Authored By : William Comer Petheram, Banerjee

William Comer Petheram, C.J. and Banerjee, J.

1. The plaintiff (appellant) contends that she is entitledto the properties in dispute as well by inheritance as by right ofsurvivorship, and that, consequently, there can be no escheat. We shallconsider these two grounds of the plaintiffs claim separately.

2. Upon the question of the plaintiffs title byinheritance, the learned Counsel for the appellant; conceded (and, we think,very properly conceded) that in the face of the decisions of this Court in thecases of Atyanrta Bibee v. Nownit Lal I.L.R. Cal. 315 and Jullessur Kooer v.Uggur Roy I.L.R. Cal. 725, he could not contend for the broad proposition thatthe plaintiff, as the widow of a gottaja sapinda of Jankisaran, was entitledto a place in the order of succession immediately after her husband. What hecontended for was that, though the plaintiff may not have such a high place,she was not excluded from the line of heirs altogether; that the rule excludingfemales from succession was a rule of partial and not total exclusion, andmerely postponed their rights in favor of males; that the proper position ofthe plaintiff was one after all male relations, whether agnates or cognates;and that the two decisions of this Court, referred to above, did not concludethe present question, as they had only to determine whether certain femalerelatives were entitled to succeed in preference to the male relatives whoopposed them. And in support of the theory of partial exclusion or postponementof claims of female relatives, we were referred to two Madras cases: KuttiAnimal v. Radhakristna Aiyan 8 Mad. H.C. 88 and Lakshman Animal v. TiruvengadaI.L.R. Mad. 241.

3. Now though the grounds upon which the two decisions ofthis Court, above referred to, are based, leave no room for the appellantscontention, yet, as the immediate question for decision was one of relativepreference, and not of absolute exclusion of certain female heirs, thosedecisions cannot be held to conclude the present contention.

4. That being so, and there being the two Madras decisionsin favor of that contention, it becomes necessary to examine the authoritiesbearing on the question now before us.

5. We shall consider these authorities under three heads:first, the original authorities; second, the opinions of later writers on HinduLaw; and, third, the decisions of Courts of Justice.

6. Under the first head, if it were necessary to refer tothe remoter sources of the Hindu Law, we should find ample authority for the totalexclusion of women from in heritance. There is the well-known text of theTaittiriya Yojur Veda Sanhita (Kanda VI, Prapathaka V, and Anuvaka VIII):"Therefore females are feeble and unworthy of inheritance." Thenthere is a passage of the Nirukta (Vedic Glossary) to this effect:"Therefore it is known that a male is the taker of wealth, and that afemale is not a taker of wealth"-(see Roths Edition of Yaska, p. 53 andSatyavrata, Samasramis Edition, Vol. II, p. 259; and there is the Sutra orAphorism of Baudhayana (Prasna II, Kanda II, 27): "Nor (ought she) toinherit. For the Veda (says) "women are not considered to have a right touse sacred texts, nor to take the inheritance," which forms the basis ofthe law on the point. Nor is this exclusion of females a feature peculiar toHindu Law. The exigencies of primitive society stamped that feature more orless upon ancient law everywhere. In the present instance the text itselfcontains the reason for the rule it lays down. It says women are feeble, and,therefore, unworthy of inheritance. But we need not go behind works like theMitakshara and the Viramitrodaya; our duty being, as the Judicial Committeepoint out in the case of the Collector of Madura v. Moottoo Ramlinga Sathupathy12 Moo I.A. 397, not so much to enquire whether a disputed doctrine is fairlydeducible from the earliest authorities, as to ascertain whether it has beenreceived by the particular school which governs the district with which we haveto deal, and has there been sanctioned by usage. We shall, accordingly, confineour attention to the consideration of the Mitakshara, the Viramitrodaya, theVaijayanti, and the Commentaries on the Mitak-skara by Viseswara andBalambhatta, these being the leading authorities at the present day of theBenares School of Law, which is the law governing this case; and we shallincidentally consider the Vyavahara Mayukha, the Smriti Chandrika and theDayabKaga and the Vivada Chintamani, which supplement the Mitakshara in theMaharastra, the Dravida and the Mithila School.

