Wort, J.This appeal is by the plaintiff against the judgment of the Subordinate Judge of Muzaffarpur in which he decided against the plaintiffs contention that he was the adopted son of one Mt. Lalbati Kuer and that alternatively under the Mithila law he was the heir of the lady being the son of her sister.

One Sheoratan Lal died on 30th March 1887 leaving him surviving his widow Mt. Lachho Kuer and two daughters-in-law, Mt. Ramdeni Kuer and Mt. Lalbati Kuer. Sheoratan Lal left a will by which he devised an absolute estate to his widow and daughters-in-law with a right of survivorship with a proviso that in the case of the death of all of them Murli Manohar the son of one Ramcharan Lal the testators nephew or brothers son should be his heir and successor. The widow survived her husband but a few days, then Ramdeni Kuer died and lastly after being in possession of the property for about 12 years Lalbati Kuer died.

2. The learned Subordinate Judge has rightly construed the will in the events which have happened as giving an absolute estate in the property to Lalbati Kuer, which on her death would go to her heir. No question on this point has been seriously argued in this Court.

The plaintiff-appellant being the son of the sister of Lalbati Kuer claims to be the heir under the Mithila law which admittedly governs the parties, relying on the text of Brahspati, and in any event claims the property as being the adopted son in the Kritima form of Lalbati Kuer. Both of these points have been decided against the plaintiff by the learned Judge in the Court below.

3. A question was raised as regards the properties in suit. Properties 1 to 8 of Seh. 1 and Nos. 1 to 4 of Schedule 2, admittedly belonged to Sheoratan Lal and were covered by the will. As regards Property No. 9, Schedule 1, and Property No. 5, Schedule 2, the Judge has held that they were the self acquired properties of the widow Ramdeni Kuer and that eventually they became the stridhan properties of Lalbati Kuer. No question is raised with regard to this matter. It is not disputed that the plaintiff was the son of the sister of Lalbati Kuer, and he claims to have been adopted by Lalbati Kuer on 24th April 1921. She died a few months later, that is to say in October of the same year.

4. The learned Subordinate Judge has disbelieved the plaintiffs story of adoption. The story set up by the plaintiff and his witnesses is in many respects faulty and improbable. On the other hand it has been contended by the appellant that the story is probable in the circumstances of the case. That the lady went to Muzaffarpur at or about the time of the alleged adoption, is not open to doubt. The Civil Surgeon was called and proved his attendance on the lady for asthma. It is said that as the plaintiff was looking after Lalbati Kuers affairs (which seems to have been established and as an instance of which a Chitha, Ex. 10, has been relied upon) and that as she was at his house, the story of the adoption is highly probable.

5. The Civil Surgeon who was called to depose to this circumstance when cross-examined stated that no mention was made to him, as far as he remembered, of the alleged adoption. A number of witnesses were called to prove the adoption, many of whom claimed to have been present at the ceremony and gave circumstantial evidence on the point. The plaintiff himself was not believed by the Subordinate Judge and amongst other matters of criticism has referred to his own description of the relationship between himself and Lalbati Kuer in a petition (Ex. C) of satisfaction in an execution case in which Lalbati Kuer was the decree-holder, and was represented by the plaintiff.

6. Mt. Lalbati Kuer was described as mothers sister, that is to say he was the nephew. The explanation given of this matter has been rejected by the Subordinate Judge, and before us no argument has been raised which would cause us to consider that the criticism of the Judge in the Court below was unjustified. It is indeed a significant fact that within six months of the alleged ceremony of adoption, the plaintiff in a document which required a description of himself and of his relationship and the capacity in which he appeared for Mt. Lalbati Kuer, should omit to state what he now alleges was his true position at the time.

7. The learned Judge has however been influenced in his view of the evidence in the case by the fact, that, although Lalbati Kuer was supposed to have been on bad terms with the defendants, the other members of the family, no deed of adoption was executed. Although such a document was not in law strictly necessary, yet to say the least, in the circumstances surrounding the case, it would have been expedient. This circumstance is all the more significant when it is remembered that with one exception no agnates of the parties were present at the alleged ceremony. Reliance has been placed upon the evidence of Gajadhar Prasad for the appellant, but there are a number of points in the evidence of this witness which raise suspicions as to its credibility, Mt. Lalbati Kuer was a pardhanashin lady who, as the witness agrees, would not ordinarily admit the witness to her presence, although on the occasion of the alleged ceremony he claims to have been there.

8. The evidence relating to the occasion of this visit, which was one primarily for the purpose of business does not dispel the suspicion which was entertained by the learned Judge in the Court below. The plaintiffs case has also been discredited by the evidence of witnesses who seem to have appeared at the ceremony by chance, such as Raghunath Prasad Varma who was a distant relation. No reason has been assigned which would entitle us to hold that the Judge who had disbelieved the plaintiffs witnesses was wrong or which would entitle us to take any other view as to the credibility of the witnesses. Most of the argument has been concerned in an attempt to explain the matters which have caused the Judge to consider that the statements of the witnesses, having regard to the surrounding circumstances relating to the matters to which they depose, are not to be accepted.

9. However the main argument in the case has been directed to the question of law. As Lalbati Kuer took an absolute estate and the property in dispute was her stridhan, it is contended that the plaintiff as the sisters son is entitled to succeed. The parties are admittedly governed by the Mithila School and it is also not disputed that the plaintiffs case fails unless Brahspati is accepted as giving to the sisters son preference over the male relatives of the deceased ladys husband, the case conearning as it does the stridhan of a lady dying leaving no son (apart from the disputed question of the adopted son) and no daughter nor daughters daughter nor daughters son. On this question I have had the advantage of reading the (judgment of my learned brother which is about to be delivered and desire to say that I agree with the conclusions particularly with regard to the texts of the authorities which were not available to the Judges who decided Bachha Jha v. Jugmohan Jha (1886) 12 Cal 348 and with regard to which I cannot usefully add anything.

