Bai Kesserbai v. Hunsraj Morarji
BS651823
PRIVY COUNCIL
Before:-Lord Davey, Sir Andrew Scoble and Sir Arthur Wilson.
0 D/d. 23, 27, 28.02/
09.05.1906.
Bai Kesserbai - Plaintiff
Versus
Hunsraj Morarji - Defendant
On Appeal From the High Court at Bombay.
Solicitors for Appellant :- Ashurst, Morris, Crisp & Co.
Solicitors for Hunsraj Morarji :- Payne & Lattey.
Solicitors for Bai Monghibai - Rawle, Johnstone & Co.
Hindu Law of Inheritance in Bombay - Stridhan - Mitakshara, C. ii., Section 11, verses 8, 9 and 11
Appeal from a decree of the High Court (February 10, 1904), reversing a decree of Batty J. (February 21, 1903) and dismissing the appellant's suit. The question between the parties was one of law, whether the appellant is the preferential heir according to the Hindu law of the Bombay school of a Hindu widow named Bachubai, who died childless and intestate on May 9, 1899.
The property in dispute is a house in Bombay which was Bachubai's stridhan, and of which she died possessed. The claimants thereto were the appellant, the surviving co-widow of Bachubai's husband Koreji Haridass, who had conveyed absolutely the property to Bachubai on November 24, 1892, in contemplation of marriage; the first respondent Hunsraj Morarji, who was the separated nephew of Koreji, being the son of his eldest brother, who pro-deceased Bachubai; the second respondent Bai Monghibai, who was the widow of a younger brother of Koreji named Ranchordas Haridass, who survived the widow.
The issues fixed were (1) - whether, on the death of Bachubai, Ranchordas Haridas was not the heir of Bachubai and succeeded to the property mentioned in the plaint. (2) whether the first defendant, as widow and heir of Ranchordas, is not entitled to the property the subject-matter of this suit (as the heir of Ranchordas Haridass); (3) whether the plaintiff is entitled to succeed.
Batte J. decided that the deed of gift dated November 24, 1892, conferred on Bachubai an absolute estate in the property as stridhan; and that by the Hindu law of the Bombay school the plaintiff was next heir to Bachubai and entitled to succeed. He accordingly made a decree granting the appellant (plaintiff) possession of the property in dispute and directing account to be taken of the rents and profits.
His judgment, after referring to Manilal Rewadat v. Bai Rewa (1892) I.L.R. 17 Bomb. 758, relied on by the plaintiff as shewing that the heir to succeed is the nearest to the woman herself though in her husband's family, and to Vijiarangum v. Lakshman (1871)8 Bomb. H.C. R. 244 : 260 O.C.J., relied upon by the defendant No. 2, proceeded as follows:-
"The decision in Vijiarangum's Case (1871)8 Bomb. H.C. R. 244 : 260 O.C.J. is undoubtedly binding on this Court. It is cited by Banerjee (Hindu Law of Marriage and Stridhan, Tagore Lectures, 1878, 2nd ed. p. 364) as in accordance with Kamalkar's interpretation of Vijnyanesvara's rule that the successive heirs after the husband would be the step-son, the step-grandson, the rival wife, the step-daughter, her-son, the step-grandson, his father, his brothers, their sons, and the husband's other gotraja sapindas and bandhus in the order in which they inherit his property. And this rule is as stated, p. 362, that given in the Mitakshara for the devolution of the property of a male owner dying without issue.
"The Mayuka treating of parabhashika stridhan or stridhan proper of a widow when the marriage is in the Brahma, or other unblamed form, recognizes the husband and his kinsmen as the heirs, basing its rule on the same text of Yajnavalkya that is followed in the Mitakshara on the subject, and if there be no husband, then the nearest to her in his own family takes it; the heirs being necessarily the sister's son, the husband's sister's son, the husband brother's son, the son-in-law, and the husband's younger brother in succession. But the point of bifurcation where the Mitakshara and Mayukha separate appears to be a point (below the widow in the series of successive heirs) at which the question arises as to the order of succession among the husband's kinsmen.
"In Gojabai v. Shrimant Shahajirao Maloji Raje Bhosle (1892) L.L.R. 17 Bomb. 114 the wife is spoken of as having been born again in the husband's family, so that, she having become half the body of her husband, the son of a man by one of his wives is the son of all his wives, and it is for this reason (2) that the step-son treated, not as the husband's sapinda, but as an actual son of a widow whose stridhan is in question. It is not as sapinda but as her own offspring that he takes precedence, and is the sapinda of his step-mother, who is therefore as coming in before the husband himself, owing to the absolute identity of the widow with her husband. This identity of the widow with her husband appears to have been the ground of decision in the case of Gojabai, and is the reason why the step-son in that case was held to come in even before the co-widow who opposed his claims as he would apparently have done even before the husband. But when there are no children and the husband is next entitled the widow of the husband, being identified with him as half of his body, seems equally entitled to precedence before the question can arise as to who are the nearest heirs in default of the husband. The husband's kin are, I think, in view of this decision, by which I am bound, excluded by the husband himself as represented by the co-widow who survived him. This seems to be in accordance with the passage in Telang J.'s judgment, in which he observes that according to the view of some writers the step-son of step-grandson comes in next after the offspring of the woman herself, and before her husband; and that according to the view of others he would come in after the husband, but before his other wives and such other wives; daughters, and, of course, before other more distant heirs, including the brother's son.
(2) (Ibid, 120, 121.)