7. The Mitakshara lends no direct support to the appellantscontention. It divides the remoter heirs after the brothers son into threeclasses (ch. II, Section 1, v. 2, 3): (1) the qotrajas (gentiles); (2), thebandhaa (cognates); (3), certain specified strangers, viz., the preceptor, thepupil, and the fellow-student in the Vedas; these classes come in the order inwhich they are named above; and, in default of all these, the King takes theproperty, except in the case of Brahmans tan exception which does not hold goodin British India- See The Collector of Masulipatam v. Cavaly VencataNarrainapah 8 Moores I.A. 500]. Now the only class under which the appellantcan come, is the first, she being a gotraja of her husbands brother in thissense, that she has by her marriage become of the same gotra as her husband andhis brother; and she is also a saptnda of her brother-in-law according to themeaning assigned to that term in the Mitakshara (see the Commentary onYajnavalkya, I, 52). But neither the brothers widow, nor the widow of anyother collateral agnate, is mentioned as an heir. It might be contended thatthe text of Baudhayana cited above, upon which the exclusion of females isbased (see Viramitrodaya, G. C. Sirkars Translation, p. 198), is not referredto in the Mitakshara, and that the doctrine that only those female relativesare heirs who are named in special texts cannot be true, as the paternalgreat-grandmother, who is not named in any special text, is expressly mentionedas entitled to inherit as a gotraja sapinda in the Mitakshara. But to this theanswer is that Baudhyana has been distinctly recognised as an authority byVijnaneswara (see the Commentary on Yajnavalkya, 1, 4, 5), and that though thepaternal great-grandmother may not be named in any text, yet her case; and thatof other female lineal ancestors, closely follow that of the grandmother, andare, upon reason and common sense, very different from that of the widows ofcollateral agnates. And it is singular that if Vijnaneswara meant to includethem, he should not have named any one of them as coming in the line of heirs.The preponderance of reason seems to be in favour of the view that theMitakshara is opposed to the appellants claim. As the Privy Council observedin the case of Lallubhai Bapubhai v. Cassibai I.L.R. Bom. 110, perhaps the mostthat can be said is that the Mitakshara is not inconsistent with theappellants claim, if such claim is otherwise made out. One thing, however, isclear: the Mitakshara lends no support to the appellants contention thatthough, in consequence of texts and decisions adverse to womens heritablerights, the appellants claim has to be postponed in favour of every male heir,whether a gotraja or a bandhu, she may yet come in as an heir in default of allmale gotrajas and bandhus. If the appellant can come in as an heir at all underthe Mitakshara, it must be as a gotraja sapinda; and if, therefore, her claimhas to he postponed in favour of a bandhu, it must, so far as the Mitakshara isconcerned, be postponed for ever. For it is only upon failure of gotrajas thatbandhm inherit-(Mitakshara, ch. II, Section vi, 1).

8. Turning now to the Viramitrodya, which is a work of highauthority in the Benares School, and is followed in matters left doubtful bythe Mitakshara see Gridhari Lall Roy v. The Government of Bengal 12 MooresI.A. 448 we find that the appellants claim is distinctly negatived there. Theauthor notices an interpretation of the vedic text cited above, according towhich it has nothing to do with inheritance, but he considers thatinterpretation unsatisfactory, as it contradicts the text of Baudhayana"Hence," says he, "it cannot but be held that the text of Srutidoes prohibit womens right of succession, inasmuch as otherwise the quotation(by Baudhayana) of that text as establishing the position would beunreasonable."-(G. C. Sarkars Translation, pp. 198, 199.) And in anotherplace, when speaking of succession to womans property (with reference to whichone would have expected the recognition of womans heritable right to a largerextent) he says: "But the daughter-in-law, and others (of the sex), areentitled to food and raiment only; for the nearness as a sapinda is of no forcewhen it is opposed by express texts. Since a text of the Sruti declares:Therefore women are devoid of the senses and incompetent to inherit: and atext of Manu founded upon it, says: Indeed the rule is that, devoid of thesenses, and incompetent to inherit, women are useless. The conclusion arrivedat by the author of the Smriti Chandrika, Haradatta and other southerncommentators, as well as by all the oriental commentators, such as JimutaVahana, is, that those women only are entitled to inherit whose right ofsuccession has been expressly mentioned in the texts, such as-the wife and thedaughters also, etc.-but that others are certainly prohibited from takingheritage by the texts of the Sruti and Manu."-(G.C. Sarkars Translation,p. 244.)

