Kenaram Jana vs Maniklal Das Mahapatra

Das, J.—This is an appeal by the Plaintiffs against the concurrent judgments of the courts below dismissing their suit for declaration of their title to the disputed land measuring 01 acre and the hut standing thereon and for recovery of possession with mesne profits.

It is no longer disputed that the disputed property was the ajautuka atridhan property of Srimati Uma Bewa, who died in November, 1942, that the Plaintiffs purchased the same in May, 1943, from Nagendra and Surendra who are the sons of a co-wife of Srimati Uma Bewa.

The contesting Defendant claims the same on the strength of a prior purchase from Adhar and Swarnomoyee, a brother and sister of Srimati Uma Bewa.

The only question which was agitated in the lower appellate court and in this Court is: whether Nagendra and Surendra, who are the step-sons of Srimati Uma Bewa, have a preferential right to the disputed property than Adhar, a brother of Srimati Uma Bewa.

It is an admitted fact that the parties are governed by the Dayabhaga school of Hindu Law.

The question, therefore, is whether under the Dayabhaga 6chool of Hindu Law a step-son is a preferential heir than a brother, to the ajautuka stridhan of a Hindu lady.

The lower appellate court held that the step-son was postponed to the brother, relying on a Bench decision of this Court in Chamathari Devi v. Narendranath Manna ILR [1947] 1 Cal. 173.

Mr. Jana, who has appeared in support of the appeal, contested the correctness of the said Bench decision and submitted that the question might be referred to a Full Bench.

On an enquiry made into this matter, we have ascertained that in Appeal from Original Decree No. 174 of 1949 a Bench of this Court (Harries C.J. and Banerji J.) referred the above matter to a Full Bench, but that the Full Bench was not called upon to decide the matter, as the parties put in certain terms of settlement.

We have looked into the order of reference. Banerji J. with whom Harries C.J. agreed, stated the reason for making the order of reference as follows:

Mr. Justice Sarkar''s view seems to us to be more in consonance to the prevailing view of the courts, but we cannot ignore the judgment of such a learned Judge as Mr. Justice Mukherjea.

The referring judges, however, did not express their dissent from the Bench decision in Chamatkari Deyis case. We have not been referred to any Bench decision which has dissented from the last decision. The mere fact that an order of reference to a Full Bench was made, does not conclude the matter. We have, accordingly, gone into the matter with the assistance of learned Counsel, but we are not inclined to hold that the last Bench decision has been wrongly decided.

My learned brother, Das Gupta, J. has dealt with the Sanskrit texts bearing on the question now before us and has come to the conclusion that Chamatkari Deyi''s case has not been wrongly decided. I agree with his conclusion. As a view contrary to that taken in Chamatkari''s case was taken by Sarkar J. I propose to discuss the line of reasoning of the learned judges in the above cases and to give my own views in the matter.

Jimutavahana''s Dayabhaga is undoubtedly of paramount authority in Bengal.

I shall therefore, preface my discussion of the question before us by referring to his work. I have adopted Colebrook''s translation of Ddyabhdga.

Chapter IV deals with succession to woman''s property (stridhan).

Section I defines the different forms of stridhan.

Section II deals with succession of a woman''s children.

Verses 1-9 speak of the succession of sons and daughters.

Verses 10-11 speak of the succession of son''s son and of daughter''s son.

Verse 12 in Sanskrit runs as follows:

Colebrook''s translation is as follows:

On failure of all these abovementioned including the daughter''s son, the barren and the widowed daughter, both succeed to their mother''s property: for they also are her offspring, and the right of others to inherit is declared to be on failure of issue.

It is clear that in verses 1 to 12 Jimutavahana dealt with the claims of her offspring and that verse 12 clearly specified that the rights of others to inherit would come in after her offspring

Verses 13 to 29 do not deal with the claims of a son of a rival wife. It must follow that Jimutavahana never contemplated that the off spring of a rival wife who can only be figuratively regarded as her son on the strength of texts of Manu and Vrihaspati quoted hereafter, would interpose at some stage in the compact line of heirs mentioned in verses 1 to 12.

Section III which follows, deals with the rights of succession to the separate property of a childless woman.

I shall now deal with the relevant verses in section III. Verses 1 to 9 are not relevant for our present discussion. Verse 10 in Sanskrit reads as follows:

Colebrooke''s translation runs as follows:

But wealth received by a woman after her marriage from the family of her father, or of her mother, or of her husband goes to her brothers, as Yajnyavalkya declares: "That which has been given to her by her kindred as well as her fee or "gratuity and anything bestowed after marriage, her kinsmen take, if she die without issue."

Srikrishna adds "and not to her husband" and "her brothers".

