Decided on March 20,1900



Ameer Ali, J - (1.) This is a suit for partition. The plaintiff is a purchaser from one of the sons of Chooni Lal Mullick, who died in 1892, leaving four sons, Manick Lal Mullick, Gopessur Mullick, Johur Lal Mullick and Amrita Lal Mullick and a widow Sreemutty Nitcomoni Dassee. He left a house No. 3/2, Gopal Chunder's Lane, the partition of which is sought in this suit, and it appears on the evidence that this is the only property he left. The share of Johur Lal Mullick his come to the plaintiff Amrito Lall Mitter by virtue of a sale under a mortgage decree. The sale certificate has been put in. The share of Gopessur has come into the hands of the Ghose defendants under a sale certificate, which also has been put in. The plaintiff seeks to have a partition of the property, and his contention is that he is entitled to a one-fourth share, in spite of the fact that the widow of Chooni Lall Mullick is alive, and is entitled under the law to a share of the ancestral property upon a partition of the same among the sons of the original holders. The question has been argued with considerable ingenuity on behalf of the plaintiff and the Ghose defendants, and it has been suggested that the right of a mother to obtain a share upon partition comes into existence when the partition takes place among the sons; when a share is conveyed by the son to a purchaser the right of the mother does not follow that share. That, in substance, I understand to be the argument. But it is further contended that only in case of fraud on the part of a son, of which the purchaser has cognizance, any question relating to the share of the mother can arise. The effect of acceding to this contention would be to reduce the provision of the law, by which the mother becomes entitled to a share, to a nullity. Two cases were cited: Jugger Nath Samunt V/s. Odhiranee Narain Koomaree (1873) 20 W.R., 126, Sorolah Dossee V/s. Bhoobun Mohun Neoghy (1886) I.L.R., 15 Cal., 292, in support of the contention. The passages to which I have been referred in those judgments, and which I am afraid have been somewhat strained to give colour to the argument must, in my opinion, be read with the facts with which the learned Judges were there dealing.
(2.) The case really in point is that of Jogendra Chunder Ghose V/s. Fulkumari Dassi, ante p. 77. Both Mr. B.C. Mitter and Mr. Chakravarti tried to argue that the views expressed by Banerjee, J., were mere obiter dicta. In my opinion, the dictum of a judge of his learning and intimate knowledge of Hindu law would have considerable weight even if it went beyond the requirements of the case itself, but I think the views expressed by the Chief Justice and Banerjee, J., are decisive on the point and not merely obiter dicta. The learned Chief Justice points out that there were two points in the case: (1) Whether or not the purchaser from a Hindu son Stands in the same position as the son himself. (2) Whether in that particular case a transfer having been made after a partition suit, the purchaser was not bound.
(3.) The Chief Justice, as well as Banerjee, J., held on both these points against the very contention in this case. They first dealt with the general principle and then with the facts. The second point does not arise in the case before me. I have to deal with the first point only. I may say I have given the case my best consideration. I can only express my entire concurrence with the view of the law taken in Jogendra Chunder Ghose V/s. Fulkumari Dassi. To put it shortly in the language used by the learned Chief Justice, the position of a purchaser from a son is exactly that of a son himself. He has the same rights and takes it subject to the same liabilities as those of the person from whom he purchased. And as a mother is entitled under the law to be maintained out of the joint family property, if anything is done affecting that right, for instance by the sale of any particular share by any of her sons, her right comes into existence.;

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