Rights of women himself of this right, he ought to take, on account of each of

in Southern

India.

his wives, a share equal to that taken by himself (d). But the right of a father to reserve an extra share for himself in regard to ancestral property is now obsolete (§ 412), and the corresponding practice of reserving a share for wives has also disappeared. The pundits of the Madras Sudr Court, in a case where a man had made a deed of division allotting a share to his son, and another to his wife and daughter, declared that such a division was illegal by Hindu law, " inasmuch as a wife and daughter, who have no right to property while a son is alive, are not capable of participating in the property while he is alive" (e). The practice in Madras, as far as my experience goes, is that in making a division during a father's life, no notice is taken of his wife or wives, their rights being included in his, and provided for out of his share. As regards the mother, where partition is made after the death of her husband, the Smriti Chandrica, after discussing the texts already cited, points out that a widowed mother with male issue cannot be entitled to a partition of the heritage, as she is not an heir, but only to a portion sufficient for her maintenance and her religious duties. Consequently, that where she is stated to be entitled to a share equal to that of a son, this must mean such a portion as is necessary for her wants, and which can never exceed a son's share, but which is subject to be diminished, if the property is so large that the share of a son would be greater than she needs, or where she is already in possession of separate property (f). This is in accordance with existing practice. The plaint in a suit for partition in Madras always sets out the names of such widows as are chargeable upon the property, and asks that the amount necessary for their maintenance may be ascertained and set aside for them. This amount, though of course in some degree estimated with reference to the magnitude of the property (§ 383), is never considered to be equal to, or to bear any definite proportion to the share of sons. Mr. W. MacNaghten states that this exclusion of mothers from a distinct share on partition is peculiar to the Smriti Chandrica, and

(d) Sm. Ch. iv. § 26-39.

(e) Meenatchee v. Chetumbra, Mad. Dec. of 1853, 61.
(f) Sm. Ch. iv. § 4-17; 2 Stra. H. L. 309.

that according to the Mitakshara and other works current in Benares law. Benares and the Southern Provinces, not only mothers, but also childless wives are entitled to shares, the term mata being interpreted to signify both mother and stepmother (g). How far the practice is according to the theory in other parts of India where the authority of the Mitakshara prevails I cannot state with certainty. I have been informed on high authority that the practice as regards allotting maintenance instead of shares to mothers, when a partition takes place in Bombay, is Bombay. the same as that which prevails in Madras. But the futwahs of the pundits lay it down that she is entitled to a share equal to that of a son (h). I know of no decision upon the point. The High Court of Bengal has on several occasions asserted that under Mitakshara law a mother is entitled when a partition takes place to have a share equal to that of a son set apart for her, either by way of maintenance or as a portion of the inheritance, even though the partition takes place in the lifetime of the father (i). As the rights of a mother to a share have been rigorously maintained by Jimuta Vahana, it is probable enough that in the adjoining provinces the letter of the old law would be still adhered to.

§ 403. Under the law of Bengal the rights of females stand much higher than they do in the other provinces. Partition during the life of a father is so uncommon in Bengal, that I can find no authority as to setting aside shares for the wives. The Daya Krama Sangraha seems to limit the right of wives to have such shares to cases where the father makes a partition of his self-acquired property. In such a case, if peculiar property has been already given to one wife, the other wives, whether childless or otherwise, are entitled to have their shares made up to an equal amount. If they have had no peculiar property, then they are to have shares equal to those of sons (k). After

(g) 1 W. MacN. 50. Vyasa expressly lays down that "the wives of the father who have no sons are entitled to equal shares (with the sons of other wives); and so are all the wives of the paternal grandfather." 3 Dig. 12. V. May, iv. 4, § 19, says this includes step-grandmothers also. So also the Mithila school, D. K. S. vii. § 7. See 3 Dig. 13.

(h) 2 Bor. 454; 1 W. & B. 26, 28, 35, 37; 2 W. & B. Introd. 10.

(i) Judoonath v. Bishonath, 9 W. R. 61; Mahabeer v. Ramyad Singh, 12 B. L. R. 90; Laljeet Singh v. Rajcoomar, ib. 373.

(k) D. K. S. vi. § 22-26.

Rights of women

in Bengal.

Right of widow in Bengal.

Where no issue.

Stepmother.

Mother.

the death of the father the right of the widow depends upon whether the father has left male issue or not, and whether she is a mother or a childless wife. That is to say, she may either be a coparcener before partition, or only entitled to a share in the event of a partition, or entitled in no case to more than maintenance.

1. If the father dies leaving no male issue his widow becomes his heir, whether he is divided or not. She is in the strictest sense a coparcener. She became a member of the same gotra with her husband on her marriage, and is the surviving half of his body, as well as his heir (7). She can herself sue for a partition, and need not wait for her share until a partition is brought about by the act of others (m).

2. If the father dies leaving issue, and a widow who is not the mother of such issue, she is never entitled to more than maintenance. The writers of the Bengal school differ in this respect from those of the other provinces, since they exclude a stepmother from the operation of the texts which speak of the share of a mother. And this exclusion equally applies, whether the widow was originally childless, or was the mother of daughters only, or was the mother of sons whose line has become extinct before partition (n).

