage an interest in her husbands property; that sons take by inheritancethe whole of their fathers estate; that upon a partition between sons of theirfathers estate their mother takes a share equal to a sons share. It seems tome desirable to enquire how the first and second of these propositions arerelated, to one another, for on this depends the principles by which we shouldbe guided in applying the third proposition, and the conclusions which weshould draw from it.

9. I propose first to examine shortly the nature andcharacteristics of a wifes interest in her husbands estate on the one hand,and of a sons interest in his deceased fathers estate on the other, looked atfrom a purely practical point of view, discarding as far as may be allcontroversial matter, and postponing all questions of principle or theory.

10. If we look at the matter thus it will appear that awifes interest in her husbands estate is of a very indeterminate character;she may take everything, or she may take very little, according as events turnout. As long as her husband lives she is ordinarily entitled merely to bemaintained by him, and cannot claim any share of his estate or any voice in itsmanagement. He has full power of alienation while he lives; and, subject to anyquestion of her maintenance, full power of disposition by will. Should he,however, during his life elect to partition his estate between himself and hissons, it would seem that a wife should be allowed a share equal to a sons, ifshe be without male issue, but not otherwise. When her husband dies she maysurvive him, and there may be no sons, grandsons or great grandsons in the maleline, and then she takes the whole estate as heir. She may survive and have nosons, but there may be sons by another wife, in which case she is entitled, andwill ever remain entitled, to maintenance, and no more. She may survive andhave one son, in which case her right is, and as long at least as her son livesmust always remain the same, a right to maintenance, She may survive and haveseveral sons, and in this case, as long as her sons continue in the normalcondition of a joint family, she is entitled to maintenance only; but if hersons partition among themselves she takes a share; and the same thing resultsif her grandsons partition. Thus, whatever the principle applicable to thematter may be, the wifes interest in her husbands estate resolves itself infact into a right to maintenance, except in the absence of lineal male heirs,in which case she takes the inheritance, and in two cases-one occurring in herhusbands lifetime, the other after his death-in which she takes a share.

11. The wifes right to maintenance after her husbands deathis, in one sense, undoubtedly a charge upon the estate, and she may sue toenforce it and have it secured. But it is not a charge in the fullest sense ofthe term, because it does not in every case necessarily bind any part of theproperty in the hands of a purchaser. If there be two groups of sons bydifferent mothers, and those groups separate each from the other, themaintenance of a widow is a charge on her own sons property, not on herstepsons. If her sons do partition it has long been the settled law in Bengalthat her share is taken out of their shares, not out of her step-sons, And shehas in no case a right herself to initiate a partition.

12. The nature of her right in the share when allotted waslong a subject of controversy. Writers of high authority maintained that itvested in her absolutely and passed after her death to her heirs as stridhun.It is now settled in Bengal that this is not so, but that on her death it goesback in some sense to her husbands family. It is settled, also, that themother has, at any rate, no greater right of alienation over a share soallotted than over property inherited from her husband. There is some authorityat least for supposing that she has no less power.

13. It thus appears that a mothers interest in a shareallotted to her is at least very closely analogous to, if not identical with,that which she takes in property inherited from her husband, while many of theother incidents connected with her right point in a different direction.

14. Looking from the same point of view at a sons rights inthe estate which he inherits from his father, there can be no doubt that forall ordinary purposes the son is absolute owner of his fathers estate, and cando what he pleases with it.

