Authored By : O Kinealy, T. Ameer Ali

O Kinealy and T. Ameer Ali, JJ.

1. This is an appeal from the decision of the District Judgeof Tirhut, refusing to grant letters of administration to the appellants.

2. The appellants state that Punit Koer, who died on the 3rdof December 1890, at Mozufferpore, had left moveable and Immovable property inthe nature of stridhan, and applied to be allowed to administer the estate.

3. In answer, it was stated that the lady left no propertyas stridhan, that the property was really her husbands, who was the last fullowner; and even if she had any property, still the applicants, not being thenext heirs, ought not to get administration.

4. On the case coming on before the Judge in the Courtbelow, two points of the nature already stated were raised for decision--(1)Was the property stridhan (2) If so, who are the heirs

5. The Judge came to the conclusion that the lady had nostridhan, and as she had no estate, no administration could be given. He didnot decide the second point. The facts of the case are as follows: One RamGobind Singh held property jointly with others. In 1863, he applied for thepartition of the property. The partition proceedings commenced in 1864, andwere completed in August 1866. Somewhere about November 1864, he gave 19 gundasof Rajkhund and of Sarkhand Bhitto to Punit Koer. That lady and Ram Gobind bothapplied for partition, and in the application Ram Gobind stated that he was allalong in possession. The partition was made in March 1866, the usual papersshowing the definite shares allotted to each were made out, and the partieswere placed in possession of their shares in the usual way. Sometime after RamGobind died. We do not know the exact date, that is to say, whether it was in1868 or 1869. In 1877 the lady, who up to that time had been only entered inthe batwara register, and in the register in existence before 1876 in theCollectorate, applied and had the estate of Sarkhand, etc., which formed the 19gundas, registered in her name, she being described as the owner. In the sameyear she also applied and succeeded in having her name entered as owner of theproperty 1 anna 1 gunda, not by gift, as the 19 gundas, but by inheritance.Therefore, we find that, so far as the 19 gundas are concerned, we have itstated, so far back as 1864, that she was in possession. It also appears thatshe was given possession under the batwara; and in the subsequent proceedingsand dealings with the property she is described as in possession; so that up to1890, that is, for a period of nearly 26 years, the ostensible title is in thelady, so far as the 19 gundas are concerned.

6. It has been argued on behalf of the respondent in thisCourt, that, although it is impossible to contest the fact that the lady wasthe ostensible owner of the property, still she was never in possession, and nogift was ever made to her; and in support of that contention the evidence of aperson who was at one time dewan is relied upon. He states that although thejamabandi accounts were separate, the collections were joint; and the propertywas in Ram Gobinds name. Again, there is an entry in her petition, tiled in1877, to get the registration of her name, that she obtained possession of theproperty on a certain date; and that date is undoubtedly the date of herhusbands death. But if we read it in conjunction with the remarks under the11th head of that petition, it seems quite clear that she contended that shehad been in possession on the date of the partition. On the other hand, thereis the evidence of another individual who also was undoubtedly an officer underher husband, and of a ryot and a patwari. Their evidence goes to show that thelady had all along held these properties as separate and has dealt with them asher own. It thus appears that for a long period the ostensible title is in thelady. We think the respondent has not shown to us that the estate comprising 19gundas which she claimed to have received from her husband, so far back as1864, did not really belong to her as owner, but formed part of her husbandsestate. Moreover, it appears from the schedule of the properties filed with theapplication, that some of the moveables and ornaments must belong to the lady.Ram Gobind died so far back as 1868; and the only reasonable conclusion we cancome to is, that these ornaments and garments really did belong to the lady.

7. Now, although we have come to the conclusion, for thepurposes of the present suit, that the lady has an estate to administer, wewish carefully to guard ourselves from being understood to attempt finally todetermine either the nature or the extent of her estate.

8. The next point raised is in regard to the right of beingheir or successor to the ladys stridhan. She belongs to a family governed bythe Hindu law of the Mithila school. So far back as the year 1812, in the caseSree Narain Rai v. Bhya Jha 2 Sel. Rep. (O) 23, (N) 29, the Pundits of theSudder Dewany Adawlut gave their vyavasthas as follows: "Supposing thatthe Rani did not appoint Bhya Jha her adopted son, he would not inherit herstridhan; the son of the mothers brother not being one of the legal heirs toher peculiar property. If the Rani 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 ofthese, Sri Narain and Lullut Narain, the nearest sapindas of her husband, areentitled to her peculiar property as well as the Rajahs estate" Indealing with the subject of "peculiar property" under the Mithilaschool of Hindu law in 1878, Mr. Justice Banerjee stated that, after thehusband or the parents, the heirs would be those mentioned by Vrihaspati. Afterthem the order of succession would be the same as that according to the Dravidaschool." According to Vrihaspati, on failure of heirs down to her husband,a womans property goes as provided in the following text: "The motherssister, the maternal uncles wife, the paternal uncles wife, the fatherssister, the mother-in-law, and the wife of an elder brother, are pronouncedsimilar to mothers. If they leave no issue of their body, nor daughters son,nor his son, then the sisters son and the rest shall take their property."By "sisters son and the rest" is meant those persons who are in thesame category as the sisters son, that is to say, husbands brothers son,husbands sisters son and others. That seems also to have been the view takenby the Pundits in the case of Sree Narain Rai v. Bhya Jha 2 Sel. Rep. (O) 23,(N.) 29 (34), and by Mr. Justice Banerjee in his Tagore Lectures of 1878, wherehe says that "the group of heirs given in Vrihaspatis text, i.e., thesisters son, the husbands sisters son, etc., are entitled toinherit." Then it is argued that whatever may have been the opinion up to1878, still there is no direct decision upon the point. The question is stillopen, and it is further asserted that the case of Bachha Jha v. Jugmon JhaI.L.R. Cal. 348 is entirely opposed to that opinion. According to thatdecision, the respondents argued that the sapindas are not postponed to thesisters son and the husbands sisters son. But it seems to us that that caseis in no way antagonistic to the opinion we have expressed. In that case it isadmitted that the husbands brothers son and the husbands sisters son werethe heirs. It was even pointed out at page 354 of the report that, according toa book which is of some importance in the Mithila school, the sisters son tookthe peculiar property; what was decided in that case was not whether the classof sisters sons came before or after them, but whether the husbands brothersson took prior to the sisters son, both being of the same class. We can find nothingin that judgment which could support the present contention. Indeed, the caseproceeded upon the assumption that the sisters son took before the husbandssapindas. During the discussion of the case it was asked whether the husbandsbrothers son or the sapindas took first. It was not controverted that in thatcase the husbands brothers son would succeed.

9. Looking, therefore, to the circumstances of the case, wethink we ought to allow this appeal. The decision of the lower Court mustaccordingly beset aside; and we direct that letters of administration do issueto the applicant, upon his putting in the usual security to the satisfaction ofthe lower Court.

10. The appellants are entitled to costs.

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Mohun Pershad Narain Singh and Ors. vs. Kishen KishoreNarain Singh (05.07.1893 - CALHC)