Kumar Raghava Surendra Sahi and Others vs Babui Lachmi Koer and Others

Wort, J.—These six appeals arise out of five suits which were brought claiming various interests in certain property, the last male holder of which was one Mahabir Prasad Singh. The genealogical table appended (see next page) states the relation, ship between some of the partijes to the suit as found by the learned Subordinate Judge. It appears that Mahabir was the son of one Bachu Singh. Mahabir died on 21-6-1894 leaving him surviving two widows, namely Bhagwat Kuer and Eupkali Kuer, and what has been held by their Lordships of the Judicial Committee Bhagwat Koer v. Dhanukdhari Prasad Singh A.I.R (1919) . P.C. 75 a vented remainder in favour of a posthumous dakx''gb-ter Eamdulari who died about six months after birth. Eamdulari Kuer, the posthumous daughter, died in 1894 and Eupkali died in 1899 and Bhagwat Kuer a cowidow survived till 1925. On the death of Rupkali, Bhagwat came into possession of the whole estate including the vested remainder of Eamdulari. On Bhagwat''s death in 1925 the succession opened and disputes arose with regard to the properties.

Of the suits brought suit No. 38 of 1932 out of which Appeal No. 69 of 1935 arises, raised all the questions in dispute. But as an order was made on 21st January 1927 attaching the properties in dispute and some of the parties succeeded in obtaining the registration of their names in the land registration department as regards some of the other properties, the various claims were made and six suits in all were brought. In addition to the attachment to which I have referred, defendant 1 in the principal suit got his name recorded as mutwalli of some of the properties which had been dedicated to an idol by Bachu Singh, the father of Mahabir Singh, and also as regards properties dedicated for religious and charitable purposes by Bhagwat. Defendant 8, the daughter of Dhanukdhari Prasad Singh, one of the persons through whom the claim of defendant 1 of the principal action was made, got her name recorded with regard to the properties situate in the Saran District. This was in 1926. The parties therefore deemed it necessary to start the various suits.

BAKHTOUR SINGH | __________________________________________________________________ | | | Kand Prasad Permeshwar Singh Gobind Singh | | Bishunath Singh Bulaki Singh | | Tribeni Singh Ram Prasad Singh ___________________________|_________________ | | | | Devi Prasad Singh Jagatpati Singh Kailashpati Singh Indrajit Kuer | | | married Hit Narain Sia Prasad Singh ________________________ | of Tikari | | | | Sri Kishun Bachu Singh Jugal Kishore | married Kamalbas Kuer d. 9-2-1874 married Anandi | d. July 1872 Kuer d. 5-7-1872 | ________|_______ _______________________________ | | | | Ram Kewal Raj Kishore Ramkishun Ram Rachhya Singh Kuer Kuer d. 1937 adopted by | married Raja of pending appeal Hit Narain Dhanukdhari Singh Tarn Kohi and deft. 5 (through whom defts. 1 and 2 claim | 10 annas 8 pies of property) ______________ ______________|____________ | | | | Surajit Koer Sorabjit | | d. before Protap Sahi Lachmi Kuer deft. 8 Rajeswar Kuer deft. 9. 1894. deft. 4 | d. 1934 Daughter married to Maharaj Kumar Gopal Mahabir Prasad Singh: Saran N. Singh. two widows 1. Bhagwat Kuer d. 1925 2. Rupkali Kuer d. 1899. | Ramdulari Kuer d. 1895 (propositus).

Some of the parties to these suits do not appear in the genealogical table. They come into the litigation by reason of assignments or other transactions to which reference is made hereafter. Many questions have been decided during the course of this litigation, but after the decision of the Subordinate Judge in the Court below, whose decision on questions of fact is not disputed in this Court, the main question involved in these appeals is the right to succeed to the stridhan of Eamdulari Kuer. The other questions are, first as to the validity of certain endowments by Bachu and his daughter-in-law Dulhin Bhagwat Kuer and secondly the right to the office of mutwalli in respect thereof. The learned Judge has held that the three brothers Srikishun, Bachu and Jugal Kishore were separate. He has held that the Lakhaipur mukarrari estate was a grafot to Bachu Singh alone and to his brothers. He has held that the transactions carried out by the documents of 8th, 9th and 10th January 1921, by which Dulhin Bhagwat Kuer claimed to have obtained an absolute estate in the property were invalid.

The suggestion that these transactions could not be attacked as being res judicata was not pressed in the Court below and was not urged in this Court. He has held that the kobala of 1907 in favour of Ambica Prasad, the deed of gift of 2nd July 1907 and the sale deeds of 10th April 1924 were invalid and not binding upon the heirs of Bamdulari''s estate. He has held that the properties Nos. 1 to 8 of Schedule. 1-C to the principal suit were not accretions to the estate of Mahabir but were self, acquisitions of Dulhin Bhagwat Kuer and therefore formed a part of her stridhan. He has held that the deed of gift of 8th September 1924 in favour of Eaghaba Surendra Sahi was invalid, and this is not now disputed. As regards the endowments, there was the endowment by Bachu Singh of six villages out of the Lakhaipur mukarrari to the deities in the temple at Ajodhya under the deed of 2nd September 1873 which endowment was admitted by the parties to be valid. The endowment created by Dulhin Bhagwat Kuer was held to be invalid. He has found that none of the contesting parties to the mutwalliship of the properties endowed by Bachu had any rightful claim. The Judge having held that the endowment of Bhagwat Kuer was invalid the question of mutawalliship did not arise.

The principal question of law is whether Sarabjit Protap Sahi who was a near cognate to Mahabir Prasad Singh, the last male-holder, being the great-grandson (through his mother who married the Baja of Tomkohi) of Mahabir Prasad Singh''s paternal grandfather, or a distant agnate Sia Prasad Singh, plaintiff 1, in the suit, being the great-great-great.grandson of one Bakhtour Singh, the common ancestor of Mahabir Prasad Singh and Sarabjit Protap Sahi, is entitled to succeed to the properties in suit which by the terms of the will of Mahabir Prasad Singh were left to his two widows for life and under which the posthumous daughter Ramdulari Kuer had on a true construction of the will a vested remainder. The question shortly stated is, who is, in the events which have happened, entitled to succeed under the Mitakshara law to the stridhan property of Eamdulari Kuer after the decease of Bupkali, her mother, and Bhagwat Kuer, her stepmother.

The remaining question, so far as defendants 1 and 2 are concerned, whether Dhanukdhari Singh who was the great-grandson of Tribeni Singh, who was the grandson of Bakhtour Singh, is entitled as heir of Mahabir Prasad Singh, depends entirely upon the question whether the co-wife of Mahabir was entitled to inherit after the death of his seoond wife under the Mitak shara School of Hindu law. The other question is as to the rights of these defendants who are plaintiffs in Suits Nos. 30/1930 and 41/1930 to be mutwallis of the endowments of Bachu and Bhagwat Kuer. This question, so far as it relates to the mutawalliship of Bhagwat''s endowments depends upon the validity of these endowments. The relationship disclosed in the genealogical table I should have said has been proved by the plaintiff in the Court below and, after contest with regard to the matter, has been accepted by the trial Judge and not disputed in this Court. The last male-holder of the properties in suit, as I have already said, was Mahabir Prasad Singh. The properties in dispute consist in the first instance of mukarrari interests granted by the Maharani Indrajit Kuer of Tikari in the name of Bachu Singh in 1863. This property is known as Goshwara Mahal Lakhaipur, Lodipur and Saidpur to be desoribed hereafter as the Lakhaipur mukarrari property. There are ancestral properties, also some self-acquired properties of both Mahabir and Bhagwat Kuer. It may be stated at once that the Judge in the Court below has held that the properties acquired by Bhagwat Kuer were not aooretions to Mahabir''s estate but were the stridhan properties of Bhagwat.

In the year 1864 separation took place'' between the branch of the family represented by the three sons of Jagatpati and the other branch represented by Ramrachhya. Srikishun, Bachu and Jugal. kishore died within a short time of each other: Jugal on 5th July 1872, Srikishun on the 18th of the same month and Bachu on 26th January 1874. Bachu Singh before his death established a temple at Ajodhya in the Fyzabad District and prndowed it with six villages out of the Lakhaipur mukarrari. This was by a deed dated 2nd September 1873, by which he constituted a line of succession to the mutwalliship, making himself the first and then his son Mahabir; the succession thereafter was to go to his descendants male and female. In the year 1872, after the death of his two brothers Jugalkishore and Srikishun, Bachu. filed an application for succession certificates to the estates of his brothers on the footing that they were joint with him. Earn Kewal Kuer the daughter of Srikishun objected and filed a counter.application, and! Anandi Kuer, Jugal Kishore''s widow, also objected on the ground that the brothers were separate. Kamalbas Kuer, Srikishun''s widow, made no objection. The objections were overruled and Bachu was granted succession certificates. On 9th July 1873 Bachu gave certain villages to Kamalbas Kuer by way of maintenance. Anandi Kuer on 17th May 1874 executed an ekrarnama by which she admitted the jointness of the three brothers. This was some four months after Bachu''s death and Bachu''s son Mahabir Prasad executed the ekrarnama with Anandi Kuer. Earn Kewal Kuer however filed a suit in 1880 against Bachu''s son Mahabir by which she claimed the Lakhai pur property as belonging to her father. But this suit was ultimately compromised, Sorabjit Protap Sahi, the grandson of Srikishun, joining in the compromise. By this compromise Earn Kewal Kuer obtained three villages out of the Eushi ancestral estate. Then on 21st March 1884 Mahabir raised funds by sale of six of the villages endowed by his father to the Ajodhya temple: this was while Mahabir was the mutwalli of the endowment.

On 21st June 1894 Mahabir died having left a will dated 26th September 1893. On 5th January 1895, Bhagwat Kuer and her co-wife Rupkali Kuer obtained probate of the said will. On 11th October 1894, Rupkali gave birth to a posthumous daughter Ramdulari Kuer who lived for a few months only dying on 3rd June 1895. By the will estates for life were given by Mahabir Prasad to his widows and the will was construed ultimately by their Lordships of the Judicial Committee of the Privy Council as giving a vested remainder to the posthu-mousdaughter Ramdulari Kuer Rupkali, the second wife of Mahabir, died on 8th January 1899. It is to be noted that Bhagwat Kuer, after the catch of her husband, acted as the mutwati of the temple instituted by Mahabir''s lather Bachu. On 7th September 1899, Kamalbas Kuer died and Anandi Kuer died on 4th August 1904. Bhagwat Kuer was therefore in possession of the whole estate commencing in the year 1900. She made endowments six in number to a pathsala known as "Bhagwat pathsala" at Ajodhya. These endowments date from 7th Maroh 1900 to 14th September 1925 In the meantime Bhagwat purported to adopt Baghaba Surendra Sahi, defendant 1 in the principal suit. This was on 13th February 1906. The adoption was eventually held to be invalid by the Judicial Committee of the Privy Council. In 1907 Dhanukdhari (father of defendants 8 and 9) claimed to be the nearest agnate of Mahabir and oommenced a suit and in February of that year executed a sale of 10 annas 8 pies of the mukarrari iproperty and 2 annas 8 pies of the ohapra property to one Ambica Singh, the father of Maharaj Kumar Gopal Saran Narain Singh of Tikari who was defendant 6 in the very suit. The Eushi and Maher properties were excluded. The shares of the properties which Dhanukdhari purported to sell by this deed were alleged to belong to Jugal Kishore and Bachu, the contention being that the mukarrari properties belonged to the three brothers. Three suits were commenced, namely suits Nos. 198, 199 and 200 of 1907. The first related to 5 annas 1 pie of Mahabir''s property which he got from Bachu, the second related to 5 annas 4 pies which Mahabir got from Jugalkishore, his uncle, and the object of the third suit was to set aside the adoption by Bhagwat of defendant 1.