15. I propose next to enquire on what principle Bengallawyers have dealt with the two seemingly conflicting propositions, that a wifetakes an interest in her husbands estate by marriage, and that his linealheirs in the male line take his whole inheritance, and the inferences that theyhave thence drawn, or constrained us to draw, as to the nature of a mothersinterest in a share allotted to her. The question is dealt with by JimutaVahana in Ch. XI, Section 1. The chapter relates to "the succession to theestate of one who leaves no male issue," and the section to "thewidows right of succession." In maintaining that right he has begun byciting in Section 2 the text of Vrihaspati that "a wife is declaredby the wise to be half the body of her husband equally sharing the fruit ofpure and impure acts." Of him whose wife is not deceased half the bodysurvives. How then should another take his property while his body is aliveLet the wife of a deceased man who left no male issue take his share,notwithstanding kinsmen-a father, a mother, or uterine brother-be present. Inthe course of the discussion he cites, 15, certain texts in favour of thebrothers claim, and rejects them. In 19 he states a view put forward bysupporters of those texts--"some reconcile the contradiction by sayingthat the preferable right of the brother supposes him either to be notseparated or to be re-united, and the widows right of succession is relativeto the estate of one who was separated from his co-heirs, and not reunited tothem." He examines and refutes various arguments put forward in support ofthat view. Particularly he says in 25: "But it is said this inference isdeduced from reasoning. Thus, in the instance of re-union (or in that of asubsisting co-parcenary), the same goods which appertain to one brother belongto another likewise. In such case, when the right of one ceases by his demise,those goods belong exclusively to the survivor, since his ownership is notdivested. They do not belong to the widow, for her right ceases on the demiseof her husband ; in like manner as his property devolves not on her, if sons orother (male descendants) be left." In 26, Jimuta Vahana gives his answerto this : "That argument is futile. It is not true that in the instance ofre-union and of a subsisting co-parcenary what belongs to one appertains alsoto the other parcener. But the property is referred severally to unascertainedportions of the aggregate. Both parceners have not a proprietary right to thewhole, for there is no proof to establish their ownership of the whole, as hasbeen said before (when defining the term partition of heritage). Nor is thereany proof of the position that the wifes right in her husbands propertyaccruing to her from her marriage ceases on his demise. But the cessation ofthe widows right of property, if there be male issue, appears only from the lawordaining the succession of male issue." Shortly stated, the viewexpressed in this passage seems to me to be this: that neither son nor brothertakes by survivorship so as on this ground to exclude the widow, but that eachtakes when he does take by inheritance; and that the reason why the widow takesafter the son, but before the brother, is because the existence of the son putsan end to her right derived from marriage, but that the existence of a brotherdoes not do so. It is thus an essential part of the argument that upon thedeath of a husband, leaving male issue, his wifes interest in his propertyacquired by marriage ceases, and the issue take the whole, while, if thehusband die without male issue, the wifes interest does not cease. And theauthor thus negatives the view that the share which she takes on a partitionbetween her sons comes to her either by inheritance from her husband, or incontinuation of any interest previously vested in her.

16. The difficulty of reconciling an interest taken by awife by reason of marriage with the exclusive inheritance of her son has beenfelt by other minds later than Jimuta Vahana, and his mode of reconciling themhas not always been considered satisfactory. The remarks of Peacock C. J., inNobin Chunder Chuckerbutty v. Issur Chundar Chuckerbutty 9 W.R. 505 (508) :B.L.R. Sup. Vol. 1008 illustrate this. But, satisfactory or not, the doctrinesof the Dayabhaga are the law which we have to administer; Gurn Gobind ShahaMandal v. Anand Lal Ghose Mazumudar 5 B.L.R. 15.

17. The right of a mother to take a share upon a partitionbetween her sons and the incidents of that right are much considered byJagannatha. The discussion is to be found mainly in Book V, Chapter II, as 83to 89. In the course of that discussion most of the points which I have alreadymentioned as settled points under the Bengal law may be found stated. Uponother points opinions are cited from authors of that and other schools; but itis not always easy to collect what the view of the learned author himself is.The part of the discussion most directly relevant to the present case occurs inthe notes to ; Section 87, in the paragraph beginning with the words"whether the share be equal, etc." (2 Col. Dig., p. 250, MadrasEdition, 1874). The precise question there under discussion is, whether theshare allotted to a wife or mother on partition becomes hers absolutely withfree power of alienation, and passes to her own heirs, or whether it is subjectto the restraint upon alienation usually incident to property taken by women byinheritance from males, and reverts to the estate of the husband or father.This question has since been answered in Bengal in the latter sense, at anyrate in the case of an allotment to a mother. In the course of the discussionopinions are cited from many authors bearing more or less closely upon thequestion now before us. But those authors belong to various schools, and theirviews are very conflicting. At the close of the discussion Jagannatha says (p.252): "Such is the answer given by some lawyers to the questionproposed." He then cites a passage from Bhavadeva, and adds:"Although the mother survived, the son has property in the paternal estateafter the demise of his father, of whom the principal right was predicated; andthe mothers right, which is subordinate, neither resists nor is resisted byany other. Accordingly though the first wife has property in her husbands estate,another, subsequently married, has also property in the same estate."