10. I rest my judgment on the decision in Bachha Jha v. Jugmohan Jha (1886) 12 Cal 348 and the decision of their Lordships of the Judicial Committee of the Privy Council in Bai Kesserbai v. Hunsraj Morarji (1906) 30 Bom 431. In Bachha Jhas case (1886) 12 Cal 348 the question which the learned Judges had to decide was:

Whether in default of issue daughters son and the like, as also the husband, the stridhan property of a woman married in one of the approved forms of marriage, goes to her husbands brothers son in preference to her sisters son.

The text of Brahspati was relied upon by the defendant as giving preference to the sisters son. The substance of the decision is stated in the following words by the Judges:

In this state of the authorities in the Mithila School we must refer to the Mitakshara for our guidance in the matter.

11. The learned Judges having come to the conclusion that the books referred to by the Katnakara, a book of considerable authority in the Mithila School, did not lay down that the succession after the husband should be according to the order in which the sisters son and others are enumerated in Brahspatis text. The enumeration in Brahspatis text is given by their Lordships of the Judicial Committee of the Privy Council in Bai Kesserbais case (1906) 30 Bom 431 as follows:

Sisters son, husbands sisters son, husbands brothers son, brothers son, son-in-law or daughters husband and husbands younger brother.

12. The learned Judge in the Court below has relied upon these two cases for his decision against the appellant. In Bachha Jhas case (1886) 12 Cal 348 the plaintiffs were the sons of the brother of the deceased husband of the widow, and the defendant as we have seen was the son of the widows sister. Upon the ground that both the parties in the dispute were mentioned in Brahspatis text, whereas in the case before us the defendant being the son of the brother of the testator is not mentioned, the appellant seeks to differentiate Bachha Jhas case (1886) 12 Cal 348 and relies upon Mohun Pershad Narain Singh v. Kishen Kishore Narain Singh (1894) 21 Cal 344 in which reliance was placed by the learned Judges deciding the case of Sree Narain Rai v. Bhya Jha 2 Sel Rep (N) 29. In Mohun Pershad Narain Singhs case (1894) 21 Cal 344 the learned Judges did not discuss the text but proceeded upon the opinion expressed by the Pandits in Sree Narain Rais case 2 Sel Rep (N) 29 which I have just mentioned.

13. But as pointed out in the judgment of my learned brother, to which I have already made reference, the case was not finally decided on this opinion, but on another point quite removed from the question of law which we have to determine in this case.

As regards Bachha Jhas case (1886) 12 Cal 348 the point of difference relied upon by the appellant is, in my judgment, of no avail to him, as the argument is that the sisters son is to be taken as the first in order as stated in Brahspatis text (although this argument was abandoned ultimately) and is therefore to be preferred to the sapindas of her husband and had the text of Brahspati been accepted, which in fact it was not, the learned Judges in deciding that case would have preferred the sisters son to the relative of her husband who although mentioned in the text was given the preference under the Mitakshara.

14. In Bai Kesserbais case (1906) 30 Bom 431 it is true their Lordships of the Judicial Committee were considering the question of the sisters son in relation to the parties who were governed by the Mayukha, Brahspatis text were relied upon in support of the sisters son. Arguments were considered by the Judges who decided the Bombay case as to the possible construction placed on placita 28 and 30 of Mayukha. Placitum 30 appeared to be in conflict with placitum 28.

15. The words in placitum 30 are:

On failure of the husband the heirs to the womans property as expounded above are thus pointed out by Brahaspati,

and it therefore fell to be determind as to the method of construction of placitum 30 in order to remove the apparent conflict. Their Lordships said:

They are of opinion that the text of Brihaspati should be read distributively as regards the property of women married according to one of the approved forms and the property of those married in one of the lower forms. In the one case those of the heirs enumerated by Brihaspati who are blood relations of the husband, namely, the husbands sisters son the husbands brothers son, and the husbands brother, will succeed to the womens property, and in the other case the relations of the father will succeed. In the diversity of opinion amongst the text writers whether Brihaspatis series of heirs take in the order in which they are enumerated, their Lordships think that the better opinion is that the order of succession is not indicated. There is no apparent reason for preferring the husbands sisters son to the husbands brothers son, or both, to the husbands brother.

16. Their Lordships went on to say that they considered that the solution was to be found in the Chandrika by reference to placitum 28. As I have said, it is true that this decision related to the Mayukha, but there is nothing suggested in the argument which would lead us to the conclusion that Brihaspatis text in relation to the Mithila School would be considered in any other light than that explained in the case to which I have just referred. And in this connexion it would appear that their Lordships referred to the decision in Bachha Jhas case (1886) 12 Cal 348 with apparent approval. The learned Judges in Bachha Jhas case (1886) 12 Cal 348 pointed out that in the Mithila School Chintamani was an authority of great weight.

17. It is a matter of considerable importance in this connexion to notice that no mention is made of Brihaspatis text in this work which is the latest in point of time in the Mithila School of Hindu Law. For these reasons it seems to me that the appellant has completely failed to support his contention that the sisters son, the plaintiff is to be preferred to the defendants as sapindas of the father of the husband. In my judgment the appeal fails and must be dismissed with costs.

Dhayle, J.