Verse 11 explains "given by her kindred in Tajnyavalkya''s text.

Verses 12 to 28 are not relevant.

Verse 29 specifies the following order of succession in default of children, viz., whole-brothers, mother, father, husband. The verse in Sanskrit says:

The passage as translated by Colebrooke runs thus:

Therefore, the property goes first to the whole-brother, if there be none, to the mother, if she be dead, to the father; but, on failure of all these, it devolves on the husband.

The controversy in the present case mainly turns round verses 31, 32, 33. I shall first quote the original verse in Sanskrit, as extant.

In Colebrooke''s Ddyabhdga the above verses numbered as 31, 32, 33, are translated as follows:

On failure of heirs down to the husband, this rule again is provided, which Vrihaspati thus delivers, "The mother''s sister, the maternal aunt, the father''s "sister, the mother-in-law, and the wife of an elder brother, are pronounced similar "to mother. If they leave no issue of their bodies, nor son [of a rival wife] nor '' daughter''s son, nor sons of those persons, the sister''s son and the rest shall take "their property."

Both son and daughter are here signified by the terms "issue of the body". For they bar every other etaimant. By "son" is meant the child of a rival wife. For a passage of law expresses, "if among all the wives of the same husband, one "brings forth a male child, Manu has declared them all, by means of that son, to "be mothers of male issue." Nor is the term "son" an epithet "of issue of the body" for it would be superfluous and the sister''s son or other remote heir would have the right of succession though a son for a grandson] of a contemporary wife be living.

If there be no legitimate son or daughter, nor a grandson in the male line,

nor a son of a rival wife, the right of succession devolves on the daughter''s son.

Even if we assume that the above verses are genuine, a plain reading of them would shew that the co-wife''s son comes much later in the line of heirs, at any rate, after the husband.

The verses in section II referred to above show that the issue of the body of the deceased as specified therein comes first. Section III verse 29 clearly says that thereafter the whole-brother, the mother and the father and the husband succeed. The line of succession up to the husband is compact and there is no scope for interposing a co-wife''s son, etc., at any prior place.

The above view is supported by the opening words of verse 31 which say

These words clearly shew that other persons ( which may include a son or son''s son or son''s grandson of a rival wife) can only come in after the compact line of heirs upto " " (husband) as mentioned previously. Thus verses 31, 32, 33, even if genuine, may at the most shew a heritable right in the son, etc., of a co-wife.

The genuineness of verses 31 to 33 was debated in the case of Purna Chandra Basak v. Gopal Lal Sett (1908) 8 C.L.J. 369. A Bench of this Court (Brett and Mookerjee JJ.) held that the words [of the rival wife] in Colebrooke''s translation of verse 31 and verses 32 and 33 are interpolations.

The Court gave the following reasons for their conclusion.

(1) of the four renowned commentators of Dayabhdga, Srinath Acharjya Churamoni and Ramabhadra do not mention verses 31 to 33. Achyuta Chakravarti considers these verses to be of doubtful authenticity. Maheswar characterises them to be spurious.

(2) The original manuscripts kept in the Sanskrit College Library and in the Asiatic Society of Bengal, do not speak with one voice, some of these mention them, others do not.

(3) The verses in so far as they refer to the claims of the co-wife''s son, etc., are a misfit.

These are cogent reasons in support of the view taken by the Bench. It is true that the decision in the case in so far as it proceeded on a question of construction of the will was reversed by the Privy Council. The Privy Council did not consider the correctness or otherwise of the above view taken by the Bench as regards the genuineness or otherwise of the words [of the rival wife] in Colebrooke''s translation of verse 31 and of verses 32, 33, vide Gopal Lal Sett v. Purna Chandra Basak (1921) ILR 49 Cal. 459 : L.R. 49 I. A. 100.

The reasons given by the Bench of this Court on the last point commend themselves to me and I respectfully agree with their opinion.

In the later Bench decision of Chamatkari Deyi v. Narendranath Manna (supra) it was held that at any rate, verse 33 was an interpolation.

The Bench held that the "step-son, if he is to be regarded as "an heir, may come after the husband and certainly not before "the brother". I respectfully agree with this view.

In the Bench case, the question which fell to be decided was whether the mother or the step-son was the preferential heir to the ajautuka stridhana property of a married woman according to the Dayabhaga school. The Bench decided that the mother was to be preferred to the step-son. Thus the point actually decided is different but the reasons given for the decision just stated, conclude the present question, viz., whether the whole-brother is a preferential heir than the step-son as regards the ajautaka stridhana property of a married woman.