9. As to this passage, West, J., in Lallubhai Bapubhai v.Mankuvarbai I.L.R. Bom. 441, observes that Manu has been misquoted here. But asthe Judicial Committee pointed out in the Collector of Madura v. MoottooRamalinga Sathupathy 12 Moores I.A. 397, the question is not whether the authorityof Manu has been misquoted, but whether the Viramitrodaya itself is anauthority for the Benares School; and, as to this latter question, there can beno room for doubt or discussion. The truth is that commentaries and digests,like the Mitakshara and Viramitrodaya, owe their binding force not to theirpromulgation by any sovereign authority, but to the respect due to theirauthors, and still more to the fact of their being in accordance withprevailing popular sentiment and practice. Their doctrines may often havemoulded usage, but still more frequently they have themselves been mouldedaccording to prevailing usage of which they are only the recorded expression.This appears notably from the discussion in the Mitakshara in the section onthe nature of property, where popular usage is referred to as one of thestrongest points in favour of the authors doctrine, that the sons right inthe fathers property arises by birth (Ch. I, Section i, 23). Upon the presentquestion, the doctrine stated by Mitra Misra, which is supported by the generalconsensus of opinion of a number of approved commentators named by him, shouldbe accepted as a correct statement of the prevailing law, even though thereasoning in support of the doctrine may be in some respects faulty.

10. It should be observed that the exclusion of females,that is laid down in the texts of the Srnti and of Baudhayana, and is affirmedby Mitra Misra, is a total exclusion from inheritance, and is not a merepostponement of their claims in favour of male heirs.

11. Viseswara in his commentary on the Mitakshara, theSubodini (see Mand-licks Vyavahara Mayukha, pp. 360, 361), and in the MadanaParijuta (see Sarbad-hikaris Tagore Law Lectuers, p. 440) clearly excludes thewidows of collateral gotrajas, when he does not name them in his detailed list.

12. The Vaijayaati places the widowed daughter-in-lawimmediately after the widow (a position which is directly opposed to theMitakshara itself), but it does not help the appellant very much, for it doesnot name the widow of any collateral gotraja sapinda in its list of sagotrasapinda heirs-(see Sarbadhikaris Tagore Law Lectures, p. 478).

13. Balambhatta lends some support to the appellants claimby assigning to the sons widow a place immediately after the grandmother. Butsince the decision in Ananda Bibee v. Nownit Lal I.L.R. Cal. 315 that can nolonger be considered good law as was conceded in the argument (seeSarbadhikans Tagore Lectures, p. 481).

14. The Vyavahara Mayukha throws very little light upon thepresent question. West, J., in Lallubhai Bapubhai v. Mankuvarbai I.L.R. Bom.447 observes: "If the foundation of the rights of widows of gotrajas underthe Mitakshara is slender, under the Mayukha it may be called almostshadowy."

15. The Smriti Chandnka is decidedly opposed to theappellants claim. It rigidly enforces the Sruti text, declaring theincompeteney of women to inherit, and it excludes even the grandmother from theline of heirs (see Ch. XI, Section v, 3-6).

16. The Dayavibhaga, in discussing the widows succession,explains the text of Sruti cited above in a sense which makes it perfectlyharmless as regards the heritable rights of women- (see Burnetts Translation,p. 33).

17. This might lead one to think that the author was infavour of a liberal admission of females into the order of succession. But,when considering the succession of gotrajas, he gives us no indication in thatdirection, and his enumeration of gotrajas is almost the same as that in theMitakshara. The truth seems to be that the authors interpretation of the Srutiwas only an additional argument in favour of the succession of the widow whoseright had come to be generally recognized; but the author was not prepared tocarry that argument to its consequences by admitting other females whose rightswere not so recognised.