This appeal arises out of a suit for recovery of possession, of certain immovable property in the districts of Muzaffarpur and Darbhanga, and mesne profits. The bulk of the property, 12 items out of 14, belonged to one Sheoratan Lal, a Kayastha of mauza Chaupar Bharat in Muzaffarpur who died in 1883, leaving him surviving his wife Lachho Kuar and two widowed daughters-in-law, Ramdeni Kuar and Lalbati Kuar. In 1878 Sheoratan Lal had executed an ekrarnama making a testamentary disposition of his property according to which these three widows were to take the property on his death as absolute maliks and in case of death of all the three widows, Murli Manohar; defendant 1, a son of Sheoratans brother, Ramcharan Lal, was to be the heir and possessor of the property. The document also provided that:

If perchance any of the widows dies, the surviving widow shall remain in possession and become the absolute malik of all the moveable and immovable mauzas.

Mt. Lachho Kuar died shortly after Sheoratan Lal, and Mt. Ramdeni Kuar died about three years afterwards. Mt. Lalbati Kuar then came into sole possession of the property left by Sheoratan Lal together with two other items of property, one of which had been acquired) under several deeds of sale of 1869 and 1870 in the name of Ramdeni Kuar and the other was a homestead in the town of Muzaffarpur similarly acquired in 1882. Mt. Lalbati Kuar died on 22nd October 1921. Upon this Kamala Prasad, the plaintiff, claimed the property on the double ground that he was Lalbatis sisters son and as such it was said Lalbatis heir under the Mithila law which applied to the family and that he had been adopted by her in the kritrima form on 24th April 1921. The defendants Murli Manohar, Chhattu Lal and Shreodar Narain are sons of Sheoratans brother Ramcharan Lal. On Lalbatis death there was dispute between the parties in the Land Registration Department, which was decided against the plaintiff. Murli Manohar then applied to the District Judge of Muzaffarpur for letters of administration with a copy of Sheoratans will annexed and succeeded both in that Court and in the High Court in spite of opposition by Kamala Prasad and Chhattu Lal. Hence the suit.

18. In his written statement Murli Manohar denied, among other things, that Kamala was son of Lalbatis sister, that he bad been or could be adopted by Lalbati in the kritrima form or that the family was governed by the Mithila law, and said that Kamala was a son of the co-wife of Lalbati, that the family was governed by the Mitakshara law, and that under the will of Sheoratan Lal, he himself was entitled to all the properties or in the alternative that he and his brothers were entitled to them as Lalbatis heirs. Chhattu put in a written statement on much the same lines except that he did not claim that Sheoratans will operated to confer the property on Murli. There was a contest in the lower Court regarding the two properties standing in the name of Ramdeni Kuar. The learned Subordinate Judge has found that they were the self acquisitions of Ramdeni and afterwards became the absolute stridhan property of Lalbati by prescription; as there is no further dispute on that point it is unnecessary to distinguish between them and the other items of property in suit.

19. The lower Court held on a construction of the will in favour of the plaintiff that the interest if conferred upon Lalbati was not a life interest only and that the gift over to Murli did not take effect. It also held in his favour that he was a son of Lalbatis sister. But it found against him that he was not adopted by Lalbati and also that he was not entitled as sisters son to succeed to the property held by Lalbati in preference to the defendants who were her father-in-laws brothers sons. The suit was accordingly dismissed, and the plaintiff appeals.

20. It has been contended on behalf of the appellant that it should have been held on the evidence that he was adopted in the kritrima form by his mothers sister Lalbati. On this point it is perhaps desirable at the outset te refer to Mr. Jayaswals contention on behalf of Murli that such an adoption was out of the question because the family was not governed by the Mithila School of law which alone recognizes such adoptions. In their written statements Murli and Chhattu certainly alleged that the family was governed by the Mitakshara law and not by the Mithila law. There was however no issue framed on the point. An obvious explanation of this is furnished by the draft issues submitted by the parties which are on the record though the plaintiffs draft does include the issue: "Is the family of Sheoratan governed by the Mitakshara law or by the Mithila law"

21. No such question is raised in the draft for the other side. The judgment of the learned Subordinate Judge also does not show that there was any dispute before him regarding the applicability of the Mithila law to the family. The plain inference is that though the question was raised in the written statements, it was common ground at the trial that the family was governed by the Mithila law. Nor need we be surprised at this; the parties are Kayasthas settled in the Mithila country, and as Macpherson, J., recently said in Lalita Prasad Chaudhury v. Sarnum Singh AIR 1938 Pat 165 , practically every Hindu in the Maithil country, at least of Hindustani origin (such as is claimed in this case), follows the Mithila law. Moreover, on more than one previous occasion Murli himself and other members of his family have either contended for or accepted the position that the family is governed by the Mithila law.

22. In an execution case of 1923 against one Kedarnath, Murli himself contended in this Court that under the Mithila law he was the heir to Lalbatis stridhan property; in another execution case of 1926 Chhattus son spoke of forming a joint Hindu family with their father governed by the Mithila School of Hindu law; and again, in the Succession Act suite of 1927 between Murli and Kamala the District Judge of Muzaf farpur said that there was no dispute before him that the parties were governed by the Mithila School: see pp. 56, 60 and 61 of Part 3 of the paper book. In view of the defendants failure in such circumstances to have an issue framed and address the lower Court on the point, we have ruled that it is not open to Mr. Jayaswal to take the point at this stage, even though it does appear that some of the witnesses were questioned as to the law by which the family was governed. (His Lordship then examined the evidence regarding the factum of adoption and proceeded).