"The remarks that follow this passage indicated that it is the recognised identity of the wife her husband that entitle a co-widow's children, and a co-widow herself, to take precedence respectively as sapindas of the wife herself, or as representing the husband himself, before resort is had to the husband's sapindass at all. For the above reasons I think the plaintiff is entitled to the relief sought."
Hunsraj Moraji appealed, making Bai Kesserbai and Bai Monghibai respondents. The latter also filed objections to the decree under section 561, Act XIV of 1882 (Civil Procedure Code). In the High Court it was conceded that under the deed of gift Bachubai took a limited interest and that her legal heirs took as purchasers. The High Court decided that whatever class of stridhan the property may have been in the hands of Bachubai, by the terms of the deed of gift the persons entitled to succeed as heirs to Bachubai were the persons entitled to succeed to her ordinary stridhan. It held that Bai Kesserbai was not under the Hindu law of the Bombay school the next heir to Bachubai's ordinary stridhan, and dismissed the suit with costs.
The material portion of the Chief Justice's judgment was as follows:-
"Before us for the first time it has been argued that the legal heir of Bachubai must be determined by references to the peculiar course of descent of the types of stridhan called sulka: and this view has been supported before us by a very able argument advances by Mr. Setlur. But there are many difficulties in the way of accepting this contention. In the first place the devolution of sulka does not correspond with the course of succession delineated in the deed of November 24, 1892. In the next place the interest of Bachubai was not (as sulka is) hereditable; she took merely a limited interest, and her legal heirs do not take as such, but because they fall within the description of the donees under the terms of the deed. Then, again, even if it could be said that the limited interest taken by Bachubai under the deed was a modernised form of sulka, it still would be a question whether the heir to take under the gift should be ascertained by reference to that form of stridhan. The quality of the subject-matter does not necessarily affect the meaning of the word "heirs," and in illustration of this I may refer to Garland v. Beverley (1878) 9 Ch. D. 213, where it was held that in a gift of gavelkind land to the right heir of a person, it was the right heir according to common law and not in reference to the descent of gavelkind that took under the gift. So here it is at least an arguable point, even if Bachubai's limited interest could be regarded as sulka, whether the effect of the gift of her heirs is or is not to be determine by reference to the exceptional course of descent peculiar to that particular class of stridhan. It would be undesirable to dispose of this appeal, on a point involving so much of doubt, which might have been cleared by evidence had it ben raised at an earlier stage.
"The possibilities in this direction are exemplified by Sir Charles Sargent's decision in the P.J. for 1893 : Chunilal v. Itchachand (1893)P.J. 88. Therefore I prefer to rest my opinion on the hypotheses (which I will assume for the purpose of this case) that the legal heirs indicated are those who would be entitled to Bachubai's ordinary stridhan. Now let me test the case in the first instance with reference to the descent of technical stridhan. Admittedly this case is governed by the Mayukha, which differs from the Mitakshara in is treatment of the descent stridhan in that it imports the rule of devolution derived from the text of Brihaspati. This rule is not introduced absolutely, but with the qualification that it comes into effect on failure of the husband.
"In the course of his judgment Batty J. refers to this rule, and in reference to it says 'the point of bifurcation where the Mitakshara and Mayukha separate appears to be a point (below the widow in the series of successive heirs) at which question arises as to the order of succession among the husband's kinsmen.' From the succeeding passage of the judgment it would appear that the position there ascribed to the widow depends upon her identification with her husband in the sense there indicated. But I am aware of no passage in the Mayukha that can be taken as a warrant for this identification, or for the conclusion that when Nilakantha uses the word 'husband,' as he does in reference to the passage of Brihaspati, he includes in it the wife. Batty J., in support of this view and as authority for it, relies on the judgment of Telang J. in the case of Gojabai v. Shahajirao I.L.R. 17 Bomb. 114; but that case turned upon the Mitakshara, and at pp. 122 and 123 Telang J. points this out. He there deals specifically with Brihaspati's text, and no doubt subjects it to a certain amount of criticism; he suggests a want of harmony between the rule deduced by Nilakantha from Yajnavalkya and the enumeration of heirs in Brihaspati's text, and contends that some of those named in the text would not answer the description of being nearest in the husband's family. But this criticism appears to me to lose sight of the fiction on which the text is based; this is now the passage runs in the Mayukha: see Mandlik, p. 98, 'on failure of the husband,' to 'the daughter's son.' This involves the consequence that the sister's son, the husband's sister's son, the husband's brother's son, the brother's son, the son-in-law, and the husband's younger brother are equal to sons.
"They obviously are not sons in fact, but a fiction is here created whereby they stand in the position of sons, and were the facts in accordance with the fiction (as must be assumed), then there would be no inconsistency and no want of harmony.
"It will be notices that the fiction only arises on failure of issue and of the husband, but in that I can find nothing that saves the right (if any) of the rival widow against these fictional heirs. At first sight the fiction no doubt appears capricious and unreasonable, but it would appear to be not without foundation. An interesting light is thrown on this subject by Mr. Golapchunder Sarkar in his work on Hindu Law, pp. 328, 329. As far as I can learn, what he there depicts present a substantially accurate representation of relations in Bombay. The conclusion, then, to which I come is that, as at Bachubai's death she left surviving her a younger brother and a nephew of her husband, her rival widow cannot claim to have been her heir."
