BAI PARSON Vs. BAI SOMLI

JUDGEMENT

(1.) The only question for decision on this Second appeal, arising under the Vyavahara Mayukha, is whether the sons of a woman, who inherit her Stridhan property, take it jointly as co-parceners or severally as tenants-in-common.

(2.) The lower Courts have held that they take it severally as tenants-in-common, on the authority of the Full Bench ruling of the Madras High Court in Karuppai Nachiar v. Sankara-narayanan Chetty (1903) I.L.R. 27 Mad. 300. That decision has been followed by a Division Bench of this Court, consisting of the learned Chief Justice and Batchelor J. in Dattambhat bin Appanbhat v. Yamnabai kom Rambhat S.A. No. 277 of 1911, decided on the 1st December 1911. Both these decisions are under the law of the Mitakshara. It is urged in support of this second appeal that the law of the Mayukha is otherwise. Reliance is placed on the passage in that authority, where the word daya (heritage) is defined and then explained by the author, Nilakantha (Ch. IV, Section 2, placita 1 and 2, pp. 46 and 47, of Stokes s Hindu Law Books.) There, after defining daya as " wealth not reunited, nor put back again into a common stock and (still) admitting of partition," Nilakantha goes on to quote from the Smriti Sangraha which says :-" That which is received through the father, and that received through a mother is described by the term Heritage." Upon this it is argued that, since property inherited by sons from their mother is put by the text quoted from the Smriti Sangraha upon the same footing as property inherited by them from their father, and since the law of co-parcenary undoubtedly obtains as to the latter, the same law ought to prevail as to the former also.

(3.) Before discussing the soundness of this argument, it will be convenient to consider first the basic principle or root-idea of the term co-parcenary or joint tenancy under the Hindu law, and then to determine whether that principle is common to both the Mitakshara and the Mayukha.