As already stated, Mr. Jana, learned Counsel for the Appellant, contended that the view taken in the Bench decision in Chamatkari ''Deyi''s case is wrong and pressed for a reference to a Full Bench. He merely reiterated the reasons given by Sarkar J'', in the above unreported decision and the reasons given by Banerji J. in the order referring the matter to a Full Bench in the said case.

I have, therefore, to examine these reasons. The reasons given in the said judgments for the contrary view may be thus summarised.

(1.) Even if verse 33 be regarded as spurious, verses 31, 34, 35, establish the claims of a step-son.

(2) Srikrishna Tarkalankar''s Dayakrama Sangraha Chapter II section IV verses 9 to 11 support the claims of a step-son.

(3) If we accept the position that the disputed verses are not spurious, then there would be no conflict between Dayabhdga and Dayakrama Sangraha. A view which avoids a conflict ehould be accepted.

(4) The text books on Hindu Law, viz., Mayne, "West and Buhler, Mulla, and Banerjee''s Marriage and stridhana, all adopt the view of Srikrishna Tarkalankar. The prevailing view of the country, therefore, supports the claim of the step-son in preference to that of the whole-brother.

I have already indicated that verses 31, 32, 33 merely specify the heritable right of the step-son but do not expressly place him before the whole-brother in the line of succession.

Verse 34 as translated by Colebrooke reads as follows:

By the pronoun in the phrase "son of those persons" (Rule 31) the woman''s own issue and the child of a rival wife are signified. Therefore, their sons have a right to inherit, not the son of daughter''s son, for he is excluded from the oblation of food at obsequies.

Verse 35 follows verses 31 to 34 and specifies the line of succession in default of sons and other lineal heirs as specified in verses 31 to 34 and in default of brother or other preferential claimants including the husband. I have already stated that the step-son, etc., cannot be placed before the compact line of heirs up to husband, as specified in Section II or verse 31, Section III. I cannot, therefore, accept the first reason as cogent.

I shall now deal with the third reason.

In Dayatattwa by Raghunandan, verses, 24 25, chapter X, the rival wife''s son and grandson are placed after the heirs down to the daughter''s son. The learned commentator says that they should not be placed after the heirs beginning with husband and ending with father mentioned before, the reason given being that "the husband and the rest have no capacity to present "oblations which are enjoyed by the deceased proprietress", (verse 25) Reference is also made to the text of Manu and Vrihaspati that all the co-wives become mothers of sons begotten by the husbandor any one of them.

Srikrishna Tarkalankar in his work Dayakrama Sangraha, Chapter II, Section 4 deals with the question of succession to the ajautuka stridhana, verse 9 deals with the claims of the sons etc. of a rival wife. The verse reads thus:

In his default the great grandson in the male line succeeds. Failing him the son of a contemporary wife, her grandson and great grandson in the male line since all these present funeral oblations to the husband of the woman, in which she participates (Stake''s Hindu Law Books p. 496).

I do not think that there is no conflict between Dayabhdga and Dayakrama Sangraha or Dayatattwa. The third reason has thus no foundation.

The 2nd and 4th reasons have now to be considered.

I shall first deal with the 4th reason. I shall first refer to the opinion of the different writers of text books. In my opinion, there is no unanimity of opinion though the preponderance of opinion favours the view of Srikrishna Tarkalankar.

The earliest work that I have been able to discover is Halhed''s Gentoo Code.

It would appear from the prefatory letter of Warren Hastings, dated March 27, 1775, that the Code was a translation into English from a Persian version of Gentoo Code compiled by the Pandits in Sanskrit. The Code places the co-wife''s son after son''s son''s son.

Strange in his Hindu Law, Vol. I (1825 Ed.), p. 249 places the co-wife''s son after the great grandson of the deceased and cites Dayakrama Sangraha, Chapter II, Section 3 v. 4, 5.

In Macnoughton''s Principles of Hindu Law (1828), pp. 46 et. seq. the son; grandson and great grandson of a rival wife are placed before the widowed and barren daughter as regards succession to jautuka and ajautuka stridhan.

In Stoke''s Hindu Law Books (1827), pp. 257-258 Srikrishna Tarkalankar is cited in support of the heritable right of a son of a rival wife.

Colebrooke''s Digest with a commentary by Jagannath Tarkapanchanan, 4th Ed. (1874), Vol. II, also takes practically the same view.

Shyama Charan Sarkar in his Vyavastha-Darpana (3rd Ed., pp. 241-242, Vyavastha 282 to 284, states that in default of the daughter''s son, the great grandson in the male line succeeds and then the son of a contemporary wife, her grandson and great grandson. This line is said to apply to jautuka and ajautuka stridhana. The opinion of Srikrishna Tarkalankar in Dayakrama Sangraha, Chapter II, Section iii, verse 9 is quoted in support of the Vyvastha.

