SUNDARAM PILLAI Vs. RAMASAMIA PILLAI

JUDGEMENT

(1.) The sole question for determination in this appeal is whether plaintiff or 3rd defendant is the heir to the property of one Gomati Ammal, a maiden. Plaintiff is the father s brother s son of Gomati s father, whereas 3rd defendant is the sister of Gomati s father. In Kamala v. Bhagirathi (1912) I.L.R. 38 Mad. 46 : 23 M.L.J. 618 it was held that when a maiden s mother and father are dead her heirs are her father s Sapindas and this case followed Janglu Bai v. Jethn Appaji (1908) I.L.R 32 Bom. 409 Tukaram v. Narayan Ramachandra (1911) I.L.R. 86 Bom 339 and Dwarka Nath Roy v. Sarat Chandra Singh Roy (1911) I.L.R. 39 Cal. 319. In Mitakshara Chapter II, Section 11 P1. 20 there is a text of Baudhayana which says. "The wealth of a deceased damsel let the uterine brethren themselves take. On failure of them it shall belong to the mother, or, if she be dead, to the father," but the Mitakshara is silent as to the succession in default of mother or father, In the abovementioried cases the rule of succession to the property of a woman married in an unapproved form contained in Pl. 11 of the same section was applied by analogy and it would appear that this decision, of three High Courts would be final, but it is contended for respondents that a text of Brihas-pati contained in the Smriti Chandrika (Chapter IX Section III pl. 36) and the Saraswati Vilasa (pl. 327) provides for the succession after the mother and father. This text no doubt immediately follows the text of Baudhayana in the Smriti Chandnka, but there does not appear to be any connection between the two, for Brihaspati s text relates to what are called secondary mothers, and deals with the succession to their property. In the Saraswati Vilasa the text follows a placitum relating to the property of a betrothed damsel. It is difficult to believe that the succession to a maiden is analogous to the succession to secondary mothers, for a maiden cannot by any stretch of language be treated as a secondary mother, whereas there is no such difficulty in the case of the person cited, i.e., mother s sister, uncle s wife, father s sister etc. There is also another difficulty in the way of applying the text in the way contended for by respondent s vakil, which is that the persons enumerated are the heirs to a maiden s estate, for in the Smriti Chandrika the persons enumerated are said to be equal to a mother. If that be so they would take the succession after the mother to the exclusion of the father. This is directly opposed to Baudhaya-na s text in the Mitakshara, which in this presidency must always be preferred to the Smriti Chandrika, when they are not in agreement. Respondents contention must therefore be negatived for two reasons, firstly because Brihaspati s text does not at all refer to the succession to a maiden s property, and secondly because if it does refer to it it is opposed to the Mitakshara. I therefore follow Kamala v. Bhagirathi (1912) I.L.R. 38 Mad. 45 and hold that the heirs to Gomati s property are her father s Sapindas. So far I agree with the District Judge, but he has followed the Bombay High Court in holding that a sister is a nearer heir than the father s brother s son. In Madras, however, the law is that the father s brother s son is to be preferred, the sister only coming in after the male sapindas. I am unable to accept the contention based on the single sentence of the judgment in Kamala v. Bhagirathi (1912) I.L.R. 39 Mad. 45 that the father sapindas in a case where the property of a female is concerned are different to the sapindas in the case of a male s property. In the absence of any rule to the contrary the sapindas must always be the same. The appeal is accordingly allowed, and the Subordinate Judge s decree restored with costs both here and in the Lower Appellate Court. Napier, J.

