Mookerjee, J.:— The facts which have given rise to the litigation out of which this appeal arises, so far as it is necessary to state them for the decision of the questions of law raised before us, are practically undisputed. The property which is the subject-matter of this litigation originally belonged to the Appellant. On the second Jauuary 1898, he granted a mourasi and mokurari lease of this property, reserving an annual rent of one rupee, to his daughter Provabati. Provabati died in 1900 and on the 16th May 1901, the Plaintiff took a sub-lease of the lands comprised in the tenancy from her husband, and on the basis of this sub-lease, the Plaintiff seeks to recover possession. The Appellant who was the first Defendant in the Court below, resisted the claim on the ground that as Provabati died childless, leaving her mother as her heiress according to Hindu law, her husband had no title to the property and could not confer any on the Plaintiff. The Courts below have concurrently held that the interest created by the Appellant in favour of her daughter constituted her stridhan, but while the Court of first instance held that the mother was entitled to succeed in preference to the husband, the learned Subordinate Judge held that the husband was entitled to succeed in preference to the mother. The substantial questions of law, therefore, which arise in this appeal and which have been elaborately discussed at the bar are first, whether the property in dispute was stridhan as understood in the Bengal School of Hindu law, and, secondly, whether the husband or the mother is the preferential heir to it.
As regards the first question we do not entertain any doubt that the property in dispute has the characteristics of stridhan as defined in the Dayabhaga. It was indeed contended by the learned vakil for the Respondent that a leasehold interest was unknown in the times when the authoritative text books on Hindu law were written and that consequently the interest in property which was created by the Appellant in favour of his daughter was not property to which the rules laid down in the text books on Hindu law could have any possible application. In our opinion there is no force in this contention. In the first place no authority has been cited in support of the proposition that lease-hold interests were unknown at the time when the Dayabhaga was written. In the second place we are not prepared to hold that the rules of Hindu law are so inelastic as to be capable of application only to such descriptions of interests in property as formed the subject-matter of transactions at the time when the rules were first formulated. Indeed if the rules of Hindu law were so narrowly construed and applied it would be impossible to administer them because in every case, the Courts would be called upon to hold a preliminary enquiry as to when a particular rule was first laid down and also as to what kinds of interest in property were recognised at that time. In the third place, if leasehold interest was not recognised as property, it is difficult to see how the Plaintiff could have acquired any right on the basis of which his claim could be sustained. We must therefore hold that the property in suit is one to which the rules of Hindu law are applicable. We are further of opinion that it possesses the characteristics of stridhan according to the Dayabhaga in Chap. IV, sec. 1, paras 18 and 19, of which it is laid down that, “that alone is her peculiar property which she has power to give, sell or use independently of her husband's control; Katayana expresses this rather concisely: the wealth which is earned by mechanical arts or which is received through affection from any other (but the kindred) in always subject to his (husband's) dominion. The rest is pronounced to be the woman's property.” No doubt this definition may be open to the objection that it defines one unknown quantity by means of another. But it is clear from the text of Katayana referred to, as also from the text of Katayana quoted in the Dayabhaga, Chstp. XI, sec. I, para 56, that under the Bengal School of Hindu law, a female has not absolute power of disposition over (i) what she earns by the mechanical arts, (ii) what is given to her by strangers at any time other than that of marriage and (iii) what she inherits from a male or a female relation. The property in suit does not come under any of these categories and must be taken to be one which Provabati had power to give, sell, or use, independently of her husband's control. It was therefore stridhan within the meaning of that term as used in the Dayabhaga. We think it is also clear that it comes within the description of Ayautuka stridhan as it was given to her by her father after her marriage. Further it comes within the class known as Anwadheya which is thus defined in the Dayabhaga in paras 15 and 16 of Chap. IV, sec. 3: “15.—For anything received by her subsequently to her nuptials is comprehended under the denomination of Anwadheya (gift; subsequent). 16.—Katayana describes Anwadheya (a gift subsequent) what has been received by a woman from the family of her husband and at a time posterior to her marriage, is called a gift subsequent and so is that which is similarly received from the family of her kindred.”
