SHIVPRASAD DEVIPRASAD Vs. JANKIBAI JUGALKISHORE

JUDGEMENT

(1.) The dispute in this appeal relates to properties which originally belonged to one Ganpatlal Farasharam of shirpur in the West Khandesh District, Ganpatlal died in 1929 leaving behind two married daughters, the plaintiff Janki-bai and the original defendant Sitabai and a widow Devakibai. Ganpatlal left behind him a large estate, consisting of lands and houses valued in the plaint at Rs. 1,00,000 and movable properties worth about Rs. 8,400. Devakibai died on 29-10-1943. The moveable properties of Ganpatlal were then divided equally between Jankibai and Sitabai. They also made applications to the revenue authorities stating that they were the joint heirs of their father Ganpatlal and that the names of both of them should be entered in the revenue records. The lands were accordingly entered in the names of both of them in the revenue records. It appears that all the houses and the lands, except a hall in a bungalow at Shirpur, were in the possession of tenants. The defendant looked after the properties and realised the rents for some time. According to the plaintiff Jankibai, all the tenants attorned to her after the present suit was filed. Sitabai's husband is very much more wealthy than Jankibai's husband. Some time in 1945 the plaintiff was advised that as she was not as well off as her sister Sitabai, she was entitled to succeed to all the properties left behind by Ganpatlal to the exclusion of Sitabai. In October 1946, the plaintiff gave a notice to the defendant in which she claimed to be the sole heir of Ganpatlal. She demanded an account of the income realised by the defendant and the return of the moveables, which had been given to the defendant after the death of Devakibai. The defendant replied to this notice and denied that the plaintiff was the only heir of Ganpatlal. The plaintiff then filed the present suit, in which she prayed for a declaration that she was the sole owner of the proper-tie) left behind by Ganpatlal and that the defendant had no right to them. She asked for the return of the moveables, which had been handed over to the defendant, or for Rs. 4,200 as their value. She also prayed that the defendant should be directed to render an account of the income of the suit properties received by her during the time she was in management thereof. By art amendment made in the plaint subsequently, the plaintiff asked for possession of the hall of the bungalow at Shirpur, which was in the possession of the defendant. This suit was resisted by the defendant, who raised various contention). The principal contention raised by her, with which we are concerned in this appeal, was that the plaintiff was also well placed in life, that she was not poor or indigent and that she was therefore not the sole heir of Ganpatlal. The original defendant, Sitabai, the sister of the plaintiff, died during the pendency of the suit. Her husband was then brought on record as her legal representative. The learned trial Judge held that as compared to the defendant, the plaintiff was less well placed in life and that consequently she was the sole heir of Ganpatlal. He accordingly granted the plaintiff a declaration that she was the sole owner of the estate left by her deceased father Ganpatlal. He also directed the defendant to hand over to the plaintiff the possession of the hall of the bungalow at Shirpur and the moveables received by her or their value Rs. 4,200. The defendant was also directed to render an account of all the expenses incurred over and the income derived from the immoveable properties from the date of the death of Devakibai up to the dates on which the tenants had attorned to the plaintiff. The plaintiff was also awarded her costs of the suit. Against these orders passed by the trial Judge, the defendant has come in appeal. The plaintiff's husband has stated in his evidence that in 1913 he owned lands at Chopda, Biroda, Shahapur Bori and other places, assessed at Rs. 200 to Rs. 250 from which he got an income of about Rs. 600 per year. According to him, their value was about Rs. 25,000 to Rs. 30,000. He also possessed two houses, which he valued at Rs. 6,000 to Rs. 6,000 and ornaments worth about Rs. 8,000 to Rs. 10,000. He has also stated that he was then working as an agent of the Dhulia Cotton, Mills and earned a commission of about Rs. 4,500. It is, therefore, clear that at the time when the plaintiff's mother died and when succession opened to the estate of her father Ganpatlal, the plaintiff was well settled in life and could perhaps also be called rich. The evidence shows that Sitabai's husband is very much more rich than the plaintiffs husband. During the course of arguments in the trial Court, the defendant's advocate conceded that his client was 8 times richer than the plaintiff's husband. According to the plaintiff that is an underestimate of the defendant's wealth. There can, however, be no doubt that there is a marked difference between the wealth of the plaintiff and that of the defendant.

(2.) The question, therefore, arises whether in these circumstances the plaintiff is entitled to succeed to the whole of the estate of her father Ganpatlal to the exclusion of her sister. The relevant text of Hindu law is contained in para. 11 in Section 3 in Chapter I of the Mitakshara, which is as follows: "On the subject of (daughters) a special rule is propounded by Gautama: 'A woman's property goes to her daughters, unmarried, or unprovided'. His meaning is this: if there be competition of married and unmarried daughters, the woman's separate property belongs to such of them as are unmarried; or, among the married, if there be competition of endowed and unendowed daughters, it belong; exclusively to such as are unendowed: 'and this term signifies 'destitute of wealth.'" (See page 384 of Whitley Stokes' Translation of Mitakshara, 1865 Edition).

(3.) The original Sanskrit words used in the Mitsk-shara for the words 'endowed' and 'unendowed' or unprovided are 'pratishthita' and apratishthita". In Ealambhatta's commentary, these words have been translated as 'sadhan' (with wealth) and 'nirdhan' (without wealth). Stokes in his annotations on the above text has observed, "Endowed signifies supplied with wealth, unendowed, unfurnished with property". This text is equally applicable to inheritance to the property left by a father. This will be clear from paras. 1, 3 and 4 in Section 2 in Chapter 2 of the Mitakshara, which are as follows (page 440 in the above volume).