MANJA PILLAI Vs. SIVABAGYATHACHI

JUDGEMENT

(1.) The contention of the appellants in the second appeal is that the plaintiff who is the daughter of a co-wile of one Parvathathachi is not entitled to succeed to the latter s stridhanam property, and it is argued that there are collateral sapindas of Parvathathachi s husband, for instance the 4th defendant, who is his father s brother s son, who would have preferential claim to the succession. Parvathathachi, it is found by the District Judge, was married in an approved form. There is no express authority which covers the exact point, but there can be very little doubt as to how the question raised by the appellant should be answered.

(2.) The text of the Mitakshara bearing on the matter is Placitum II of Section XI, Chapter II, which is in these words : "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, Arsha, Prajapatya and Gandharva 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 obtations." As has long been pointed out Colebrook s translation of the term "sapinda" in these connections as "kinsman allied by funeral oblations" is not correct but should be kinsman allied by affinity, or, to put it literally, persons allied to each other by possession of particles of the same body. The meaning of the above text is plain; it means that the stridhanam property of a woman married according to an orthodox form who has left no issue will devolve on her husband and on failure of the husband the property will go to his sapindas in the order laid down in the Mitakshara with reference to succession to the property of a male. That is to say, we have to ascertain the person who would succeed to the property as the nearest sapinda of the husband if the property belongs to him. And that is the interpretation which has been placed upon the text whenever it had to be considered see Venkatasubramaniam Chetti v. Thayarammal (1898) I.L.R. 21 M. 263 per Subrahmanya Aiyar and Davies JJ. where the daughters of the brother of a deceased Hindu widow s husband were held entitled to succeed to the deceased s stridhanam in preference to the claims of the adopted son of the deceased s sister s daughter, of the maternal uncle s adopted son and of the widow of the deceased s brother; Gojabhai v. Srimahant Seshagiri Row Malafi Rajah Cherla (1892) I.L.R. 17 B. 114 at 117, per Jardine and Telang JJ., where the grandson of a co-widow was preferred to a nephew and a co-widow; Jagarnath Prasad Gupta v. Rdnjit Singh (1897) I.L.R. 25 C. 354 at 367, per Maclean C.J. and Banerji J., where the contest was between the kinsmen of the deceased s husband and the kinsmen of her father and the former were held to be entitled to the succession; Krishnabai v. Sripati (1905) I.L.R. 30 B. 333, in which the right of the surviving co-widow who was in that case the nearest sapinda of the deceased s husband was recognised; Bai Kissorbai v. Hunsraj Morarji (1906) I.L.R. 30 B. 421 (P.C.), where a co-widow was held entitled to succeed in preference to the husband s brother or husband s brother s son; Mussammat Thakur Debia v. Rai Bulak Ram. (1867) 11 M.I.A. 139 at p. 175, where the rights of the collateral heir of the husband were confirmed, and Champat v. Shiba (1886) I.L.R. 8 A. 393, where the rights of a collateral relation who was the nearest sapinda of the deceased s husband were maintained against the brothers of the deceased.

(3.) Turning to the commentators whose works are referred to as authorities in the south, though of secondary importance compared to the Mitakshara, we find that Kamalakara expressly lays down with reference to cases like the present that nearness is to be determined by the rules given in the Mitakshara in respect to succession to the property of a male who dies without male descendants and that consequently first the wife, i.e., the rival wife of a deceased succeeds, next the daughter, i.e., the deceased s step-daughter, etc. (see West and Buhler, p. 518) and Smrithi Chandrika (see T. Krishnasawmi Iyer s Translation, Chapter IX, Section III, verse 38) also holds that the issue of a rival wife takes the property of the step- mother when the latter-leaves no progeny, husband or the like. The views of modern lawyers like Golabchandra Sircar Sastri (see his Hindu Law, IVth edition, p, 461) and Jogendranath Bhattacharya (see his Commentaries on Hindu Law, p. 580) also favour the right of the deceased s step-daughter as against collateral relations of the husband. The learned vakil for the respondent further relied on Dr. Gurudas Bannerjee s book on the Law of Stridhana but I have not been able to consult it.