18. The Vivada Chintamoni is wholly silent on the point.

19. The above examination of the Mitakshara and the leadingauthorities that supplement it in the different schools shows that none ofthem, expressly mentions the brothers widow or the widows of gotraja sapindasas entitled to succeed; only two of them, the commentary of Ballambatta and theDayavibhaga, afford any ground in favour of their claim; while two others, theViramitrodaya and the Smriti Chandrika, expressly deny their right; and therest are either silent on the point or imply their exclusion by omitting tomention them in their detailed list of heirs In this state of things,considering the weight attached to the Viramitrodaya in the Benares School, wethink, so far as the original works on Hindu law are concerned, the weight ofauthority is against the appellants contention that she is in the line ofheirs.

20. Turning now to the later writers, European and Indian,who have examined the subject, we find that, according to Sir Thomas Strange,the instances in which females are allowed to inherit are deemed asexceptional, the general principle being that the sex is incompetent toinherit (1 Stranges Hindu Law, 146). Sutherland, speaking of thedaughter-in-law, says: "Nor does there exist any supposed case in whichshe could inherit" (2 Stranges Hindu Law, 235); and, in another place,speaking of the niece, he observes. "In the series of heirs the niece is nowhereenumerated, and my Pandit agrees with me that the estate of the deceased wouldescheat rather than descend to a niece." (2 Stranges Hindu Law, 240),Macnaghten does not name the widow of any collateral gotraja sapinda in hisenumeration of heirs (Principles of Hindu Law, pp. 33, 34), nor does ShamaCharan in the list given by him in the Vyavastha Chandrika (Vol. I, pp. 182,204); while Maynes (Hindu Law, para. 541), Mandlick (Vyavahara Mayukha, pp.357-377), and Sarbadhikari (Tagore Law Lectures, pp. 665-673) distinctly affirmthat the widows of gotraja sapindas are not regarded as heirs under the law ofthe Benares School. Against this view, however, there is the opinion of Westand Buhler (Digest of Hindu Law, 2nd Ed., pp. 177, 178) that widows of gotrajasapindas are entitled to inherit under the Mitakshara; but that opinion hasreference to the Mitak-shara Law of the Bombay Presidency, and not to the lawof the Benares School where the Mitakshara is supplemented by theViramitrodaya.

21. We come next to the most important class of authorities,the decisions of Courts of Justice.

22. In Lallubhai Bapubhai v. Kassibai I.L.R. Bom. 110, whichis the leading case on the point in Bombay, while recognising the heritablerights of female gotraja sapindas, the Privy Council base that recognition notupon the Mitakshara, but upon the prevailing usage of the Bombay Presidency;and, with reference to the law of the other schools, the judgment of theJudicial Committee contains the following important observation: "Accordingto the received doctrine of the Bengal and Madras Schools, women are held to beincompetent to inherit, unless named and specified as heirs by special texts.This exclusion seems to be founded on a short text of Baudhayana, whichdeclares that women are devoid of the senses and incompetent to inherit. Thesame doctrine prevails in Benares; the author of the Viramitrodaya yields,though apparently with reluctance, to this text-(Ch. 3, Part 7.)"

23. In Soodeso v. Bisheshur Singh (1864) S.D.A. N.W.P. 375,the Sadr Court of the North-Western Provinces held that the brothers widow isnot in the line of heirs. That is a case distinctly in point. In DilrajKooniuar v. Sooltan Koonwar (1862) S.D.A. N.W.P. 240, a sons widow was held tobe no heir under the Mitakshara. The Allahabad High Court in Gauri Sahai v.Rukho I.L.R. All. 45 held that none but females expressly named as heirs caninherit under the law of the Benares School, and that the fathers sisterssons are entitled to succeed to the exclusion of the paternal uncles widow,and the learned Judges observed: "We think it, however, unnecessary todiscuss the question so fully argued in the judgment of the Bombay Court,whether the wife of a gotraja sapinda is to be held under the Mitakshara to bea gotraja sapinda We are of opinion that looking to the receivedinterpretation of the law, and the customary law prevalent in this part ofIndia, none but females expressly named as heirs can inherit." And thisview of the law is affirmed as correct by a Full Bench of that Court in JagatNarain v. Sheo Das I.L.R. All. 311. Against these decisions there is only onecase that can be cited on the other aide, the case of Bhuganee Daiee v.Gopaljee (1862)1 S.D.A. N.W.P. 306, . In that case the widow of a nearer gotrajasapinda was allowed to succeed in preference to a more remote male gotrajasapinda. But the decision is based, not upon the right of inheritance, but uponthe right by survivorship. The question, whether the plaintiff in this case isentitled to succeed upon this latter right, will be considered presently.