Again in 1911 Sarabjit Protap Sahi who was defendant 4 in the principal suit, brought a suit against Bhagwat Kuer claiming one-third share of Mahabir''s property as the share of his maternal grandfather Srikishun who, he alleged, separated from his two brothers Bachu and Jugalkishore. The suit was dismissed eventually by the High Court in 1913 but pending the appeal to the Privy Council there was a compromise by which one-third share of the estate of Mahabir being the share of Srikishun was released. The suit was against Bhagwat Kuer and in 1921 as the result of the compromise Bhagwat and others entered into transactions which the Subordinate Judge in the Court below has held to be invalid, which decision Dr. Dwarka Nath Mitter on behalf of defendants 1 and 2 contended was wrong; but ultimately it was conceded that the transactions could not be supported. The question relating to them therefore does not enter into our consideration in this case. But the transactions were these.

Dulhin Bhagwat Koer by an ekrarnama dated 8th January 1921 released one-third share of Mahabir''s property as the share of Srikishun Singh. Rajkishore Kueri then executed by way of gift a deed dated 9th January 1921 by which she gave to Sarabjit Protap Sahi (defendant 4) substantially the same property. Sarabjit in his turn made a gift to Bhagwat Kuer of the properties excluding 13 villages which he retained and one which he gave to Eajkishore Kuer the balance being given to Bhagwat Kuer as an absolute estate. Another deed was executed the same time undertaking to abide by the compromise even although the Privy Council did not approve of it. In 1917 Ambica Prasad had made a gift of what he had purchased from Dhanukdhari and two of the suits of 1907 were compromised between Dulhin Bhagwat Kuer on the one side and Maharaj Kumar Gopal Saran Narain Singh on the other side. Ultimately, on 10th April 1924 Ambica con-veyed what he had got from Dhanukdhari on 8th February excepting nine villages to Dulhin Bhagwat Kuer for a consideration of Rs. 1,50,000. Dulhin Bhagwat Kuer in her turn executed a kobala in favour of the Maharaj Kumar (defendant 6) in respect of 10 annas 8 pies of the property which she obtained under the deed of 10th April 1924 and 5 annas 4 pies of the nine villages the subject-matter of ''the deed of 8th February 1907. she making a gift of 10 annas, 8 pies in 52 villages, which she got irom Maharaj Kumar Gopal Saran Narain Singh and his father Ambica Prasad Singh to defendant 2,8urendra Sahi. This was by a deed of 1st July 1924. On 19th September 1924 Dulhin Bhagwat Kuer died. The Various transactions to which I referred in the earlier part of my judgment and various orders of the High Court and of the Land Registration Department led to the litigation out of which these appeals arise.

The principal plaintiff is Babu Sia Prasad Singh who, as I have said, claims to be the nearest agnate of Mahabir Prasad through whom succession to the stridhan property of Bamdulari Kuer is traced. The principal contesting defendants are defendants 1 and 2 and defendants 4 and 17. In the result the main contest is between the fdaintiff and defendants 4 and 17 which depends entirely upon the question of Hindu law as to who is entitled to succeed to the stridhan property of Bamdulari Kuer. As I have already indicated defendants 1 and 2 also claim the property through various transactions entered into by Bhagwat Kuer to which I have referred but it is unnecessary to trace the title of defendants 1 and 2 as they have abandoned any personal claim to the property excepting a 10 annas 8 pies interest title to which they claim through Dhanukdhari by reason of the transaction referred to above, namely the sale in February of 1907 to Ambica Singh and the conveyance by Ambica Singh to Dulhin Bhagwat Kuer as also the gift by iDulhin Bhagwat Kuer to defendant 2, Surendra Sahi, and on the assumption that Bhagwat Kuer as co-wife was not entitled under the Hindu law to inherit the stridhan of her step-daughter Bamdulari Kuer and the property of Rupkali through Mahabir. But it is to be noticed shortly that the other suits were the suit of 1930 brought by defendants 4 and 6 (4 and 17 of the leading suit) out of which Appeal No. 139 of 1935 was preferred. The result of this appeal depends upon the main contest between the plain, tiff and defendants 1 and 2 in the principal suit. Then Suits Nos. 39, 40 and 41 were filed by defendants 1 and 2 of the leading suit out of which Appeals Nos. 64, 63 and 62 of 1935 arise.

The claim in the principal suit was allowed by the Subordinate Judge subject to the properties acquired by Bhagwat Kuer which had been held not to be accretions to Mahabir''s estate; that is in Suit No. 38 of 1932. Sorabjit''s Suit (No. 30 of 1930) was dismissed, but in this appeal no claim has been made as regards the properties of Bhagwat Kuer which had been held to be self-acquisitions items 38 to 44 and 48 of Sechdule C and the properties which were the subject-matter of Bachu''s endowment. Suit No. 39 of 1932 by defendants 4 and 17 claim, ing 10 annas 8 pies of the property through Dhanukdhari was dismissed and again suit No. 40 of 1932 claiming 5 annas 4 pies being the claim through Srikishun was dismissed. The same results would obtain in this appeal having regard to the acceptance by the parties of the decision of the learned Judge in the Court below on questions of fact, and the respective olaimawof the appellants to the estate or portions of it of Ramdulari would be decided agaist them. As has been seen, certain of the �plaintiffs� claims in the suit depend upon the rights of the various parties to whom I shall refer as heirs to Bamdulari Kuer''s estate. For the purposes of this appeal, the claims of the latter only will be referred to and of those claiming'' under them by reason of assignment or otherwise. Defendants 1 and 2 claim through Dhanukdhari Prasad now represented by Bhagwat Kuer, his widow, in the litigation.

Dhanukdhari''s claim depends upon whether Bhagwat Kuer, the first wife of Mahabir Prasad Singh, was entitled to the property after the death of Bupkali Kuer, the second wife of Mahabir Prasad Singh. The respective claims of Sia Prasad (plaintiff l) and Sorabjit Protap Sahi are claims to succeed as the nearest heir to the stridhan of Bamdulari admittedly a succession which is traced through her father Mahabir Prasad Singh. The right of Bhagwat Kuer to take a woman''s estate in Bamdulari''s property after the death of Bupkali Kuer is admitted by defendant 4 Sorabjit Protap Sahi and Sia Prasad and will be dealt with later, but will be dis. posed of incidentally in discussing the right to succeed as between Sia Prasad and Sorabjit. The learned Judge in the Court below has held that the right of succession to the vested remainder of Bamdulari Kuar''s estate is to be traced first through her mother Bupkali Kuer, then Mahabir Prasad, her father, and then to Bhagwat Kuer, the heir of Mahabir. On the death of Bhagwat in 1925, Bupkali, Bamdulari''s mother, and Mahabir, Bhagwat''s husband, haying predeceased her, the succession opened.

That this is the position is admitted by the respondent to the principal suit as also by the appellants (defendants 4 and 17), but denied by the other appellants (defendants 1 and 2) who deny the right of Bhagwat as a cowidow of Mahabir to succeed. The claim of defendants 1 and 2 which is now limited to 10 annas 8 pies of the property, depends as I have already said upon the right of Dhanukdhari to succeed after the death of Bamkali Kuer to the exclusion of Bhagwat Kuer. This claim in my judgment fails based as it is on the exclusion of the co-widow Bhagwat as will hereafter be shown, and on that assumption the way is clear for the disposal of the respective claims based on the one hand upon the right of Sia Prasad, a remoter agnatio relation of Mahabir, and on the other hand on the right of Jforabjit Protap Sahi a nearer cognatio resion.

Mr. P.R. Das''s argument on behalf of Borabjit shortly stated is that the scheme of succession to the stridhan is different from that of succession to males, and that at tracing it through Mahabir (which is admitted on all hands) it goes to the nearest sapinda, sapinda a generic term being in this connexion used in a special sense including agnates up to the 7th degree and cognates to the 5th degree gotraja sapindas somanodakas and bhinna-gotra sapindas: see West and Buhler, Hindu Law, Mitakshara Verse 53 and Ram Chandra v. Venayak Venkatesh A.I.R (1914). P.C.. It is contended that the word ''sapinda'' has a special meaning and not adopted in the Mitakshara in the case of succession to males where the expression is gotraja sapin. das and that the Judge in the Court below was in error in relying upon the text of Kamalkara for the solution of this problem, the relevant text regarding a woman''s property being as follows:

Her kinsmen take it if she die without issue (Golebrooke: plaoitum cxliv-a). "If a woman died without issue that is leaving no progeny, in other words, having no daughter nor daughter''s daughter, etc, the woman''s property as above described shall be taken by her kinsmen (sapindas), namely her husband and the rest as will be (forthwith) explained (Oolebrooke''s Mitakshara, Chap. 2, Sechdule 11, para. 9); and in para. 30 as the statement of Bandhyayana given by Vigyaneshwara of the Mitakshara is as follows: "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 is dead, to the father (Chap. 2, Section 11, verse 30 p. 388 of Colebrooke''s translation; Edn. 1870). The text remains silent as to suecession after the father, but Veeramitrodaya, an authority in this School, Grishari Lall Roy v. Bengal Government (1867) 12 M.I.A. 448 and Ram Chandra v. Venayak Venkatesh A.I.R (1914) . P.C. 1, supplies the omission to some extent. It says: "On failure of the mother and the father it goes to the nearest relations" (Gopal Chandra Barkar''s translation, 241). It is clear that the succession to the stridhan of a maiden is the same as the succession to the stridhan of a woman married in an unapproved form with this difference that in the case of a maiden the uterine brothers come in. In the first place it was argued that the ordi-nary rule of the Mitakshara that agnatio relations succeed before cognatio does not obtain in the case of stridhan and the fallacy upon which the Judge in the Court, below has decided the case is that after the succession is traced through the father Mahabir, it proceeds on the same lines as succession to males.

It was contended that Veeramitrodaya used the term ''nearest relation'' advisedly, and that other and more technical terms such as ''gotraja'' were used in the case of succession to males (see Setlur''s translation, Edn. 1911, Part. VII.1 at p. 421.) "On failure of brother''s sons (the heirs are) the gentiles (gotrajas) who are to be taken to be other than the father," and that this being intentional it must be construed as meaning the nearest in relationship in the ordinary sense. That being so, Sorabjib being admittedly nearer (although cognate) than Sia Prasad (being a somanodaka), his claim must prevail. Further, the nearness is not to be determined, as the Judge in. the Court below has held, by the rules given in the Mitakshara with regard to suooession to males as stated by Kamalkara, but by the test of religious efficacy, in other words, the capacity to offer oblations; again, that sapindaship in this regard is the same as in the case of ceremonials. Further, it is contended that the rule of religious efficacy, is the ability to offer (in this case) oblations to the agnatic ancestor of Mahabir, and that as Sorabjit is the great-grandson (through his mother) of Jugatpati Singh, an agnatic ancestor (grandfather of Mahabir), he could offer two undivided cakes to that ancestor, also undivided cakes to another common ancestor of them both, namely Tribeni Singh, whereas Sia Prasad Singh can only offer divided''cakes to an ancestor who was common to himself and Mahabir, being Bakhtour Singh, of whom Sia Prasad Singh is the great-great-great grandson, the rule being that to three ancestors undivided cakes may be offered and after that to three more remote ancestors, divided cakes.