In Mayne''s Hindu Law, (7th Ed., Section 670, p. 897) reference is made to the conflict of authority as regards the claims of a step son, step-son''s son, step-son''s grandson before the barren and widowed daughters. The learned author refers to Dayabhaga, Chapter IV, Section 3 and 32 and Dayakrama Sangraha, Chapter II. Section 3, and 11-13.

Trevelyan in his work on Hindu Law, Chapter XIV, assigns a place to the son of a rival wife after daughter''s son''s son.

Golap Chandra Sarkar in his Hindu Law (1910), 4th Ed. pp. 463-464, accepts the view that verse 33 is spurious and opines that the co-wife''s son may come after the husband.

West and Buhler in their treatise on Hindu Law, 4th Ed., p. 310 agree that the step-son is an heir but do not give their opinion as to the place which the step-son should occupy. The learned writers quote Ddyakrama Sangraha as supporting the view that the co-wife''s son would come after son''s grandson.

In Gour''s Hindu Code, of 3237-3241, the son of a rival wife is placed after son''s grandson.

In Mulla''s Hindu Law (9th Ed.), Section 157 deals with succession to ajautuka stridhana of a married woman under the Dayabhaga school of law, and states the order as follows-(1) sons and maiden daughters (2) married daughters likely to have sons (3) son''s sons (4) daughter''s sons (5) barren married daughters and childless widowed daughters.

Then follows the following, etc.:

The above order is according to Ddyabhdga. The Dayakrama Sangraha places (1) son''s son''s son (2) stepson (3) step-son''s son and (4) step-son''s grandson before barren married and childless widowed daughters.

The author then goes on to state the order of succession as follows:

(1) brother,

(2) mother,

(3) father,

(4) husband,

(5) husband''s younger brother,

(6) husband''s brother''s son,

(7) sister''s son.

(8) husband''s sister''s son.

(9) brother''s son,

(10) daughter''s husband,

(11) husband''s sapindas, sakulyas and samanodakas,

(12) father''s kinsmen.

It seems to me from the above enumeration that the learned author was inclined to place the co-wife''s son, etc. in item (11) as husband''s sapindas.

In J.C. Ghose''s Hindu Law, 3rd Ed., Vol 1, p. 345 footnote, the author observes as follows:

In Chapter IV, II, 11-12 of the Dayabhaga, the daugher''s son is placed immediately after the son''s son and before the widowed daughter but in Chapter IV, III, 33 he is placed after the step-son. Srikrishna notices this conflict and lays down the rule which is approved by Dr. Siromoni and Dr. Banerji. If the latter passage is genuine, it was intended by it, only to prove that the step-son was an heir, and not to lay down the order of succession.

Gooroodas Banerji in his Tagore Law Lectures on Marriage and Stridhana (1887), Lecture XI, p. 401 of the 2nd ed. (1896), refers to the conflict of opinion amongst the commentators and observes:

There is, therefore, a conflict of authority on the point, and the ordinary explanation that the enumeration of heirs in the Dayabhaga is not meant to be exhaustive, will be of little avail here, as the barren and widowed daughters are placed immediately after the daughter''s son in plain and unambiguous language. In this conflict of authority, the order according to Srikrishna is the one that has been generally accepted.

It would not, therefore, be quite correct to say that there is a complete imanimity of opinion amongst text hook writers. The fourth reason is, therefore, not strictly correct.

I shall now deal with the case law bearing on the question. The first case dealing with the right of a step-son, as far as I have been able to find out, is that of Pram, Krishna Singh v. Mt. Bagubatee (1805) Beng. Sudder Beports 5:6 India Decisions, (o. s.) 8. It was held by the Sudder Dewany Adalat (Earl Cornwallis, W. Cowper, Spoke, and T. Graham) on the advice of Pandit Radhakanta, that a brother being a son adopted by the mother of a deceased female, succeeds in preference to the father, the step-mother and a step-brother, being a son adopted by the step-mother, in respect of the stridhan property of the deceased female.

The next case is that of Gasain Chund Kobraj v. Krishnamunee (1836) 6 Benit. Sudder Reports 90: 7 India Decisions (o.s.) 734, 736. This case related to the case of succession to sauddyika stridhana. The contest was between paternal grandfather''s daughter''s son''s son and the son of a contemporary wife. The Court held relying on the opinion of the pandits that the latter inherited. The pandits referred to Manu, Dayabhaga, etc., and Dayakrama Sangraha. The next case is Judoo Nath Sircar v. Busunta Coomar Roy Choudhury (1873) 19 W.R. 264, when the mother, and not the husband, was held to be the preferential heir to property given to a woman by her father before marriage.