Cohen, K.C., and De Gruyther, for the appellant, contended that by the Hindu law of the Bombay school she was entitled, on the death of Bachubai, to succeed to the stridhan in suit as the deceased's co-widow. The applicable law was that which prevailed generally in Western Indian, that is, the Mitakshara controlled by the Vyavahra Mayukha on all points upon which those treatises differed. Refences was made to Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 Moo. Ind. Ap. 435; Lallubhai Bapubhai v. Mankuvarbai (1876) I.L.R. 2 Bomb. 388, 417; Krishnai Vyanktesh v. Pandurang. (1875) 12 Bomb. H.C. 66. By the true construction of the deed of gift in this case Bachubai took an absolute in the property in suit as her stridhan. The rule of succession thereto was prescribed by the Mitakshara, c. ii., section 1, verses 5 and 6, Stokes Hindu Law Book, p. 428 ; c, ii., 11, verse 1 Stokes, p. 458; Golapchunder Sarkar's Hindu Law Lectures, 1888, pp. 34, 283. The interpretation put upon these texts is to be found in Mussumat Thakoor Dehee v. Rai Baluk Ram (1866) 11 Moo. Ind. Ap. 139, Gojabai v. Shahajirao Maloji Raje Bhosle (I.L.R. 17 Bomb. 114, 117 and Krishnai v. Shripati. (1905) I.L.R. 30 Bomb. 333 ; 8 Bombay L. Reporter 12. According to these texts the appellant is the preferential heir to Bachubai, who let neither husband nor issue of her husband, whether by herself or any co-wife, her surviving. The ground of her preference to her husband's collaterals is that she was married by one of the approved forms and is the nearest sapinda of her husband, therefore, by reason of her absolute identity with her husband as half of his body, the nearest absolute identity with her husband as half of his body, the nearest sapinda of her co-widow. She represent her husband for the purposes of this succession. Then does the Mayukha control the Mitakshara on this point by laying down a different rule? Reference was made to the Mayukha, c. iv., s. 8, verses 19; Stokes, p. 89, c. iv., s. 10. verses 27, 28, 30; Stokes, p. 105. It was contended that the Mitakshara and Mayukha must be construed so as to harmonise with one another so far as that is possible. The 28th verse did not prescribe any different order of succession from the Mitakshara. In that verse the heirs order of succession from the Mitakshara. In that verse the heirs of the wife are described as the nearest sapindas of the wife in the husband's family, or the nearest to her in the father's family, as the case may be. The list given is not exhaustive, it does not exclude the co-widow or any other sapinda of the husband, and it does not proceed or any new order of succession from that prescribed by the Mitakshara. So far, therefore, , the Mayukha does not control the leading treatise. Then as regard verse 30, it is too uncertain in its language and meaning to be capable by itself of introducing a new order of succession not shewn to have been completed by verse 28. The difficulty arises with the verse which refers to a text of Brihaspati. But if that verse is construed distributively according as the woman who is the root of descent was married according to one of the approved forms or in of the lower forms its inconsistency with verse 28 and with the Mitakshara can be obviated. The result will be that in the one case her husband's relations will succeed, in the other her father's relations will succeed. The text gives the two classes of heirs promiscuously and partially, and enumerates them in an order which is at variance with recognised principles of Hindu inheritance. By recognising that no order of succession is prescribed and that two classes of heirs are mixed up together it is possible to construe verse 30 in a way which will not conflict with the earlier verse or with the Mitakshara; and that construction ought, therefore, to be adopted. References was made to Bachha Jha v. Jugman Jha (1885) I.L.R. 12 Calc. 348, 351; Lallubhai Bapubhai v. Mankuvarbai I.L.R. 2 Bomb. 388; S.C. in appeal (1880) L.R. 7 Ind. 121, 231. See also the Dayabhaga, c.iv.,s.3; Stokes, p. 251; Mayne's Hindu Law, 6th ed. p. 38, ss. 500, 669; Shamachurn Sarkar's Vyavastha Chandrika, vol, vol.ii.,pp. 538, 539; Mitakshara, c.ii.,s.3, verse 5 ; Stokes, p. 443. Mohandas v. Krishnabai (1881)I.L.R. 7 Ind. 212, 213.; Daya krama Sangraha, c.ii., s. 6; Stokes, p. 498 ; Banerjee on Marriage and Stridhan (Tagore Lectures, 1878, p. 375; 2nd ed., p. 364); West and Buhler's Digest of Hindu Law, p. 517; Gojabai v. Shahajirao Maloji Raje Bhosle I.L.R. 17 Bomb. 114, 121, 123; Rahi v. Govind Valad Teja (1875)I.L.R. 1 Bomb. 97, 106. The result is that Mayukha interprets the Mitakshara as meaning, not that her husband's sapindas inherit her stridhan, but that her nearest sapindas in her husband's family inherit. This points to the co-widow by a different process from that indicated in the Mitakshara, and accordingly there is no sufficient ground for saying that the order of succession prescribed by the Mitakshara has been in any efficient by the Mitakshara has been in any efficient and operative manner controlled by the Mayukha. Accordingly by both authorities the co-widow succeeds to a childless widow's stridhan in preference to her husband's collateral relatives, including the brother's son or other representative.