It has been decided in the Court below that the Mitakshara being one whole work cannot be taken to have applied different schemes of succession with regard to differ, ent subjects unless expressly so, and that therefore there being no enumeration of the heirs in default of the father, the rule as to males in the case of obstructed succession would apply which in this case is the same as succession to stridhan in default of enumerated heirs in the case of a woman married in one of the blamed or unapproved forms, this rule depending on the principle that a woman married in an unapproved form remains in the gotra of her father as in the case of a maiden. In support of the argument that in using the term sapinda the rule that agnatic relations are to be preferred to cognatio is ignored, a solitary passage in the decision of the Calcutta High Court is relied upon. Chitty J. in dealing with a case in which the contesting parties claiming succession to the properties in suit were sisters of the propositus (father''s daughters) and father''s brother''s sons, asked the question why agnates should be preferred to cognates in the case of sue cession to a maiden stridhan, and stated that there was no authority for that proposition. The judgments in that case both of Chetty and Mukherji JJ., are in conformity with the view expressed by all the text-book writers of authority. But it is argued that although the decision in that case must be considered right yet the reasoning was to a great extent obiter as the test which the appellants seek to apply in this case was adopted in that case and was sufficient to dispose of the matter. But it is to be remembered that the remark relied upon is limited to the facts of that case in which the rule of propinquity was applied, the successful parties (father''s daughters) being in any event the nearest relations: I refer to Dwarka Nath v. Sarat Chandra (1912) 39 Cal. 319. Reliance was placed upon the decision of their Lordships of the Judicial Committee of the Privy Council in Buddha Singh v. Laltu Singh A.I.R (1915) . P.C. 70 for the proposition that the test of religious efficacy applies equally to the Benares as to the Dayabhaga Schools. Their Lordships observe:

It is well settled by decisions of this Board that under the Mitakshara the sapinda relationship arises "between two people through their being connected by partioles of one body," namely that of a common ancestor, in ojher words, from community of blood in contra stinotion to the Dayabhaga notion of "community in the offering of religious oblations".

But as it will be shown later on, the Mitakshara whilst holding that the right to inherit does not spring from the right to offer oblations, does not exclude from consideration the test of propinquity or near, ness of blood. But it is to be observed that their Lordships were applying the rule of religious efficaoy to persons of the same class and towards the end of the judgment made this statement in referring to Mitra Misra, the author of Veeramitaya (Gopal Chandra Sarkar''s translation, para. 91 Ch. 2, Part 1, Section 23-a) an authoritative common, tary on the Mitakshara which lays down in express terms the rule:

He says when there are many olaimants to the heritage among gotrajas and the like, then the fact of conferring benefits on the proprietor the wealth by means of offering oblations and the like excludes those that do not oonfer such benefits,

and later:

In Ram Singh v. Ugursingh (1869) 13 M.I.A. 373 the Board affirmed this rule in the following words: ''When a question of preference arises, as preference is founded on superior efficacy of oblations, that principle must be applied to the solution of the difficulty''.

I think it is clear that the test of the right of capacity to offer religious oblations is a test of the Dayabhaga School whereas in the Benares School the test is propinquity. Only in competitions between persons of the same class is the matter determined on the footing of religious efficacy. As I have said the Judge in the Court below has relied for decision of the question on the Kamalkara as an authority in the Benares School. In Ghosh''s Vivada Tandava of Kamalkara, p. 1142, in dealing with suecession to stridhan it is stated as follows:

In default of the husband, the estate is obtained by his near relation beginning with the lawfully married wife and daughter etc., as prescribed in the text of Yagnavalkya in the rule about succesgion to sonless men. According to Vijyaneshwara it is taken by the husband''s wife, her co-wife''s daughter and the maiden daughter of the co-wife.

It is contended by Mr. P.R. Das that Kamalakara has not been correctly understood and that although it would appear that Yagnavalkya''s text (which is a text dealing with succession to males) is relied upon it is for a limited purpose and is not adopted in the case of stridhan generally. We are invited to look at p. 1145 of the same work where the final conclusion is arrived at by applying the test of religious efficacy. Again it is argued that if the rule as stated in p. 1142 is applied it is contrary to the Mitakshara and that being so the Mitakshara must prevail. Again reverting to Veeramitrodaya it is contended that the rule of religious efficacy is the true test as will be seen by reference to Section 14 where cognates are mentioned as heirs (G. Sarkar''s Veeramitrodaya, p. 243). But when there is a failure the above-mentioned heirs of a childless woman''s property, Brihaspati ordains:

The mother''s sister, maternal uncle''s wife and the paternal uncle''s wife, etc., are pronounced similar to mother: If they leave issue of the body, nor son of a rival wife) nor daughter''s son, etc. shall take me property.

Herein, the term aurasa or issue of the body" both sons and daughters are included: for they debar all (other heirs) and the order in which they debar others has previously been mentioned; and then explaining what Manu declares, the meaning of the term son as not being in apposition with the term aurasa, proceeds:

Hence on the failure of heirs down to the daughter''s son first the aurasa inherits, after him his eons and grandsons. For it is proper that Bucoession should devolve on them inasmuch as they are competent to present pinda and are liable to discharge debts, etc.

Apart from the argument on the text, it is contended that the rule of propinquity upon which the plaintiS relies is a rule applicable to the case of succession to males (and there is no reason to apply it to females) which is admittedly based on sapindaship. Mitakshara, Ch. 2, Sections 3 and 4, provides, "Propinquity is the great regu-lating principle in determining the order of succession among heirs." The rule is based on the following text of Manu: "To thd nearest sapinda the inheritance belongs." In further development of this argument the contention is that the Mitakshara used ''sapinda'' in one sense only. Sapinda relationship arises "between two people through being connected by particles of one body": see Buddha Singh v. Laltu Singh A.I.R (1915) . P.C. 70 . But when dealing with the males, the term ''gotraja'' is used. "The wife, daughter, both parents, brothers likewise their sons gotrajas (gentiles), bandhu (cognates) a pupil and a fellow student" (Mitakshara Ch, 2, Section 1, Verse 2, Mandlik''s Translation of Institutes of Yagnavalkya p. 220). The Hindu jurists in their text books deal with this question, and in a manner contrary to the argument put forward by the appellant and the learned advocate does no more than to argue that the views which are thus unanimously expressed are mistaken. Mulla''s Hindu law, Edn. 8, Section 147 deals with the matter in these words:

If there be none of these, in other words, if the woman dies without leaving issue, her stridhana, if she was married in an approved form, goes to her husband, after him to the husband''s heirs in order of succession to him. But if she was married in an unapproved form, it goes to her mother and then to her father and then to the father''s heirs.

If this statement of the law be correct the matter is concluded against appellant-defendants 4 and 17. It also defeats the case of the other appellants-defendants 1 and 2, who claim through Dhanukdhari, as it is clear that amongst the heirs of the father would .be the co-widow under the text of Mitakshara, Ch. 2, Section 11, plaoita 8, 9 and 11.

A woman''s property has been thus desoribed. The author next propounds the distribution of it. 9. If a woman die ''without issue'' that is, leaving no progeny, in other words, having no daughter, nor daughter''s daughter, nor daughter''s son, nor son, nor son''s son, the woman''s property, as above described, shall be1 taken by her kinsmen, namely her husband and the rest, as will be (forthwith) explained. 11. Of a woman dying without issue as before stated, and who had beoome a wife by any of the four modes of marriage denominated Brahma &c .... the property of a childless woman goes to her parents, that is to her father and mother.

These passages are taken from Stokes'' Hindu law books, pp. 460, 461 and were adopted by their Lordships of the Judicial Committee of the Privy Council in Bai Kesserbai v. Hunsraj Morarji (1906) 30 Bom. 431 . This case is a direct authority against appellants 1 and 2, the decision in the case being that a co-widow is entitled to succeed to the stridhan of a widow dying without issue in preference to her husband''s brother or brother''s son. Their Lordships agreed with the learned editor of the Vyavastha Ohandrika and Lord Davey at p. 197 of the Rport stated hat "the worda ''and the rest'' therefore must mean, or include, the other relations of the husband or father," The case is also important for our purpose for their Lordships of the Judicial Committee of the Privy Council refer to Kamalakara. As is already pointed out there is no dispute, the problem in this case as to what the nearest relation of the father being the same as the nearest relation of the husband. The author makes this observation at p. 142 of is work:

When the marriage is in an unapproved form, the stridhan goes in default of issue not to the husband and his heir but to the mother, father, and father''s heirs the succession after the father would be the deceased woman''s brother, brother''s son, stepmother, sister, sister''s son, grandmother, paternal unole and her father''s other sapindas samanodakas and bandhus.

This statement, it is argued, is incorrect as the Mitakshara uses the word ''sapindas'' only, and not ''heirs'' and Veeramitrodaya as we have seen the words ''nearest relations.'' The Mitakshara in dealing with succession to males provides :

The wife and the daughters also, both parents brothers likewise and their sons, gentiles, cognates, a pupil and a fellow student, (verse cxxxv). "On failure of the first among these, the next in order Is indeed the heir of the estate of one, who departed for heaven leaving no male issue".

This rule extends to all (persons and) classes (verse cxxxvi, Colebrooke, Ch. 2, Section 1). Reliance was placed on Sarkar''s Hindu law, Edn. 7, p. 830 where dealing with succession to stridhan this statement is made:

It should be noticed that the nearness or pro-pinquity is the prinoiple on which the order of succession is worked out in the Mitakshara. Hence the relations are to a woman''s property in the same order in which they would become heirs to her husband or father or mother: Janglubai v. Jetha Appaji (1908) 32 Bom. 409.

Again Mulla, Edn. 8, p. 27 in this connection states:

Under the Mitakshara the right to inherit arises from propinquity that is proximity of relationship

and relies upon the authority of Lulloobhoy v. Cassabai (1880) 5 Bom. 110. There being no difference in prinoiple between marriage in an approved form or an unapproved form excepting that in the former succession is traced through the husband, in the latter through the father and therefore raises the same problem as I have just stated. The statement by the same author "that it descends in the same way as if it had belonged to the husband himself" is relied upon: see Sarkar''s Hindu Law, p. 832. Again, Shyama Charan Sarkar on Vyavasta Chandrika, Vol. II, page 839, dealing with succession to stridhan states:

So according to his own exposition in the oasa of the ''women being married in the Brahma, Daivai, Asura, etc form,'' if there be no husband there then such of the abovementioned heirs as are nearest to her in his family suooeed in due order,

and

in the case of her being married in the asura, etq. (unapproved forms of marriage) if her father do not exist then suoh of the aforesaid heirs as are nearest to her in her father''s family succeed indiia order.

Likewise, Banerji in his Hindu Law ol Marriage and Stridhana (Tagore Lectures, Edn. 5, page 424) makes this statement:

In the absence of any provision in the Mitak-shara for determining the order of proximity among the husband''s (father, in the present case) sapindas, we turn to the Veeramitrodaya, a wonk of high authority in the Benares School. Bat the work does not help much. The order of succession there is different from that in the Mitakshara as far as there are express provisions in both and where the express enumeration of heirs in the latter treatise stops, Veeramitrodaya does not carry it much further.

Then dealing with sucfesssion as tb enumerated heirs observes:

The order of succession is no-doSbt in accordance with the text of Brihaspati. And there is this additional argument in his favour that it is the same as given in the Vyavahara Mayukha, (ch. XIV, Section X "30") and theSmrity Chandrika (Ch. IX, Section 111 "36"). But being in conflict with that indicated by Vigyaneshwara cannot be accepted as law in the Benares school which recognizes the Veeramitrodaya only when it is not oontradlcted by the superior authority of tha Mitakshara.

Then observing that it would be useless to refer to the Bengal authority for elucidation of the point, as the founder of the Bengal Sohool controverts almost every doctrine of the Mitakshara on the subject states that according to Kamalkara the "nearness" of sapindas in the above rule 6f Vigyaneshwara is to be determined by the rule given in the Mitakshara for the develution of the property of a male owner dying without male issue. The same learned author relying upon West and Buhler, Vol. I, at p. 213 quotes this passage:

This opinion seems to be based on the consideration that as Bapindas inherit only through tba husband they virtually sucoeed to property oomirtg from him and that consequently they must inherit in the order prescribed for the succession to a male''s estate.