24. In the case of Lalla Jatee Lall v. Dooranee Kooer W.R.Sp. No. 173, a Full Bench of this Court held that the step-mother is no heirunder the Mitakshara. In Ananda Bibee v. Nownit Lal I.L.R. Cal. 315, after anelaborate examination of the authorities, Mitter and Maclean, JJ., came to theconclusion that, according to the law and usage of the Benares School, nofemales, except those expressly named as heirs, can succeed, and they,accordingly, dismissed the claim of the daughter-in-law on the ground that shewas not in the line of heirs at all. And in Jullessur Kooer v. Uggur Boy I.L.R.Cal. 725 this Court disallowed the sisters claim to inherit upon the groundthat, of female sapindas, only those that are specified by name as heirs caninherit according to the Mitakshara law.

25. It remains now to notice the Madras decisions. Neitherof the two cases cited on behalf of the appellant is in point, as they bothrelate to the succession of the sister. But they were referred to in support ofthe argument that, though certain female relations are not entitled to succeedas gotraja sapindas or bandhus in preference to any male heir, yet they come inas heirs before the estate passes to any stranger; or, in other words, that therule about exclusion of females is one of partial and not total exclusion, theclaims of the excluded females being only postponed in favour of those ofmales. Now in the earlier of the two cases, that of Kutti Animal v. RadhakristnaAiyan 8 Mad. H.C. 88, the decision in favour of the sisters right is evidentlybased upon a mistake in Colebrookes translation of the Mitakshara. The learnedJudges, after citing the case of Gndhari Lal Boy v. The Government of Bengal 12Moores I.A. 448, and quoting the Mitakshara (Ch. II, Section vii, para 1),according to Colebrookes translation, which runs thus: "If there be norelation of the deceased, the preceptor, or, on failure of him, the pupilinherits, by the text of Apastamba, If there be no male issue, the nearestkinsman inherits, or, in default of kindred, the preceptor observe: "Itfollows from the above not only that in regard to cognates is there nointention expressed in the law or to be inferred from it of limiting the right ofinheritance to certain specified relationships of that nature, hut that, inregard to other relationships also, there is free admission to the inheritancein the order of succession prescribed by law for the several classes, and thatall relatives, however remote, must be exhausted before the estate can fall topersons who have no connection with the family." These observations wouldhave been perfectly correct if the above passage of the Mitakshara, on whichthey are based, had been a correct translation of the original. But that is notso. The word translated relations is bandhu, and that rendered as kinsmanand kindred is sapinda in the original, and these are technical words verymuch restricted in their signification. There -is, therefore, really no authorityfor the proposition that all relations, however remote, must be exhaustedbefore strangers can claim the estate.

26. In the second case, that of Lakshmanammal v. TiruvengadaI.L.R. Mad. 241, though in the view that the Court took of the superior claimof the sisters son, it was not at all necessary to decide whether the sisterwas an heir or not, yet the learned Judges threw out the observation thatVijnanesivara recognized the texts excluding females so far as to give priorityto males, and that it was not intended absolutely to exclude all but certainexcepted females. Now reading the Mitakshara and the Viramitrodaya together, wemust say, with all respect for the learned Judges, that we do not find anyground for limiting the texts excluding women in that way. The texts say womenare incompetent to inherit, and we can find no authority for saying that theymean that women are incompetent to inherit only in competition with males.

