RAM GOPAL BHUTTACHARJEE Vs. NARAIN CHANDRA BANDOPADHYA

JUDGEMENT

(1.) The facts which have given rise to the litigation out of which this appeal arises, so far as it is necessary to state them for the decision of the questions of law raised before us, are practically undisputed. The property which is the subject matter of this litigation originally belonged to the appellant. On the 2 January, 1898 he granted a maurasi and mokarari lease of this property, reserving an annual rent of one rupee, to his daughter Pravabati. Pravabati died in 1900 and on the 16 May 1901, the plaintiff took a sub-lease of the lands comprised in the tenancy from her husband, and on the basis of this sub-lease, the plaintiff seeks to recover possession. The appellant, who was the first defendant in the Court below, resisted the claim on the ground that as Pravabati died childless, leaving her mother as her heiress according to Hindu Law, her husband had no title to the property and could not confer any on the plaintiff. The Courts below have concurrently held that the interest created by the appellant in favour of her daughter-constituted her stridhan, but while the Court of the first instance held that the mother was entitled to succeed in preference to the husband, the learned Subordinate Judge held that the husband was entitled to succeed in preference to the mother. The substantial questions of law, therefore, which arise in this appeal and which have been elaborately discussed at the Bar, are, first, whether the property in dispute was stridhan as understood in the Bengal School of Hindu Law, and, secondly, whether the husband or the mother is the preferential heir to it.

(2.) As regards the first question we do not entertain any doubt that the property in dispute has the charecteristies of stridhan as defined in the Dayabbaga. It was indeed contended by the learned vakil for the respondent that a leasehold interest was unknown in the times when the authoritative text-books on Hindu Law were written, and that consequently the interest in property, which was created by the appellant in favour of his daughter, was not property to which the rules laid down in the text-books on Hindu Law Could have any possible application. In our opinion there is no force in this contention. In the first place no authority has been cited in support of the proposition that leasehold interests were unknown at the time when the Dayabhaga was written. In the second place, we are not prepared to hold that the rules of Hindu Law are so inelastic as to he capable of application only to such descriptions of interests in properly as formed the subject matter of transactions at the time when the rules were first formulated. Indeed if the rules of Hindu Law were so narrowly construed and applied it would be impossible to administer them, because in any case, the Courts would be called upon to hold a preliminary enquiry as to when a particular rule was first laid down and also as to what kinds of interest in property were recognized at that time. In the third place, if leasehold interest was not recognized as property, it is difficult to see how the plaintiff could have acquired any right on the basis of which his claim could be sustained. We must therefore hold that the property in suit is one to which the rules of Hindu Law are applicable. We are further of opinion that it possesses the characteristics of stridhan--according to the Dayabhaga in Chap. IV, Section 2, paras. 18 and 19 of which it is laid down that, " that alone is her peculiar property which she has power to give, sell or use independently of her husband's control; Katyayana expresses this rather concisely. The wealth which is earned by mechanical arts or which is received through affection from any other (but the kindred) is always subject to his (husband s) dominion. The rest is pronounced to be the woman's property." No doubt this definition may be open to the objection that it defines one unknown quantity by means of another. But it is clear from the text of Katyayana referred to, as also from the text of Katyayana quoted in the Dayabhaga Chap. XI, Section 1, para. 56 that under the Bengal School of Hindu Law, a female has not absolute power of disposition over (i) what she earns by the mechanical arts, (ii) what is given to her by strangers at any time other than that of marriage and (iii) what she inherits from a male or a female relation. The property in suit does not come under any of these categories, and must be taken to be one which Pravabati had power to give, sell or use, independently of her husband's control. It was therefore stridhan within the meaning of that term as used in the Dayabhaga. We think it is also clear that it comes within the description of ayautuka stridhan as it was given to her by her father after her marriage. Further it comes within the class known as anwadheya, which is thus defined in the Dayabhaga in paras. 15 and 16, of Chap. IV, Section 3.--"15. For anything received by her subsequently to her nuptials is comprehended under the denomination of anwa theya (gift subsequent). "16. Katyayana describes anwadheya (a gift subsequent) what has been received by a woman from the family of her husband and at a time posterior to her marriage, is called a gift subsequent and so is that which is similarly received from the family of her kindred."

(3.) With reference to these passages, it was argued by the learned vakil for the respondent that nothing is anwadheya which is not given as a "gift" and as in the case before us the appellant created in favour of his daughter a leasehold interest, such interest is not comprised within the class anwadheya. We are unable to accept this contention as sound. As is shown by the definitions we have referred to, what is received is called Anwadheya, which is also the derivative meaning of the term, and the phrase "gift subsequent" which has been adopted as the English equivalent of ancadheya cannot be allowed to restrict its meaning. Looking to the substance of the transaction in the case before us, the appellant parted with all his interest in the property in favour of his daughter, reserving the right to receive a nominal sum annually. It is conceded that, if such right had not been reserved and the transaction had been described as a gift, the property acquired by the daughter would have been comprehended in the term anwadheya. We are unable to hold that the reservation of a nominal rent altered the character of the transaction so far as the question now before us is concerned There cannot be any reasonable doubt that the daughter received from the father a substantial interest in the property, although it was not the entire interest, which the father was competent to transfer. We hold accordingly upon the first question raised before us that the intrent, in the property transferred to Prava-bati under the deed of the 2 January, 1898, constituted her ayautoka stridhan and falls within the class known as armadheija.