The same learned author is of the opinion that Kamalkara being entitled to be followed as an author in the Benares School when ft is not in conflict with that of (any higher authority has its further recommendation being simple as it makes the order of succession to stridhan correspond after a certain point to that applicable to man''s property and if that were not Vig-yaneshwara''s meaning, and if he had not referred to this known order of succession after the husband, he would, in all probability, have been explicit. The text of Kamalkara has already been referred to in Ghosh''s Vol. II, page 1142:

In default of the husband the estate is obtained by his near relation as prescribed in the text of Tagnavalkya in the rule about succession to sonless men.

The argument that Yagnavalkya was used by Kamalakara merely for the purpose of bringing into the succession the wife and daughter is one which, in my judgment, is not justified and certainly is not supported by authority, although in support of this argument it is contended that Kamalakara does not incorporate the whole of Yagnavalkaya but relies upon this for support on the particular point only and in that sense has not stated what he is supposed to have stated by certain learned authors including Banerji on Hindu Law of Marriage and Stridhan. Reliance was also placed upon Mayne''s Hindu Law, Edn. 9 at page 979 where the author dealing with this subject observed that in either case (a maiden and woman married in an unapproved form in default of the specifically enumerated heirs, the estate goes to the sapindas of the parents or husband as the case may be. The term ''nearest relations of the parents'' in this context means ''sapindas of the father,'' and proceeds to state "so it was held that a sister (father''s daughter) sister''s son (father''s daughter''s son, etc.)" (see table at p. 836-a). It is argued by Sir Sultan Ahmed that if the meaning which is sought to be attached to the word ''sapindas'' by the appellants is adopted reference to the table at page 836 a of Mayne''s work would be erroneous. Again, Macnaghten deals with the question in the following way at p. 38 of his Hindu Law, Edn. 2:

To suoh property left by an unmarried woman, the heirs are her brother, her father, and her mother successively, and failing those her paternal kinsmen in due order.

As regards the authorities Mr. Das, in the first place in support of his contention that the point is to be tested by the capacity to offer funeral oblations, relies upon the case in Guru Gobinda Shaha Mandal v. Anand La Ghose (1870) 5 Beng L.R. 15 where the claim was by a father''s brother''s daughter''s son, and the Full Bench of the Calcutta High Court dealing with the point made this observation at page 39 of the report:

We wish to draw particular attention to it as an Instance of the extreme solicitude evinced by the author of the Dayabhaga to provide for the spiritual welfare of a deceased proprietor. Again when we come to look at the internal arrangement of each of these classes, so far as the details of such arrangement are aotually given in the Dayabhaga, we find that the same prinoiple is always kept in view. Thus among the sapindas, those who are competent to offer funeral cakes to the paternal ancestors of the deceased proprietor are invariably preferred to those who are oompetent to offer such cakes to his maternal ancestors only; and the reason assigned for the distinction is that the first kind of cakes are of superior religious effioacy in comparison to the second. Similarly those who offer larger number of cakes of a particular description are invariably preferred to those who offer a less number of cakes of the same description; and where the number of suoh cakes is equal, those that are offered to nearer anoestors are always preferred to those offered to more distant ones. The same remarks are equally applicable to sakulayas and samanodakas.

It is said that this is a true rule, but there was an attempted departure from the rule in Kashee Mohun Roy v. Rai Gobind Chuckerbutty (1875) 24 W.R. 229, but the matter, it is argued, was put right in the later Full Bench decision of the Calcutta High Court in Digumber Roy Chowdury v. Moti Lal Bundopadhya (1883) 9 Cal. 563 where it was held that the brother''s daughter''s son is a sapinda, and is therefore a preferable heir to the great-great-great grandfather''s great-great-great grandson. But these cases were cases of Dayabhaga or the Bengal School of the Hindu law in which admittedly the final test is capacity to offer funeral oblations. Defendants 4 and 17 gain no support from these cases. In Nanja Pillai v. Sivabhagyathachi (1913) 36 Mad. 116 there was a contest between the daughter of a co-wife of a deceased woman married in one of the approved forms and the sapindas of her husband suoh as his father''s brother''s son. It was held, relying upon Kamalakara, that nearness was to be determined by the rule given in Mitakshara in regard to succession to the property of a male who died without descendants and consequently first the wife, i.e. the rival wife of the deceased, succeeds, next the daughter, i.e. the deceased step-daughter and so on. In Kanakammal v. Ananthamathi Ammal (1915) AIR Mad. 18 was held that the brother''s widow, although a gotraja sapinda, was not entitled to succeed as an heir under the Madras system of inheritance. In a later decision, in kamala Bai v. Bhagirathi Bai A.I.R (1916) . Mad. 925, it was held that the rule that in the case of succession to stridhan property a daughter inherits as sapinda where the succession is to be traced through the father or the husband, applies also to the case of a wife or widow. Sundara Ayyar J. delivering the judgment of the Court stated:

We see no reason for not aocepting the view of the Bombay High Court in 36 Bom 33916 that the sapindas, both of the father and mother, must be understood to mean the same persons as the mother becomes a member of the father''s family on her marriage. In this view, the defendant, as the wife of the deceased maiden''s father, would be a nearer heir than the plaintiff (the maternal aunt of the deceased maiden).

This is a direct authority against the argument of defendants 1 and 2 who depend, as I have already stated, on the exclusion of the co.widow Bhagwat Kuer for the purpose of establishing their title to the 10 annas 8 pies through the transactions of Dhanukdhari who claimed to be the next in succession to Eamdulari. It is also in. directly an authority against the other appellants represented by Mr. P.R. Das unless he could successfully contend that Kamalkara introduced the rule laid down by Y&gnavalkya merely for the purpose of putting in wife and daughter. In Sundaram Pillai v. Ramasamia Pillai A.I.R (1920) . Mad. 728 the conflict was between the father''s paternal uncle''s son and father''s sister. The question discussed was what was the nearest relation? After referring to the text Napier J. in delivering the judgment of the Court dealt with the argument that the decision reported in kamala Bai v. Bhagirathi Bai AIR (1916) Mad. 925 had followed the decision in Tukaram v. Narayan (1912) 36 Bom. 339, and was wrong in doing so as the Bombay High Court had acted upon Veeramitrodaya, a work which is not followed in Madras, but pointed out in answer to this argument that the learned Judges of the Madras High Court, although not expressly follow, ing the language of Veeramitrodaya, which was definite on the subject, proceeded by way of analogy and arrived at the same result.

The argument on behalf of defendants 4 and 17, as will be seen from the above considerations, has always been rejected. The authorities, so far as they dealt with the speoifio points, are entirely against the appellants. The argument is supported neither by authority nor by the authoritative authors of the text books, who are unanimous that sapindaship in the case such as we have before us and in the case of succession to males depends entirely upon the same rules. The argument, although attractive in some of its aspects, is one which cannot be accepted. In my judgment, therefore the learned Subordinate Judge in the Court below was ri''gHt Jn rejecting it, and the appeal, so far as these defendants are concerned, fails. That disposes of appeal No. 69 of 1935 in favour of the plaintiffs.

The next case is by the appellants who are defendants 1 and 2 in the action. They do not now press their claim which was given up at the end of the argument accepting the Subordinate Judge''s conclusion that the decisions in the suits commencing in 1907 did not operate as res judicata, and that the principal property in dispute, the Lakhaipur mukarrari, was Bachu''s separate property. The remaining claim is as to 10 annas 8 pies share which, as leave already pointed out, depends upon the right of Dhanukdhari to succeed as heir after Rupkali, the junior wife of Mahabir Prasad Singh, to the exclusion of Bhagwat Kuer, the co-widow. One of the contentions is that Veeramitrodaya (Sarkar, at para. 15, p. 244) deals with wife and daughter of the propositus and therefore the passage could not be of any assistance to those who contend that the co-wife is entitled. But it is to be observed that Ghosh, in his Principles of Hindu Law, at page 1142, expressly mentions co-wife. It is further argued that the mention of "parents" in the Mitakshara does not include step.mother. In kamala Bai v. Bhagirathi Bai A.I.R (1916). Mad. 925, a case to which I have already referred, this point was expressly decided against the contention now put forward; so also the case in Krishna Bai v. Shripati (1906) 30 Bom. 333 is a direct authority on the point. Also by reason of the decision at which I have arrived as regards the respective claims of Sia Prasad and Kuar Sorabjit Protap Sahi, the right of Dhanukdhari Prasad to exclude Bhagwat Kuer, the co-wife, is necessarily decided against the contention. This appeal there, fore so far as it relates to the claim of 10 annas 8 pies share of the property, through Dhanukdhari, fails.

The next questions to be disposed of are the endowments of Bachu and Bhagwat Kuer. Baohu during his lifetime in 1873 endowed a temple at Ajodhya in Faizabad with six villages and also with Rs. 40,000 in cash: this was on 2nd September of that year. Bachu constituted himself the mutwalli and provided for the devolution of the office after his death. Mahabir Prasad Singh held the office aiter the death of his father Bachu and on Mahabir''s death Dulhin Bhagwat Kuer remained in office till her death. Plaintiff 1 in the principal suit claimed the office of mutwalli as the nearest of kin. There was a further transaction by Mahabir Prasad by which he sold six of the villages of the Lakhaipur mukarrari estate to the Thakurji on 21st March 1884. Bhagwat Kuer, when in possession, purporting to act under the provision of the will of her husband, dedicated by six deeds, properties of which she was in possession through the wakf. These transactions were of 7th March 1900, 19th May 1905, 10th February 1906, 3rd November 1913 and 29th June 1924. This last dedication was the Judge in the Court below has pointed out, merely a fictitious endowment for the purpose not of the wakf of defendants 1 to 3. On 2nd July 1924 Dulhin Bhagwat Kuer purported to change the order of succession to the office of mutwalli and provided that after her death Defendant 1 must be the mutwalli. The right of Bachu to endow the property is not disputed and the Judge has decided accordingly. As regards the mutwalliship, Mahabir, it has been pointed out, remained a mutwalli during his lifetime. As will be seen from the genealogical table, Mahabir was the last of the male line of Bachu. The deed of endowment dated 2nd September 1873 provided:

As long as I live the tauliat and management of the wakf properties shall remain vested in me personally and thereafter it shall be vested in my son Babu Mahabir Prasad Singh and after him it shall continue from generation to generation, to be vested in the eldest son found fit in the line of eaoh of my children one after another, both in the male and female lines.

There was neither male nor female issue surviving and the line of succession laid down by Bachu came to an end. The right of management therefore reverted to the founder or to his heir. Mahabir Prasad made appropriate provisions by which the mutwalliship should go to his descendants, male and female and Ramdulari therefore on her birth was entitled to the office. It was the opinion of the Judge in the Courfc below that that being so, the right again-reverted to Bachu, the founder, or his heir, and both of them being dead it devolved upon Dhanukdhari Prasad Singh, who unaware of his right, failed to take action. On the findings at which I have arrived, and in the events which have happened, a righfr would devolve upon Sia Prasad Singh. But again this right was not exercised by him No one being nominated nor coming within the line constituted by the founder, the parties in these proceedings can establish no right to the mutwalliship. The learned Judge relies upon the deed of gift by Knar Sorabjit Protab Sahi to Dulhin Bhagwafc Kuer admitting Dulhin Bhagwat Kuer'' right as mutwalli of this endowment and making no claim to the office himself and also upon the fact that defendant 1 can only lay claim through Dhanukdhari. Dhanuki dhari did not exercise his powers and again; as there was nothing to show that Bhagwai Kuer was nominated, she had no power to nominate defendant 1.

