Manja Pillai and Others vs Sivabagyathachi and Others

Abdur Rahim, J.—The contention of the appellants in the second appeal is that the plaintiff who is the daughter of a co-wile of one

Parvathathachi is not entitled to succeed to the latter''s stridhanam property, and it is argued that there are collateral sapindas of Parvathathachi''s

husband, for instance the 4th defendant, who is his father''s brother''s son, who would have preferential claim to the succession. Parvathathachi, it is

found by the District Judge, was married in an approved form. There is no express authority which covers the exact point, but there can be very

little doubt as to how the question raised by the appellant should be answered.

The text of the Mitakshara bearing on the matter is Placitum II of Section XI, Chapter II, which is in these words : ""Of a woman dying without

issue as before stated and who had become a wife by any of the four modes of marriage denominated Brahma, Arsha, Prajapatya and Gandharva

the (whole) property as before described belongs in the first place to her husband. On failure of him it goes to his nearest kinsmen (sapindas) allied

by funeral obtations."" As has long been pointed out Colebrook''s translation of the term ""sapinda"" in these connections as ""kinsman allied by funeral

oblations"" is not correct but should be kinsman allied by affinity, or, to put it literally, persons allied to each other by possession of particles of the

same body. The meaning of the above text is plain; it means that the stridhanam property of a woman married according 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 succeed to the

property as the nearest sapinda of the husband if the property belongs to him. And that is the interpretation which has been placed upon the text

whenever it had to be considered see Venkatasubramaniam Chetti v. Thayarammal ILR (1898) M. 263 per Subrahmanya Aiyar and Davies JJ.

where the daughters of the brother of a deceased Hindu widow''s husband were held entitled to succeed to the deceased''s stridhanam in

preference to the claims of the adopted son of the deceased''s sister''s daughter, of the maternal uncle''s adopted son and of the widow of the

deceased''s brother; Gojabhai v. Srimahant Seshagiri Row Malafi Rajah Cherla ILR (1892) B. 114, per Jardine and Telang JJ., where the

grandson of a co-widow was preferred to a nephew and a co-widow; Jagarnath Prasad Gupta v. Rdnjit Singh ILR (1897) C. 354 , per Maclean

C.J. and Banerji J., where the contest was between the kinsmen of the deceased''s husband and the kinsmen of her father and the former were

held to be entitled to the succession; Krishnabai v. Sripati ILR (1905) B. 333, in which the right of the surviving co-widow who was in that case

the nearest sapinda of the deceased''s husband was recognised; Bai Kissorbai v. Hunsraj Morarji ILR (1906) B. 421, where a co-widow was

held entitled to succeed in preference to the husband''s brother or husband''s brother''s son; Mussammat Thakur Debia v. Rai Bulak Ram. (1867)

11 M.I.A. 139, where the rights of the collateral heir of the husband were confirmed, and Champat v. Shiba ILR (1886) A. 393, where the rights

of a collateral relation who was the nearest sapinda of the deceased''s husband were maintained against the brothers of the deceased.

Turning to the commentators whose works are referred to as authorities in the south, though of secondary importance compared to the

Mitakshara, we find that Kamalakara expressly lays down with reference to cases like the present that ''nearness'' is to be determined by the rules

given in the Mitakshara in respect to succession to the property of a male who dies without male descendants and that consequently first the wife,

i.e., the rival wife of a deceased succeeds, next the daughter, i.e., the deceased''s step-daughter, etc. (see West and Buhler, p. 518) and Smrithi

Chandrika (see T. Krishnasawmi Iyer''s Translation, Chapter IX, Section III, verse 38) also holds that the issue of a rival wife takes the property

of the step-mother when the latter-leaves no progeny, husband or the like. The views of modern lawyers like Golabchandra Sircar Sastri (see his

Hindu Law, IVth edition, p, 461) and Jogendranath Bhattacharya (see his Commentaries on Hindu Law, p. 580) also favour the right of the

deceased''s step-daughter as against collateral relations of the husband. The learned vakil for the respondent further relied on Dr. Gurudas

Bannerjee''s book on the Law of Stridhana but I have not been able to consult it.

The learned pleader for the appellant, on the other hand, has not been able to refer us to anything which can be said to support his contention. In

fact his argument was based on two general propositions which he would ask us to accept as propositions of universal and invariable application,

viz., that sapindas of the same gotra or family are preferred to sapindas of a different gotra, and that males shall be preferred to females. Now none

of these maxims, however useful they may be in other connections, can have any force in cases which are provided for by our express text of the

Mitakshara, or in other words such cases must be recognised as exceptions to the rules. Otherwise we should be setting at nought the rights of

persons expressly recognised as heirs by the Mitakshara. This we are not at liberty to do. No sort of authority has been referred to by the

appellants which countenances such a course as is suggested by them.

It is not necessary to consider the exact extent and applicability of these rules in such cases as are dealt with, in Lakshmammall v. Tiruvmgada

ILR (1882) M. 241, Mariv. Ckinnammal ILR (1882) M. 107 and Salemma v. Lutchmana Reddi ILR (1897) M. 100 as it is clear and not

disputed before us that according to the Mitakshara the daughter as an heir is placed immediately after the male issue and the widow and before ail

collaterals.

The decree of the lower appellate court is therefore confirmed and the appeal is dismissed with costs.

Ayling, J.

I agree.