23. It is true that a kritrima adoption can be made without executing any document and that no particular kind of evidence is necessary to establish it. But when the only evidence adduced in support of such an adoption is oral, it requires to be examined with particular care and in the light of probabilities, and must be found to be free from suspicion and suppression of materials before it can be acted upon; the necessity of such clear and satisfactory evidence as will remove all suspicion of fraud and dispel all doubt as to its truth is all the greater in the absence of a contemporaneous record either in a deed of adoption or in entries of expenses in the family accounts: AIR 1931 84 (Privy Council) .

24. I do not think that the evidence adduced in the present case can be said to answer this test at all. Mr. Das has laid stress on the circumstances that Lalbati did, in spite of the respondents denials, live with Kamala for her treatment in Muzaffarpur and that he must have been nearer to her in affection than the respondents. But they do not suffice to show that the witnesses to the adoption are reliable. It may be said on the contrary, having regard to Kamalas singularly varied experience of the Courts, that if the adoption had been a fact, he would not have failed to keep and produce unimpeachable evidence of a different order and to give publicity to the adoption before Lalbatis death. I would therefore affirm the finding of the lower Court against the adoption. The next point that has been urged on behalf of the appellant is that even though his adoption by Lalbati in the kritima form be held not to be established, he is still entitled under the Mithua law to take her property as her sisters son.

25. As their Lordships of the Judicial Committee said in AIR 1925 280 (Privy Council) :

The law of the Mithila School is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila School has departed from the law of the Mitakshara.

According to the Mitakshara, the stridhan of a woman who dies leaving no daughter, nor daughters daughter, nor daughters son, nor son, nor sons son, devolves (1) if she was married in the Brahma or the three other approved forms, on her husband and failing him, on his nearest kinsmen (sapindas) allied by funeral oblations; and (2) if she was married in the Asura or any of the remaining forms, on her mother and father, and failing them, on their next of kin (Colebrookes Mitakashara II-XI-9-II). Colebrooke in his translation took sapindas to mean persons allied by funeral oblations; but it is now recognized that the Mitakshara made the sapinda relationship a matter of community of blood: see Ramchandra Martand v. Vinayek Venkatesh AIR 1914 PC 1 at p. 405 of 42 Cal, though the Dayabhaga notion of community in the offering of funeral oblations may be occasionally resorted to in settling questions of propinquity in the other schools of Hindu law.

26. There is also an established presumption that marriages are performed especially in the case of respectable Hindus such as we are dealing with in the present case in the Brahma form. It is thus beyond question that if the Mitakshara applied to the case the plaintiff as a sisters son would not be entitled to succeed to Lalbatis property in preference to the defendants who are her husbands fathers brothers sons.

The ground on which it is urged that the Mithila law in this respect differs from the Mitakshara is that some of the Digests which are regarded as books of authority in the Mithila School, unlike the Mitakshara, quote Brihaspatis well known verses concerning succession to the mothers sister and five other relations who are (all six) "pronounced similar to mothers." Sir Gurudas Banerjees paraphrase of these verses, which was adopted by their Lordships of the Privy Council in Bai Kesserbai v. Hunsraj Morarji (1906) 30 Bom 431 is that her sisters son, her husbands sisters son, her husbands brothers son, her brothers son, her daughters husband, and her husbands younger brother, being like her sons, inherit the stridhan of a woman if she leaves no male issue, nor son of a daughter, nor a daughter.

27. The application of these verses of Brihaspati in the Mithila School was considered in Bachha Jha v. Jugmohan Jha (1), a case in which such Mithila and other texts as were then available were examined and it was held that (though the sisterss son is the first special heir to be gathered from Brihaspatis verses) the stridhan property of a widow, governed by the Mithila law and married in one of the approved forms of marriage, goes to her husbands brothers son in preference to her sisters son.

It has however been contended on behalf of the appellant that the decision is distinguishable because there the parties to the contests were both of them to be found in the verses, while in the present case the plaintiff is but the defendants are not, among the special heirs (impliedly) mentioned by Brihaspati; and reliance is placed on Mohun Pershad Narain Singh v. Kishen Kishore Narain Singh (1894) 21 Cal 344, a case in which letters of administration were issued to a Mithila womans husbands sisters sons as preferential heirs to the husbands paternal great-grandfathers great-grandsons in the succession to her stridhan property.

28. The learned Judges did not examine the Mithila texts in Mohun Pershad Narains case (1894) 21 Cal 344, but proceeded on the view of the Pandits in Sreenarain Rai v. Bhya Jha 2 Sel Rep (N) 29 and on the view of Banerjee, J., in his Tagore Lectures of 1878 that

the group of heirs given in Brihaspatis text, i.e., the sisters son, the husbands sisters son etc., are entitled to inherit.

They seem also to have distinguished Bachha Jha v. Jugmohan Jha (1886) 12 Cal 348 on the ground that it proceeded upon the footing that the sisters son and the husbands brothers son, the rival contestants in that case, were both to be preferred to the husbands sapindas and they observe that what was decided in that case was whether the husbands brothers son took prior to the sisters son, both being of the same class, (i.e., being among Brihaspatis heirs). Bachha Jha v. Jugmohan Jha (1886) 12 Cal 348 was referred to in Bai Kesserbais case (1906) 30 Bom 431, and their Lordships of the Judicial Committee observed that the case was ultimately (i.e., after a discussion of various texts) decided in accordance with the Mitakshara on the ground that the meaning and effect of the text of Brihaspati quoted by Ratnakara (a Mithila authority) was too ambiguous to control the plain meaning of that work.