Jaridne, K.C., and W.C. Bonnerjee, for the first respondent, Hunsraj Moraji, son to the brother of Bahubai's husband, contended that, according to the Bombay school of Hindu law as expounded in the Vyavahara Mayukha, a co-widow cannot succeed to a woman's stridhan in preference to either her husband's younger brother or nephew. They agreed that Bahubai took an absolute estate in the property in suit. They referred to verses 28 and 30 c.iv., s.10, of the Mayukha, and contended that the latter controlled the former. Verse 28 was more general in its meaning and terms, while verse 30 was more definite, and prescribed an enumeration of heirs and nearest kinsmen (alter the failure of the husband) founded on the rule of devolution which it derived from the text of Brihaspati. The widow comes in as sapinda to the husband under verse 28, but her preferential claim defends upon her identification with her husband. That identity is the ground of a dictum in Gojabai v. Shrimant I.L.R. 17 Bomb. 114, to the effect that her step-son succeeds as her son before the husband himself, inasmuch as, on account of the step-son, she is not herself childless. That case, however, merely relates to the preferential claim of a step-son over a co-widow, and was decided under the Mitakshara. It is merely an obiter dictum as regards an issue between the co-widow and the husband or his collateral heirs. They are not excluded by the co-widow, whose identification with the husband is nowhere recognised in the Mayukha, or, indeed, by the other schools of Hindu law, except as regards inheritance to property belonging to him at the time of his death. Reference was made to Venkata Subramaniam Chetti v. Thayaramma (1898) I.L.R. 21 Madr. 263, 267, and to Golabchundar Sasrkar's Tagore Lectures, pp. 328, 329; Daya Karma Sangraha, c.ii., s.6; Stokes, p. 498; Dayabhaga, c. iv., s. 3, verse 32; Stokes, p. 257, and Mitakshara, c.ii., s. 1; Stokes, p. 427; Mayne's Hindu Law, 6th ed., par. 529, p. 693; Rachava v. Kalingapa (1892) I.L.R. 16 Bomb. 716; Lulloobhoy v. Bappoobhoy v. Cassibai (1880)L.R. 7 Ind. Ap. 212; Nahalchand Harakshand v. Hemchand (1884) I.L.R. 9 Bomb. 31.; Bachha Jha v. Jugmon Jha I.L.R. 12 Calc. 348; Dasharathi Kundu v. Bipin Behari Kundu (1904) I.L.R. 32 Calc. 261; Hunsraj v. Bai Monghibai, (1904) 7 Bombay L. Reporter 622, 627.. It was contended that by the true construction of verse 30 above referred to, and by the effect of the authorities cited, the husband's sapindas - those at least who ranked, like the brother's son, as fictional or secondary sons - were entitled to succeed to his widow's stridhan in preference to the co-widow.
Ross, for the respondent Bai Monghibai, the widow of another brother of Bachubai's husband, who survived Bachubai, contended that the High Court was right in holding that the appellant was not entitled in preference to the respondents. He relied specially on the cases cited from the 21st vol. of the Madras series and the 7th Bombay Law Reporter; and also referred to Bannerjee's Tagore Law Lectures, 1878 (2nd ed.), pp. 387 and 388, where the text of Brihaspati is paraphrased. He submitted that Nilakantha must be taken to have meant by verse 30, that the secondary sons mentioned in that text came in between the husband and his nearest sapindas, and also before the widow's sapindas in her husband family. According to him that text stated the true order of succession as between the heir there enumerated, and gave precedence to all of them over those heirs who were "nearest to her in her husband's family."
Cohen, K.C., replied.
Cases Referred :-
Bachha Jha v. Jugman Jha, (1885) I.L.R. 12 Calc. 348, 351.
Chunilal v. Itchachand, (1893) P.J. 88.
Collector of Madura v. Moottoo Ramalinga Sathupathy, (1868) 12 Moo. Ind. Ap. 435.
Dasharathi Kundu v. Bipin Behari Kundu, (1904) I.L.R. 32 Calc. 261.
Garland v. Beverley, (1878) 9 Ch. D. 213.
Gojabai v. Shrimant Shahajirao Maloji Raje Bhosle, I.L.R. 2 Bomb. 114, 118, 388 : S. C. in appeal L. R. 7 : Ind. Ap. 212, 231.
Hunsraj v. Bai Monghibai, (1904)7 Bombay L. Reporter 622, 627.
Krishnai v. Shripati, (1905) I.L.R. 30 Bomb. 333 : 8 Bombay L. Reporter 12.
Krishnai Vyanktesh v. Pandurang, (1875) 12 Bomb. H.C. 66.
Lallubhai Bapubhai v. Mankuvarbai, I.L.R. 2 Bomb. 388 : S.C. in appeal (1880) L.R. 7 Ind. 121, 231.
Lulloobhoy v. Bappoobhoy v. Cassibai, (1880) L.R. 7 Ind. Ap. 212.
Manilal Rewadat v. Bai Rewa, (1892) I.L.R. 17 Bomb. 758.
Mohandas v. Krishnabai, (1881) I.L.R. 7 Ind. 212, 213 : I. L. R. 3 Bomb. 597.
Mussumat Thakoor Dehee v. Rai Baluk Ram, (1866) 11 Moo. Ind. Ap. 139.
Nahalchand Harakshand v. Hemchand, (1884) I.L.R. 9 Bomb. 31.
Rachava v. Kalingapa, (1892) I.L.R. 16 Bomb. 716.
Rahi v. Govind Valad Teja, (1875) I.L.R. 1 Bomb. 97, 106.
Venkata Subramaniam Chetti v. Thayaramma, (1898) I.L.R. 21 Madr. 263, 267.
Vijiarangum v. Lakshman, (1871)8 Bomb. H.C. R. 244 : 260 O.C.J.