In Baikuntha Nath Chakravarti v. Kashinath Pandit (1912) 16 Ind. Cas. 653, which was a case of succession to ajautuka stridhana, Mookerjee and Beachcroft JJ. held that the father was a preferential heir than the husband and the son of a co-wife.

I have already referred to the decision of Puma Chandra Bysack v. Gopal Lal Sett (1908) 8 C.L.J. 369. The question was one of competition between the daughter''s son and a son of a rival wife. The Bench held that the former was the preferential heir to the ajautuka stridhan property.

In the case of Krishnabihary Dutt v. Sarojinee Dasee (1933) I.L.B. 60 Cal. 1061, the contest was between a son of a co-wife''s daughter and the brother''s son of a married woman in regard to the succession to her ajautuka stridhana property under the Dayabhaga school of law. The Bench held that the latter was the preferential heir. The Bench observed that "the mention of the secondary sons in "para. 31 was intended merely for an indication of the "heirs, without specifying the order in which they succeed."

The next case is that of Charmatkari Deyi v. Narendranath Manna ILR [1947] 1 Cal. 173 to which I have already referred. Mookherjee J., after an exhaustive discussion of the relevant texts, held that the step-son cannot be regarded as an "issue" of the female owner and that there is no room for introducing the step-son before the second group of heirs expressly enumerated by J''imutavahan or before the husband, through whom the step-son is related to the female owner (p. 180).

The net result of the above discussion is that there is a conflict between the Dayabhdga and the Dayatattwa and the Dayatattwa and Dayakrama Sangraha. The other commentators of the Dayabhdga do not share the views expressed in the Dayatattwa and Dayakrama Sangraha. The writers of text-books do not speak with one voice. As such it cannot be said that the views expressed in Dayatattwa and Dayakrama Sangraha have been universally adopted. The preponderance of judicial decisions rather supports the view that the step-son should not be introduced before the compact line of heirs up to the husband.

In these circumstances, I am clearly of opinion that the views of the Ddyabhdga, whose authority is paramount in Bengal should be preferred to those of the Dayatattwa and Dayakrama Sangraha. The second reason should not, therefore prevail. I am happy to find that in several cases, viz., Hurrymahun Shaha v. Shonatun Shaha (1876) ILR 1 Cal. 275, Gopal Chandra Pal v. Ram Chandra Pramanik (1901) ILR 28 Cal. 311 and Ram Gopal Bhuttacharjee v. Narain Chandra Bandopadhya (1905) ILR 33 Cal. 315, this Court has preferred the opinion of Jimutavahan to that of Raghunandan and Srikrishna Tarkalankar.

In my opinion, the decision in Chamatkari Deyi''s case is correct and I respectfully concur in the views expressed therein. There is no necessity of referring the case to a Full Bench.

The result, therefore, is that the decision of the lower appellate court must be affirmed.

The appeal is dismissed with costs.

DAS GUPTA. J. The question that arises for decision in this appeal is whether the brother or the step-son is the preferential heir to the ajautuka stridhan of a Hindu woman governed by the Dayabhaga system of Hindu Law.

Modern commentators of the Dayabhaga like Srikrishna and Raghunandan have stated the law to be that the step-son is preferential to husband, brother, father or mother. This has been accepted as the correct statement of law by foreign scholars like Macnoghten and Colebrooke. That eminent Sanskrit scholar and great judge, Sri Gooroodas Banerjee, recognised that though there was a clear conflict of authority on this question, the order according to Srikrishna is the one that has generally been accepted. He added, however, that it might be urged that Jimutavahan''s rule was more authoritative and more equitable.

In recent years, the question of the step-son''s place in the line of succession came up for consideration in three cases. Puma Chandra Bysack''s case, (supra), Chamatkari''s case (supra), Haripada Dhak v. Kalipada Pandit, (unreported).

The question in Purna Chandra Bysack''s case was whether the step-son is a preferential heir to the daughter''s son in the line of succession ajautuka stridhan. The Special Bench (Brett and Mookerjee JJ.) held that verse 33 of Section 3 of chfl IV on which the contention was advanced, was a spurious interpolation, that this contention therefore failed, and that the daughter''s son was preferential heir to the step-son. This case was followed in Baikuntha Nath Chakravarii v. Kashinath Pandit (1912) 16 Ind. Cos. 553.

