Nanja Pillai and Others vs Sivabagyathachi and Another

Abdur Rahim, J.—The contention of the appellants in the Second Appeal is that the plaintiff who is the daughter of a co-wife 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 fourth 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 appellants should be answered.

The text of the Mitakshara bearing on the matter is placitum 11 of section XI of Chapter II which is in these words: ""Of a woman dying without

issue as before stated, and who bad become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha, Prajapatya, 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 oblations...."" As has long been pointed out Colebrooke''s translation of the term ''sapindas'' in these connections as kinsmen allied by

funeral oblations is not correct but should be kinsmen 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 belonged to him. And that is the interpretation which has been placed upon the text

whenever it has had to be considered. See Venkatasubramaniam Chetti v. Thayaramma I.L.R., (1898) Mad., 263 per Subrahmania Ayyar and

Davis, JJ., where the daughters of the brother of a deceased Hindu widow''s husband ware 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, Gojabai v. Shrimant Shahajirao Maloji Raje Bhosle I.L.R., (1893) Bom., 114 per Jardine and Telang, JJ., where the

grandson of a co-widow was preferred to a nephew and co-widow, Jagannath Prasad Gupta v. Runjit Singh I.L.R., (1898) Calc., 354 per

Maclean, C.J., and Banerjee, 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, Krishnai v. Shripati I.L.R., (1906) Bom., 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 Kesserbai Hunsraj Morarji I.L.R., (1906) Bom., 431 where

a co-widow was held entitled to succeed in preference to the husband''s brother or husband''s brother''s son, Mussumat Thakoor Deyhee v. Rai

Baluk Ram (1866) 11 M.I.A., 139 where the rights of the collateral heirs of the husband was confirmed, and Champat v. Shiba I.L.R., (1886)

All., 393 where the rights of a collateral relation who was the nearest sapinda of the deceased''s husband was maintained against the brother of the

deceased.

Turning to the commentators whose works are referred to as authorities in the South though of a 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 rule

given in the Mitakshara in regard to the succession to the property of a male who died 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, page 518); and

Smrithi Chandrika (see T. Krishnasami 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 Hindu lawyers like Golab Chandra

Sircar Sastri (see his Hindu Law, edition IV, page 461) and Jagandranath Bhattacharya (see his Commentaries on Hindu Law, page 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 should 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 an 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 naught the rights of

persons expressly recognised as heirs by the Mitakshara. This we are not at liberty to do and 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 those rules in such cases as are dealt with in Lakshmanammal v. Tiruvengada

ILR (1882) Mad., 241, Mari v. Chinnammal ILR (1885) Mad., 107 and Salemma v. Lutchmana Reddi I.L.R., (1898) Mad., 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 all collaterals.

The decree of the lower Appellate Court is therefore confirmed and the appeal is dismissed with costs.

Ayling, J

I agree.