29. As regards the view of the Pandits in Sreenarain Rais case 2 Sel Rep (N) 29, it appears that the case was not decided on that view at all, having been fought in the Courts right up to the Privy Council: see Rajunder Narain Rae v. Bijay Govind Singh (1836) 2 MIA 181 (PC), only on the question whether the parties were not bound by a compromise they had entered into. It appears further that the Pandits opinion is not altogether in accordance with Brihaspatis rule.

"If the ranee"--so ran their vyavastha--left a brother, sister, sisters son, husbands sisters son, husbands brothers son, brothers son, or son-in-law, any such person is entitled to succeed to the stridhan. If she left none of these, Sreenarain and Lallutnarain, the nearest sapindas of her husband, are entitles to her peculiar property....

30. It will be seen at once that this vyavastha brings in the brother and sister in the beginning, for which no warrant is found in Brihaspatis verses (or indeed in the circumstances of that case anywhere else) and also leaves out the husbands younger brother mentioned in them. Nor does that particular vyavastha in the case appear to have been referred to by the Tirhoot Pandits with their special knowledge of Mithila law and usage. Brihaspatis verses were exhaustively discussed in Kesserbais case (1906) 30 Bom 431 which, being from the Island of Bombay, was, in matters of inheritance among Hindus, governed by the Mitakshara, subject to the doctrine to be found in the Vyavahara Mayukha where the latter differs from it. The Mitakshara does not refer to Brihaspatis verses at all; but the Mayukha quotes them with the preface that:

On failure of the husband of a deceased woman, if married according to the Brahma or other forms, the heirs to the womans property, as expounded above, are those pointed out by Brihaspati.

31. The verses say nothing about the failure of the husband, and their Lordships held that they do not prescribe any new order of succession, nor give an exhaustive list of heirs so as to exclude any heirs coming within the general Mayukha rule of "the nearest to bar in his i.e., the husbands) own family." It may here be observed that the contesting parties in Mohun Pershads case (1894) 21 Cal 344 were both of them related to the deceased woman through her husband and that the husbands sisters sons who were held entitled to succeed in preference to his paternal great grand fathers great grandsons were the more nearly related to the husband (though they were of course bhinnagotra sapindas), while the womans sisters son who was postponed in Bachha Jha v. Jugmaan Jha (1886) 12 Cal 348 to her husbands brothers son was no relation of the husband at all.

32. The contest in the present case is between a plaintiff who is not related to the womans husband at all and defendants who are his first cousins on the paternal side, Mohun Pershads case (1894) 21 Cal 344 does seem to have been decided on the view that Brihaspatis heirs do take in Mithila, and to that extent to differ from the earlier ruling in Bachha Jhas case (1886) 12 Cal 348, which was decided not on the ground (as has been suggested on behalf of the appellant) that the Vivada Ratnakara, the only Mithila authority then known to quote Brihaspati, did not indicate the order in which Brihaspatis heirs are to take, but on the ground that the authorities of the Mithila school did not on the whole lay down any definite rule so as to modify the application of the Mitakshara to Mithila, as is shown by their Lordships observation at p. 356, of the report that:

In this state of the authorities in the Mithila School, we must refer to the Mitakshara for our guidance in the matter.

33. Reference has been made before us to several Mithila authorities that were not available to the learned Judges who decided Bachha Jhas case (1886) 12 Cal 348. The Kritya Kalpadruma, also called Kalpataru, which is referred to in both the Vivada Ratnakara and the Vivada Chintamani so far as it bears on inheritance, was published with an English translation by J.C. Ghose in 1917 in Vol. 2 of his Principles of Hindu law. It begins its treatment of the property of a childless woman with Manu IX.196:

It is ordained that the property of a (woman married) according to the Brahma, the Daiva, the Arsha, the Gandharva or the Prajapatya rite shall belong to her husband alone, if she dies without issue, (Buhler in the Sacred Books of the East Series, Vol. 25, p. 371).

It then quotes Devata and Gautama, and goes on to Yajnavalkya II-144 (numbered 145 in Colebrooke II-xi 6 and 8), according to which property given to a woman by her kindred as well as her sulka and anvadheya (gifts subsequent) are to go to her kinsmen (bandhavas) if she should die without issue. It may be observed here that it is on this verse that the Mitakshara comments:

If a woman dies "without issue," i.e., leaving no progeny; in other words, having no daughter, nor daughters daughter, nor daughters son, nor son, nor sons son; the womans property, as above described, shall be taken by her kinsmen, namely her husband and the rest, as will be (forthwith) explained;

and that it is immediately after this that the Mitakshara develops from Yajnavalkyas next verse, the rule about the succession of the husband or failing him of his nearest kinsmen, when a wife, married in the Brahma or other approved form, dies without issue.

34. This last verse is not referred to in the Kalpataru, but the rule in Manu IX-196, as has been already shown, brings in the husband. The Kalpataru concludes its treatment of the topic with Brihaspatis verses. The entire treatment is almost identical with what we find in the Batnakara (which only adds a couple of quotations and some simple comments without any special Maithil flavour); and no attempt is made in either to reconcile the text of Manu with Brihaspatis verses which say nothing about the husband.

35. The Ratnakara was dealt with in Bachha Jhas case (1886) 12 Cal 348, where it was pointed out that Brihaspatis text would bring in his group of heira after the issue and before the husband and the parents, and that it enumerates the six kinsmen of the husband and of the parents mentioned therein without regard to the distinction that exists in the devolution of the stridhan property arising from the form of marriage. This distinction appears not only in the verse of Narada and Manu IX-196 and 197 quoted in the Ratnakara at the beginning of the Section (see Golap Chandra Sarkar and Digambar Chattopadhayas Vivada Ratnakara pp. 38-40), but also in the single verse of Manu similarly quoted in the Kalpataru.

