HAR NARAIN Vs. BISHAMBHAR NATH

JUDGEMENT

(1.) THIS appeal is connected with First Appeal No. 355 of 1914. It is a suit for partition brought by Bishambhar Nath and Musammat Chiraunji against Har Narain and his son Amba Prasad. Bishambhar Nath is the brother of Har Narain. Musammat Chiraunji is the mother of Bishambhar Nath and step-mother of liar Narain. The only point which arises in the appeal, is the share to which Musammat Chiraunji is entitled upon partition. The defendants contend that she is only entitled to a share out of the share allotted on partition to her son. On the other hand, the plaintiffs contend that the property must be divided into three parts, one part should be allotted to Bishambhar Nath, one part to Musammat Chiraunji and a third part to Har Narain. The Court below has acceded to the contention of the plaintiffs. The defendants have appealed. Reliance was placed on the case of Hemangini Dasi v. Kedar. Nath Kundu Chowdhry 16 C. 758 : 16 I.A. 115 : 13 Ind. Jur. 210 : 5 Sar. P.C.J. 374. THIS no doubt would be an authority in the appellants favour if the present was a case governed by the Benares School of Law (i.e. Mitakshara), but it is quite clear that the case cited was one under the Bengal School of Law, namely, the Dayabhaga. THIS appears from the judgment in the case of Chowdhury Thakur Proshad Shahi v. Musammat Bhagbati Koer 1 C.L.J. 142 at p. 143. On the other hand, there are several authorities in favour of the plaintiff which refer, to the Mitakshara School of Law See Damoodur Misser v. Senabutty Misrain 8 C. 537 at pp. 542, 543 : 10 C.L.R. 401 : 6 Ind. Jur. 584, Damodardas Maneklal v. Uttamram Maneklal 17 B. 271. The same point was expressly decided by this Court in the case of Mathura Prasad v. Dcoka A.W.N. (1890) 124. In our opinion, the view taken by the Court below was correct and should be affirmed. We dismiss the appeal with costs including in this Court-fees on the higher scale.