Manohar Lall, J.In this appeal by the plaintiffs an interesting question arises for decision, namely whether the rule of the stridhan succession according to the Mitakshara School has been altered by Hindu Law of Inheritance (Amendment) Act (Act 2 of 1929), hereinafter to be referred to as the Act.

2. This is an appeal by the plaintiffs who are aggrieved by the decision of the first Additional Subordinate Judge of Chapra, dated 31st January 1944, by which he has dismissed their Suit which was instituted for recovery of possession of the disputed property in these circumstances.

3. Gosain Jag Mohan Datt Pandit, the common ancestor of the parties, had two eons, Gossain Gopal Dutt Pandit and Gossain Chatturbhuj Dutt Pandit. Gopal Dutt had four sons two of these, Radha Kishun Dutt and Basudeo Dutt died before the relevant date the third son, Ramkishun Dutt, died in 1984 leaving two widows the two plaintiffs in the action. The fourth son, Chandra Shekhar Dutt, is also dead. The plaintiffs case was that all these four sons-and Gopal Dutt died separate from one another

4. Chatturbhuj Dutt was the father of Praduman Dutt Prasad, who was married to one Mt. Akho Kuer. He also had a daughter, Babul Bacha Kuer, who is the defendant in the action. After the death of his son Praduman Dutt Prasad, his father Chatturbhuj Dutt executed a will by which he gave twelve annas out of his properties to Mt. Akho Kuer in absolute right and the remaining four annas be; gave to his daughter, Bacha Kuer, the defendant, similarly in absolute right. Pradumau Dutt and ML Akho Kuer had three daughters, Suruj Kala Kuer, Chandra Kala Kuer and Bindhyachai Kuer the latter two died issueless during the life time of Mt. Akho Kuer. On the death of Mt. Akho Kuer, the twelve annas share in the property of Chatturbhuj Dutt which is the property in dispute was inherited by her daughter Suraj Kala Kuer. Suraj Kala Kuer admittedly died in 1929. The plaintiffs case was that she died in January 1929, but the defendants case was that she died in March 1929. The learned Subordinate Judge on an examination of the evidence has come to the conclusion that Suraj Kala Kuer died on 12th March 1929 and not on 2nd January 1929, and this conclusion is based upon ample evidence and cannot be seriously challenged in appeal. Accordingly, it must be held that Suraj Kala Kuer died on 12th March 1929. On her death disputes arose as to the succession to the properties which were held by, her as the stridhan heir of Mt. Akho Kuer. The plaintiffs case was that their husband came into possession of the property and continued in possession till the date of his death in 1934. The defendants case on the other hand was that she came into possession from the date of the death of Suraj Kala Kuer. The dispute between the husband of the plaintiffs and the defendant began in the land registration department. It in unnecessary to refer to the various stages at which the mutation Courts passed different orders. It is enough to state that the matter was ultimately referred to the civil Court u/s 55 Land Registration Act. The plaintiffs instituted the suit giving rise to this appeal on 11th August 1941 basing their cause of action on the date of dispossession of the plaintiffs husband on 1st February 1933.

5. As already stated, the defendants case was that she was in possession from the date of death of Suraj Kala Kuer, that is from 1929. Her further case was that by the provisions of Act 2 of 1929, she being the sister of Praduman Dutt was entitled to succeed to her estate as the Act was in operation at the date of her death.

6. The learned Subordinate Judge has come to the conclusion that after the enforcement of Act 2 of 1929 the plaintiffs can have no title as the defendant is the preferential heir. He has also come to the conclusion that the story of possession put forward by the plaintiffs was false and the suit was barred by limitation. Hence the appeal to this Court.

7. It is argued by Mr. B.N. Rai on behalf of the appellants that Act 2 of 1929 has no application to the succession to stridhan property held by a female and draws attention to the preamble of the Act which says that the Act is passed to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate. On the other hand, Mr. Mehdi Imam contends that the provisions of this Act ought to be applied in the present case because on the death of Suraj Kala Kuer the property would devolve on the husband of Mt. Akho Kuer, namely Praduman Dutt Praead, and, therefore, the property though undoubtedly it was a stridhan property in the hands of Mt. Akho Kuer must henceforward be treated as if it belonged to Praduman Dutt Prasad. He, therefore, suggests that the succession to the property will now be governed by the new Act of 1929.