18. In a later part of the Digest, Book V, Chapter VIII,Section 414 (p. 541, Madras Edition, 1874), Jagannatha reeur3 to the subject;and, speaking clearly with reference to the passage from the Dayabhaga alreadycited, he says: "According to the opinion of Jimuta Vahana, since the wifehas an interest in the wealth of her husband during his life, and since thereis nothing to annul her property after his decease, how can her husbandsbrother and the rest in any instance have a claim to the estate To this it isanswered no, for it is established that her property is actually lost by thelapse of her husbands right. Accordingly the property of the wife is divestedeven when the effects are given away by her lord. Those who affirm that theallotment of a share to the mother, when partition is made among sons, isfounded on her ownership of the fathers estate, because she was his wife,accordingly contend that a share of the distributed wealth must be allotted toa wife of the father, whether she has or has not a son, and whether partitionbe made before or after the death of the father." Whatever uncertaintythere may be about the earlier passages of the Digest, this passage seems to meto assert that a wifes interest in her husbands estate is actually lost bythe lapse of her husbands right, which, having regard to the words of JimutaVahana on which Jagannatha bases his reasoning, seem to mean by the death ofthe husband leaving lineal heirs in the male line. And he confirms this byshowing that the contrary view --the view "that the allotment of a shareto the mother, when partition is made among sons, is founded on her ownershipof the fathers estate, because she was his wife"--would lead toconclusions which the Bengal school of lawyers has always rejected. Some morerecent Bengal authorities remain to be considered. The case of Sheo DyalTewaree v. Judoonath Tewaree 9 W.R. 61 and the other appeals disposed of withit arose out of proceedings taken by means of several suits for the partitionof an estate. Among the sharers were an uncle and nephew, and one Golaba, themother of one and grandmother of the other, claimed a share. By the decree itwas awarded to her ; but no actual allotment had been made and no separateenjoyment had, when Golaba died before the appeal came on for hearing. A personalleging herself to be devisee of Golaba came forward to claim her share. Thecase was one governed by the Benares school of law, and she relied, I suppose,upon the contention which the Privy Oouncil showed to be open in 11 MooresI.A. at p. 514. Loch and D.N. Mitter, JJ., held that the bare decree gaveGolaba no title, and therefore the question as to the devolution of any shareof hers did not arise. In delivering judgment D.N. Mitter, J., said : "Itis quite clear that the share which ought to have been allowed to Golaba wasmerged in the general estate, conceding, for the sake o argument, that she wasentitled to any share under the Hindu law as it is administered in the Benaresschool. The text of the Mitakshara that has been referred to merely says: Ofheirs dividing after the death of the father let the mother also take a share,or in other words, the mother or grandmother as the case might be, is entitledto a share, when sons or grandsons divided the family estate betweenthemselves. But the mother or the grandmother can never be recognised as theowner of such a share until the division has been actually made. She has nopre-existing vested right in the estate except a right of maintenance. She mayacquire property by partition, for partition is one of the recognized modes ofacquiring property under the Hindu law. But partition in her case is the solecause of her right to the property. It follows therefore that the effect cannotprecede the cause." The Court seems to me here to lay down, and to laydown not by way of dictum, or mere expression of opinion, but as the ground ofdecision, that when a mother takes a share on partition her title arises fromthe partition alone, and that she had no pre-existing vested right except aright of maintenance. And if this be so under the Benares law, it seems to bemore clear that it must be so under that of Bengal, because the Bengal law ismore positive in restricting the mothers right than the Benares law.

19. In the last edition of Shama Churn Sircars VyavasthaDarpana, Section 598, the learned author says: "The share which is givento a mother on the partition as above is given to her in lieu of maintenance,and means allowing also for the performance of religious acts, and it revertsafter death to those heirs of her husband out of whose portion that share wasallotted to her." The writer goes on to cite a passage as from Jagannatha ;but there is some mistake here, for there is no such passage in the Digest, andthe opinion expressed must therefore be taken simply as that of Shama ChurnSircar.

