M.M.DUTT, J. - (1.) THIS suit has been referred to the Special Bench by our learned brother B. M. Datta, J., under Chapter V, Rule 2 of the Original Side Rules. The question which arose before the learned Judge and which we are to consider is, whether in the event of a partition between the sons, the mother who has already inherited the share of a deceased son is entitled to a further share under the Hindu Law. Tn two Single Bench decisions of this Court in Jugomohan Haldar v. Sarodamoyee Dossee (1878) ILR 3 Cal 149 and Poorendra Nath Sen v. Srimati Hemangini Dassi (1909) ILR 36 Cal 75, it has been held that the mother is entitled to a share even though she has already inherited the share of a deceased son. A contrary view has been taken by S.R. Das J, has he then was) in Indu Bhusan Chatter IIV. Mritunjoy Pal ILR (1946) 1 Cal 128. Before we consider the question, the facts of the case may be stated in brief.
(2.) THE plaintiff Milan Kumar Das has instituted the suit, for partition of the properties in suit by metes and bounds and allotments of the respective shares of the parties. The relationship of the parties will appear from the following genealogical table as set out in paragraph 1 of the plaint. GOUR CHANDRA DAS (died 1927) | Widow Sm. Purnasashi Dassi (Defendant No. 1) Son Daughter Son Daughter Son Son Siddeswar Champaklata Manick Ashalata Jahar Pashupati (Died in 1989) Defendant No. 2) (Died 29 -3 -47) (Defendant No. 3) (Died 17 -3 -47) (Defendant No. 4) || Widow Widow Mira Rani Sandhabala Dassi Lekharani (remarried in 1950) (1st wife died in (Defendant | July 1944) No. 5) Son (relationship disputed) Milan | (Plaintiff) Son Pannalal Das Defendant No. 6 (relationship disputed). The properties in suit belonged to one Gour Chandra Das, a Hindu governed by Dayabhaga School of Hindu Law, who died intestate on October 13, 1927, leaving his widow Sm. Purnasashi Dassi and four sons, namely, Siddheswar Das. since deceased, Manicklal Das, since deceased, Jaharlal Das, since deceased and Pasupati Das as his heirs and legal representatives and two daughters, namely, Champklata and Ashalata. Siddheswar having died a bachelor his l/4th share in the properties was inherited by his mother Purnasashi. The plaintiff Milan Das is the son of Manick. Both the plaintiff and his mother' Mira inherited the share of Manick. On the re -marriage of his mother, the plaintiff Milan has become the full owner of the share of his deceased father in the properties. During the pendency of the suit, Pasupati died unmarried and his share was inherited by Purnasashi under the Hindu Succession Act, 1956. It may be stated here, that by a registered deed of settlement Purnasashi absolutely transferred and conveyed the 1/4th share inherited by her as heiress of Siddheswar in the joint properties in favour of her daughters Champaklata and Ashalata as joint trustees, to hold the same for her benefit during her life time and after her death, to get the same absolutely in equal shares. After the death of Pasupati, the plaint was amended and Lekharani who was the defendant No. 5 was described as defendant No. 4. It is admitted before us on behalf of the parties that only Lekharani is the lawfully wedded wife of Jahar and that Pannalal has no interest in the properties in suit. We are told that Pannalal's name has since been expunged from the suit and he is no longer a party. In paragraph 13 (b) of the amended plaint, it has been stated that the parties to the suit are entitled to the following shares: The plaintiff, Milan Kr. Das1/5th share.The defendant No. 1 Sm. Purnasashi Dassi2/5th share.The defendants Nos. 2 and 3 Sm. Champaklata and Sm. Ashalata as trustees1/5th share.The defendant No. 4. Sm. Lekharani Das1/5th share. The suit has been contested by the defendant No. 4, Lekharani, the widow of Jahar. The defendants Nos. 1, 2 and 3 have supported the case of the plaintiff. The principal defence of Lekharani is that Purnasashi having inherited an undivided l/4th share of her deceased son Siddheswar as his sole heiress under the Hindu Law, she is not entitled to any residence or maintenance. She denies that Purnasashi is entitled to a further share in the joint properties on partition thereof. Accordingly, she claims 1/4th share in the properties in suit. The following issues were framed at the trial of the suit: (1) Is the defendant No. 1 Sm. purnasashi Dassi entitled to a share in respect of the estate of her husband Gour Chandra Das in view of her inheriting her predeceased son's share in the property in suit ? (2) What would be the respective shares of the parties and to what relief would they be entitled ?
(3.) WE are, therefore, mainly concerned with the question whether Purnasashi is entitled to a further 1/5th share in the properties in suit, for she has already inherited the undivided 1/4th share of Siddheswar long before the institution of the suit. Mr. Dipankar Ghosh, appearing for the defendant No. 1 Sm. Purnasashi Dassi submits that the question should be considered with reference to the texts of Hindu Law. He has placed before us the texts from Setler's Hindu Law on inheritance and has pressed us to consider the same in order to ascertain the true legal position. We also feel the necessity of referring to the texts of Hindu Law so as to resolve the conflict of judicial opinions on the question.;