27. In a still later case-Man v. Channammal I.L.R. Mad. 107-which is somewhat more in point, and in which a Full Bench of the Madras HighCourt has held that the step-mother was not entitled to inherit in preferenceto a paternal uncle turner, C.J., in delivering the judgment of the majority ofthe Court, made the following important observation: "No decision of theSadr Adalat, the Supreme Court or this Court has been cited, nor has any usagebeen proved by which a right of succession has been recognized as appertainingto a step-mother or to any of the females who by marriage have entered thegotra and acquired sapindaship solely through their husband; for these reasonsthe claim of the step-mother as a gotraja sapinda has not been in my judgmentestablished, and the claim of the paternal uncle must be allowed."

28. Upon a review of the foregoing authorities we come tothe conclusion that, according to the law and usage of the Benares School ofHindu Law, which governs this case, the brothers widow is not in the line ofheirs at all.

29. We have now to consider the second ground upon which theappellant puts her case. It is contended that, even if the appellant is notentitled to the properties in suit by right of inheritance she can claim themby right of survivorship as the last; surviving member of the family to whichthe same belonged. No authority was cited in support of this contention, and,perhaps, the only authority that can be cited for the appellant is the case ofBhuganee Daiee v. Gopaljec (1862) 1 S.D.A. N.W.P. 306 already referred to. Noauthority is referred to in support of that decision except the opinion of thePandit upon which it is based; and even that opinion is not given in extenso.On the other hand, there is the case of Ananda Bibee v. Nownit Lal I.L.R. Cal.315, which is binding upon us and which is clear authority to the contrary. Inthat case the same contention was raised in favour of the daughter-in-law, butthe Court rejected it and allowed the estate to pass to remote baydhus, whowere no members of the family, which originally owned it, to the exclusion ofthe daughter-in-law, MITTER, J., observing: "It has been said that she,while her father-in-law Gakul Chand was alive, was living with him as a memberof a joint Hindu family, and, therefore, on his death, she is entitled to the propertyleft by him. It seems to me that this contention is wholly untenable. Thefoundation of the right of survivorship is joint ownership. In this case, itcannot for a moment be contended that the plaintiff had any sort of ownershipin the property in dispute during the life-time of her father-in-law."These observations are equally applicable, mutatis mutandis, to this case. Thefollowing passage of the Viramitrodaya may be cited in support of the sameview: "Her right is only fictional but not a real one: the wifes right tothe husbands property, which, to all appearance, seems to be the same (as thehusbands right), like a mixture of milk and water, is suitable to theperformance of acts which are to be jointly performed; but it is not mutuallike that of brothers, hence it is that there may be separation of brothers,but not of the husband and wife, on this reason is founded the text,viz.,-Partition cannot take place between the husband and wife, therefore itcannot but be admitted that upon extinction of the husbands right theextinction of the wifes right is necessary (-G. C. Sarlcars Translation, p.165).

30. It was contended that it would be most unlikely that theHindu law, which so jealously guards against escheat as to interpose evenstrangers, such as the preceptor and the pupil, between the ordinary heirs andthe Crown, should favour such hardship as the utter exclusion from inheritanceof one whose husband was a joint owner of the estate. Now the recognition ofthe claims of the preceptor and the pupil is due, we think, not to any jealousyof the Hindu law to the claim of the Crown, but to a deserved deference to therelation between pupil and preceptor. In the good old days of Hinduism whenevery twice born man had to live in the house of his preceptor as a member ofhis family during his studentship extending over a long series of years, thatrelation was almost as intimate and as sacred as that between father and son.And then as for the hardship of the case, it seems to be more imaginary thanreal. If, as it must be conceded, the appellants claim has to be postponed infavour of the remotest samanodaka or bandhu who would practically be a strangerto her, there is no greater hardship in allowing escheat to the Crown fromwhose representatives she can well expect, and we hope will readily obtain, amuch more liberal allowance for her maintenance with much less difficulty ofrealization than she could from a distant relation succeeding to the estate.

31. Upon all these grounds we think the judgment of theCourt below is right and ought to be affirmed with costs.

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Jogdamba Koer vs.Secretary of State for India in Council(31.01.1889 - CALHC)