20. In the late case of Kedar Nath Coondo Chowdhry v.Hemangini Dassi 13 C. 336 the actual point for decision was whether a widow,after a partition between her own son and sons of another wife of her husband,could claim to have her maintenance charged on the estate of her step-sons, andit was held by the Chief Justice and Ghose, J., that she could not. In thejudgment which was delivered by Ghose, J., it is said at page 341: "Whenthe Hindu law prescribes a share being allotted to a woman after a partitionamong her sons, it is a share which is given to her simply in lieu of maintenance,and not because she is a co-parcener in the estate, or that she has anypreexisting rights, and the share which is thus given to her reverts upon herdeath to those heirs of her husband out of whose portion the said share wastaken." And in support of this are cited the passage just mentioned fromShama Churn Sircar, a case in Stranges Hindu Law and the case alreadymentioned of Sheo Dyal Tewaree v. Judoonath Tewaree.

21. We were referred in argument to West and Bullers HinduLaw of Inheritance, 3rd edition, pp. 67, 237, 297, 303 and the following pages,781, 819, where an immense number of conflicting opinions gathered from writersof all schools of Hindu law are brought together bearing upon the mothersright to a share in a partition between sons, and the subject is discussed inmany aspects. But I do not find any expression of opinion by the learnedauthors which assists us in ascertaining the Bengal law upon the question nowbefore us.

22. Much stress was also laid upon the case of LakshmanRamchandra Joshi v. Satyabhamabai 2 B. 494. The question in that case was as tothe extent to which, and the persons against whom, a mother has an actualcharge for her maintenance upon the ancestral estate of her sons, where nopartition has taken place between them. So far the case does not directly bearupon the point before us. But West, J., in his judgment examines the wholesubject of a widows right in connection with her husbands estate very fully,and he examines it under the Bengal system of law as well as the others. Thepassage most directly bearing upon the matter before us is at page 507.Speaking of the mothers right to an allotment, on a partition between sons ortheir representatives, he says: This is to be referred to the wifes right inher husbands property acquired by her marriage. As to this there is no proof,the Dayabhaga says Chapter IX, Section 1, para. 26 that it ceases on herhusbands death. But the cessation of the widows right of property, if therebe male issue, appears only from the law ordaining the succession of malaissue. Jimuta Vahana in this way makes out that, while the widows right toher husbands whole share or whole estate subsists in spite of the survival ofother undivided co-parceners, it is extinguished by the superior right of ason, grandson, or great grandson, through the operation of the special texts intheir favour. In Bengal, then, it seems that the widow has a completeproprietorship, subject to restriction ON waste, as against other co-parceners;no proprietorship at all as against sons. Yet in Bengal, as in the provincesgoverned by the Mitakshara, when partition is made by brothers of the wholeblood after the demise of the father, an equal share must be given to themother. The mothers ownership, which has, according to this view, beenextinguished, revives again on a partition amongst her sons. Their ownership inthe meantime is complete." Great weight is due to any opinion of thatlearned Judge on a question of Hindu law; the opinion, however, here expresseddid not form the ground of decision, but is upon a point collateral. I shouldnot have ventured to comment upon the language used in thus stating aproposition the substantial correctness of which is not open to doubt, but thatthe precise words have been relied upon in argument. As those words have beenrelied upon, I must say that I thick it is more in accordance with the text ofthe Dayabhaga in the passage cited, and with the current of the Bengalauthorities to say, not that on partition an old right revives, but that onpartition a new right arises.

23. The case of Bilaso Dina Nath 3 A. 88 was also reliedupon. The question in that case was whether, under Mitakshara law, a mothersright to claim a share on partition was good, not only against her sons, butagainst a purchaser at an execution sale of the undivided interest of one ofthe sons. That question was answered in the affirmative. It is unnecessary toenquire whether the same rule would prevail in Bengal; some of the reasoning onwhich the decision was based would not, I think, be applicable in a casegoverned by Bengal law.