In Chamatkari''s case, the question for decision was whether the step-son or the mother was the preferential heir. The Court (Mukherjea and Sharpe JJ.) held that the mother was the preferential heir. Mukherjea J. pointed out in his judgment that there could be no doubt that verse 33 of chapter IV, Section 3 of the Dayabhaga is an interpolation, and that proceeding on the assumption that verses 31 and 32 are genuine, it must be held that these verses simply recognise the heritable rights of the step-son, but do not purport to lay down the exact order of succession. His Lordship rejected the view enunciated in Dayatattwam of Raghunandan, and Ddyakrama Sangraha of Srikrishna both of which have placed the step-son after the daughter''s son, and son''s grandson, and before the barren and widowed daughter, as contradictory to the rule laid down in the Dayabhaga, and observed-

We cannot say that the list of heirs given in the Dayabhaga in regard to the stridhan property of a woman is complete or exhaustive. But we are definitely of opinion that to the extent that the author purports to enumerate the heirs specifically one after another, the list must be taken to be complete and there is no room for introducing any person who has not been expressly mentioned, in between the persons specifically enumerated.

Later in the judgment, his Lordship observed-

A step son cannot in our opinion be regarded as an issue of the female owner, and Dayabhaga has deliberately laid down that on failure of issue, a property would devolve upon the brother, mother and father of the woman. There is no room, therefore, for introducing the step-son before the second group of heirs expressly enumeratedsfcy Jimutavahan, or before the husband, through whom the step-son is related to the female owner. The step-son, if he is to be regarded as an heir, may come after the husband and before the sister''s son and others as stated in para. 32, Chapter IV, Section 3 of the Dayabhaga. It is not necessary for our present purpose to fix his exact position, but we can have no hesitation in holding that according to the Dayabhaga, his place is after the husband, and certainly not before the brother, mother and father.

Unfortunately this decision was not cited before Sarkar J, when sitting singly he had to decide in Haripada Adhak v. Kalipada Pandit Unreported the question whether the step-son is a preferential heir to the brother.

Sarkar J. was of opinion that verses 31, 33 and 34 of the Dayabhaga, chapter IV, Section 3, clearly contemplate the precedence of the step-son over the brother. After noticing that in Pumaehandra Bysack''s (supra) case, the Special Bench held that the words "of a rival wife" in verse 31 and verses 32 and 33 are interpolations, Sarkar J. said that even if the alleged interpolations are ignored, the Dayabhaga itself contained materials for saying that the step-son precedes the brother in the order of succession.

His view clearly is that far from there being any conflict between the Dayabhaga and the later commentators, like Srikrishna and Raghunandan, these commentators have done nothing more than reiterate the rule which is laid down in the Dayabhaga itself. Accordingly, he decided that the step-son is the preferential heir to the brother.

In view of the clear discussion of the whole matter in Chamatkari''s case, I would have thought it unnecessary to enter into a fresh consideration of the questions involved, were it not for the fact that a Bench of this Court, hearing the appeal from the judgment of Sarkar J. has recently expressed doubt about the correctness of the decision in Chamatkari''s case.

The learned Judges hearing the appeal did not expressly say that in their view, Chamatkari''s case was wrongly decided. But Banerjee J. after setting out the views taken by Sarkar J. and by the Division Bench in Chamatkari''s case, stated:

Mr. Justice Sarkar''s view seems to us to be more in consonance to the prevailing view of the country, but we cannot ignore the judgment of such a learned Judge as Mr. Justice B.K. Mukherjea. Under these circumstances we think we should refer the question to the Full Bench for decision Later on, however the parties settled the case, the appeal was decreed in terms of the compromise, and the order of reference to the Full Bench was vacated.

In view, however, of the fact that an order referring the question to the Full Bench was once made, I have thought it desirable to try to decide the question, untramelled by authority. It may be laid down as an incontrovertible proposition that if the Dayabhaga itself enumerated heirs-one after another-up to the brother, mother, father and husband, without including the step-son, the contrary rule laid down by Srikrishna and Raghunandan must be rejected, as contradicting the clear rule of the master. The question therefore is: Is it right to say that the Dayabhaga has enumerated heirs up to the husband, without any mention of the step-son ?

For a proper appreciation of the points involved, it is useful to consider the whole scheme of the Dayabhaga as regards the law of inheritance to stridhan. For this purpose, I shall set out some of the verses dealing with this law, -and giving my own translation of the Sanskrit text, which I have tried to make as literal as I could.

Chapter IV in which Jimutavahana deals with the branch of laws is divided into four sections. In the first section which opens with the words i.e. now, for deciding the inheritance to stridhana we shall ascertain that stridhan. Jimutavahana defines The second section opens with the words (now we shall discuss the inheritance to stridhan) following the quotation from Manu-

(on the mother''s death, her wealth should be shared equally by all the brothers and sisters.)

After quoting in verse 3 from Vrihaspati-

(Such stridhan will go to sons and daughters; but the daughter will share only if she has not been given any. If she is married she will not get a share in her mother''s wealth.)

and in verse 4 from Sankha-

(The sons and unmarried daughters are entitled to get the wealth equally.)

