MEGHAJI MOHANJI THAKKAR Vs. ANANT PANDURANG CHHATRE

JUDGEMENT

(1.) THIS second appeal raises an important question regarding succession to the stridhan of a maiden governed by Vyavahara Mayukha, the competing claimants being her father's brother and the son of her father's predecessor. The facts are not disputed. The property in suit belonged to one Vishnu who bequeathed it to his daughter's daughter Ahilya. On Vishnu's death the property devolved on Ahilya and she died unmarried, leaving behind her her father's brother Anna and her father's deceased brother's son Anant. Anna and Anant were already separated, and after Ahilya's death, Anna took possession of her property and paid its Municipal and other taxes. In execution of a decree against Anna the property was sold and was purchased by the defendant at the auction sale on March 30,1937. Before the defendant took possession of the property as the auction purchaser, Anant filed this suit on the basis that he and Anna were both the heirs of Ahilya, that he had a half share in the property in suit and that the defendant had not become the owner of the entire property by his auction purchase. He, therefore, prayed for a declaration that he was the owner of half the property and for an injunction restraining the defendant from taking possession of the property without bringing a suit for partition. The defendant contended that Anna was the sole heir to Ahilya's stridhan property, that the plaintiff had no interest in the property in suit and that Anna had in any event acquired title to the entire property by his adverse possession for more than twelve years after Ahilya's death. Both the Courts below held that Ahilya died in 1926 and as this suit was filed in September, 1937, that is to say within twelve years after Ahilya's death, the defence that Anna acquired title by adverse possession for over 12 years was not sustainable and that contention is not pressed in this Court. It was further held that both the plaintiff and Anna were the heirs of Ahilya and declared that the plaintiff was the owner of an undivided one -half share in the property in suit. But the defendant having taken possession of the property during the pendency of the suit, the plaintiff's claim for an injunction was rejected. It was contended for the defendant that the plaintiff was bound to amend his plaint by asking for possession after the defendant took possession of the property, and as he failed to do so, his suit, which thereafter became a suit for a mere declaration, was not maintainable under the proviso to Section 42 of the Specific Relief Act. That contention did not find favour with the trial Court and a mere declaratory decree was passed, and it was confirmed in appeal. Both the contentions are urged on behalf of the defendant in this Court.

(2.) THE question of inheritance to the stridhan of a Hindu maiden was considered by this Court in Tukaram v. Narayan Ramchandra (1911) I.L.R. 36 Bom. 339 : S.C. 14 Bom. L.R. 89, F.B.,and it was held there that in default of either brother, mother or father, the heir to her stridhan was her father's nearest sapinda. That rule was held to rest on the ground that a Hindu maiden, dying without leaving a brother, mother or father as heir, must be treated, for the purposes of succession to her stridhan, as a woman married according to one of the unapproved rites, and dying childless. In the case of such a woman, according to the Mitakshara, her stridhan is inherited, in default of a brother, mother or father, by her father's nearest sapinda (tatpratyasannah). It is admitted in this case that succession to Ahilya's property is governed by the Mayukha law and in the Vyavahara Mayukha Nilakantha has explained the expression "tatpratyasannah" as meaning "her nearest sapinda through (dwara) her father". Mr Dharap argues from this that for the purpose of determining the heirs to the stridhan of a maiden dying without leaving a brother, mother or father, according to the Mitakshara, her father has to be regarded as the propositus, while, according to the Mayukha, the woman herself is the proposita, and though the heir is to be found among the sapindas of her father, he who is nearest to her in propinquity is to be preferred to one more remote. If the father be treated as the propositus, then according to the Mayukha law, the son of his deceased brother shares equally along with his surviving brother (Chandika Bakhsh v. Muna Kuar (1902) L.R. 29 I.A. 70 : S.C. 4 Bom. L.R. 376.) This is apparently in conflict with the fundamental rule of succession laid down by Manu that "the wealth of the deceased shall belong to his nearest sapinda." But as Lord Macnaghten says. in Chandika Bakhsh v. Muna Kuar it may well be that the rule was in force in earlier times, and on this point the Mayukha only embodied and defined a preexisting custom. But as held in Haribhai Gulab v. Mathur Lallu (1928) I.L.R. 47 Bom. 940 : S.C. 25 Bom. L.R. 929, this exception is not to be extended beyond brothers and brothers' sons, since even the Vyavahara Mayukha has laid down the rule that "all the Sapindas and the Samanodakas follow in the order of propinquity". It is, therefore, contended that this exception would not be of any avail to the plaintiff, if Ahilya herself be regarded as the proposita for the purpose of determining her heirs. In that case, when once a list of her father's sapindas is made, whoever is nearest to her in propinquity, viz. her father's brother, would succeed to her stridhan in preference to the plaintiff who is. one degree more remote. This view, which was considered by Telang J. in Manilal Rewadat v. Bai Rewa (1892) I.L.R. 17 Bom. 758, 763, 764, has been discussed at length by Chandavarkar J. in the full bench case of Tukaram v. Narayan Ramchandra (1911) I.L.R. 36 Bom. 339 : S.C. 14 Bom. L.R. 89, F.B. After combating the contention that there is a difference of opinion between the Mitakshara and the Mayukha on the point, Chandavarkar J. has thus summed up his conclusions (p. 358): THErefore, to make his explanation more emphatic and free from all ambiguity, Nilakantha further explains that we must seek the nearest sapinda of the woman in her husband's or father's hula or family by entering that family with the husband or the father as the dwara, which means door or way. This word dwara conveys here a sense stronger than the English word 'through'. This is not the only place where Nilakantha uses this metaphorical expression,. For instance, he defines daya (joint divisible estate) as that species of property 'which has come from the father or mother as the dwara or door'. Dwara, therefore, indicates the stock, the source.

(3.) ON this principle the stridhan of a Hindu maiden was held in that case to devolve upon her father's sister in preference to her male gotraja sapindas five or six degrees removed.