DWARKA NATH ROY Vs. SARAT CHANDRA SINGH ROY

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs to recover certain property by right of inheritance to one Panchi Barmani who died unmarried on 6th Jane 1906. The Subordinate Judge has decided in the plaintiffs favour and the defendants have appealed. Kinu Sinha Roy, father of the plaintiffs, and Lac lima n Sinha Roy were two brothers. Kinu Sinha Roy died on 17th August 1891, leaving three sons, the plaintiffs, and Gopal Chandra, who subsequently died unmarried. Lachman Sinha Roy died on 18th April 1903, leaving a will dated 20th July 1902, of which his son-in-law, defendant No. 1, is executor. Lachman Sinha Roy left a widow Sasikala and three daughters, defendants Nos. 2 and 3, and Panchi Barmani. Lachman by his will made a disposition of his property in favour of his wife and daughters. The particulars are immaterial for our present purpose. Sasikala died on 18th April 1905, having made a will, dated 20th December 1901, by which she gave her property to her three daughters absolutely. The parties are by caste Khatrias and are governed by the Mitakshara School of Hindu Law. Kinu Sinha Roy and Lachman Sinha Roy bad separated in the lifetime of the former.

(2.) The only question which has so far been argued before us is that raised by issue 13, whether the plaintiffs are preferential heirs of Panchi Barmani, and entitled to her estate before her sisters Kanaklata (defendant No. 2) and Jogmaya (defendant No. 3) and Birendra Narain (defendant No. 4), son of defendant No. 2. If this be decided against the plaintiffs, their suit must fail. If in their favour, then other questions arising in the suit must be considered.

(3.) The law on the point admittedly lies within a very narrow compass, a text of Baudhayana cited in the Mitakshara, and the commentary on that text in the Viramitrodaya. The whole question turns upon the meaning to be given to the words "their nearest relations" in the Viramitrodaya. The text of Baudhayana is to be found in the Mitakshara, Chapter II, Section XI, Sub-section 30. For Baudhayana says: "The wealth of a deceased damsel, let the uterine brethren themselves take. On failure of them, it shall belong to the mother, or, if she be dead, to the father." In the Viramitrodaya (at page 240--1 of Golap Chandra Sarkar Shastris Translation) we find besides as it is expressly declared that the father inherits the property of a maiden on failure of the mother, so the same order is proper in this case also 5 thus Baudhayana declares: "the wealth of a deceased maiden, let the uterine brothers themselves take; on failure of them it shall belong to the mother; in her default, to the father. On failure of the mother and the father, it goes to their nearest, relations." Who are their nearest relations? Had it not been for the elaborate arguments which were addressed to us, I should have been inclined to say that there was not much room for argument. As it is, it appears to me not to admit of any doubt. In this case Lachman and Sasikala were admittedly married according to one of the approved forms. The wife therefore became absolutely a member of her husband s family, and his relations were her relations. Now whether defendants Nos. 2, 3 and 4 be regarded as relations or as heirs of Lachman, it makes no difference. The word sapinda in the Mitakshara denotes affinity; "sapinda relationship arises between two people through their being connected by particles of the one body" (see Mayne s Hindu Law, 7th Ed., page 690). From this point of view defendants Nos. 2, 3 and 4 are manifestly nearer in relationship to Lachman and Sasikala than the plaintiffs. They would undoubtedly as heirs of Lachman he preferred to the plaintiffs. A daughter and a daughter s son both come in before a brother s son. The argument of the learned pleaders for the respondents resolves itself into this, that agnates must be preferred to cognates. But why? No authority was cited for the proposition which involves a constrained and unnatural interpretation of the words "their nearest relations" in the Viramitrodaya. As a matter of fact, it was the (only possible line of argument by which the plaintiffs could hope to succeed. It was said that this was a case of first impression and that the point has not been decided before. A very similar case, however, arose in Bombay: see Janglubai v. Jitha Appaji (1908) I.L.R. 32 Bom. 409. There also the question was as to the succession to the stridhan of a maiden, and the contesting parties were the maternal grand-mother, plaintiff, and the father s mother s sister s son, defendant. That case differed from the present in that the parents of the propositus had been married apparently according to one of the blamed rites, and the contest was between the relations of the mother on the one side and of the father on the other. It was there argued (though unsuccessfully) for the plaintiff that the maternal relations were to be preferred to the paten nil. Many of the remarks of Mr. Justice Chandavarkar are applicable to the present case, and I do not propose to go over the same ground again. I may, however, repeat one remark of the learned Judge that "the sapindas, i.e., the nearest relations of the parents," means the sapindas of the fathers, who are also sapindas of the mother by virtue of her identity with her husband as half of his body. The various commentators who have touched on the question appear to be of the same opinion: see Dr. Gooroo Das Banerjee on Marriage and Stridhan, 2nd ed., p. 424; Mayne s Hindu Law, 7th ed., pp. 890-1; and Golap Chandra Sarkar Shastri s Hindu Law, 4th ed., p. 460. I would therefore hold that any one of defendants 2, 3 or 4 is entitled to succeed to the estate of Panchi Barmani in preference to the plaintiffs. As between defendants Nos. 2 and 3, the sisters, and defendant No. 4, the sister s son, I would leave the question of preference undetermined, as they are all before us in the position of defendants. Whatever may be the rights of the defendants as between themselves, the plaintiffs must fail. The learned Subordinate Judge in coming to the opposite conclusion has, I think, fallen into error by not adhering closely to the texts, and by confounding the case of succession to a female with that of succession to a male. Here we have to look for the heirs of the unmarried female in the nearest relations of her parents, and the only question is which of the parties before us answers to that description. It is unnecessary to go into any other questions arising in the suit. 3. For the reasons given, I would allow the appeal and dismiss the plaintiffs suit with costs in both Courts. N. R. Chatterjea.