36. Another book of authority in the Mithila School is the Vivada Chandra of Misaru Misra, of which two editions were published in 1931 by two advocates of this Court, Mr. Ramkrishna Jha and Mr. Priyanath Mitra. Mr. P.R. Das for the appellant has placed at our disposal an English translation of the Chapter on the Inheritance of Stridhan from the Vivada Chandra. The treatment of the topic is on much the same lines as in the earlier works, the Kalpataru and the Ratnakara, though definitions of various kinds of stridhan are inserted in, and the kanya (unmarried daughter) left out from the part dealing with the childless woman. Brihaspatis verses are quoted in this work, at the end of the chapter, with the preface:

The wealth of the mothers sister and the like in the absence of their aurasa (son), daughters son and (his) son devolves upon the sisters son and the like,

on the authority of that text of Brihaspati. But here again no attempt is made to reconcile Brihaspatis text with Manu IX-196 and 197 which are quoted earlier in the chapter and which lay down that the property of a childless woman goes to the husband or to the parents according as she was married in the Brahma (or one of four other forms) or the Asura (or other) form. For the respondent Murli Manohar and Mr. Jayaswal has argued that the Vivada Chandra confines Brihaspatis text to the property of a childless putrika (daughter appointed) who (along with her son if she has any) is dealt with just before.

37. I am entirely unable to accept the argument. The Ratnakara, which also mentions the putrika (though earlier in the corresponding Chapter), deals with the kanya (maiden daughter) immediately before proceeding to Brihaspatis verses; and if these verses are to be restricted to what is mentioned immediately before, as argued in the case of the Vivada Chandra we would on the Ratnakara be face to face with the absurdity of dealing with the question how the property of an unmarried daughter is to devolve in the event of her having no son, daughters son, etc, Tottenham and Ghose, JJ., in Bachha Jhas case (1886) 12 Cal 348, dealt with the Madana Parijata as an authority in the Mithila school mentioned in the Vivada Chintamani, and pointed out that it did not quote Brihaspati, but after quoting Yajnavalkya (II. 144-145) laid down the rule:

It (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 or sons son. If a woman is married according to either Brahma, Daiva, Araha or Prajapatya form of marriage, the husband takes her property; in his default those that are nearest of kin in the husbands family; in their absence, the nearest of kin in the fathers family.

38. This is of course quite against the appellants claim, and it has been suggested on his behalf that the Madana Parijata is not the work referred to by the Mithila writers as the Parijata. The Madana Parijata was published in 1893 in the Bibliotheca Indica of the Asiatic Society of Bengal by Professor Madhusudana Smritiratna. Some scholars have taken the view that this work was written about 1375 A.D. (see Kanes History of Dharmashastra, Vol. 1, p. 389), while others are of opinion that it was written about 1175 A.D. It is obvious that if the former date be correct, the Madana Parijata that we have before us cannot be the same as the Parijata referred to in the first verse of the concluding chapter of the Ratnakara which was written in or about the first quarter of the 14th century. At p. 15 of his introduction to Vol. 1 (Edn. 3) of his Principles of Hindu law, J.C. Ghose, who takes the later date for the Madana Parijata (see p. 14 of his introduction to Vol. 2 of the same work), expresses the opinion that the Madana Parijata as we have it is probably based on the

famous commentary called the Parijata which is cited in the Ratnakara and other early works.

39. This would seem to be supported by Sarvadhikaris unchallenged assertion (see p. 298 of his Hindu law of Inheritance, Tagore Law Lectures, 1880. Edn. 2) that

by a comparison of the questions from the Parijata in subsequent worka whose dates are ascertained, it will appear that we cannot give such a late date

as 1375 A.D. to the Madana Vinoda, work, the author of which is commonly taken to be identical with the patron of Visvesvara Bhatta, the author of our Madana Parijata. Pandit Madhusudana Smritiratna, the editor of the Madana Parijata, begins his (Sanskrit) preface with the statement that the work is a high authority because it was respected by such well-known modern authorities as Vachaspati Misra, Chandesvara, Raghunandan, Mitra Misra, Kamalakara, Nanda Pandit etc. A law Court is perhaps hardly the place for settling a controversy among scholars about the date of an old Hindu Law Digest; but we have had lawyers on both sides in this case who are familiar with Sanskrit, and none of them, though invited to do so, has referred us to any quotation in the Ratnakara and the Chintamani from the Parijata which is not to be found in the Mariana Parijata. For the appellant, reference is made to Item 257 in Jayaswal and Banarji Sastris Descriptive Catalogue of Manuscripts in Mithila, Vol. 1, Smriti Manuscripts 1921, which mentions a work called the Parijata by one Bhanudutta as quoted by Vachaspati and Chandesvara. But we do not know any more of this work than that its subject is not Vyavahara (Jurisprudence) but Tithivichara, and it is therefore impossible to regard it as of any importance for the purposes of the present case.

40. That the Madana Parijata of Visvesvara Bhatta, be its date what it may, has long been regarded as an authority in the Mithila School seems clear from its mention by Sir W. Macnaghten (who referred to the author as Madanopadhyay a) as among the authorities to which respect is chiefly paid in Mithila, and by Morley who says in his introduction to his Digest (1850). Vol. I, p. ccxii;

The Madan Parijata, a treatise on civil and religious duties, by Visvesvara Bhatta, but containing a chapter on inheritances, is likewise a Mithila work, and prevails also in the Mahratta country: it quotes the Sapararka, the Smriti Chadrika and the Hemadri. This work was composed by order of Madana Pala a prince of the Jath race, and is sometimes cited in his name. Sir W. Macnaghten calls the author Madanopadhyaya.