JUDGMENT
The judgment of their Lordships was delivered by
1906 May 9
Lord Davey:- The question in this appeal relates to the succession to immovable property in the island of Bombay, of which a Hindu lady named Kumari Bachubai died possessed. She was the widow of one Koreji Haridass, who died in February, 1898. On November 24, 1892, Koreji Dass executed an antenuptial settlement of the property now in dispute, whereby he conveyed it to Kumari Bachubai, her heirs, executors, administrator and assigns, for ever, subject to the following conditions:
"1. If the said Kumari Bachubai shall die before the said intended marriage has been celebrated and completed then the said house, land, and premises shall revert to and again become the absolute property of the said Koreji Haridass, his heirs, executors, administrators, and assigns.
"2. If the said Kumari Bachubai shall die after the said intended marriage has been celebrated and completed without leaving issue of the said intended marriage who shall succeed to a vested interest in the said house, land, and premises, then the said house, land, and premises shall be dealt with as she may direct or declare by will or deed, or failing any will or deed, then the same shall vest in her legal heirs according to Hindu law of the Bombay school.
The marriage was celebrated in February, 1893. Kumari Bachubai died on May 9, 1899, without leaving any issue and without having made any appointment by deed or will. It is not disputed that the persons entitled to succeed to the property us heirs of Kumari Bachubai were the persons entitled to her ordinary stridhan. The rival claimants are the appellant Bai Kesserbai, who was the surviving co-widow of Koreji Haridass, the respondent Bai Monghibai, who is the widow of Ranchordas Haridass, a brother of Koreji Haridass, who survived Kumari Bachubai and died on June 17, 1902 (it is presumed childless), and the respondent Hunsraj Morarji, who was the son of another brother of Koreji Haridass, who predeceased Kumari Bachubai. The appellant was the plaintiff in the suit, which was commenced on August 4, 1902, in the High Court of Bombay. Batty J. decided that by the Hindu law of the Bombay School the appellant was the next heir to Kumari Bachubai, and entitled to succeed. This decision was reversed on appeal by the Chief Justice and Russell J., and by their decree, dated December 11, 1903, the suit was dismissed with costs.
It is stated in the judgment on the appeal that both sides abandoned the view taken by Batty J. that Kumari Bachubai, under the deed of gift, took an absolute interest in the property, and that it was conceded that she took a limited interest only, and her heirs took as purchasers. Both the learned judges were also of that opinion, and their judgments are, to a certain extent, based on it. Their Lordships are at a loss to understand on what grounds this opinion was arrived at. They have no doubt whatever that, whether the deed is to be construed according to English law, as Russell J. thought, or by Indian law, Kumari Bachubai took under it an absolute estate of inheritance. Questions on the Hindu law of inheritance to property in the island of Bombay are to be determined in accordance with the Mitakshara, subject to the doctrine to be found in the Mayukha, where the latter differs from it. But, as laid down by Telang J. in Gojabai v. Shrimant Shahqjirao Maloji Raje Bhosle I. L. R. 17 Bomb. 114 at p. 118, "Our general principle should be to construe the Mitakshara and the Mayukha so as to harmonise with one another wherever and so far as that is reasonably possible." The point now under discussion is whether a co-widow is entitled to succeed to the property of a widow dying without issue in preference to her husband's brother or brother's son. There has been no judicial decision on this question, and their Lordships must decide it on the construction of the texts of Mitakshara and the Mayukha read together, with such assistance as may be afforded by other commentaries (though not recognised as authorities in Bombay) and by modern text books.
If the case rested on the Mitakshara alone their Lordships are of opinion that the appellant would be entitled to succeed. The material texts of the Mitakshara are Clause ii., Section 11, placita 8, 9 and 11; Stokes, Hindu Law Books, pp. 460, 461.
"8. A woman's property has been thus described. The author next propounds the distribution of it: 'Her kinsmen take it if she died without issue.'
"9. If a woman die 'without issue,' that is, leaving no progeny . . . . the woman's property, as above described, shall be taken by her kinsmen; namely, her husband and the rest as will be [forthwith] explained.
"11. Of a woman dying without issue as before stated, and who had become a wife by any of the four modes of marriage denominated Brahma, &c...., the [whole] property, as before described, belongs in the first place to her husband. On failure of him it goes to his nearest kinsmen [sapindas] allied by funeral oblations. But in the other forms of marriage, called asura, & c...., the property of a childless woman goes to her parents, that is, to her father and mother."
There can be no reasonable doubt that according to the Mitakshara definition of sapinda husband and wife are sapindas to each other. In the case of Lallubhai Bapubhai v. Mankuvarbai I.L.R. 2 Bomb. 388. Sir Michael Westropp, after quoting a long passage from the Achara Kanda of the Mitakshara, said (2):
(2) Ibid., p. 423.
"This shews that Vijnyanesvara abandoned the doctrine that the right to offer funeral oblations alone constituted sapinda-ship, and adopted in lieu of it the theory that sapinda-ship is based upon community of corporal particles, or, in other words, upon consanguinity, and that he maintained that there is such a community between the wives of collateral's."