Jimutavahana quoted again from Deval-

(On the death of a woman, her stridhan is the common inheritance of her sons and daughters. If she leaves none of her body, it will be taken by her husband, mother, brother or father) in verse 6 and finally gave his own view in verse 9 that sons and maiden daughters will share equally in stridhan; on the failure of either son or unmarried daughters, the other will inherit, and that on the failure of both sons and unmarried daughters, married daughters with sons and married daughters likely to have sons will inherit. In verses 10 and 11 Jimutavahana lays down the rule that if such daughters even do not exist, first the son''s son and then the daughter''s son, inherit, in preference to daughters. In verse 12, the provision is that on the failure of heirs up to the daughter''s son, barren and widowed daughters will inherit, as they also are the deceased woman''s progeny, and that the right of others come in only if there is no progeny.

I have mentioned these verses in some detail, to show that Jimutavahana was laying down a very definite and careful line of succession, but there is not one mention of (co-wife''s son). It is clear that Jimutavahana did not consider as the woman''s (issue). If he had considered as would have found a place in his list of heirs, either above or immediately below But after speaking about the right of the barren and widowed daughter in verse 12 Jimutavahana goes on in verse 13 and succeeding verses to say that the law of inheritance as laid down in verses 9 to 12 do not apply to jautuka stridhan, and does not say that in the absence of issue of her own body, the rival wife''s son will be considered as her issue. It is interesting to notice that in verse 16, Jimutavahana does mention one case of (co-wife''s daughter) inheriting. In considering Manu''s text-

the learned author of Dayabhaga says-

(the wealth of a woman of the Kshatriya or inferior caste, dying without issue, goes to the Brahman girl being the daughter of a co-wife, if the wealth was received from parents) and points out that because of this rule, the rule : (the property of the woman who dies without issue goes to her husband) cannot apply. A consideration of verse 16 makes it further clear that in Jimutavahana''s view, a rival wife''s child was not a woman''s and in the absence of special rule in favour of the rival wife''s child, the heirs who would succeed when a woman dies without would so succeed.

Though several slokas as regards heirs of a woman dying without (issue) can be found in several verses of Section II, the law on this point is not dealt with before we reach Section III. Section III starts with the words (Now, we shall enumerate the heirs to the wealth of a woman who dies without issue). Remembering the words in verse 12 i.e. others inherit only if there is no issue, we have to look for a list of these "others" in Section III. In this section, the law as regards jautuka stridhanas is dealt with first, in verses 1 to 6; verses 7 to 9 deal with the stridhan of woman who dies unmarried; the rest of the section deals with the law as regards ajautuka stridhana.

In verse 10, Jajnabalkya is quoted-

(i.e. on a woman''s death without issue, the sulka, Anvadheyaka and, bandhudatta stridhana will be inherited by her bandhabas) as verse 11 explains Verse 12 quotes :

(The immovable property obtained by a woman from her parents will always go to her brother, if she dies without issue)

Jimutavahana''s own comment on this is (This being known that the brother''s right to inherit arises only if there is no issue of the woman.)

Verse 13 reiterates the rule in favour of brothers in these words-

(In consequence of the use of the word "sarbada," Biswarupa''s view that in all the systems of marriage, from brahma to patsacha, the wealth of a woman without issue is inherited by the brother is acceptable.)

A careful study of the slokas 10 to 22 shows that Jimutavahana is anxiously considering the rival claims of four-brother, mother, father and husband to be the first in the line of succession to a woman who has died without issue. No other person is even considered here. The final decision is given in verse 29-

(Therefore, first such wealth goes to brothers, failing brothers to the mother, failing the mother to the father and failing the father, to the husband)

As in the preceding verses, he had quoted authority as regards the claims of brother and parents, he supports this statement of law as regards the husband''s place in the line of succession, by the authority of Katyayana.

which is verse 30, he goes on to explain.

If Section III had ended here, there could not be a shadow of doubt about Jimutavahana''s rule of succession. After having enumerated the heirs of in Section II as (1) sons and unmarried daughters, (2) married daughters with sons and married daughters with likelihood of sons, (3) son''s son, (4) daughter''s son and (5) barren and unmarried daughters, he has enumerated the heirs of a as (1) brother, (2) mother, (3) father and (4) husband. These four, and nobody else, would be the heirs of a woman without issue, if Section III had ended with verse 30.