8. In my opinion, the argument of the appellants is sound and must prevail. The ambit of the new Act, 11 of 1929, was considered by their Lordships of the Judicial Committee in AIR 1943 10 (Privy Council) . Sir Madhavan Nair, who delivered the judgment of the Board, pointed out at page 152 that the object of the Act was to alter the order of succession of certain persons mentioned their in, and at page 153:

The heading and preamble of the Act do not accurately summarise its provisions, but having regard to the language of Section 1(2) of the Act which says that it applies only to persons who, but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions herein enacted...it would apply to the persous specified so as to constitute them heils...

The provisions of Section 1(2) of the Act are so dear that it is difficult to appreciate a contrary argument. It states that the Act applies:

to such persona in respect only of the property of males not held is coparcenaries and. not disposed of by will.

9. How can the Act apply to the priority of females. The crucial question for decision in each case should be whether the property in question was the property held by a male at the time when succession opened or was it a property held by a female.

10. In the present case it is common ground that the property in dispute was the stridhan property of Mt. Akho Kuer, and on her death it was in possession of her daughter as a limited owner. On the death of the daughter, the succession to the property opened out in March 1929 and we have to discover who the stridhan heir of. Mt. Akho Kuer is under the general rule prevailing in the Mitakshara school and not under Act II of 1929.

11. It is admitted that the succession to the stridhan property is accurately stated in para. 146 of Mullas Hindu Law, 194 edition. It is stated therein that the property passes in the following Order: (1) uterine brother; (2) mother and in default of these it passes to (3) father; (4) fathers heir that is, his sapindas, samanodakas and bandhus. See also the decision of this Court in Kamla Prased v. Murli Manohar AIR 1934 Pat. 398 where it is held that according to Mitakshara the stridhan of a woman (if she was married in the Brahma or the three other approved forms), who dies leaving no daughter, nor daughters daughter, nor daughters son, nor son,, nor sons son, devolves on her husband and failing him on his nearest kinsman (sapindas). See also the decision of Dhavle J. in Naubat Singh v. Mt. Shambarat Kuar AIR 1942 Pat. 161 . With regard to the property inherited by ft female from a female, the succession is accurately stated in para 169 of Mullas Hindu Law, 1940 edition, that is to say a female inheriting property (stridhan) from a female takes only a limited estate in such property and on her death it passes not to her heirs but to the next stridhan heir of the female from whom she inherited it. It follows, therefore, that on the death of Suraj Kala Kuer, the property would pass to the stridhan heir of Mt. Akho Kuer. Bacha Kuer, the defendant, is not the stridhan heir of Mt. Akho Kuer and, therefore, she has no title to this property under the general law. It is also admitted that under the general law, Ramkishun Dutt, the husband of the plaintiffs, had title to the property on the death of Mt. Akho Kuer.

12. Mr. Medhi Imam, however, argues that as the property must be taken to devolve upon, the husband of Mt. Akho Kuer on Suraj Kalas death, it must be treated as his property from, that date and thereafter by the application of Act II of 1929 the title vests in the defendant, who is the sister of Mt Akho Kuer.

13. The cases relied on by Mr. Mehdi Imam may now be shortly dealt with Chulhan Barai v. Mt. Akli Baraini AIR 1934 Pat. 324 is a decision of the learned Chief Justice sitting single and it only decides that the question whether certain persons are the heirs under Act II of 1929 where a widow is in possession of her husbands estate as a limited owner, depends upon the date of her death and not on the date of death of the last male holder.