The learned Chief Justice then shewed that the same theory had been adopted by Nikalantha, the author of the Mayukha, and that the doctrine applied to sapinda relationship, not only in its ceremonial aspect, but for the purposes of inheritance also. It was accordingly held in that case, which arose in the island of Bombay, that under the law of the Mitakshara and Mayukha the widow of a deceased first cousin succeeded in her husband's place in preference to a male of a remoter degree. In West and Buhler (Digest of the Hindu Law of Inheritance, p. 518) it is stated that whether "nearness" in the rule given by the Mitakshara for succession to childless widows' property should be determined in accordance with the succession to the property of a male, or whether it means nearest by relationship, the co-widow has the first right of succession, but in the latter case concurrently with other kinsmen in the same degree. But, they say: "The identity of the wife with her husband being accepted as a leading principle of the Mitakshara, the rule seems, on the whole, most consonant to it whereby precedence in heritable relation to him gives a like precedence and order of succession in relation to his widow.
And they add: "Such appears to be the rule, too, which custom has preferred in this part of India.
In accordance with these views it has been recently decided in a case from the Satara district, where the Mitakshara is the governing authority, that a co-widow succeeds to a childless widow's stridhan in preference to her husband's brother's son: Krishnabai Martand v. Shripati Pandu. 8 Bomb. Law Reporter 12.
The grounds upon which it is said that the rule thus deducible from the Mitakshara is altered or superseded by the Mayukha are to be found in Clause iv., Section 10, of that treatise, placita 28 and 30 (Stokes, p. 105), which are as follows:
"'28. The property of a childless woman married in the form denominated Brahma, or in any of the other four [unblamed modes of marriage] goes to her husband; but if she leave progeny, it will go to her daughters; and in other forms of marriage [as the asura, &c] it goes to her father and mother on failure of her own issue.' [In the one case] if there be no husband, then the nearest to her, in his [tat] own family takes it; and [in the other case], if her father do not exist, the nearest to her in [her] father's family succeeds, [for the law that:] 'To the nearest sapinda, the inheritance next belongs,' as declared by Manu, denotes that the right of inheriting her wealth is derived even from nearness of kin to the deceased [female] under discussion-and, though the Mitakshara holds, 'that on failure of the husband, it goes to his [tat] nearest kinsmen [sapinda] allied by funeral oblations'; and 'on failure of the father then to his [tat] nearest sapindas'; yet, from the context it may be demonstrated that her nearest relations are his nearest relations; and [the pronoun tat being used in the common gender] it allows of our expounding the passage 'those nearest to him, through her in his own family': for the expressions are of similar import."
"'30. On failure of the husband of a deceased woman, if married according to the Brahma or other [four] forms; or of her parents, if married according to the asura or other two forms, the heirs to the woman's property, as expounded above, are thus pointed out by Brihaspati: 'The mother's sister; the maternal uncle's wife; the paternal uncle's wife; the father's sister; the mother-in-law, and the wife of an elder brother, are pronounced similar to mothers. If they leave no son born in lawful wedlock, nor daughter's son, nor his son, then the sister's son, and the rest shall take their property.' Here must be understood, 'on failure both of the daughter, and also of her daughter,' because only on failure of them does the right of inheritance pertain to the son born in wedlock, or to the daughter's son."
The text of Brihaspati, quoted above, is thus paraphrased by Banerjee J. in his Tagore Lectures (1878, 2nd ed. pp. 887 and 388): " To a male the females related as the sister of bis mother, the wife of his maternal or of his paternal uncle, the sister of his father, the mother of his wife, and the wife of his elder brother are like his mother; and so to a female the males related in the reciprocal way as her sister's son, her husband's sister's son, her husband's brother's son, her brother's son, her daughter's husband, and her husband's younger brother are like her son. And these last-mentioned relations of a female being like her sons inherit her stridhana if she leave no male issue, nor son of a daughter, nor a daughter."
You have, therefore, the following list of relations to the childless widow and deceased proprietress of the stridhan who are said to be like her sons, and have been called by some text writers secondary sons: (1) Sister's son; (2) Husband's sister's son; (3) Husband's brother's son; (4) Brother's son; (5) Son-in-law, or daughter's husband; (6) Husband's younger brother.
The chief difficulty about the text of Brihaspati is that we do not know the context in which it occurs. It appears to give promiscuously the sapindas of the husband and those of the father without noticing the distinction in the devolution of the property depending upon the form of marriage of the deceased widow. No intelligible principle has been discovered for the order in which they are enumerated. It is at variance with the settled and universally recognised principles of the Hindu law of inheritance, and the enumeration is obviously not exhaustive. Moreover, it is so expressed as to bring in the secondary sons immediately after the issue of the widow, for the words "if they leave no son," &c., are construed to refer to childless widows, and the description of the issue, upon failure of whom Brihaspati's secondary sons are to take, is neither exhaustive nor accurately descriptive of the order in which such issue would be entitled to succeed. The important question, however, is, how the author of the Mayukha understood the quotation. In his comment at the end of pl. 30 he partially supplies the gaps left in the enumeration of issue, but not fully. If the "son born in lawful wedlock" means or includes a son of a rival wife (as is said in the Daya Bhaga), he would take only after the husband and (if the order of succession be based on propinquity) concurrently with the rival wife: see West and Buhler, Digest, p. 518, already quoted.
Nikalantha, however, clearly intends to bring in Brihaspati's series of secondary sons on failure of the husband or father, but whether immediately on that event or in what order is another question. Three constructions have been offered on these points. First, it was argued before their Lordships that the words "on failure of the husband of a deceased woman" should be read as meaning "on failure of the husband and his line of sapindas," succeeding in accordance with pl. 28. Secondly, that Brihaspati's series of secondary sons comes in between the husband and his nearest sapindas and in the order in which they are mentioned. Thirdly, that a distributive construction should be given to Brihaspati's text applying the husband's relatives named to the case of a woman married in one of the approved forms, and the father's relatives to the other case only, and the text should be read as illustrative only, and neither exhaustive nor intended to prescribe the order in which the enumerated heirs take.