With reference to these passages, it was argued by the learned vakil for the Respondent that nothing is Anwadheya which is not given as a gift and as in the case before us the Appellant created in favour of his daughter a lease-hold interest, such interest is not comprised within the class Anwadheya. We are unable to accept this contention as sound. As is shown by the definitions we have referred to, what is received is called Anwadheya which is also the derivative meaning of the term, and the phrase “gift subsequent” which has been adopted as the English equivalent of Anwadheya cannot be allowed to restrict its meaning. Looking to the substance of the transaction in the case before us, the Appellant parted with all his interest in the property in favour of his daughter, reserving the right to receive a nominal sum annually. It is conceded that if such right had not been reserved and the transaction had been described as a gift, the property acquired by the daughter would have been comprehended in the term Anwadheya. We are unable to hold that the reservation of a nominal rent altered the character of the transaction so far as the question now before uh is concerned. There cannot be any reasonable doubt that the daughter received from the father a substantial interest in the property, although it was not the entire interest which the father was competent to transfer. We hold accordingly upon the first question raised before us that the interest in the property transferred to Provabati under the deed of the 2nd January 1898, constituted her Ayautuka stridhan and falls within the class known as Anwadheya.
As regards the second question raised before us, namely, whether the husband or the mother was the preferential heir to the property in suit upon the death of Provabati, the answer must depend upon the interpretation of certain passages in the Dayabhaga. But before we refer to these passages, it is desirable to point out that for the purposes of inheritance Jimutabahana divides stridhan property into two broad classes, namely, Ayautuka or property given to a female at a time other than that of marriage and Yautuka or property given to a female at the time of marriage. The rules laid down for these two classes which are mutually exclusive, are subject to modifications in the cases of (a) maiden's property and (b) Pitridatta or property given by the father, for which special rules are laid down. It is clear from Chap. IV, secs. 2 and 3, that general rules are first laid down for Ayautuka stridhan and then follow special rules for Yautuka stridhan. This is quite clear from the Dayabhaga, Chap, IV, sec. 2, paras 1-6, which contain the general rules laid down by Jimutabahana relating to the devolution of the stridhan of a female who leaves issue. Then follow special rules relating to Yautuka stridhan in Chap. IV, sec. 2, paras 13 and 16. If now we refer to sec. 3 which deals with succession to the stridkm property of a childless woman, we find it laid down in para 29 that “the property goes first to the whole brothers; if there be none, to the mother; if she be dead, to the father; but on failure of all these, it devolves on the husband. Thus Katyayana says, that which has been give up to her by her kindred, goes on failure of kindred to her husband.” This passage in our opinion contains the rule laid down by Jimutabahana regarding the order of succession to the Ayautuka stridhan of a childless woman. No doubt, the passage comes immediately after a discussion upon the question of the right of inheritance to the kind of stridhan called sulka or gratuity, but we do not think that the passage can be restricted in its application to that kind of stridhan alone. In support of this view we may refer to the decision of this Court in the case of Jadoo Nath v. Bassanta Kumar, where Mr. Justice Dwarka Nath Mitter, after an elaborate examination of the different paragraphs of sec. 3, Chap. IV of the Dayabhaga, pointed out that the proposition laid down in para 29 is nothing but the final resume of the various matters discussed in the preceding paragraphs commencing from para 10, which makes the brother a preferential heir to the husband in respect of wealth received by a woman, after her marriage, from