One of the points put forward by the appellant however is that rightly or wrongly'' Dulhin Bhagwat Kuer was in possession and therefore obtained a right to nominate'' by adverse possession. She however was in possession as executor of the will of her husband and for a limited estate also. This question of adverse possession was not pleaded nor decided in the Court below depending as it does on questions of fact such as the claim of the persons to whom I have referred either to nominate a line of holders of the office or to claim the mustwalliship themselves. In my judgment the contention of adverse possession cannoti, now be entertained. The learned Judge hasl disposed of the matter on the conclusion that none of the persons enumerated wad-entitled to hold the office of mutwalli of the properties endowed by Baohu, and, as the claims made in the suits were nob claims for appointment to the office by the Court, it was sufficient to hold that none of the olaimants were entitled in these suits to succeed.

There remain two other questions to be determined, first as to the validity of the endowment by Dulhin Bhagwat Kuer, and secondly, the claim by defendant 1 to tha office of mutwalli. The Judge in the Court below has held that the endowments were� beyond the power of Bhagwat Kuer. The question therefore as to the mutwalliship does not arise. It is obvious that if the Judge is right as regards the validity of the endowment, the second question does not arise. These endowments, as I have already said, are of 7th March 1900,19th May 1905, 10th February 1906, 3rd November 1913 and 29th June 1924. Reliance was in the first place placed upon the will of Mahabir Prasad Singh which in para. 5, after referring to the dedication by Mahabir''s father of considerable property to Sri Thakurji installed in the temple at Ajodhyaji provides:

My father has dedioated considerable property to six Thakurji installed at the temple at Ajodhya for purposes of raj-bhog and oharity and he also has executed a wakfnama. It is my wish also to do one or two acts of dharam to perpetuate my name and fame, and this is known to my both wives. If I fail to fulfil my desire during my lifetime I authorize my wives who might survive to fulfil this desire of mine as set forth in para. 2, and the wakfnama, etc. which might be executed by them for this oharitable aot shall be operative and effectual to the same extent as the one which might have been exeouted by myself.

The translation before us omits the words "one or two acts of dharam" which are taken from the translation by the Subordinate Judge which all parties admit as correct. Under that clause of the will (which I have just read) and by reason of the gene; ral law it is contended that Bhagwat Kuer had power to make these endowments. The law on the subject is expressed by theii; Lordships of the Judicial Committee of the Privy Council in Sardar Singh v. Kunj Bebari Lal AIR (1922) P.C. 261, thus:

In their Lordships'' opinion the Hindu law recognizes the validity of the dedication or alienation of a small fraction of the property by a Hindu female for the continuous benefit of the soul of the deoeased owner.

Against the argument in support of the validity of the endowment, it is contended first that the provisions of the will are too vague; Ranchordas Vandrawandas v. Parvatibai (1899) 23 Bom. 725. The first of the documents of 7th March 1900 mentions no less than five acts of charity, and it is contended that if she had power to make the endowments of fractions of the property, she had exhausted that power completely by some of the purposes for which the endowment was made admittedly about onetenth of the whole property being the subject of these endowments. Again, in the dedication of 1905 a statement is made "by way of carrying out my husband''s wish." In this case the property endowed was of the value of Rs. 40,000 and it is contended that if.this was the true purpose, the purpose had already been carried out by the earlier dedication of 7th March 1900. Eurther in the document of February 1906 Bhagwat Kuer purports to create more endowments on the ground that the proper, ties already endowed were not sufficient to defray all the expenses of the temple and she denied that the two documents of March 1900 and of May 1905 were acts by which she carried out the object of perpetuating the memory of her husband. It would appear that the authority, if it was the authority of her husband upon which she was relying, had long since been ex-hausted, and it is impossible to contend that the lady was aoting under the general rule of the Hindu law which would entitle her to dedicate a small fraction of the property of her husband for the benefit of his soul.

It must be remembered her interest was limited, and no valid reason is put for ward to support the transaction to which I have already referred quit a part from the documents of 1913 and 1924. It is frankly conceded that the purpose of the 1913 endowment was for a pathsala at Ajodhya which she herself had inaugurated. No mention is made of her husband and therefore it is impossible to say that she was continuing to carry out the authority of her husband under the will. The other deed suffers from the same infirmity. Again in this transaction a property of the value of Rs. 40,000 was transferred.

The Judge in the Court below has held that the authority in the will was vague and void for uncertainty and that the endowments were not in accordance with the authority such as it was, given under the will. For that reason it was held that the endowments were inoperative against the plaintiff in the principal action. It is not an unreasonable view held by the Subordinate Judge that the purpose of these transactions was to benefit defendant 1 Raghaba Surendra Sahi whom she adopted in 1906. In my judgment the learned Judge was oorreot in this view.

The decision on all these points being against the appellants the result is that all the appeals fail and must be dismissed with costs to the respondents being plaintiffs 1-a, 1-b, 2, 3 and 4 in the prinoipal suit No. 38 of 1932. There will be two sets of hearing fees, one payable by the appellants in Appeals Nos. 62, 63, 64 and 69 of 1935 and the other payable by appellants in Appeals Nos. 139 and 197 of 1935.

Agarwala J.

These six appeals which have been heard together, arise out of five uits which were tried together by the Sub-cdinate Judge of Gaya. The following genealogical table will explain the relation, ship of the principal parties:

BAKHTOUR SINGH | __________________________________________________________________ | | | Kand Prasad Permeshwar Singh Gobind Singh | | Bishunath Bulak | | Tribeni Ram Prasad ___________________________|_________________ | | | | Devi Prasad Jagatpati Kailashpati Inderjit Kuer | | | = Hit Narain of Tikari Sia Prasad ______________________________ | = Nauratan Kuer | | | |____________________________ Sri Kishen Bachu. Jugal Kishore | d. 29-7-1872 d. 9-2-1874 d. 5-7-1872 ____________________________ = Kamalbas | = Anandji | | Ram Kishun Ramrachya d. 7-9-1899 Mahabir d. 4-8-1904 (adopted by Hit Narain) | | Prasad Dhanukdhari | d. 21-6-1894 = (1) Bhagwat Kuer d. 19-3-1923 | d. 19-9-1925 = Bhagwati Kuer _______________ (2) Rupkali d. 17-11-1923 | | d. 8-1-1899 | Kamkewal Rajkishori ________| Kuer = d. 1937 | ___________|________ Tamkohi Ramdulari d. 1895 | | d. 26-1-1913 Lachmi Kuer Rajeshwari Kuer |________________________ | = Janardan Narain | | daughter Singh. Sanjit Sarabjit = Maharaj Kumar (died before 1894) d. 1934 Gopal Saran Narain Singh | (= Sayeeda Khatun). Chatterpati Pratap. 39. In 1863 Inderjit Kuer, daughter of Tirbeni Singh and wife of Maharaj Hit Narain ol Tikari, made a grant known as the Lakhaipore mukarrari to Baohu Singh, one of the three sons of Jagatpati Singh, who was one of her two brothers. At the time the grantee was a member of an undivided Hindu family consisting of himself, his two brothers, Shrikishun and Jugal Kishore and Eamraohya Singh, one of the sons of Kailashpati, brother of the grantee''s father. In 1864 Ramrachya separated from Jagatpati''s branch of the family taking with him a half share of the ancestral properties but no share in the mukarrari. Jugal Kishore died on 5th July 1872, and Srikishun on the 29th of the same month. Bachu, the grantee of the mukarrari, died on 8th February 1874, after obtaining succession certificates empowering him to collect the debts due to his brothers, Jugal Kishore and Srikishun, respectively. Kamalbas Kuer, widow of Srikishun, and Rajkishori Kuer, one of his daughters, had not opposed Baohu Singh''s application for a succession certificate in respect of the debts of Srikishun and received from him, the widow a maintenance grant, and the daughter an absolute gift of certain properties. The application however so far as the debts of Srikishun were concerned, was opposed by his other daughter, Rani Ramkewal Kuer, and so far as the debts due to Jugal Kishore''s estate were concerned, by the latter''s widow, Anandi Kuer. They denied that Srikishun and Jugal Kishore were joint with Bachu at the time of their deaths. The matter was decided in favour of Baohu Singh and after the latter''s death his son, Mahabir Prasad, made a maintenance grant to Anandi Kuer by a deed dated 17th May 1874. Rani Ramkewal Kuer however challenged the decision by institu-ting Title Suit No. 163 of 1880 against Mahabir Prasad claiming her father''s share in the ancestral properties. No claim was then advanced with regard to the mukarrari properties.

The suit was compromised, Rani Ramkewal Kuer admitting Mahabir Prasad''s title and receiving three villages from him. Rajkishori was impleaded in this suit. She and Sarabjit Pratap Sahi, son of Rani Ramkewal Kuer, who was then a minor, and his elder brother, were parties to the compromise. In the result these disputes terminated in the widows of Srikishun and Jugal Kishore, and the descendants of the former, admitting that Srikishun and Jugal Kishore died in a state of jointness with Bachu and that the latter''s son had succeeded to the joint family properties. But the Lakhaipore mukarrari was not the subject-matter of those disputes.

Mahabir died on 21st June 1894 leaving two widows Bhagwat Kuer and Eupkali Kuer. On 11th October 1894 the latter gave birth to a daughter, Ramdulari Kuer, who died on 3rd June 1895. Rupkali died on 8th January 1899. Kamalbas, widow of Srikishun, died on 9th September 1899, Anandi Kuer, widow of Jugal Kishore, on 4th August 1904 and Bhagwat Kuer on 19th September 1925. Under the will of Mahabir Prasad his estate was given to his widows successively for life, and his daughter, Ramdulari, on her birth became entitled to the reversionary estate. The various claimants to these properties are the parties to this litigation and the principal question on which they are at issue, is as to who ultimately inherited the estate which Eamdulari obtained under the will of her father, Mahabir. The parties are all agreed that the estate of Mahabir vested in Ramdulari on her birth and that on her death it passed to her mother, Rupkali Kuer. The contention of Raghava Surendro fiahi and his son Hari Surendro Sahi, who are plaintiffs in Title Suits Nos. 40 and 41 of 1932 and defendants in Suits Nos. 30 of 1930 and 38 of 1932, is that on the death of Rupkali Kuer the estate of her daughter Eamdulari passed to Dhanukdhari, who was at that time the nearest reversioner to Ramdulari''s father, Mahabir, the latter''s senior widow, Bhagwat Kuer, being excluded from inheriting the estate of her step-daughter. This contention was challenged by Sia Prasad who instituted Title Suit No. 38 of 1932 and by Sarabjit Pratap who was the plaintiff in Title Suit No. 30 of 1930. Both these persons have since died. Sia Prasad''s widow, Nauratan Kuer, was substituted in his place and Sarabjit''s son Chatterpati in his place. The contention of the plaintiff in Title Suit No. 30 of 1930 is that at the time of Bhagwat Kuer''s death he was the nearest kinsman and heir of Mahabir although he was a cognate and not an agnatic relation. Sia Prasad''s claim was based on the Mitakshara text that cognates do not succeed until other classes of heirs are exhausted.

As between the claim of Sia Prasad, who instituted Title Suit No. 38 of 1932, and the claim of Sarabjit Pratap, who in. stituted Title Suit No. 30 of 1930 (and whose representative is the appellant in First Appeals Nos. 137 and 197 of 1935) the right to succeed to the stridhan property of Ramdulari on the death of her stepmother, Bhagwat Kuer, depends on the question, whether the claim of a remote agnate is to be preferred to that of a less remote oognate. The parties are agreed, and it is clear, that in the case of a maiden the heirs to her stridhan are, first, her uterine brothers, secondly her mother and, thirdly, her father. After this, it is contended by Sir Sultan Ahmed in support of Sia Prasad''s claim, that the heir to the deceased maiden''s stridhan is the same as the heir to her father''s property. In support of the claim of Sarabjit Pratap however Mr. Das contends that the next to the stridhan is not the father''s heirs but his nearest relation.

