UDDI RAJAMMA Vs. POORNAPPAGARI PADMAVATAMMA AND ORS.

JUDGEMENT

(1.) THESE two Letters Patent Appeals arise out of a judgment of Panchapakesa Ayyar J. in S. A. No. 866 of 1946, leave to appeal having been granted by the learned Judge.

(2.) ONE Narasamma died in 1902 possessed of considerable property leaving her surviving two daughters Padmavatamma and Rajamma. Padmavatamma brought a suit O. S. No. 245 of 1942 in the Court of the District Munsif of Penukonda for recovery of the property of Narasamma after ejecting her step -brother and his alienee who were in possession of the property and who were made defendants 1 and 2. The other daughter Rajamma was the third defendant. Padmavatamma claimed exclusive title to the property on the ground that her sister was married into a rich family, while her husband's family was poor and under the law her sister (the third defendant) was excluded from inheriting her mother's stridhanam as the plaintiff was, as between the two sisters, unprovided. We are not concerned with the several defences raised by the defendants in view of the findings of fact which are binding on us. The learned District Munsif found that the plaintiff was not exclusively entitled to inherit her mother's property and as the plaintiff did not want in the alternative a decree declaring her title to the property along with the third defendant, he dismissed the suit. There was an appeal by the plaintiff to the District Judge who also held that neither the plaintiff nor the third defendant was exclusively entitled to inherit the property of their mother, but refrained from deciding whether the sisters would be entitled to take the property equally, because the plaintiff's suit was for the recovery of the entire property. The plaintiff's remedy was to file a suit for half a share in the property. The plaintiff filed a second appeal to this Court. The learned Judge held agreeing with the Courts below that the plaintiff was not entitled to the property exclusively, but was entitled to share it equally with the third defendant. Though he thought that a decree for partition could not properly be passed in favour of the plaintiff, he, however, thought that the suit should not have been dismissed and so he passed a decree declaring the title of the plaintiff and the third defendant each to a half share in the property and for joint possession of the property after ejecting defendants 1 and 2. The right, if any, of defendants 1 and 2 to compensation for improvements was reserved for a future suit Against this judgment the third defendant has filed L. P. Appeal No. 19 of 1949 and the second defendant L. P. Appeal No. 40 of 1949.

(3.) ON the findings of fact, which must be accepted by us, the main question of law which arises in these appeals is whether there is any rule of Hindu law governing the succession of daughters to the stridhanam of their mother under which a childless married daughter is entitled to preference over a married daughter with children when both the daughters are equally poor. The plaintiff and the third defendant have been found to be equally indigent. They are both married. The third defendant is childless while the plaintiff has children. There is no decided case directly on this point and the case is therefore one of first impression and the decision must depend upon a construction of the original texts and commentaries and observations in decided cases which are likely to throw light on the question.