Authored By : Loftus Richard Tottenham, S.C. Ghose

Loftus Richard Tottenham and S.C. Ghose, JJ.

1. The contest in this case is between two persons who claimto be entitled to certain properties left by one Choona Ojhain, deceased. Theplaintiff substantially claims upon the ground that the said propertiesbelonged to Choona Ojhains husband and were part of his estate, and that onChoonas death he is entitled to the same under the Hindu law, be being herhusbands brothers son. The defendant, on the other hand, contends that theproperties were the stridhan of Choona, and that he being her sisters son isentitled to the same in preference to the plaintiff. The parties in the caseare governed by the Mithila law.

2. The Court below has found that only some of theproperties were Choonas stridhan, but has held that, whether the rest werestridhan or not, the plaintiff, as her husbands brothers son, is entitled tosucceed under the Hindu law in preference to the defendant.

3. We may here observe that in addition to the contentionmentioned above some other pleas were raised by the defendant, viz., that hehad been adopted as kurta-pooter by Choona Ojhain before her death, and thatshe had made a gift of all her properties to him, but these pleas were foundagainst him by the Court below, and the learned vakeel for the appellant hasvery properly refrained from insisting upon them before us.

4. There was also a further question in the Court below asto whether all the properties claimed by the plaintiff belonged to ChoonaOjhain or not, and also as to the value of some of the moveable properties. TheCourt below has determined the said question partly in favour of the plaintiffand partly in favour of the defendant, and as against this part of the casethere is no contention raised before us by the learned vakeel for thedefendant-appellant.

5. The questions that have been discussed before us are:

1st.--Whether the properties decreed to the plaintiff by theCourt below were Choona Ojhains stridhan within the meaning of the Hindu lawas it obtains in the Mithila school, or should they be regarded as part ofChoonas husbands estate

2nd.--Supposing that they were the stridhan of Choona, ascontended by the defendant, whether the plaintiff, as the husbands brothersson of the deceased, or the defendant as her sisters son, is the preferentialheir according to the Mithila school.

6. In the view that we take of the second question it isunnecessary to express any opinion upon the first question; but if it werenecessary, we should be inclined to hold that the properties were acquired byChoona Ojhain under circumstances which would give her complete control overthem, and would make them her stridhan within the meaning of the Mithila lawsee Brij Indar Bahadur Singh v. Ranee Janki Koer I.L.R. 5 IA 1.

7. The second question that has been raised before us andwhich is the true question in the case is rather a difficult one, and of anovel character. There is not a single decided case bearing upon it, and theHindu law books of authority in the Mithila school which have been translatedinto English are altogether silent on the matter.

8. The question is shortly this: whether in default ofissue, daughters son and the like, as also the husband, the stridhan propertyof a woman married in one of the approved forms of marriage, goes to herhusbands brothers son in preference to her sisters son.

9. The Vivada Chintamani, a work of the highest authority inthe Mithila school, after stating that a womans separate property is inheritedin the first instance by her children and then by her daughters son and thelike, lays down that the property devolves on her husband if she was marriedaccording to one of the approved forms, but if she was married in the Asura orany other unapproved forms, the wealth goes to her mother and father.

10. The author of the Vivada Chintamani does not proceed todiscuss or lay down who are the next in succession, but he stops short with thehusband and the parents, and we are left therefore completely in the dark as towho among the two claimants, according to that authority, would be thepreferential heir.

11. We observe that the author of the Vivada Chintamani inhis introduction states that he has compiled the work after studying the"works styled Krito Kalpadruma, Parijata, Ratnakara and others."

12. Unfortunately these books have not been translated intoEnglish.

13. The learned vakeel for the appellant has provided uswith a translation of that portion of Ratnakara which treats of stridhan. Thisbook is no doubt one of considerable authority in the Mithila school, and ifthe matter were clear upon what Ratnakara says on the subject, we shouldperhaps have no difficulty in deciding the matter.

14. The author of Ratnakara, after quoting various texts ofcertain sages, which indicate that the law of succession is very nearly thesame as that laid down by the Vivada Chintamani, and after commentingthereupon, cites a text of Vrihaspati which is as follows: "The motherssister, the maternal uncles wife, the paternal uncles wife, the fatherssister, the mother-in-law and the wife of an elder brother are declared to besimilar to the mother. If they have no issue nor son of their body, nordaughters son, nor son of these persons, the sisters son and the rest shalltake the property." The author then makes the following commentary:

The meaning is that in default of the son and the rest, thesisters son, etc., shall take the property of their mothers sister andothers,

15. And with this commentary, and without saying anythingfurther, Ratnakara concludes the" chapter on the partition of stridhan.

16. We may here observe that it is upon the above text ofVrihaspati adopted by Ratnakara that the defendant-appellant mainly relies insupport of his contention that the sisters son is the preferential heir inthis case. The learned vakeel contended that it must be understood that thesaid text laid down not only that the sisters son was an heir, but also thatthe several heirs mentioned therein should succeed in the order specified,sisters son being the first.