the family, of her father, of her mother, or of her husband; indeed the applicability of para 29 to all the three kinds of stridhan mentioned in the text of Yajnavalkya cited in para 10 is beyond all dispute. We entirely agree with the line of reasoning adopted by that learned Judge with regard to the scope of the rule laid down in para 29 and we are fortified in this view by the opinion of three of the commentators on the Dayabhaga, namely, Srinath, Rambhadra and Srikrishna, who expressly state that the rule enunciated in para 29 is a summary of the preceding discussion [see the edition of the Dayabhaga with six commentaries published by Prosunno Coomar Tagore in 1863, pp. 173, 174]. We may further point out that the conclusion at which Jimutabahana arrived is clearly supported by the text of Mann (Chap. IX, 196-97) cited in the Dayabhaga, Chap. IV, sec. 2, para 27, by the text of Yajnavalkya (Chap. II, 143-145) referred to by implication in the same passage, by the text of Katyayana, quoted in the Dayabhaga, Chap. IV, sec. 3, para 12, and by the text of Baviidhayana, set out in the Dayabhaga, Chap. IV, sec. 3, para 7. These texts lay down that in certain specified cases, the husband or the parents succeed first, and the inference is irresistible that in other cases, by the general rule, the brother succeeds first. It is argued, however, by the learned vakil for the Respondent that the rule by which the husband is postponed to the brother, mother and father in the case of succession to the Ayautuka stridhan of a childless female, applies only to the property of a female married in one of the inferior or disapproved forms, and in support of this proposition reliance is placed upon Srikrishna's Dayakrama Sangraha, Chap. II, sec. 4, para 11, which provides as follows:— “Failing either of these (that is, barren and widowed daughters), the other succeeds, and, in default of successors including the barren and widowed daughters the succession devolves in due order, by the rule of analogy, as in the case of wealth received at nuptials, namely, on the woman's husband, brother, mother and father, if she were married according to any one of the five forms denominated, Brahma and the rest; or, if she were married according to any of the three forms styled Asura, etc., on her mother, father, brother and husband.”
Reference is also made to the summary given by Srikrishna at the end of his commentary on Chap. IV, sec. 3 of the Dayabhaga, where the same view is enunciated. This opinion of Srikrishna, however, though apparently founded upon the first interpretation of the text of Manu quoted in the Dayabhaga, Chap. IV, sec. 2, para 16, is directly contrary to that of Jimutabahana, as expounded in Chap. IV, sec. 3, paras 12 and 13 of the Dayabhaga, which is to this effect;—
“12. That is confirmed by Vrlddha Katayana who says immoveable property which has been given by parents to their daughter goes always to her brother, if she dies without issue. For it appears that the brother's right of succession is founded simply on her leaving no issue (which is the case equally of a maiden, as of a childless wife).
13. The remark of Viswarupa that property of a childless woman married by only form of nuptials, from that of Brahma to that of the Pisachas, (as hinted by the term always) goes to her brother, should, therefore, be respected.”
In other words, the text of Devala, namely, that “a woman's property is common to her sons and unmarried daughters, when she is dead; but if she leave no issue, her husband shall take it, her mother, her brothers, or her father,” which is quoted by Jimutabahana in the Dayabhaga, Chapter IV, sec. 2, para 6, is regarded by him as enumerating the heirs, and not as indicating the order in which they are entitled to succeed. The question, therefore, ultimately resolves into this—whose opinion is to prevail, whether that of Jimutabahana or that of his commentator Srikrlshna; and we have no hesitation in holding that we must accept the view propounded by Jimutabahana. We hold accordingly that as the property in this case was Ayautuka stridhan, the mother would be entitled to succeed in preference to the husband, subject to the decision of the question with which we shall presently deal.