3. If the father dies leaving male issue, and also a widow who is the mother of such issue, she is only entitled to maintenance until partition, and she can never herself require a partition. But if a partition takes place by the act of others, she will be entitled to receive a share, if the effect of that partition is to break up or diminish the estate out of which she would otherwise be maintained (o). Hence her claim to a share is limited to the two following cases: first, when the partition takes place

(7) 1 W. & B. 147; Vrihasp. 3 Dig. 458; D. Bh. xi. 1, § 14, note, 43, 46, 54; D. K. S. ii. 2, § 41.

(m) F. MacN. 39, 59; 1 W. MacN. 49; Dhurm Das v. Mt. Shama Soonderi, 3 M. I. A. 229, 241; Shib Pershad v. Gunga Monee, 16 W. R. 291; Soudaminey v. Jogesh Chunder, 2 Calc. 262. As to the rights of several widows inter se, post, § 469. As to the right of widows among the Jains to demand a partition of their husband's share, see Sheo Singh v. Mt. Dakho, 6 N. W. P. H. C. 406.

(n) F. MacN. 41, 57; 1 W. MacN. 50; 3 Dig. 13; D. K. S. vii. § 3, 5, 6; D. Bh. iii. 2, § 30; ante, § 402.

(0) 2 W. MacN. 65, n.; F. MacN. 45, 57, 59. Hence until partition she has no alienable interest. See Judoonath v. Bishonath, 9 W. R. 61.

between her own descendants, upon whose property her main- Right of mother in Bengal. tenance is a charge. Secondly, when it takes place in respect of property in which her husband had an interest.

§ 404. First. If a widowed mother has only one son, she can never claim a share from him. But if he dies, and his sons come to a division, then she would be entitled to share with them as grandmother. Similarly, if a man dies leaving three widows, each of whom has one son, and these three sons come to a division, none of the mothers would have a right to a share; because each of them retains her claim intact upon her own son. But if the sons of one son divide among themselves, Grandmother. their grandmother will be entitled to a share. If the grandsons of all three widows divide, all the grandmothers will be entitled (p). In each case the share of the widow will be equal to the share of the persons who effect the partition. If it takes place between her sons, she will take the share of a son; if between her grandsons, she will take the share of a grandson (q). If a mother has three sons, one of whom dies leaving grandsons, and a partition takes place between the two surviving sons and the grandsons, the mother will be entitled to the same share as if the division had been effected between the three sons; that is to say, the property will be divided into four shares, of which the mother will take one, each surviving son will take another, and the grandsons will take the fourth (r). Where the partition takes place between grandsons by different fathers, the matter becomes more complicated. For instance, suppose A. to have died leaving a

widow and three sons, and these sons to die, leaving respectively two, three, and four grandsons, and that these grandsons

(p) F. MacN. 39, 41, 54.

(q) D. K. S. vii. § 2, 4. If she has already been provided for to the extent to which she would be entitled on partition, she takes no more; if to a less extent, she takes as much more as will make up her share. Jodoonath v. Brojonath, 12 B. L. R. 385.

(r) Prankissen v. Muttusoondery, Fulton, 389; Gooroopershad v. Seebchunder, F. MacN. 29, 52.

Grandmother in come to a division. If their grandmother was dead, the property Bengal. would be divided into three portions, per stirpes, which would again be divided into two, three, and four parts, per capita (§ 397). But if the grandmother is alive, she will be entitle to the same share as a grandson. But it is evident that the grandsons by B. take a larger share than those by C., and these again a larger share than those by D. The mode of division, therefore, is stated to be, that the whole property is divided into ten shares, of which the grandmother will take one, the two sons of B. will take three, the three sons of C. will take three, and the four sons of D. will take three. If the widows of B., C., and D. were also living, they would be entitled to shares also. Each widow would take the same as her son. But in order to arrive at this share a fresh division would have to be made. The three tenths taken by the sons of B. would be divided into three parts, of which his widow would take one. Similarly, the three tenths taken by the sons of C. would be divided into four parts, and the three tenths taken by the sons of D. would be divided into five parts, of which one would go to the respective widows of C. and D., the remainder being divisible among their sons (s). The same widow may take in different capacities, as heir of one branch of the family, and as mother or grandmother in another branch. A very complicated instance of this sort is recorded by Sir F. MacNaghten as having been decided in the Supreme Court at Calcutta (†).

In one case in Bengal, where a partition was made after the death of all the sons by their widows, it was held that the grandmother had no right to a share. No counsel appeared for the grandmother, and, as might be expected, no precedents were cited. The decision can hardly be looked upon as of much weight, in the face of the direct authority on the other side (u).

(s) F. MacN. 52-54.

(t) Sree Motee Jeemoney v. Attaram Ghose, F. MacN. 64, followed but doubted Callychurn v. Jonava Dassee, 1 Ind. Jur. N. S. 284.

(u) Rayce Monec v. Puddum Mookhee, 12 W. R. 409, affd. on review, 13 W. R. 66. See Vyasa and Vrihaspati, 3 Dig. 12, where the right of the grandmother to a share is expressly asserted; and so Jagannatha says, 3 Dig. 27.