NAUBAT SINGH Vs. MTSHAMBARAT KUAR

JUDGEMENT

(1.) This is an appeal by the plaintiff. The dispute relates to a one-third share in two annas in tauzi No, 14914, mauza Berai, thana Mahua, District Muzafiarpur and some kasht lands. The whole property once belonged to one Bidyapat Singh, who in 1921 made a gift of it to Mt. Mahokha Kuer and Mt. Mahabati Kuer, widows of his deceased sons Ami (or Amar Prasad) Singh and Deolal Singh, and Mt. Shambarat Kuer, his daughter, in three equal shares. Mahokha Kuer died on 3rd February 1929, after her father-in-law; and Bundi Lal, the original plaintiff, her husband's paternal great-grandfather's grandson, sued for the property as her next heir. During the pendency of the appeal in the lower Court, he died and was replaced by his dumb son Naubat under the guardianship of his son Singheshwar Singh. The suit was contested by Mt. Shambarat Kuer, defendant 1, sister of Mahokha's husband and one of the codonees with her, and her son Mulukraj, defendant 2. The trial Court dismissed the suit, accepting the contention of these defendants that the parties are governed by the Mithila School of Hindu Law and that the plaintiff is not entitled to inherit to Mt. Mahokha Kuer in preference to her husband's sister's son.

(2.) The plaintiff appealed, and the learned Subordinate Judge who heard the appeal below has said that the only question pressed before him was whether the plaintiff had title to the disputed properties. He has in dismissing the appeal, nevertheless, gone into certain other questions which were apparently raised before him half-heartedly. The same has been the case in this Court. The genealogy is not in dispute. There was a dispute in the lower Courts about whether the parties were governed by the Mithila law, but Mr. De who appeared for the appellant in this Court did not contest their concurrent finding that the parties are governed by he school of Hindu law. The respondents very halfheartedly suggested before me that Bidyapati's deed of gift only gave a life interest in the property to the ladies; but it expressly empowers them to deal with the properties gifted to them in whatever way they may think proper, and it is not a real qualification of the estate given to them that the previous sentence in the deed requires (or rather, authorizes) the donees to take possession of the property, appropriate the produce thereof and get their names recorded in the Land Registration Department whenever they might consider ft necessary to do so and obtain receipts and acquaintances in their own names. The learned advocate for the respondents did point out at one stage of his. arguments that while their case was that Mahokha had died two years later, the finding of the trial Court that she died in 1929 (a few days) before the coming into force of the Hindu Law of Inheritance (Amendment) Act (2 of 1929) had not been endorsed by the lower appellate Court. As it does not however appear that any question was raised in the last Court of fact by the party concerned regarding the year of Mahokha Kuer's death, the finding of fact can hardly be re-opened in second appeal, nor did the learned advocate proceed to argue that succession to Mahokha Kuer would be affected by the Act of 1929 if she died in 1931. The only question really urged before me thus was whether Bundilal was not entitled to the property of Mahokha Kuer in preference to either of the eon-testing defendants.

(3.) The trial Court held on the authority in Mohun Pershad Narain Singh V/s. Kishen Kishore Narain singh ( 94) 21 Cal. 344, that under the Mithila School of Hindu Law the husband's sister's son (that is, defendant 2) is a preferential heir to a woman's stridhan than the husband's paternal great grandfather's grandson (the original plaintiff). In the lower appellate Court this was contested on behalf of the appellant on the authority in Bachha Jha V/s. Jugmon Jha ( 86) 12 Cal. 348 and Kamla Prasad V/s. Murli Manohar ( 34) 21 A.I.R. 1934 Pat.398. The learned Subordinate Judge considered that these cases did not settle the matter, and that though the view which he thought had been taken in Mohun Pershad Narain Singh V/s. Kishen kishore Narain Singh ( 94) 21 Cal. 344, that the heirs mentioned by Brihaspati take in the order stated in his well-known verses was overruled by the Privy Council in Bai Kesserbai V/s. Hunsraj Morarji ( 06) 30 Bom. 431, defendant 1 and defendant 2 were more nearly related to Ami Singh than the plaintiff. He therefore took them to be the preferential heirs "as held in Mohun Pershad Narain Singh V/s. Kishen Kishore Narain Singh ( 94) 21 Cal. 344 at page 348." The learned Subordinate Judge has apparently fallen into some confusion as regards this decision from Mohun Pershad Narain Singh V/s. Kishen Kishore Narain Singh ( 94) 21 Cal. 344. it was a decision in favour of the husband's sister's sons and against the husband's paternal great grandfather's great grandsons on the footing that Brihaspati's verses about the mother's sister and five other relations who are (all six) pronounced similar to mothers and the succession to them, in default of issue, of the corresponding relatives the sister's son and the rest" govern the succession to stridhan in Mithila. In Bachha Jha's case in ( 86) 12 Cal. 348 the Mithila authorities then available had been considered, and the conclusion reached on the state of these authorities that the Mitakshara (which does not give Brihaspati's heirs) must govern the matter. This case was however distinguished in Mohun Pershad Narain Singh V/s. Kishore Narain Singh ( 94) 21 Cal. 344, the ground that what was decided in it was not whether the class of sister's sons came before or after the sapindas but whether the husband's brothers son took prior to the sister's son, both being of the same class. The Mithila texts were not examined in Mohun Pershad Narain Singh V/s. Kishen Kishore Narain Singh ( 94) 21 Cal. 344. The point was examined in detail in Kamla Prasad V/s. Murli Manohar ( 34) 21 A.I.R. 1934 Pat. 398, where I had occasion to observe that their Lordships of the Judicial Committee had said enough in Bai Kesserbai's case, in ( 06) 30 Bom. 431 to show that as little effect can be given to Brihaspati's text (against the clear Mitakshara rule in favour of the husband's nearest sapindas) under the Mayukha as under the Ratnakara; and as in. Bachha Jha V/s. Jugmon Jha ( 86) 12 Cal. 348, Wort, J., and myself again followed the Mitakshara rule and declined to prefer a sister's son (one of Brihaspati's heirs) to the husband's father's brother's son. The learned Subordinate Judge says at one point in his judgment that the answer to the question who was to succeed would depend upon the determination of the question who was more nearly related to the husband. This is perfectly correct, because according to the Mitakshara (Colebrooke Chap. II, Section 11, para. 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, Daiva, Arsha and Prajapatya, 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)....