KRISTO BEHARY DUTT Vs. SAROJINI DASSI

JUDGEMENT

(1.) The question in controversy in this case relates to the inheritance of the ayautuka stridhan of one Radharani Dasi, a widow governed by the Dayabhaga school of Hindu law. The plaintiff is the son of Radharani's step-daughter. The defendant sets up jus tertii, and contends that on Radharani's death the property descended to one Gosto Behari, a son of Radharani's brother. Buckland, J.

(2.) has dismissed the suit, holding that Gosto Behari was the preferential heir. At p. 158 of Mulla's Hindu Law, Edn. 7, are to he found two tables enumerating the two sets of heirs, the first set consisting of 5 groups of heirs, in their order in respect of ayautuka stridhan according to the Bengal school; and it is with reference to these tables that the matter will be discussed here. As regards the first three groups of the first table, no question arises in this case. Mr. Hazra's first contention on behalf of the appellant is that in Group 4 of the first table "daughter's sons" should be read as including stepdaughter's sons." If this contention succeeds it is obvious that the plaintiff should be held to be the preferential heir, because the defendant comes in only under Group 9 of the second table. In support of the contention that no distinction should be drawn between "daughter's sons" and "step-daughter's sons" reliance has been placed upon certain decisions which we shall now notice. In Dasarathi Kundu v. Bepin Bihari Kundu (1905) 82 Cal 261 the contest was between a step-sister's son and the elder brother of the husband. Several reasons were given by the learned Judge for holding that a step-sister's son is practically in the position of one's own sister's son and in a better position than the elder brother of the husband even from the point of view of spiritual benefit. While overruling a contention that the mention of "whole brother" in para. 29 of Dayabhaga, Ch. 4, Section 3, which was considered by the learned Judges as applying to succession to a woman's sulka only, suggested that whole-blood was also meant in para. 31 et seq, the learned Judges observed: This rather supports the contention of the plaintiff than that of the defendants in this case; for the verse indicates that where a person connected by half-blood is meant to be excluded the author says so,

(3.) The case of Sashi Bhusan Lahiri V/s. Rajendra Nath Joardar (1913) 40 Cal 82 merely purported to follow the decision in the case of Dasarathi Kundu V/s. Bepin Behari Kundu (1905) 82 Cal 261 in so far as that case gave the step-sister's son a place in Group 7 of the second table, and also proceeded upon the decision in the case of Bholanath Roy V/s. Rakhal Das Mukerji (1813) 11 Cal 69 in which it had been held that under the Bengal school of Hindu law sons of sisters of the half-blood are entitled to succeed equally with sons of sisters of the whole blood to the property of a deceased brother. The case of Jatindra Nath Roy V/s. Nagendra Nath Roy was a Mitakshara case, the contest being between the father's half-sister's son and the mother's sister's son as to the right to succeed to a male owner; and while dealing with atmabandhus, the learned Judges observed that where the text-writers meant that there should be a difference between the relations of full-blood and half-blood that was especially enumerated, but where no such distinction is made in the text the words should be read as including both full-blood and half-blood. These decisions, in our judgment cannot be regarded as having laid down any general proposition that wherever in any list of heirs a particular heir is named, it should be taken, in the absence of any express words to the contrary, to include both whole-blood and half-blood. And on the authority of these decisions we are not prepared to hold that Group 4 of the first table should be read as including step-daughter's sons. The next attempt made on behalf of the appellant was to support the group of heirs whom Srikrishna in his Dayakarma Sangraha interposes between Group 4 and Group 5 of the first table. Jimutabahana, in namingthe heirs up to Group 5, allowed the doctrine of spiritual benefit to be subordinated to other considerations to a certain extent. From the texts of Manu Brihaspati and Devala, he deduces the rule (Dayabhaga, Ch. 4, S ii, 9) that the son and maiden daughter have a like right to succession, and on failure of either of them, the goods belong to the other, and on failure of both of them the succession devolves with equal rights on the married daughter who has a son, and on her who may have a male issue, for by means of their sons they may present oblations at solemn obsequies. He then turns to the text of Manu (ix, 139) which says: Even the son of a daughter delivers him in the next world like the son of a son; and then as between a son's son and a daughter's son he gives preference to the former, observing that since the married daughter is debarred from inheritance by the son it is reasonable that the son of the debarred daughter shall also be excluded by the person who bars her claim (Dayabhaga Ch. 4 S, 2, 11). So far, that is to say as regards Groups 1 to 4, it may perhaps be said that spiritual benefit was a primary consideration with him. But in naming Group 5, that is to say, after the daughter's son, he admits barren and widowed daughters. But these are unable to confer any spiritual benefit, and his reason for letting them in here is that they are also her offsprings (Dayabhaga Ch. 4 ii, 12), which is nothing else than the ground of natural love and affection, Srikrishna, on the other hand, being more zealous in following out the doctrine of spiritual benefit, has placed between Group 4 and Group 5 the following heirs in their order: (1) son's sen's son, (2) step-son, (3) step son's son and (4) step-son's son. (Srikrishna's commentary on Dayabhaga, Ch. 4 Section 3, Dayakarma Sangraha Ch: 2, S. iv, 9). Sir Gooroo Das Banerji in his Hindu Law of Marriage and Stridhan, Edn. 5, p. 477, has observed that though Jimutabahan's rule is more authoritative and also more equitable, Srikrishna's list has been generally accepted. It is clear, however, that this list as it stands gives the appellant no place, unless step-son's son" is taken to include "step-daughter's son."