It does not appear to their Lordships possible to adopt the first of these constructions without doing unnecessary violence to the language and context. The words in pl. 30 are: "On failure of the husband....the heirs to the woman's property as expounded above are thus pointed out by Brihaspati." The quotation from Brihaspati, therefore, was intended to be used in the Mayukha as explanatory or expository of the class of heirs already pointed out in pl. 28, and not as substitutive for them or as superseding them. Again, some of the husband's sapindas are included in Brihaspati's series, which seems decisive against this construction.
What may be described as a modified form of this construction is that adopted by Batty J. That learned judge held that the point of bifurcation where the Mitakshara and Mayukha separate appears to be a point below the widow in the series of successive heirs, and that it is the recognised identity of the wife with her husband that entitles a co-widow's children and a co-widow herself to take precedence as sapindas to the wife herself or as representing the husband himself before resort is had to the husband's sapindas at all. The Chief Justice says that he is aware of no passage in the Mayukha that can be taken as a warrant for the identification of the wife with her husband. It seems, however, difficult to maintain this position in face of the learned judgments of Sir Michael Westropp and West J. in the case of Lallubhai Bapubhai v. Mankuarbaiv, and the judgment of Telang J. in Gojabai v. Shrimant Shahajirao Maloji Raje Bhosle. I. L. R. 2 Bomb. 388 ; S. C. in appeal L. R. 7 Ind. Ap. 212, 231.
According to the second construction the text of Brihaspati is read in what is no doubt its more obvious and literal sense apart from the context. It is that adopted by the Chief Justice and supported by the respondents in the present appeal, and it has considerable authority in its favour, including the Daya Bhaga, the Viramitrodaya, and Vyavastha Chandrika, and, amongst modern text writers, West and Buhler, Banerjee J., and Mr. G. Sarkar. In the Daya Bhaga, however, it is said that if the order of succession were according to Brihaspati's text it would be contrary to the opinion and practice of venerable persons, and that the text is propounded "not as declaratory of the order of inheritance but of the strength of the fact," whatever those words may mean. Notwithstanding the weight of the authority in its favour, their Lordships cannot bring themselves to think that the construction contended for by the respondents is the one which they ought to adopt. So far from construing the Mitakshara and the Mayukha so as to harmonise with one another so far as that is reasonably possible, the respondents place them in direct conflict, and not only so, but the Mayukha is also divided against itself. Placitum 30 deals as well with the case of a widow married in one of the approved forms as with that of a widow married in one of the lower forms, and is expressed to be expository of the rule laid down in pl. 28. But some of the enumerated heirs are not blood relations of the husband at all, or members of his family, and others of them are not blood relations of the widow's father, or members of his family. Again, those who are nearest (both as regards degree of propinquity and in order of inheritance) are postponed in favour of those who are more remote in contradiction alike of the Mitakshara and pl. 28 of the Mayukha.
The case of Gojabai v. Shrimant Shahajirao Maloji Raje Bhosle I.L.R. 17 Bomb. 114, related to the succession to the stridhan of a childless Hindu widow married in one of the approved forms, who left her surviving (1) a co-widow, (2) the grandson of another co-widow, (3) a son of her husband's brother. The case fell to be decided in accordance with the Mitakshara, and the decision was in favour of the step-grandson, whether he was to be described as the husband's nearest sapinda or the wife's nearest sapinda in his family. But the texts of the Mayukha now under consideration had been relied on in argument, and the judgment of Telang J. contains a valuable disquisition on that commentary. " Construing the Mitakshara in the sense which Nilakantha places upon its language" (pl. 28), the learned judge says: "The wife having by her marriage been 'born again in the husband's family,' and having become 'half the body of the husband' the sapindas of the husband necessarily become her sapindas, and their degrees of propinquity to the husband and wife must be held to be identical unless some specific reason to the contrary is shewn."
The judgment of the learned judge also contains the following passages: "In truth even the rule which Nilakantha himself deduces from Yajnavalkya's general text is not in harmony with the enumeration of heirs contained in the text of Brihaspati now under consideration. And yet the Mayukha does not say how the two are to be made to stand together. The learned authors of the Digest have placed the heirs enumerated by Brihaspati after the husband and before the woman's sapindas in her husband's family. This certainly appears to be warranted by the express words of the Mayukha contained in placitum 30. Yet it is not quite reconcileable with the previous declaration in placitum 28 that 'if there be no husband then the nearest to her in his family takes' the woman's property. It is quite plain that some of the persons referred to in Brihaspati's text do not answer to this description at all, while of those that do the husband's brother's son is not obviously nearer than the husband's younger brother, and yet according to Brihaspati's text the former would stand before the latter. It cannot therefore be assumed to be quite clear according to the view of the Mayukha that Brihaspati's list states the true order of succession as between the heirs enumerated or that all those heirs take precedence over the ones included under the designation 'nearest to her in her husband's family.'"
