SHAM BEHARI LAL Vs. RAM KALI

JUDGEMENT

(1.) This was a claim to certain property by inheritance. It was at one time the stridhan property of Musammat Sahodra and descended after Sahodra's death to Musammat Ram Piari, her daughter. Ram Piari is now dead and the defendant in possession is Ram Kali; daughter of Ram Piari. The plaintiffs are the sons of one Ganga Din, who was a son of Musammat Sahodra. As the Trial Court has rightly remarked, it is now quite settled law that Musammat Ram Piari, taking this property by inheritance from her mother, did not take it as her own stridhan, that she took it with a limited estate, with the remoter after her death to the heirs of her predecessor.

(2.) The question for determination then is whether the defendant, Musammat Ram Kali, as the daughter's daughter of Musammat Sahodra, is a nearer heir to Musammat Sahodra than the two plaintiffs who are the son's son of that lady.

(3.) On behalf of the respondent it is contended that, under the Mitakshara School of law, there can be but one answer to this question, and that the daughter's daughter has the preference. In principle two other High Courts have undoubtedly affirmed the view that, in such a case as the present, we have to look to the stridhan heirs of the female in whose hands the property was held as stridhan; vide Subra manian Chetti V/s. Arunachelam Chetti 28 M. I (F.B.) and Huri Doyal Singh Sarmana V/s. Grish Chunder Mukerjee 17 C. 811 : 8 Ind. Dec. (N.S.) 1152 Moreover, in the case of Sheo Partab Bahadur Singh V/s. Allahabad Bank 25 A. 476 at P. 489 : 7 C.W.N. 8401 : 13 M.L.J. 336 : 5 Bom.L.R. 833 : 30 I.A. 29 (P.C.), there is a very significant remark by their lordships of the Privy Council inserted as a comment upon a dictum of the learned Judges of this Court who dealt with the same litigation at an earlier stage. Their lordships had to deal with property which had been the stridhan of a lady named Kailash, Kunwar and had Passed from that lady to her daughter, Janki Kunwar. The main question which they had to determine was whether Janki Kunwar took that property from her mother with a limited estate, or whether the property itself remained stridhan in the hands of Janki Kunwar. Incidently, however, their lordships discussed the question of the devolution of the property after Janki Kunwar's death, and they quote a dictum of the learned Judges of this Court, to the effect that, when Janki Kunwar died childless, the succession necessarily went "to the heirs of her father. After quoting this remark their lordships add, "presumably as the stridhan heirs of her mother in the absence of lineal heirs of the latter." It seems to us quite clear from this passage that if their lordships had had to determine the devolution of the property then in suit upon the death of Janki Kunwar, they would have looked for the stridhan heir of her mother Kailash Kunwar, and enquired who those heirs would be according to the School of law to which the parties in that litigation were subject. If these were the only authorities before us, the point would seem almost too clear for argument. A certain difficulty has been created by an argument strongly pressed upon us by the learned Counsel for the appellants, based upon the decision of their lordships of the Privy Council in Sheo Shankar Lal V/s. Debi Sahai 25 A. 468 : 13 M.L.J. 330 : 5 Bom. L.R. 1281 : 7 C.W.N. 831 : 30 I.A. 202 : 8 Sar. P.C.J. 4651 (P.C.) The main question which their lordships then had to decide was whether property inherited by a female from her mother was or was not stridhan in the hands of the female who so inherited it. That question, as we have already noticed, they answered in the negative. At page 471 of the report their lordships, say: "the precise, question, therefore, arising for decision is whether under Hindu law of the Benares School property which a woman has taken by inheritance from a female is her stridhan in such a sense that on her death it passes to her stridhan heirs in the female line to the exclusion of males." That was true only question really determined in the judgment. It must, however, be admitted that the defendants in that litigation were setting up, by way of jus tertii the rights of a daughter of the female who had received the property in suit by inheritance, and, therefore, a daughter's daughter of the female who last held that properly as stridhan with full rights of ownership over the same. Their lordships decided the case against the alleged jus tertii of this daughter's daughter. The learned Judges of the Madras High Court, in the case which we have already referred to, Subramantan Chetti V/s. Arunachelam Chetti 28 M. 1(F.B.) discussing this point, assumed that the decision in Sheo Shankar Lal V/s. Debi Sahai 25 A. 468 : 13 M.L.J. 330 : 5 Bom. L.R. 3281 7 C.W.N. 8311 : 30 I.A. 2021 : 8 Sar. P.C.J. 4651 (P.C) proceeded upon a very limited pleading. They assumed that the right set up by way of a jus tertii was the right of the daughter as such and that nothing was ever pleaded, and nothing was ever decided; about the rights of that same female as a daughter's daughter. Mr, Mayne, on the other hand, in his commentary of the Hindu law, state with full knowledge of the facts, for he had himself argued the case before their lordships of the Privy Council, that as a matter of fact the difficulty suggested above WAS brought to the notice of their lordships, but was met by himself in argument by a plea based upon a suggested differentiation in the line of descent between different kinds of stridhan property. It seems sufficient I or us to say that the judgment of their lordships of the Privy Council in Sheo Shankar Lai V/s. Debi Sahai 25 A. 468 : 13 M.L.J. 330 : 5 Bom. L.R. 3281 7 C.W.N. 8311 : 30 I.A. 2021 : 8 Sar. P.C.J. 4651 (P.C) is really silent on the particular issue which we have now to determine. The question which their Lordships set out to decide we have already quoted from the judgment itself and the decision of that question does not determine the appeal before the Court. The further question raised regarding the result of the appeal in the case of Sheo Shanktr Lal V/s. Debi Sahai 25 A. 468 : 13 M.L.J. 330 : 5 Bom. L.R. 3281 7 C.W.N. 8311 : 30 I.A. 2021 : 8 Sar. P.C.J. 4651 (P.C) may be explicable either on the lines suggested by the learned Judges of the Madras High Court, or on the basis of "the settlement made by Mr. J. D. Mayne in his commentary. We do not think that the argument based upon the decision in this case can be allowed to outweigh the considered opinion expressed upon the same point in the case immediately following, that of Sheo Partab Bahadur Singh V/s. Allahabad Bank 25 A. 476 at p. 489 : 7 C.W.N. 840 : 13 M.L.J. 336 : 5 Bom. L.R. 833 : 30 I.A. 29 (P.C.), or that we ought, on the grounds taken by the learned Counsel in support of the appeal, to dissent from the opinions of the "learned Judges of the Madras and of the Calcutta High Courts in the cases we have already quoted. In our opinion, therefore the decision of the Trial Court was right; and we dismiss this appeal with costs.