Mr. Das founds his contention on the text of Manu, Ch. 9, verse 187: "The property of a pear sapinda shall be that of a near sapinda," as explained by the Privy Council in Ram Chandra v. Venayak Venkatesh A.I.R (1914) . P.C. 1 , and in the commentary of Virmitrodaya, The Mitakshara divides sapindas, or blood relations, into two classes, gotraja sapindas and bhinnagotra sapindas or bandhus. The Privy Council pointed tput that while the Mitakshara uses the word sapinda in its wider sense to include alt blood relations (i.e. all persons having particles of the same body as the deceased) it lays down rules for the limitation of the sapinda relationship which confines it to blood relations within seven degrees on the male side and five degrees on the female side. In Ram Chandra v. Venayak Venkatesh A.I.R (1914). P.C. 1 their Lordships of the Privy Oounoil rejected the contention that the Mitakshara uses the word sapinda in its narrower sense only in relation to marriage, impurity and exequial rites and not in relation to inheritance.

They approved of the observations of the Full Bench in Umaid Bahadur v. Udai Chand (1881) 8 Cal. 119 with refer, ence to the meaning of sapinda in the Mitakshara:

Having taken great pains in accurately defining the word ''sapinda'' in the beginning of his work, and having onoe said in dear words in the passage in question that ''one ought to know that wherever the word sapinda is used there exists (between the persons to whom it is applied) a connexion with one body either immediately or by descent,'' it is hardly reasonable to suppose that the authorused the word in another part of the work in a different sense. It is a well understood rule of construction amongst the authors of the Institutes of Hindu Law, that the same word must be taken to have been used in one and the same sense throughout a work, unless the contrary is expressly indicated.

With regard to the succession to stridhan property the Mitakshara cites a text of Yagnavalkya that if it be the property of a woman married in one of the orthodox forms it will go to her daughters, and, in default of them, to her husband. In the case of a woman married in an unorthodox form her stridhan goes to her father and mother on failure of her own issue. It is common ground that the rules relating to the succession to stridhan are the same in the case of a maiden who has no brothers and a woman married in an unorthodox form and dying without issue. A text of Baudhayana is cited in the Mitakshara as regulating succession to the stridhan of a maiden :

The wealth of a deceased maiden let the uterine brothers themselves take; on failure of them it shall belong to the mother; or if she be dead to the father.

Virami daya, who was a commentator on the Mitakshara, after referring to this text, says: "On failure of the mother and father it goes to their nearest relations." The question on which the parties are at issue is whether "relations" (sapinda) is here used in the sense of sapindas generally or whether it is confined to the meaning defined in the Mitakshara. Mr. Das contrasts the word ''sapinda'' in the commentary of Viramitrodaya with reference to succes. sion to stridhan with the term ''got raj a sapinda'' used in the text of Yagnavalkya cited in the Mitakshara in speaking of succession to the property of a male dying without issue. With regard to the latter Yagnavalkya''s text is:

The wife and the daughters also, both parents, brothers likewise and their sons, gentiles (gotrajas), cognates (bandhus), a pupil and a fellow student. On failure of the first among these, the next in order is indeed heir to the estate of one who departed for heaven leaving no lineal male descendant (putra).

The Mitakshara, Ch. 2, Section 5, after refer, ring to the order of succession among the gotrajas says:

If there be none such, the succession devolves on samanodakas, and they must be understood to reach the seven degrees beyond sapindas, or also as far as the limit of the knowledge and name extend. Accordingly Virhat Manu says, ''The relation of the sapinda ceases with the seventh person, and that of samanodakas extends to the 14th degree, or, as some affirm, it reaches as far as the memory of birth and name extends.'' This is signified by gotra.

Mr. Das contends that since the word sapinda in the Mitakshara is to be used in the same sense throughout and since in describing the succession to stridhan the word used is sapinda and not gotraja sapindas as in the case of succession to the property of a male, the author of the Mitakshara must be taken to have intent ded to indicate that the two lines of succes. sion were not the same, that is to say, whereas in the latter case gotraja sapindas-and samanodakas have preference over bhinna-gotra sapindas, in the case of stridhan they have no such preference and the heir must be ascertained from among the sapindas generally by applying the test of religious efficacy. He referred to Viramitrodaya, Ch. V, Part 2 (Setlur), for the purpose of shewing that this writer also held that the lines of succession in the two cases are different. In Section 9 the authou explains that in the case of a woman married in an unorthodox form, in default of issue, her stridhan goes first to her mother and then to her father, although the text mentions only father. In Section 14 the author says:

But when there is a failure of the above mentioned heirs to a childless woman''s property, Brihaspati ordains...(here follows a list of persons pronounoed to be similar to a mother, whom some writers call seoondary mothers): if they (the secondary mothers) leave no issue of the body, nor son (of a rival wife) nor daughter''s sons, nor their sons, the sister''s son and the rest shall take their property.

It is then explained that the term''aurasa or ''issue of the body'' includes both; sons and daughters, and that ''their sons'' relates to the term ''issue of the body'' and son (of a rival wife)'' and not to the term daughter''s son "because the son of a daughter is not competent to offer oblations." The author proceeds:

Hence on failure of heirs down to the daughter''s-son, first the ''aurasa'' inherits, after him his sons and grandsons. For, it is proper that the successiou should devolve on them, inasmuch as they are competent to present the pinda.... In their default, the son of a rival wife, his son and grandson (become heirs in their order) by reason of their being, under the circumstanoes, the giver of the pinda.... Hence on failure of these, the sister''s son and the rest alone, in spite of the sapin-das, suoh as the father-in-law are, by virtue of the text (of Brihaspati) which is not reoonoilable in. any other way, entitled to succeed, according to their comparative propinquity to the property of their mothers, sister and the rest.

Here, contends Mr. Das, Viramitrodaya shews that the heir is to be found by applying the doctrine of religious efficacy to sapindas in general for among the secodary sons" enumerated in the test of Brihaspati are persons who are cognates. It is to be remembered that, historically, until Yagnavalkya''s text recognized the claims of cognates to succeed to the property of a male, in default of agnates, cognates had no right of inheritance at all. Yagnavalkya having, in the case of the property of a male, postponed them to agnates, it is contended that Viramitrodaya, who was comtnenting on and explaining the text of Yagnavalkya, intended to place them on the same footing as agnates in relation to the property of a woman. In Ch. 3, Part 1, relating to the succession to the property of a separated male, Viramitrodaya states, in Section 3:

But in fact when a person in whom rights vested dies, it is proper that the property should be inherited by his near relations...when the owner of any property is dead, then if he leave no male issue, his property is inherited by his relations such as his wife, etc.

There the author is clearly referring to the text of Yagnavalkya: "The wife, and the daughters also, both parents, brothers uterine, and their sons, gentiles (gotrajas), cognates (bandhus) ...." in support of his proposition that "When a person in whom right vested dies, it is proper that the property should be inherited by his near relations." In Section 9 of Part 2, Ch. 1, relating to women''s property the author explains:

It goes to the mother in the first instance, and after her to the father, acoording to the prinoiple set forth while explaining the term "parents" in the, text (of Yagnavalkya), "the wife and the daughters also, the parents, etc.," there being no other text against the application of that principle to the present case.

Sir Sultan Ahmed contends that the citation of Yagnavalkya''s text in this con. text indicates that what Viramitrodaya meant was that on failure of the mother, the father gets the property and on failure of the father it goes to the other persons mentioned in the text of Yagnavalkya in the order there given. Apparently, the rival claims of a near bandhu and a more remote agnate to succeed to the stridhan of a maiden have never been directly in issue before, but the opposing views presented, respectively, by Mr. Das and Sir Sultan Ahmed in these appeals have been advanced in many reported cases and have been the subject of disoussion by many text-book writers, and the view now supported by Mr. Das has not been accepted. The text of Brihaspati on which Mr. Das relies has been cited by commentators whose works are authorities in the Bombay, Madras, Mithila and Benares Schools respectively, but no text-book writer has accepted it in the sense contended for by Mr. Das, and no Oourt has construed it in that sense: see Bai Kesserbai v. Hunsraj Morarji (1906) 30 Bom. 431, Nanja Pillai v. Sivabhagyathachi (1913) 36 Mad. 116, Kanakammal v. Ananthamathi Ammal A.I.R (1915) . Mad. 18, kamala Bai v. Bhagirathi Bai A.I.R (1916). Mad. 925, Sundaram Pillai v. Ramasamia Pillai A.I.R (1920) . Mad. 728, Kamla Prasad v. Murli Manohar A.I.R (1934) . Pat. 398 and Dwarka Nath v. Sarat Chandra (1912) 39 Cal. 319. In all these cases the text of Yagnavalkya with regard to succession to the property of a male was applied to the stridhan property of a woman and no instance has been cited in which that text was not applied. In Nanja Pillai v. Sivabhagyathachi (1913) 36 Mad. 116 the text of the Mitakshara (Ch. 2, Section xi, pl. 11) that on the failure of the husband of a woman married in an orthodox form the property "goes to his nearest kinsmen (sapindas)" was under consideration. The then learned Chief Justice said:

The meaning of the above text is plain; it means that the stridhan property of a woman married acoording to an orthodox form who has left no issue will devolve on her husband, and on failure of the husband the property will go to his sapindas in the order laid down in the Mitakshara with reference to succession to the property of a male. That is to say, we have to ascertain the person who would sucoeed to the property the nearest sapinda of the husband if the proper, belonged to him. And that is the interpretation which has been plaoed upon the text whenever it has had to be considered.

This view was reiterated in Kanakammal v. Ananthamathi Ammal A.I.R (1915) . Mad. 18 where the learned Judges after citing the passage quoted above, went on to say:

No authority has been quoted for the suggestions of the learned vakil for appellant that the term sapinda in Mitakshara, Ch. 2, Section 11, pl. 11, should be understood in a different sense to that in which it would be used in referenoe to inheritance from a male.

Again Phillips J. in Sundaram Pillai v. Ramasamia Pillai A.I.R (1920) . Mad. 728 said:

I am unable to accept the contention based on the single sentence of the judgment in Kanakammal v. Ananthamathi Ammal A.I.R (1915) . Mad. 18, that the father''s sapindas in a case when the property of a female is conoerned are different to the sapindas in the case of a male''s property. In the absenoe of any rule to the contrary the sapindas must always be the same.

The true construction of the text of Brihaspati was decided by the Privy Council in Bai Kesserbai v. Hunsraj Morarji (1906) 30 Bom. 431 in which it was held that the text is merely illustrative, enumerating some of the heirs entitled to succeed to the stridhan of a woman on failure of her husband, in the case of a woman married in an orthodox form, and of her father, in the case of a woman married, in an unorthodox form, and that the order of succession is not indicated in that text. Mr. Das does not aocept that decision as authority for the proposition that the proper order, in the case of succession to the stridhan property of a woman is the same as in the case of the property of a male. He relies on the fact that the claim which the Privy Council upheld in that case was the claim of a co-widow and he contends that even on the view which he has presented the co-widow would exclude all other sapindas because she is the nearest sapinda of her deceased husband. He referred to Section 15 of Part 2 of Ch. 5 of Viramitrodaya (Setlur) as authority supporting the co-widow''s rights.

