Lakshman Ramchandra Joshi And Anr. vs Satyabhamabai, Widow Of Govind Narayan on 21 December, 1877
22. Much stress was also laid upon the case of Lakshman Ramchandra Joshi v. Satyabhamabai 2 B. 494. The question in that case was as to the extent to which, and the persons against whom, a mother has an actual charge for her maintenance upon the ancestral estate of her sons, where no partition has taken place between them. So far the case does not directly bear upon the point before us. But West, J., in his judgment examines the whole subject of a widow's right in connection with her husband's estate very fully, and he examines it under the Bengal system of law as well as the others. The passage most directly bearing upon the matter before us is at page 507. Speaking of the mother's right to an allotment, on a partition between sons or their representatives, he says: 'This is to be referred to the wife's right in her husband's 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 her husband's death. But the cessation of the widow's right of property, if there be male issue, appears only from the law ordaining the succession of mala issue.' Jimuta Vahana in this way makes out that, while the widow's right to her husband's whole share or whole estate subsists in spite of the survival of other undivided co-parceners, it is extinguished by the superior right of a son, grandson, or great grandson, through the operation of the special texts in their favour. In Bengal, then, it seems that the widow has a complete proprietorship, subject to restriction ON waste, as against other co-parceners; no proprietorship at all as against sons. Yet in Bengal, as in the provinces governed by the Mitakshara, 'when partition is made by brothers of the whole blood after the demise of the father, an equal share must be given to the mother.' The mother's ownership, which has, according to this view, been extinguished, revives again on a partition amongst her sons. Their ownership in the meantime is complete." Great weight is due to any opinion of that learned Judge on a question of Hindu law; the opinion, however, here expressed did not form the ground of decision, but is upon a point collateral. I should not have ventured to comment upon the language used in thus stating a proposition the substantial correctness of which is not open to doubt, but that the precise words have been relied upon in argument. As those words have been relied upon, I must say that I thick it is more in accordance with the text of the Dayabhaga in the passage cited, and with the current of the Bengal authorities to say, not that on partition an old right revives, but that on partition a new right arises.