17. Now the first observation that arises upon the abovetext of Vrihaspati is that it is extremely doubtful, both as to the exactposition of the group of heirs mentioned therein, and as to their relativepositions inter se. According to the wording of the text, this group of heirswould come in after the issue, and before the husband and the parents. Then,again, the kinsmen of the husband, and of the parents, mentioned therein, areenumerated without having regard to the distinction that exists in thedevolution of stridhan property arising from the form of the marriage.

18. We find, however, that the text has receivedinterpretation in certain schools of law in India, and we proceed to noticethem.

19. The Smriti Chandrika which is the great authority in theDravida School, in chapter IX Section III, after giving the text of Vrihaspatiin verse 36, says in verse 37 as follows:

The sons of the sisters of the deceased take the property oftheir maternal aunt. Likewise it must be understood by the words and the likein the text that the other heirs are to take the wealth of their respectivesecondary mothers in due order.

20. It is doubtful whether the author of the SmritiChandrika meant to lay down that the heirs mentioned in the text succeed in theorder enumerated therein, or in the order of their propinquity to the deceasedas, we shall presently show, has been enunciated by the Viramitrodaya. Weobserve, however, that in the law of partition and succession translated by Mr.A.C. Burnell, from the manuscript Sanscrit text of VaradarajasVyavaharanirnaya, a work of authority in Southern India, the compiler, afterreferring to the text of Vrihaspati, gives, and we may assume approvingly, theobservation of Colebrooke as follows:

This text does not take effect if there be mpindas as far asthe fourth. This text is of effect if there be sapindas commencing with thefifth. Thus it is explained by commentators. By others, however the arrangementis made as follows: If there be six relations, such as sisters son, etc., ofthe six persons beginning with the mothers sister, then when a husbandsucceeds to a childless womans stridhan in case of his default, of the threerelations (who are so) through the husband, the husbands younger brother firstsucceeds to the elder brothers wifes wealth by reason of his greateraffinity. In his default the husbands brothers son takes (it). In his defaultthe husbands sisters son takes (it). When, however, the mother and fatherwould succeed, then in their default, of the three relations (who are so)through them, the deceased womans sisters son takes first. In his default herbrothers son takes (it). In his default the son-in-law takes it," and soon.

21. The author of the Dayabhaga in quoting the same text,gives reasons why it could not be held that the heirs mentioned therein wouldsucceed in the order enumerated, and observes that it is contrary to theopinion and practice of venerable persons. He then says: "Therefore, thetext is propounded not as declaratory of the order of inheritance, but asexpression of the strength of the fact," He ultimately lays down that theorder of succession should be in accordance with the various degrees ofbenefits conferred on the owner by the oblation of food at obsequies.(Dayabhaga, Ch. IV, Section Ill, verses 35, 37.)(See also SrikrishnaTarkalankars Commentaries; Colebrookes Digest, vol. IV, pp. 319--324.)

22. The author of the Viramitrodaya, a book of considerableauthority in the Benares School, after laying down that the property of achildless woman dying without issue belongs to her husband, and on failure ofhim, to the husbands nearest relations, cites the said text of Vrihaspati, andthen expounding the reasons why the womans issue and the issue of her co-wifeshould succeed, proceeds to observe as follows: "Hence on failure of thesethe sisters son, and the rest alone, in spite of the sapindas, such asfather-in-law, are by virtue of this text, which is not reconcilable in anyother way, entitled to succeed, according to their comparative propinquity, tothe property of their mothers sister and the rest." (Viramitrodaya, pp.240--244.)

23. It is pretty clear, as we understand it, from what theViramitrodaya says, that according to his view the sisters son, and othersmentioned in the text of Vrihaspati, do not succeed in the order they areenumerated therein, but in the order of comparative propinquity to the woman.That the Viramitrodaya could not have meant to lay down that the order ofsuccession should be as the enumeration of the heirs given in Vrihaspatis textwould seem to suggest, is clear from the following considerations: of the sixheirs mentioned therein, two, viz., the sisters son and the brothers son, arethe sapindas of the womans father; three, viz., husbands sisters son,husbands brothers son, and the husbands younger brothers son, are thesapindas of the husband. Now it is well settled that in case of a competitionbetween two sapindas, the sogotra sapinda takes precedence over a bhinna gotrasapinda, and therefore as between the sisters son and the brothers son, thelatter would be the preferential heir. Then among the three sapindas of thehusband, the order should be first, the husbands brother, second the husbandsbrothers son, and the third the husbands sisters son. According to theViramitrodaya and some other writers on the subject, comparative propinquity isevidenced by the amount of spiritual benefit conferred on the deceased, and thedegrees of propinquity are tested by religious merit.

24. If that principle be followed in this instance, it willbe found that the sisters son cannot be regarded as having the mostpreferential right of succession, as would be the case were we to followimplicitly the order in which the several heirs are enumerated in the text ofVrihaspati.

25. Then, again, if propinquity be determined byconsanguinity only, the preferential heirs would be her brothers son, andsisters son, but we find that the brothers son is mentioned as the fifth inorder.