In that Section the author is commenting on Manu''s text disinheriting women and mentions that the only exception is in favour of those women "whose right of succession has been ex. pressly mentioned in texts such as "The ... wife and the daughters, also, etc." Mr, Das admits that the author is actually applying the text of Yagnavalkya to stridhan, for he relies on Section 15 to defeat the claim of Dbanukdhari to succeed in preference to Bhagwat Kuer, the stepmother of Ramdulari, home contends that in para. 15 Viramitrodaya has not applied to stridhan the whole of Yagnavalkya''s Itext relating to the property of a male but only a part of it, namely "the wife and the daughters alsffe." It is true that the text is being cited EKcWly to illustrate the rule that only specially mentioned women have a right to inherit and therefore in Section 15 the com-mentator cannot be held to have cited it for anything more than in support of the claims of certain women. In Section 9, however, the same commentator cites the same text of Yagnavalkya in discussing succession to the property of a childless woman married in an unorthodox form. In such a case, according to the Mitakshara the property goes "to the father." In Section 9 Viramitrodaya explains that by "father" is here meant parents and goes on:

Amongst them also, it goes to the mother in the first instanoe, and after her to the father, aeccrding to the prinoiple set forth above while explaining the term ''parents'' in the text ''the wife and the daughters also, the parents, etc.'' there being no other text against the application of that principle for the present case.

Mr. Das'' comment on the faot that Yagnavalkya''s text is quoted in this context is that it is an instance in which Viramitrodaya has cited in support of his own conclusions a text which is inapt for that purpose and therefore that it should not be read as incorporating into Vira-mitrodaya''s discussion of the succession to a maiden''s property Yagnavalkya''s rule regarding succession to the property of a male. That however is not the view takeu by Kamalakara in his Vivada Tandava or by other commentators. Discussing succession to the stridhan of a woman married in an orthodox form Kamalakara says:

In default of husband the estate is obtained by his near relation beginning with ''the lawfully wedded wife and the daughter, etc'' as prescribed by the text of Yagnavalkya in the rule about succession to a sonless man.

By this passage it has been generally understood that in Kamalakara''s view the succession to stridhan, in default of husband in the case of a woman married in an orthodox form, and in default of father in other cases, was that the heirs of the husband or father succeeded in the order laid down in Yagnavalkya''s text relating to succession to the property of a male. West and Buhler (Edn. 4, p. 485) say:

The opinion (of Kamalakara) seems to be based on a consideration that, as the sapindas inherit only through the husband, they virtually suooeed to property coming from him, and that consequently they must inherit in the order prescribed for the succession to a male''s estate.

They then refer to the view now presented by Mr. Das and continue:

But, the identity of the wife with her husband being accepted as a leading prinoiple of the Mitakshara, the rule seems on the whole consonant with it, whereby precedence in heritable relation to him gives a like precedence and order of succession to his widow. Such appears to be the rule, too, which custom has preferred in this part of India.

See also Vyavastha Ohandrika (Shyama Oharan Sarkar, Vol. 2 p. 539). Sir Gooroodass Banerjee in his Tagore Law Lectures on the Hindu Law of Marriage and Stridhan (9th Lecture, Edn. 4 pp. 383, 389) refers to the discussion of the subject by. West and Buhler and says:

In this conflict of authority it is not easy to say which view is oorreot. But Kamalakara''a opinion is entitled to be followed as authority in the Benares School when it is not in oonfiiot with that of any higher authority; and in the present instance the rule based upon his opinion has the further recommendation of being simple, as it makes the order of suooesBion to stridhan correspond, after a oertain point, to that applicable to a man''s property.

Another eminent Hindu Jurist, Gopal, chandra Sarkar Sastri (Hindu Law, Edn. 6, pp. 730, 731) after citing Viramitrodaya''s comment on Baudhayana''s text.... "On the failure of the mother and the father, ife goes to their nearest relations" says:

It seems that a maiden''s status is similar to that of a woman married in a disapproved form of marriage, both being under the patria potestas of their father, The term ''their nearest relations'' must be the father''s relations, in the first instance inasmuch as they are also the mother''s relations, eo the term is not to be used distributively; and in default of such relations the relations of the mother alone become heirs.... It should be noticed that the nearness or propinquity is the principle on which the order of suocession is worked out in the Mitakshara, hence the relations are to take a woman''s property in the same order in which they would become heirs to her husband or father or mother.

Mr. Das'' comment on these writers is that they all misunderstood the text of Kamalakara because they made the mistake of directing their attention to one passage of his -work and failed to notice what he said later on, and that to accept their view is to give samanodakas preference over bandhus which, he contends, is directly contrary to the Mitakshara rule that the heir to a maiden''s stridhan is to be looked for among the sapindas in the sense in which that word is denned in the Mitakshara. His contention is that Kamalakara''s final conclusion is that in default of husband or father the heir is to be found by applying the doctrine of religious effioaoy to the sapindas generally without reference to the particular class of sapindas to which they may belong. It is a startling suggestion that so many eminent Sanskrit scholars and jurists should have missed what is so obvious to Mr. Das. In Dwarka Nath v. Sarat Chandra (1912) 39 Cal. 319 the question of suocession to the stridhan of a woman married in an unorthodox form was considered and although the issue did not arise between a cognate and an agnate the texts relevant to the latter point were fully discussed by Chatterjea J., who said:

So that, according to Kamalakara, the nearness of kinsmen in the rule laid down in the Mitakshara is to be determined aooording to the well known text of Yagnavalkya relating to the succession to a male owner dying without issue.

The decision in this case was followed in Nanja Pillai v. Sivabhagyathachi (1913) 36 Mad. 116 which has already been referred to. In this state of judicial dicta and the comments of learned Sanskrit scholars and jurists I have no hesitation in rejecting the contention of Mr. Das in support of the claim that Sarabjit is to be preferred as an heir to Mahabir in preference to Sia Prasad. Even if the texts and commentaries are capable of being construed in the sense for which he contends I should hesitate to adopt that construction for it would inevitably have the effect of upsetting titles long founded on the contrary view.

Certain other facts must now be stated in order to understand the claims of Eaghava Surendro and his son, who are the appellants in the principal appeal (First Appeal No. 69 of 1935, arising out of Title Suit No. 38 of 1932). By an ekrarnama of 12th February 1906 Bhagwat Kuer proclaimed that she had adopted Eaghava Surendro Sahi as son to her deceased husband. Thereupon, on 8th February 1907, Dhanukdhari Singh, son of Eamrachya, executed a sale deed in favour of Ambica Prasad Singh of Tikari purporting to con-vey a two-thirds share of the Lakhaipore mukarrari and a 2 annas 8 pies share of certain of the ancestral properties. The sale deed recited that the Lakhaipore mukarrari had belonged jointly to Srikishun, Bachu and Jugal Kishore and that they had separated from each other; that on the death of the widows of Srikishun and Jugal Kishore the shares of the two latter had devolved on Dhanukdhari, who on the death of Eamdulari, also inherited the estate left her by Mahabir Prasad, and that in order to raise money to finance litigation for the purpose of recovering the properties from Mahabir''s widow, Bhagwat Kuer, who was in illegal possession of them, the vendor was obliged to sell the shares of Jugal Kishore and in the mukarrari, amounting to two-thirds, and the half share of Jugal Kishore in the other properties. The vendor and the vendee then instituted three suits. Title Suit No. 198 of 1907 was to recover the one-third share of Bachu which devohv an his son Mahabir; Title Suit No. 199 of 1907 was to recover the one.third share of Jugal Kishore, and Title Suit No. 200 of 1907 was to obtain a declaration that the adoption of Raghava Surendro Sahi was invalid. The last suit succeeded. The other two were finally dismissed by the Privy Council in 1919.

In the meantime, Sarabjit Pratap, son of Eani Bamkewal Kuer, instituted Title Suife No. 153 of 1911 to recover the one-third share of his maternal grand father Srikishun although he and his brother had signed the compromise entered into by his mother which admitted that Srikishun had died in estate of jointness with his brothers. While the suit was pending in appeal to the Privy Council the parties entered into what they called a family arrangement, for the purpose of settling their disputes. The arrangement is evidenced by three deeds. By the first, dated 8th January 1921, Bhagwat Kuer purported to release the one-third share of Srikishun in favour of the latter''s daughter Rjkishori. By the second deed, dated 9th January 1921, Eajkishori purported to surrender this one-third share to Sarabjit Pratap, son of her sister, Eani Eamkewal Kuer. By the third deed, dated 10th January 1921, Sarabjit Pratap purported to transfer to Bhagwat Kuer absolutely, by way of gift, most of the properties included in the one-third share. One of the properties however was given to Rajkishori and the remainder were retained by Sarabjit Pratap himself. Dhanukdhari died on 19th March 1923, and his widow on 12th November in the same year.

While an application by Bhagwat Kuer for mesne profits against the plaintiffs of Suit No. 199 of 1907 was pending, a compromise was arrived at on 10th February 1924 between Bhagwat Kuer on one side and Ambica Prasad Singh and his son, Maharaj Kumar Gopal Saran Narain Singh to whom he had made a gift of the two-third share in the mukarrari properties purchased from Dhanukdhari on 8fch February 1907, on the other side. Ambica Prasad and his son executed a kobala in favour of Bhagwat Kuer by which they sold to her their right the two-third share, except nine village''s, and Bhagwat Kuer executed a kobala in favour of the Maharaj Kumar in respect of the one-third share of the aforesaid nine villages and a deed of surrender in respect of the remaining two-third share. On 2nd July 1924 Bhagwat Kuer made a gift of 52 villages out of the two-thirds share to Hari Surendro Sahi, son of Baghava Surendro Sahi. She died on 19th September 1925. Lachmi Kuer, a daughter of Dhanukdhari, was then recorded in Register D as proprietress in respect of some of the ancestral properties. As a result of disputes with respect to the Gaya properties all the latter were attached by the District Magistrate u/s 146, Criminal P.C.

With regard to the two-thirds share which Dhanukdhari purported to sell in 1907 and which the vendee conveyed to Bhagwat Kuer, it is necessary for these appellants to establish that the estate of Bamdulari was inherited by Dhanukdhari and not by her step mother Bhagwat Kuer. It is contended that a step-mother never, in any circumstances, inherits the stridhan property of her step.daughter. In support of this proposition reference was made to three cases none of which however is directly in point. In Jullessur Kooer v. Uggur Roy (1883) 9 Cal. 725 the rival claimants were the gotraja sapindas and the sister of the last male owner, res. peotively. The claim of the sister was rejected on the ground that she is not one of the heirs enumerated in the Mitakshara. In Tahaldai Kumari v. Gaya Prasad Sahu (1910) 37 Cal. 214 the rival claimants to the estates of two deceased brothers were their father''s sister''s sons and their step-mother, respectively. The latter''s claim was disallowed. The third case is Ramanand v. Surgiani (1894) 16 All. 221 in , which it was held that a step-mother, nob being one of the females expressly named in the Mitakshara and not being included under the term "mother" in Ch. 2, Section 3, cannot inherit from her deceased stepson.