(See also Morley, page ccxxi, Shyama Charan Sarkars Vyavastha Chandrika, Preface, p. 19, and West and Buhlers Digest, p. 53). It seems to me that in the circumstances we are not entitled to ignore the Madana Parijata as an authority in the Mithila School merely because of the controversy regarding its date. P.C. Tagore also mentions it in the order of Succession to the Peculiar Property of women, prefixed to his translation of the Vivada Chintamani.

41. Another work of authority in the Mithila School, which is now available, is the Dvaita Parisishta of Kesava Misra, or rather that version of it which we owe to his pupil Kalyana Misra under the designation of Suslishta Parisishta (Amara Press, Benares). This work has not been translated into English, nor have we been informed whether it mentions Brihaspatis verses or even lays down any rule at all regarding succession to a childless woman. It is therefore of no assistance to the case of the appellant who has to show that the Mitakshara is definitely modified by the Mithila authorities so as to postpone the husbands first cousins to the sisters son.

42. Mr. Jayaswal has also referred to the Dipakalika, Sulapanis commentary on the Smriti of Yajnavalkya (J.C. Ghose, Vol. 2, p. 549..49.51). Dealing with Yajnavalkya 2; 143-145, the commentator quotes Brihaspati on the right of succession to the mothers sister and the like in default of "the husband and the like," and ends by at once stating the Mitakshara view that in default of the husband the property devolves on his nearest sapindas. This can only assist the respondents (Mr. Jayaswals arguments on Mithila law have been adopted by the learned advocate for Chhattu Lal, Murli Manohars elder brother) in so far as Sulapani makes no attempt to reconcile Brihaspati with the Mitakshara view (though unlike the earlier writers, he mentions the failure of the husband) or to lay down definitely that the Mithils, of whom he was one, take a different view from the Mitakshara on their interpretation of the text of Brihaspati which Vijnanesvara had failed to notice.

43. It has been contended for the appellant that Sulapani is not regarded as and authority in Mithila, and this contention is not fully met by Mr. Jayaswals reference to Morleys Digest. What Morley says at p. ccxiii of his Introduction is that Sulapanis treatise on penance and expiation is consulted as an authority both in Bengal and Mithila, while the Dipakalika is said at p. ccvii (on the authority of Colebrooke) to be "in deserved repute with the Gauriyaschool" (only). Upon the whole I am not prepared to attach much weight to the Dipakalika as in favour of the respondents, and the appellant has asked for no more.

44. It was shown in Bachha Jhas case (1886) 12 Cal 348 that the Vivada Chintamani, "a work of the highest authority in the Mithila School" (their Lordships of the Judicial Committee in Balwant Singh v. Rani Kishori (1898) 20 All 267, called it "the leading text book" of this school), stops short with the husband and the parents (according to the form of marriage) as a childless womans stridhan heirs, and does not proceed to discuss or lay down who are the next in succession. It is noteworthy that writing though he did after Chandesvara and (it is said) also after Misaru Misra, Vachaspati Misra did not refer to Brihaspatis verses.

45. It may thus be said that the earliest authority in the Mithila School, as represented by the Madana Parijata (for the Kalpataru cites the Parijata), and the latest also (so far as the Suslishta Parisishta is not shown to differ from the Vivada Chintamani) do not notice Brihaspatis text, and that the intermediate authorities who do quote Brihaspati make no attempt to indicate whether the special heirs mentioned in that text do or do not, all or any of them, come before the husband mentioned in the Manu Smriti which they quote and which is still commonly studied in Mithila.

46. The Kalpataru and the Vivada Chandra carry the case no further than the Ratnakara and leave the Mithila law where it was when Bachha Jhas case (1886) 12 Cal 348 was decided; and it cannot be said that these Mithila authorities, unlike the Madana Parijata and the Chintamani which (like the Mitakshara) do not refer to Brihaspati at all, make any definite departure from the Mitakshara in favour of the sisters son and the other five special heirs (often called "secondary sons") to be gathered from Brihaspatis verses. The Mayukha with its attempt to supplement the Mitakshara by quoting Brihaspati and specifically allotting a place to them in the succession to Stridhan property was considered in Kesserbais case (1906) 30 Bom 431 with the result already stated. Their Lordships of the Judicial Committee said enough, it seems to me, in that case to show that as little effect can be given to Brihaspatis text (against the clear Mitakshara rule)

47. under the Mayukha as under the Ratnakara; and as I have shown, the new Mithila authorities referred to before us--the Kalpataru and the Vivada Chandra--do not alter the situation. Mr. P.R. Das has urged that the decision in Kesserbais case (1906) 30 Bom 431 turned on the view definitely expressed by Nilkantha that the stridhan heirs, after the husband or the parents, are the kinsmen nearest to the deceased woman in those respective families (Ch. 4, Section 10., placitum 28); but the Mitakshara lays down much the same rule (the difference such as it is being immaterial for the purposes of the present case); and the Mithila authorities have none of them expressed any view of their own as regards the succession after the husband or the parents, so that there is no reason at all, apart from the recitation of Brihaspatis verses in some of the Mithila books, to suppose that in this part of India Stridhan property will devolve after the husband or the parents in a manner different from that laid down in the Mitakshara.

