MAHENDRA NATH MAITY Vs. GIRISH CHANDRA MAITY

JUDGEMENT

(1.) THIS is an appeal from a decision of the learned Subordinate Judge of Midnapur, dated the 26th June 1913, affirming the decision of the Munsif. The, suit involves the question as to the right of succession to seven bighas of land, which formerly belonged to a Hindu woman who is now dead. The contest is between her husband find her brother? That the property was the stridhan property of the deceased Woman, there can he no doubt. The question is what was the nature of the stridhan that was acquired by this woman. The learned Judge of the Court of Appeal below has found that the property was given to the woman seven years after her marriage and that it was a property not given on the occasion of her marriage. The case for the husband, who is the appellant before us, is that there was a promise to give the property at the time of the marriage and that the gift must be taken as a ratification of the promise. That, of course, is not correct. The promise was one that was not capable of being specifically performed. Any seven bighas of land could have been given and there cannot be the slightest doubt that we must take the gift as from the date when it was made to the woman. On the date that the property was given to the woman, there cannot be any doubt that it was an ajautuka stridhan property. There cannot also be the slightest doubt, on the decisions of this Court, that the brother is the preferential heir to the husband. It may be, as has been argued by the learned Vakil for the appellant, that Sreekrishna in his Commentaries says that the husband ought to succeed in preference to the brother when the marriage is accompanied by certain religious ceremonies. That view has not been accepted in this Court is sufficiently shown by the decision of Mr. Justice Mookerjee in the case of Ram Gopal Bhuttacharjee v. Narain Chandra Bandopadhya 10 C.W.N. 510 : 3 C.L.J. 15 : 33 C. 315. There Mr. Justice Mookerjee agreeing with Mr. Justice Rampini accepted the opinion of Jimutavahana in preference to that expressed by Sreekrishna. We are bound by that acceptance ,of the opinion of Jimutavahana and we must adhere to the view that the form of marriage does not alter the nature of the stridhan property. There cannot be any doubt that this property was the ajautuka stridhan property of the dead woman and the decisions of this Court are clear with reference to the brother being the referential heir to the husband. That being so, we agree in the decisions of the learned Subordinate Judge-and dismiss the appeal with costs.