The question is whether the twelve more verses which we find in the printed edition of Dayubhaga alter the law laid down earlier. If, Sarkar, J'', is right in thinking that verses 31 to 35 have placed the step-son as a preferential heir to the brother, Jimutavahana has clearly gone back on what he has laid down in verse 29, after a long consideration of the matter in verses 10 to 28. I find it difficult to believe this for a jurist like Jimutavahana, who has taken meticulous care in fixing the position of every person in the line of succession. That by what he says in verse 31 and subsequent verses, he had no intention of altering the line of succession already fixed by him, is clear from the opening words of verse 31-

This language can be usefully compared with his language in the verse 12-:(Section 2)-

It is impossible to attach any meaning to the opening words of verse 31 except this: on failure of heirs up to the husband, i.e. on failure of brother, mother, father and husband, I lay down this rule.

The necessary conclusion, therefore, is that the heirs mentioned later on, do not come in, if the woman leaves either issue of her own body, or brother, mother, father, or husband.

With this mind, we have to examine the remaining portion of verse 31, and verses 32, 33 and 34. It will be useful to set out verses 31, 32, 33 and 34 in full-

We now go on to discuss what will happen on failure of heirs up to the husband. As has been said by Brihaspati-The mother''s sister, the mother''s brother''s wife, the father''s brother''s wife, the father''s sister, the wife''s mother, the elder brother''s wife are said to be equal to a mother. If these relations leave no "aurasha or douhitra or sons of these", their wealth will go to sister''s son and others.

The word "aurasha" denotes both son and daughter, as they bar all other heirs. The word "suta" denotes the rival wife''s son. This follows from the Smriti that Manu has said that if several wives of a man, one has a son, all of them are by that son, "mothers". The word suta should not be taken to be qualified by the word aurasha as in that view, the word aurasha would be redundant, and also because, sister''s sons and the like cannot inherit in the presence of a rival wife''6 son.

On failure of sons and daughters of the body and also of the rival wife''s son, the daughter''s son becomes entitled.

The word (tat) in "tachhuta" denotes the woman''s own son and son of her co-wife. So, the sons of these two became entitled to inherit but not the son of the daughter''s sons, as he cannot offer oblations.

The first thing that strikes one is the senseless appearance hereof a rule as regards the daughter''s son''s place. This place had already been fixed in Section 11, and there was no conceivable reason to reopen that question. It is even more inconceivable that the daughter''s son would be given, in clear contradiction of the rule in verses 11, and 12 of Section II, a place below barren and widowed daughters.

It is quite clear that the verse 33 is a spurious interpolation, interpolated by somebody who thought that the step-son should get a high place in the line of succession. Whoever made this interpolation would necessarily make the consequential change in verse 35. For myself, I am inclined to accept as correct the view that found favour with the Special Bench in Purna Chandra Bysack''s case that verses 32 and 34 are also interpolations, and that the Dayabhaga text had nothing at all about In that view, I am of opinion that the correct text of verse 35 is and not what we find in the books now extant etc.

The problem was how could sister''s son, husband''s sister''s son, husband''s brother''s son, etc., inherit, in preference to a sapinda like husband''s father. For that Jimutavahana quoted Brihaspati''s text as it appears in verse 31, and on the authority of this text, decided in favour of sister''s son, etc. The verses 32 to 34 are entirely irrelevant in this discussion; and in my view, in the original Dayabhaga, what we find now as verse 35 came directly after verse 31, but in the form etc.

If we assume that verses 32 and 34 are genuine, we are still bound to hold that verse 33 is an interpolation and as a necessary consequence to hold that could not have been in the original text of verse 35. If verses 32 and 34 are genuine, it is not unlikely that verse 35 originally stood something like this-

But when clearly the interpolator''s pen was busy in this portion of the Dayabhaga in trying to give the step-son, a high place in the line of succession, it will not be right to assume genuineness in the words of verse 35, which clearly contradict not only the whole scheme of the law up to verse 30, but contradict also the opening words of verse 31 My conclusion may be summarised thus-

(1) Verses 32, 33 and 34 and the words and in verse 35 are interpolations.

(2) Even if verses 32 and 34 are genuine, verse 33 is certainly an interpolation, and the interpolator has made consequential changes in the original text of verse 35, and nothing, in verse 35 which contradicts the opening words of verse 31 should be considered genuine.

There is, therefore, nothing in the Dayabhaga to support the view of Srikrishna and Raghunandan as regards the step-son''s place in the line of succession. On the contrary, the view of Srikrishna and Raghunandan is in clear conflict with Jimutavahana''s enumeration which must, therefore, prevail.

The fact that in some old cases, Srikrishna''s rule was taken to be the law, does not in these circumstances justify us to doubt the correctness of the decision in Chamatkari''s case.

My conclusion is that the brother is preferential to the step-son, in the list of heirs to the ajautuka stridhan of a Hindu woman governed by the Dayabhaga system of Hindu Law. The appeal therefore be dismissed.