26. The text of Vrihaspati has been adopted in the Mahrattaschool. The Vyavahara Mayukha, which is a work of paramount authority in thatschool, merely quotes the text as showing that the group of heirs mentionedtherein comes in after the husband or the parents, as the case may be, withreference to the form of the marriage of the woman; but beyond that, there isnothing to show that in that school the succession is regulated in the order inwhich the said heirs are enumerated in that text, but on the contrary on acareful consideration of the Vyavahara Mayukha itself (chapter TV, Section X,verses 22-28) it seems to be doubtful whether the author really meant it to beso. The author, after speaking of the succession of the womans issue,daughters son and so forth, quotes the text of Yajnavalkya, viz., "herkinsmen take it if she die without issue;" and then, after referring tothe exposition of that text according to the different kinds of marriage, says:"failing the husband the nearest to her in his family takes it; similarlyfailing the father the nearest to her in her fathers family succeeds."The author then alludes to the observation of the Mitakshara on the samesubject, and to the text of Manu showing that in the case of a marriageaccording to one of the approved forms, the property goes to the husband,whereas in the case of a marriage in one of the unapproved forms, it goes toher parents. The author then says: "On failure of the husband of adeceased woman in the case of marriage according to Brahma, or the like from,or on failure of her parents in the case of marriage according to the Asura orthe like form, Vrihaspati names the person entitled to the technicalstrldhan." Then follows the text itself.

27. We are inclined to think that what the author perhapsmeant to lay down was that the succession of the heirs mentioned inVrihaspatis text is to be taken to be subject to the rule of law laid down byhim in accordance with the Mitakshara (see Shama Churns Vyavastha Chandrika,vol. II, pp. 537, 538).

28. While, therefore, on the one hand it is left in doubtwhether the authors of the Vyavahara Mayukha and Smriti Chandrika were ofopinion that the text of Vrihaspati was intended to lay down the order of succession,the Dayabhaga school on the other, hand distinctly repudiates the saidconstruction, and the Viramitrodaya lays down that the heirs mentioned in thetext are to succeed according to their propinquity to the woman.

29. Upon the above considerations we are unable to acceptthe construction of the text of Vrihaspati for which the learned vakeel for theappellant contends.

30. We now turn to the two other books which have been, asalready stated, specially mentioned in the introduction of the Vivada Chintamani.They are the Krito Kalpadruma and Parijata. Neither of these books has beentranslated into English, and we have been unable to obtain the first of them.The other book (Madan Parijata) so far as it bears upon the present subject,does not quote Vrihaspatis text, but, after quoting a text of Yajnavalkya onthe subject, says as follows: "If (stridhan) goes to her kindred, i.e.,husband and others, she being childless, i.e., dying without issue, i.e.,without daughter, daughters son, son, sons son. If a woman is marriedaccording to either Brahma, Daiva, Arsha, or Prajapatya form of marriage, thehusband takes her property; in his default those that are nearest of kin in thehusbands family; in their absence, the nearest of kin in the fathers family.This is the construction."

31. It thus appears that out of the three books referred toin the introduction to the Vivada Chintamani as the principal books consultedby the author in making his compilation, two do not lay down that thesuccession after the husband should be according to the order in which thesisters son and others are enumerated in Vrihaspatis text, but on thecontrary one of them, the Parijata, gives the order in a very different mannerand upon a different principle. The order given by this book, we may hereobserve, is what the plaintiff contends for.

32. In this state of the authorities in the Mithila school,we must refer to the Mitakshara for our guidance in this matter. It is, as theJudicial Committee says, in the case of The Collector of Madura v. MoottooRamalinga Sathupathy 12 M I.A. 397 : 1 B.L.R.P.C. 1 "universally acceptedby all the schools, except that of Bengal, as of the highest authority andwhich in Bengal is received also as of high authority, yielding only to theDayabhaga on those points where they differ." The author of theMitakshara, after describing the different classes of womans property, laysdown (Chapter II, Section XI, verse 9) that " if a woman dies withoutissue, that is leaving no progeny, in other words leaving no daughter nordaughters daughter, nor daughters son, nor son, nor sons son, the womansproperty, as above described, shall be taken by her kinsmen, namely her husbandand the rest, as will be forthwith explained;" and then in verse 11 saysas follows: "Of a woman dying without issue as before stated, and who hadbecome a wife by any of the four modes of marriage denominated, Brahma, Daiva,Arsha and Prajapatya, the property as before described belongs in the firstplace to her husband. On failure of him it goes to his nearest kinsmen(sapindas) allied by funeral oblations." And in verse 25 the authorstates: "On failure of grandsons also, the husband and other relativesabove mentioned are successors to the wealth."

33. It is thus clear that, according to the Mitakshara, thehusbandss kinsmen are preferred to the fathers kinsmen; and it follows thatthe plaintiff as the husbands brothers son of the deceased is entitled topreference, as against the defendant, the sisters son.

34. The result is that the appeal will be dismissed withcosts.

.

Jugmon Jha and Ors. vs. Bachha Jha and Ors. (11.09.1885 -CALHC)