The point which falls for decision in these appeals, namely, the right to inherit stridhan property was considered in kamala Bai v. Bhagirathi Bai A.I.R (1916) . Mad. 925 and decided in favour of the stepmother. There the oontest was between the maternal aunt and the Step-mother of a deceased maiden. The aunt''s claim was disallowed. It is true that this case arose in the Madras Presidency but we have not been referred to any authority holding that in respect of stridhan property the Hindu law of inheritance as administered in this. . Province ''differs from that of Madras. It was however contended that the Madras case did not refer to the textlof Viramitro-daya relating to succession to the stridhan of an unmarried girl. It is argued that when the succession to stridhan has been traced as far as the father of a deceased maiden the property then passes to the heirs of the father as if it were the property of a male. Accordingly, it is'' contended, it cannot be inherited by a female agnatic relation unless she be one of those expressly mentioned as heirs of a male, and a step-mother is not so mentioned. But in discussing succession to stridhan Viramitrodaya (Setlur, Ch. V, Part 2, Section 15) expressly introduces the text of Yagnavalkya: "The wife, and the daughters also, both parents brothers likewise, and their sons..." as an instance of certain women being specifically mentioned as heirs and there seems to be no reason why this particular text should have been cited in that context if at least the relevant portions of it were nob to apply to stridhan; that is to say, if it were not cited as an instance of oertain women being heirs to stridhan. Bhagwat Kuer was the wife of Mahabir, the father of Ramdulari, and hence is mentioned in Viramitrodaya as one of the heirs. The jslaim of Baghava Surendro Sahi and his son, So far as it is based on Dhanukdhari''s right of inheritance, therefore fails. This disposes of their claim to the two-third share which was the subject-matter of Bhanukhdari''s sale to Ambica Prasad Singh, which was subsequently purchased from the lat-fcer''s son by Bhagwat Kuer from whom the appellants claim.

With regard to the one.third share which belonged to Sri Kishun, these same claimants make an alternative case. They contend that in the litigation initiated by Dhanukdhari in 1907 which was deter, mined in the Privy Council in 1919 it was decided that each of the three brothers, "Srikishun, Bachu and Jugal Kishore separated, and that each had a one-third share in the property; that Bhagwat Kuer put Srikishun''s daughter Bajkishori in possession by the deed of release of 8th January 1921; that Baj Kishori surrendered it to Srikishun''s grandson Sarabjit Pratap on 9th January 1921, and that the latter con-veyed it absolutely to Bhagwat Kuer from whom the appellants obtained it by a deed of gift on 10th January 1921. It is argued that the decision of the litigation of 1907 operates as res judicata as to Srikishun''s right to one-third of the mukarrari. The transactions of 1921 were relied upon as a family arrangement by which were settled the disputes between Bhagwat Kuer on the one hand and those interested in the estate of Sri Kishun on the other.

The Subordinate Judge overruled the plea of res judicata and held that the mukarrari grant was to Bachu alone, that there was no real dispute to be settled in 1921 and that if such a dispute existed the settlement was not bona fide for the protection of the estate of which Bhagwat Kuer was in possession as a life tenant, but a device to convert her life interest in the one-third share into an absolute estate for the purpose of enabling her to convey it to Baghava Surendro Sahi. It was not contended that the Subordinate Judge''s finding that the mukarrari was granted to Bachu alone is wrong in so far as it is based on the evidence in this case. The finding was at first challenged on the ground that the matter was concluded by the decision in the litigation of 1907 and a considerable amount of time was taken in discussing this question, both by the appellants and the respondents. In his reply however Dr. Dwarka Nath Mitter, the learned Advocate for the appellants in F.A. 69 of 1935, stated that he accepted the conclusion of the Subordinate Judge on the question of res judicata and also his finding that the transactions of 1921 did not amount to a family arrangement by way of settlement of a dispute.

The next question is as to the validity of endowments made by Bhagwat Kuer. They were all challenged both by Sia Prasad and Sarabjit Pratap and by Lachmi Kuer, a daughter of Dhanukhdari Prasad. Baghava Surendra claimed them to be valid. With regard to two deeds of endowment executed in 1905 and 1906, respectively, he sought for a declaration of their validity in Title Suit No. 41 of 1932. In 1873 Bachu Singh conveyed six villages out of the Lakhaipore mukarrari to the deities installed by him in a temple at Ajodhya to whom he also assigned Rs. 40,000 owing to him by debtors. After his death this money was repaid by the debtors to Bachu Singh''s son, Mahabir, who however instead of handing it to the shebait of the temple, conveyed another six of the mukarrari villages to the deities in lieu of it. The validity of these endowments is not in question. In 1900, after the death of Mahabir, his widow, Bhagwat Kuer, purporting to act under his will, conveyed certain properties valued at Rs. 60,000 for the maintenance of a Sanskrit School at Ajodhya "andra temple at Chapra. In 1905 she dedicated other properties valued at Bupees 40,000 to a temple which she herself founded at Ajodhya. Further properties valued at Rs. 32,000 were dedicated to this temple in 1906 and to the school in 1913. On 19th June 1924 Bhagwat Kuer dedicated to the temple at Ghapra her deceased husband''s residential house at Chapra with the outhouses and land appurtenant to it valued at Rs. 40,000 as a residence for the mutwalli of the endowed properties. She herself was the mutwalli at the time.

The deed stated that on her death Baghava Surendro, and after him Harisurendra, would be the mutwalli. The relevant portions of Mahabir''s will are as follows:

I have two wives. If by the gtaoe of God one or both of them get issues, they shall, on my death, eater into possession arid occupation of all my moveable and immovable properties, anoestral as well as acquired, so that the name of my ancestors may be perpetuated and the expenses on charity and temple, etc, which have been met from the time of my anoestors down to the present time, as well as the expenses thereon to be provided for by me hereafter may continue to be defrayed exactly in the same manner as has (hitherto) been done, so that charitable aots may continue to be done in the family.

If my children are minors at the time of my death, the senior wife and on her death the junior wife who are both very intelligent, possessed of administrative ability and pious, shall act as their guardian till they attain majority, and manage the estate, giving training to the boys, and carry out the orders of the hakims for the time being.

My father has dedicated considerable property to Sri Thakurji installed at the temple at Ajodhya for purposes of rajbhog and charity and he has also executed a wakfnama. It is my wish also to do one or two acts of dharm to perpetuate my name and fame, and this is known to my wives. If I fail to fulfil my desire during my lifetime I authorize my wives who might survive to fulfil this desire of mine as set forth in para. 2, and the wakfnama which might be exeouted by them, for this charitable act shall be operative and effectual to the same extent as the one which might have been executed by myself....

The reference in para. 5 to ''para. 2'' is apparently a mistake. It seems that para. 1 was meant. The phrase "one or two aots of dharm" is taken from the translation of the will by the learned Subordinate Judge which is admittedly accurate. In Ranchordas Vandrawandas v. Parvatibai (1899) 23 Bom. 725 the Privy Council held that a beast for dharm was too vague and uncertain to be given effect to. In Vaidyanatha Ayyar v. Swaminatha Ayyar A.I.R (1924) . P.C. 221, on the other hand, the charity to be benefited was a chattiram, a known and certain charity. It was contended in the/present case that the phrase ''known to my wife'' explains and amplifies the phrase "one or two aots of dharm." The aots of dharm are indicated with sufficient certainty to be enforced. The learned Sub. ordinate Judge has found that there is no reliable evidence as to what, if any, were the acts of dharm which the testator had com. municated to his wives and nothing has been said in these appeals which leads me to reject his conclusion on this point.

Apart from the will however, it is contended that Bhagwat Kuer had power under the Hindu law to dedicate a portion of her husband''s estate to religious and charitable objects. That a widow has such a power is not contested but the widow''s aot must be reasonable, having regard to the value of the estate, and its object must be such as according to the notions prevalent in Hindu society conduce to the spiritual benefit of her husband: see Lal Ram Singh v. Deputy Cmmissioner of Partabgarh A.I.R (1923) . P.C. 160. The value of the dedicated properties according to the deeds is Rs. 1,72,000. In the course of the argument Dr. Mitter in supporting thef dedications admitted that they amounted to a tenth of the estate. The object of the endowments has been found by the learned Subordinate Judge to be for the material benefit of Raghava Surendra and, if any spiritual benefit was in view it was the spiritual benefit of Bhagwat Kuer herself. The circumstances of the case support the conclusion arrived at by the Subordinate Judge. She first attempted to adopt Eaghava Surendra as the son of her deceased husband. When this failed she conveyed part of the estate to him and the balance, except the dedicated properties, to his son. She appointed him as mutwalli of all the dedicated properties and even put him in possession of the family residential house. None of the dedications was for the benefit of the deity installed by her husband''s father at Ajodhya.

In this respect the facts are similar to those in Ram Kawal Singh v. Ram Kishore Das (1895) 22 Cal. 506 where a widow alienated a part of her deceased husband''s estate for the maintenance of a deity which had not been installed by him and'' the dedication was found to be prima facie for the widow''s own spiritual benefit and not that of her husband. Mr. Das who challenged the dedications on behalf of Sarabjit Pratap, contended that under the Hindu law a woman in possession of a life estate is entitled to dedioate part of the� estate for the spiritual benefit of the last full owner only and therefore in the present case all alienations not for the spiritual benefit of Earn Dulari are void. He relied on an observation of their Lordships of the-Privy Council in Sardar Singh v. Kunj Bebari Lal A.I.R (1922) . P.C. 261 :

In their Lordships'' opinion the Hindu law reoognizes the validity of the dedication or alienation of a small portion of the property of a Hindu, female for the continuous benefit of the deceased owner.

In that case the deceased owner was a male. It is not necessary to disouss this aspect of the matter because in my view of the facts the alienations of Bhagwat Kuer were intended neither for the spiritual benefit of Earn Dulari Kuer nor Mahabir; For the same reason it is not necessary to discuss further the validity of the provi-sions of the will under which Bhagwat Kuer purported to act although it was contended that Mahabir having bequeathed a vested zamindari to Bam Dulari the subsequent provisions emporwering the windows to use a part of the estate for acts of dharm were void. In the result therefore the only dedications of Bhagwat Kuer which can be held to be valid are those of her own stridhan properties. Of these latter she ap-pointed Eaghava Surendra the mutwalli and her right to do so is not challenged. With regard however to the endowments made by Bachu Singh and the six villages transferred to the temple at Ajodhya by Mahabir, the right to the mutwalliship was claimed in the suits by Nauratan Kuer, widow of Sia Prasad, Sarabjit Pratap, Lachmi Kuer, daughter of Dhanukdhari and Raghava Surendra. The Subordinate Judge rejected the claims of all of them and only the last-mentioned appeals. His claim is based on a deed of management of all the dedicated properties executed by Bhagwat Kuer in his favour on 8th September 1924, on the strength of which he succeeded in having himself recorded in Register D as mutwalli.

In the deed of endowment executed by Bachu Singh in 1873 he appointed himself as the first mutwalli and his son Mahabir as his successor and confined the succession thereafter to the eldest and worthy son of his own descendants, male or female. The male line of Bachu Singh terminated with the death of Mahabir and the latter''s only daughter, Ram Dulari, died when only a few months old. The line of succession laid down by the founder of the endowment having thus come to an end and the founder having died the right of management reverted to the latter''s heir, Mahabir. The latter, by his will, provided that the mutwalliship should go to his descendant, male or female, and therefore it passed to Earn Dulari. On her death it again reverted to the founder''s heir, who at that time was Dhanukdhari. Dhanukdhari never assumed the duties of the office or nominated a successor. On Dhanukdhari''s death the founder''s next heir was Sia Prasad, who also failed to nominate a successor.

None of the claimants is a descendant of the founder or his son and none of them has been nominated by any heir of the founder. The same applies to Bhagwat Kuer. She was not the legally constituted mutwalli and had no power to nominate a successor. Her appointment of Eaghava Surendra is therefore inoperative. It was contended that Bhagwat Kuer acquired a title to the office of mutwalli by adverse possession. The argument is that on the death of Ramdulari the mutwalliship devolved on Dhanukdhari but Bhagwat Kuer remained in possession for more than twelve years before appointing Raghava Surendra. No such case was made in the pleadings or at the trial. She took over the management of the dedicated properties as executrix of her husband''s will and there is no indication in the evidenoe that on the death of Eamdulari she asserted a title to the mutwalliship hostile to the legal claimant.

I agree that all the appeals be dismissed with costs as proposed.