And again: "But Mr. Bhandarkar argued that the heirs specifically named in Brihaspati's text ought to be given precedence over those who come in under the general designation, each group of them taking precedence in the class (viz., that of husband's kinsmen or parent's kinsmen) to which it belonged. There is, however, no authority for this view. In West and Buhler's Digest the precedence is given to the whole of the enumerated heirs, and the ground for such precedence has already been stated. If they are not treated as one class there is apparently no other ground for the preference than is indicated by the principle mentioned in the Vyavahara Mayukha, Clause iv., Section 8, pl. 18. But that principle, as there expressed, appears to be intended to apply only where there is a 'compact series.' This Court in Mohandas v. Krishnabai I. L. R. 3 Bomb. 597, declined to apply it in the case of bandhus so as to give to the bandhus expressly named a preference over those who come in under the general definition. I think this is the authority which would be more applicable in the matter before us, and no such preference of the designated persons can therefore be allowed in this case."
The case of Bachha Jha v. Jugmon Jha I. L. R. 12 Calc. 348, on the other hand, was a judicial decision on the text of Brihaspati now under consideration. It was there held that the stridhan property of a widow governed by the Mithila law and married in one of the approved forms, goes to her husband's brother's son in preference to her sister's son. It appears from the judgment of the Court that the vakil for the appellant had relied on that portion of Ratnakara which treats of stridhan. The learned judges observe that that book is no doubt one of considerable authority in the Mithila school, and if the matter were clear upon what Ratnakara says on the subject, they should, perhaps, have no difficulty in deciding the matter. The author of Ratnakara (it appears) in the passage relied on cited the text of Brihaspati now under consideration, with the following commentary, viz., "The meaning is that in default of the son and the rest, the sister's son, &c., shall take the property of their mother's sister and others." The learned judges refer to other commentaries in which the same text of Brihaspati is cited, and they quote an opinion attributed to Mr. Colebrooke, in which it is stated that by some commentators a distributive construction of the text is adopted, the three relations in Brihaspali's enumerated heirs who are so through the husband taking the property in the one case, and the three who are so through the father taking the property in the other case. And after discussing the placita in the Mayukha dealing with the subject they say they are inclined to think that what the author meant to lay down was that the succession of the heirs mentioned in Brihaspati's text is to be taken to be subject to the rule of law laid down by him in accordance with the Mitakshara, as suggested in " Shama Churn's Vyavastha Chandrika," vol. ii., p. 539. Ultimately, the case was decided in accordance with the Mitakshara, on the ground that the meaning and effect of the text of Brihaspati quoted by Ratnakara was too ambiguous to control the plain meaning of that work.
The Chief Justice answers the argument that some of the persons enumerated in Brihaspati's text as heirs do not answer the description of being the nearest in the husband's family by saying that this criticism loses sight of the fiction on which the text is based, which, he says, involves the consequence that the persons enumerated are equal to sons. With great respect, this is not what is said, or apparently intended, by the text. They do not take concurrently with sons, and no text-writer has even suggested that they take concurrently with each other, as they would do if they were all equal to sons, or to be treated as sons. The analogy appears to their Lordships to be purely fanciful and not based on any discoverable principle. Nor is it in accordance with the fact. The kinship of the husband's brother's son is not derived through the wife of the husband's brother, but through the husband's brother himself.
It is apparent from the judgments above quoted that the learned judges did not treat the application of Brihaspati's text, or the meaning of the author of the Mayukha in quoting it, as settled by authority, either as regards the place in the succession of the enumerated heirs or the order in which they are to take. It would perhaps be sufficient for their Lordships to say, in accordance with a well settled principle of construction, that the unambiguous direction in pl. 28 of the Mayukha is not controlled by a subsequent text, the language of which is of such uncertain meaning as that contained in pl. 30 of the same work. But following out the line of thought suggested in the judgments quoted above, their Lordships think that a construction maybe put on the language of pl. 80 of the Mayukha, which will bring it into harmony with the Mitakshara, and also reconcile it with the previous placitum of the Mayukha itself. They are of opinion that the text of Brihaspati should be read distributive^ 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, viz., the husband's sister's son, and the husband's brothers' son, and the husband's brother, will succeed to the woman's property, and in the other case the relations of the father will succeed. In the diversity of opinion amongst the text-writers whether Brihaspati's 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 husband's sister's son to the husband's brother's son, or both, to the husband's brother. And their Lordships agree with the learned editor of the Vyavastha Chandrika that the solution is to be found by reference to pl. 28, in which the heirs are described as the nearest sapindas of the wife in the husband's family, or the nearest to her in her father's family, as the case, may be. The list is not exhaustive, and neither a co-widow, nor any other sapinda of the husband, is excluded. The words " and the rest" therefore must mean, or include, the other relations of the husband or father. But if the text does not prescribe any new order of succession, and the co-widow is not excluded, it follows that she must take in her right place, or (in other words) the appellant is entitled in preference to the respondents. Their Lordships thus arrive at the same conclusion as Batty J., though by a somewhat different road.
If there were any construction of the text laid down by authority binding on the Courts of Bombay, or if there were any established practice or usage in the application of the text, their Lordships would follow it without hesitation, though it might not commend itself to their judgment. But no such authority has been referred to, and there is no evidence of any such practice or usage. Their Lordships therefore are at liberty, and are bound, to act on the opinion which they have formed, and will humbly advise His Majesty that the appeal be allowed, and that the order of the High Court of Bombay (appeal side), dated December 11, 1903, be discharged, and the decree of Batty J., dated February 21, 1903, be restored, and that the respondents do pay to the appellant the costs of their appeal in the High Court. They will also pay the costs of this appeal.
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