48. The Mithila books do not go beyond a mere paraphrase, and that too in some cases only, of Brihaspatis verses regarding the place of the secondary sons in the order of succession. In this respect then the Mithila School is in a much weaker position than the Mayukha vis-a-vis the Mitakshara which prevailed in Kesserbais case (1906) 30 Bom 431. The parties to the contest in Kesserbais case (1906) 30 Bom 431 included one secondary son, the husbands brothers son, and it was held that notwithstanding Brihaspatis verses the co-widow was entitled to preference over him. The appellant cannot therefore succeed merely because he is, and the respondents are not, found (by implication) in Brihaspatis verses, unless the Mithila authorities be taken to have laid it down as their view on that text (and they have not) that Brihaspatis heirs are to be preferred in such contests.

49. In Kesserbais case (1906) 30 Bom 431 their Lordships of the Judicial Committee referred with apparent approval to the lines on which Bachha Jhas case (1886) 12 Cal 348 was decided; no reference was made to the decision in Mohun Pershads case (1894) 21 Cal 344, doubtless because the Mithila textbooks were not dealt with in this latter case. Brihaspatis verses are also found in the Smriti Chandrika and several other works of more or less authority in the Dravida or Madras School, and it was held in Raju Gramanni v. Ammani Ammal (1906) 29 Mad 358, shortly before the decision in Kesserbais case (1906) 30 Bom 431, that the sisters son was not to be preferred to the sister in the case of Sudras, having regard to the fact that Brihaspatis text did not seem reconcilable with the rules of descent deducible from the Mitakhshara, that the Dravida commentaries did not show any consensus as to the precise application of the text and that there was nothing to show that as a matter of usage the text was followed in preference to the general Mitakshara doctrine. Brihaspatis verses are also found in the Viramitrodaya, a book of considerable authority in the Benares School, which places the secondary sons after the womans issue and the issue of her co-wife

in spite of the sapindas, such as father-in-law... by virtue of this text, which is not reconcilable in any other way.....

50. This was commented upon in Bachha Jhas case (1886) 12 Cal 348 and in Jagannath Prasad Gupta v. Runjit Singh (1898) 25 Cal 354, a case of the Benares school, a sapinda of the husband was preferred to the sisters son, while in Ganeshi Lal v. Ajudhia Prasad (1906) 28 All 345, the sons of her husbands sister were preferred to the sons of her own sister under the Mitakshara rule which places the husbands sapindas after him. It is true that in this last case the contestants were all of them secondary sons, but it is significant that there was no suggestion that they should succeed in the order in which they are to be found in Brihaspatis verses. In the only remaining school of Hindu law, we have the Dayabhaga laying down that Brihaspatis text "is propounded not as declaratory of the order of inheritance," but as merely expressing the fact that the relations mentioned in it do succeed, though in accordance with the general order of succession which is governed by the various degrees of benefit conferred on the owner by the oblation of food at obsequies.

51. The result is that in none of the other schools of Hindu law the sisters son has been preferred under Brihaspatis text to the husbands sapindas, nor have the Mithila books laid down a definite rule departing from the Mitakshara. We must therefore as in Bachha Jhas case (1886) 12 Cal 348 give effect to the Mitakshara rule in the present case and hold that the appellant is not entitled as a sisters son to preference over the respondents.

Mr. Jayaswal has also endeavoured to support the decision of the lower Court on two grounds. One is that the appellant is not in any case entitled to the whole of the property because he admittedly has one brother, Narsingh, who was not joined in the suit. Mr. Das has urged in reply that this objection was not taken in the written statements, and that if it had been taken, the appellant might possibly have been able to meet it by showing some such ground as that he had come to some arrangement with his brother. But the existence of the brother came out in the examination-in-chief of appellants own witness Chaturbhuj, and it has not been suggested that any attempt was made to show how the appellant was entitled to the whole property in spite of the existence of Narsingh.

52. It seems to me that in these circumstances the appellants claim as a sisters son could not, in any event, have been allowed in full. The other point urged by Mr. Jayaswal is that what Lalbati and the other widows took under Sheoratans will was no more than a life estate and that therefore on the death of Lalbati, Murli became entitled to the estate under the will itself. The will makes the widows (absolute) maliks; and as their Lordships of the Judicial Committee observed in Mt. Sasiman Chowdhury v. Shib Narayan Chowdhury AIR 1922 PC 63,

the term malik, when used in a will or other document as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights, including the full tight of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred.

53. Mr. Jayaswal has urged that only life interests were conferred upon the widows because Sheoratan says that he executed the deed

for keeping intact the management of the household affairs, name and fame of the family and comfortable living of my wife and both the daughters-in-law.

The will must however be read as a whole, and Mr. Das has said without contradiction that Sheoratan belonged to a family of well-known mukhtars of the Calcutta High Court. There is therefore no reason to suppose that the testator used the term malik to mean less than full proprietary rights. I am the less able to accept the contention that the will conferred a life estate only on Lalbati, because on that view the residue of the estate will have to be treated as undisposed of by the will.

54. The gift over to Murli Manohar, "in case of death of all the three Musammats" has already been held by this Court in the probate case (see p. 49 of Part 3 of the paper book) to fail u/s 124, Succession Act, because the uncertain event of the death of the three widows happened after the death of the testator. The decision may or may not be res judicata, (for the learned Judges finally proceeded upon another ground), but is plainly in accordance with Section 124, Norendra Nath Sircar v. Kamalbasini Dasi (1896) 23 Cal 563, a case which was recently referred to by their Lordships of the Judicial Committee in AIR 1932 269 (Privy Council) . Sheoratans will in no way indicates any particular time for the occurrence of the uncertain event of the death of the three widows upon which the gift over to Murli Manohar is to take effect; for Murli Manohar to take anything under the will, it was therefore necessary that the uncertain event should happen before the testators death. The point raised by Mr. Jayaswal therefore fails. As the points raised on behalf of the appellant fail, I would dismiss the appeal with costs.