14. Pokhan Dusadh Vs. Mt. Manoa and Another, . This case also decides that the date of death of the male owner is not material as the question as to who would be entitled to succeed to his estate as a reversioner cannot be determined until the death of the female owner. Mr. Mehdi Imam relies upon the observation at page 222 that by a fiction of law the husbands life is assumed to continue in the existence of his widow, and, therefore, he says that we must here also assume by fiction of law that Praduman Dutt was alive on the date of the death of Suraj Kala Kuer. I am unable to agree with this contention because the property was not the property of Praduman Dutt when he died, but it was the property of Mt. Akho Kuer.

15. The case in Mt. Charjo v. Dina Nath AIR 1937 Lah. 196 decided by Tekchand J., sitting single supports the contention of Mr. Mehdi Imam. The learned Judge held that the succession to the stridhan property of Mt. Nawahu which devolved upon her death on her husband would be governed by Act II of 1929. In my view, this decision is incorrect. I cannot understand how the succession to the property of a female could be governed by Act II of 1929 which distinctly states that it shall only apply to the succession to the property left by a male. This decision has been expressly dissented from by a Division Bench of the Madras High Court in Mahalakshmamma v. Suryanarayana Sastri AIR 1946 Mad. 294. I respectfully agree with the observation of the learned Chief Justice dealing with Mt. Charjo v. Dina Nath AIR 1937 Lah. 196.

Here, as there, it is not a question of deciding who are the heirs of the Hindu male. The question is who are the heirs in respect of properties belonging to a Hindu woman in her own right. In the footnote on page 84, of the tenth edition of Mayne on Hindu Law it is pointed out that the decision in Mt. Charjo v. Dina Nath AIR 1937 Lah. 196 overlooks the express provisions in Sub-section (2) of Section 1 of the Act which limits the altered order only to the property of a male. In our judgment the correct view of the law was expressed in the judgment of a Bench of the Nagpur High Court in Shakunatalabai v. Court of Wards AIR (1942) Nag. 629.

16. Lakshmi Ammal v. Anantharama Ayyangar A.I.R.1937 Mad. 699 merely decides that it is the death of the female heir that opens the inheritance to the reversioner, and, therefore, where a Hindu male died intestate before the passing of Act II of 1929 leaving a limited female heir, who was alive after the Act came into force, the succession to the deceased male member is governed by the provisions of this Act.

17. In my opinion, none of the cases relied upon by Mr. Mehdi Imam supports his contention, and therefore, I must hold that the title to the properties in dispute was with the husband of the plaintiffs on the date of the death of Suraj Kala Kuer.

18. The title to the property being thus found to be with the plaintiffs, the situation is that the plaintiffs and Bacha Kuer were co-sharers, and even if it is assumed that Bacha Kuer was in possession from 1929 onwards, her possession would be the possession of a Cooharer, and no question of limitation would arise. But apart from that the plaintiffs have produced the receipts (EX. 2 series) which are printed in a tabular form at p. 12, Part 3 of the paper book. These receipts show that the husband of the plaintiffs, Ramkishun Dutt, was in possession for the years 1336, 1837, 1338, 1339 and 1340. The defendants receipts on the other hand, which are Ex. B series, are all from the year 1389 onwards. There is only one solitary receipt (Ex. B-3) of 1336. But the learned Subordinate Judge himself has disbelieved this receipt. He says in his judgment:

It is curious, however, to find that the receipt of special print (Ex. B(3)) was granted to the tenant Gumashta in 1336 with respect to village Raslpur, Tauzi No. 830. If we examine Ex. B(3) along with Ex. I (4) we cannot but come to the conclusion that Ex. B(3) or Ex. I(4) is a got-up paper.

The receipt Ex. B(3) must, therefore, be ruled out of consideration with the result that the defendant as was to be expected took possession after the death of the husband of the plaintiffs. The present suit, however, is filed within twelve years from the date of death of the husband of the plaintiffs. No question of limitation would arise, and the learned Subordinate Judge was wrong in holding that the suit was barred by limitation. He was no doubt influenced in taking this view by the fact that he had held that the title was with the defendant from the date of death of Suraj Kala Kuer.

19. For these reasons, the appeal must be allowed the decision of the learned Subordinate Judge is set aside, and the plaintiffs suit must be decreed with costs both here and in the Court below.

Mukharji J.

20. I agree.