(2.) The question raised in this second appeal is as to the succession to the stridhanam property of one Gomati Ammal. The deceased Gomati Ammal inherited the property under a will from her father, one Muthia Pillai, and it is conceded that the mother is also dead. The contesting parties are the son of the paternal uncle of the deceased s father and the father s sister of the deceased, the uterine brothers who admittedly would have a preference to any one else having failed. The point has been expressly decided in two cases in Bombay. Janglubai v. Jetha Appaji (1908) I.L.R 32 Bom.409 and Tukaram v. Narayan Ramachandra (1911) I.L.R. 36 Bom. 339 and the view taken by that Court was followed by two learned Hindu Judges of this Court in Kamala v. Bhagirathi (1912) I.L.R. 39 Mad. 45. It is suggested before us that this question requires reconsideration in view of the fact that the Mitakshara does not definitely decide the point and that the Bombay Hjgh Court relied on the Viramitrodaya, a work which is not followed in Madras. It is further contended before us that the question is disposed of by a text in the Smrity Chandrika. The language of the Mitakshara is based on the authority of Bodhayana the text being "for Bodhayana says : "The wealth of a deceased damsel let uterine brothers themselves take, on failure of them, it shall belong to the mother, or if she be dead, to the father." (Chapter II, Section 11 Pl. 30.) As the text stops there, this Court applied the analogy of the succession to the property of a childless married woman which is provided for in pl. 11 of the same section. There the succession is stated as being to the mother and to the father; on failure of them their nearest of kin takes the succession." The translation is that of Borrodaile. The High Court however preferred "to their sapindas" as being a more correct translation. The judgment then proceeds as follows :-"We see no reason for not accepting the view of the Bombay High Court that the sapindas both of the father and the mother must be understood to mean the same persons as the mother becomes a member of the father s family on her marriage." It is to be noted that the learned Judges do not expressly follow the language of Viramitrodaya which is definite on the subject as did the High Court of Bombay, but proceeded by way of analogy arriving at the same result. It is not therefore correct to say that the decision of this Court is based on a text which is not an authority in the Presidency.

(3.) It remains to consider the text relied on by Mr. Ganapathi Aiyar in his contention that this ruling is incorrect. I feel naturally considerable diffidence in construing a text which is translated, not being myself acquainted with the original Sanskrit. But in spite of that I am satisfied that the text lias nothing whatever to do with the subject. In the Smriti Chandrika, Chap. IX, Section 3. Clause 36, Brihaspati enumerates secondary mothers and points out who takes their property.The sister of a mother, the wife of a maternal or of a paternal uncle, the sister of a father, the mother of a wife, and the wife of an elder brother are declared equal to a mother. If they leave no male issue of their body nor a son of a daughter nor a daughter, a sister s son and the like shall inherit their property."Taken by itself, this text has on its face no application because we are not construing here the succession to secondary or quasi-mothers. The only mother with whom we are concerned is the real mother, and the question is who on the death of such real mother and father is to succeed. The next objection is that if this text is to apply, it contradicts the language of pl. 30 itself, for that is specific, the words being " it shall belong to the mother or if she be dead to the father," and not to the heirs of the secondary mother. The text is interesting as laying down that these quasi-mothers are to be treated as real mothers, but admittedly no such broad proposition is accepted in Hindu Law as applied in this Presidency. The only reason which Mr. Ganapathi Aiyar could urge for applying this text is that it follows the placitum in the Smriti Chandrika which is identical with pl, 30 in the Mitakshara. Both of these texts are to be found in the Smriti Chandrika in S. Ill, succession to a woman s property." We were informed at the bar that the numbers in the English translations are not in the original which is borne out by the fact that pl. 36 in Mr. Krishnaswami Ayar s translation is No. 21 in Ghose s translation. The chapter contains a series of texts on succession to the property of women generally and explanations of the terms used by the sacred writers, and the whole chapter is in the nature of dissertation on conflicting views of the authorities. The only passage which deals with inheritance to the wealth of a damsel appears to be the one placitum of Bodhayana above referred to. The placi-tum relied on seems to be a note by the learned commentator to the effect that where in the preceding paragraphs inheritance to a mother is dealt with, a specific line of succession is to be applied to these secondary mothers and has no connection whatsoever with the quotations from Bodhayana in the preceding passage. I am confirmed in this view that the passage relied on has nothing whatever to do with the subject by the fact that although Smriti Chandrika is a recognised authority of secondary weight in Madras the learned vakils who appeared before our learned brothers in Kamala v. Bhagirathi (1912) I.L.R. 38 Mad. 45 did not think that the passage was worth putting before their Lordships for consideration. In other respects I agree with the judgment of my learned brother.