24. The conclusion which I draw from the Bengal authoritiesis that a wifes interest in her husbands estate given to her by marriageceases upon the death of her husband leaving lineal heirs in the male line;that such heirs take the whole estate; and that the share which a mother takeson a partition among her sons she does not take from her husband, either byinheritance, or by way of survivorship in continuation of any pre-existinginterest; but that she takes it from her sons in lieu of, or by way ofprovision for, that maintenance for which they and their estates are alreadybound. I think it follows as a necessary inference that, on her death, thatshare does not descend as if she had inherited it from her husband, but goesback to her sons from whom she received it. And this is the conclusion drawn byShama Churn Sircar and by Ghose, J., in the passages already cited.

25. It is true that throughout the controversy which onceprevailed in Bengal, and which still, perhaps, exists in some other schools oflaw, as to whether a mother takes her share absolutely or only for life, weconstantly find the question asked in this way,-whether her share goes on her deathto her heirs or the heirs of her husband. Such expressions in such a context donot, I think, afford us any assistance; it would have been irrelevant to thematter in hand to enquire what heirs of the husband take. And I have thereforenot thought it necessary to examine those various opinions in detail. The heirsof the husband might be, as the appellant contends, those who would have beenhis heirs if he had died when his widow died. They might be all those who athis death were in fact his heirs. They might be all those among the lattergroup who by inheritance, followed and defined by partition, took theparticular property in question, and out of whose shares the mothers allotmentwas taken. The two latter groups would, in the present case, be identical. But,as will be shown later on, it might be otherwise if there were sons bydifferent mothers. The last of these three views, I think, is the true one onprinciple and on authority.

26. If we were to accept the view contended for by theappellants, and hold that when a mother dies the share, allotted to her on apartition between her sons, goes to the heirs of her husband to be ascertainedat her death, we should be led, of necessity, to come consequences which it isdifficult to accept. We must, in the first place, either say that, on the deathof a father, his sons do not inherit his whole estate, a doctrine which seemsto me wholly repugnant to the Hindu law current in Bengal; or else we must saythat the same property can descend by inheritance twice from the same man tomale heirs. Secondly, we must say that two different groups of male persons maybe the heirs of the same man.

27. In congruities, it was contended, also follow from theopposite view. It was said that that view involves the idea of a life estate inthe mother with a vested reversion in her sons or their representatives, andthat such a combination of interests, arising by operation of law, is notelsewhere known to the Hindu law. This may be so, but such a combination iscertainly admissible when it arises by act of the parties, and this was freelyadmitted; and I am disposed to think that the apparent difficulty arises mainlyfrom the application of the language of English law to the affairs of personsliving under Hindu law.

28. A second incongruity pointed out as arising from thesame view, is, to my mind, of somewhat greater weight. In the treatises withwhich we are familiar, property vested in Hindu women is regarded as of twokinds; property inherited from a male person, which descends to those who arehis heirs at the date of the death of the female inheritor; and stridhun, whichdescends to her own heirs. The share allotted to a mother on a partition amongher sons is confessedly her property; yet on the view in question it neither isstridhun, nor descends as property inherited from a male. I think this anargument not without force. Perhaps the answer may be that womans property isordinarily treated of under head of inheritance, and therefore a kind ofproperty, which on her death is not a subject of inheritance, might naturallynot be discussed. It may be observed in this connection that the rule which Ithink the true one, though not a rule of inheritance, follows the analogy ofthe law of inheritance, for it makes a mothers share revert on her death tothe last male owners.

29. If we are at liberty to consider this matter from thepoint of view of convenience, there can, I think, be no doubt which rule is themore convenient. In the present case there has been only one group of sons, andthe question is merely whether the mothers share is to go back to all her sonsor their representatives, or only to her surviving sons. But there may well betwo groups of sons by two mothers. And the rule contended for by the appellantwould, on the death of either mother, who had obtained a share on a partitionamongst her sons, take her portion which had been carved out of her own sonsshare alone, and divide it rateably between sons and step-sons.

30. I think the view taken by the learned Judge who heardthe case is correct, and that this appeal should be dismissed with costs.

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Sorolah Dossee and Ors.vs. Bhoobun Mohun Neoghy and Ors.(23.01.1888 - CALHC)