It is contended in the next plaoe that as the property in dispute in this case was not merely Ayautuka stridhan but stridhan received from the father, the husband is entitled to suoceed in preference to the mother. In support of this proposition, referenoe is made to the Dayabhaga, Chapter IV, sec. 2, para 16, and to the Dayakrama Sangraha, Chapter II, sec. 5, para 3. In the passage of the Dayabhaga, relied upon, Jimutabahana first quotes the text of Manu (Chap. IX, 198), namely, “The wealth of a woman which has been in any manner given to her by her father, let the Brahmini damsel take, or let it belong to her offspring,” and then comments on it as follows:—
“Since the text specifies ‘given by her father,’ the meaning must be, that property which was given to her by her father, even at any other time besides that of nuptials, shall belong exclusively to her daughter, and the term Brahmini is merely illustrative, indicating that a daughter of the same tribe with the giver inherits.” No doubt this passage is an authority for the proposition that an unmarried daughter alone inherits the Pitridatta stridhan, whether it is Yautaka or Ayautaka. But as we understand the passage, it throws no light upon the question of the devolution of the property when there is no unmarried daughter. The only inference legitimately deducible from this passage appears to be that according to Jimutabahana, subject to the one variation mentioned in this passage, Yautaka given by the father is inherited as other Yautaka, and Ayautaka given by the father is inherited as other Ayautaka. As regards the passage of the Dayakrama Sangraha relied upon it occurs in sections which treats of the succession to the stridhan of a woman when given to her by her father, and runs as follows:—
“1. In regard to the wealth given by a father to a woman at the time of the wedding, or antecedent or subsequent to it, a maiden daughter inherits in the first place.
2. After her, a married daughter who has, and one who is likely to have male issue, inherit together.
3. Next, the succession devolves on the barren and widowed daughters, and, in default of all daughters, son and the rest succeed, as in the case of property riceived at nuptials. For a text of Manu declares, the wealth of a woman which has been in any manner given to her by her father, let the Brahmini damsel take or let it belong to her offspring.
4. Here by the specification of “given by the father,” it is intended, that whatever has been given by the father even at any other time than that of the wedding, belong first to the damsel, and after her it goes to her offspring, her son.”
The first paragraph of this passage refers explicitly to Yautuka as also to Ayautuka stridhan. The second and third paragraphs may at first sight be supposed to have an equally extensive application, but in our opinion, the words “as in the case of property received at nuptials” clearly indicate that the list of heirs given by the author in paras 2 and 3 is applicable only to Pitridatta Yautuka. This view is considerably strengthened by a reference to the summary given by Srikrishna in the concluding portion of his commentary on Ch. IV, sec. 3 of the Dayabhaga. He states there is unmistakable terms that as regards Pitridatta Ayautuka, that is, property given by the father, at any other time but the wedding, a maiden daughter succeeds in the first instance; next a son then a daughter who has, and one who is likely to have male issue; after them, the daughter's son, the son's son, the great grandson in the male line, the son of a contemporary wife, and her grandson and great grandson in the male line; next to these, the barren and widowed daughters inherit together. If, therefore, paragraphs 2 and 3 of Srikrishna's Dayakrama Sangraha, Chapter II, sec. 5, be interpreted as applicable to Yautuka as well as Ayautuka stridhana, the conclusion is irresistible that his view as set forth in his treatise is absolutely irreconcilable with his view as summarised in the commentary on the Dayabhaga. On the other hand according to the interpretation put by as on paragraphs 2 and 3 of the Dayakrama Sangraha, Chapter II, sec. 5, by which the rule laid down therein is restricted in its application to Pitridatta autuka stridhana, the views indicated in the two places become substantially identical, the only points of difference being that in the passage in the Dayakrama Sangraha no distinction is observed between a maiden daughter and a betrothed one, and, no provision is expressly made for the exclusive succession of one member of each of the two groups of different classes of daughters, in the absence of the other member. We must, therefore, hold that the statement contained in the second paragraph is equivalent to the proposition that after the maiden daughter, a married daughter who has and one who is likely to have male issue inherit together the Pitridatta Yautuka or the property given by the father at the time of the nuptials. Thus interpreted, the passage lends no support to the contention advanced on behalf of the Respondent, but it makes it consistent with paragraph 4 which refers clearly to Pitridatta Ayautuka, and we may add that it removes the difficulty which Mr. Justice Dwarka Nath Mitter found in dealing with this passage in the case of Jadoo Nath Sircar v. Bassant Kumar Chowdhury. We must hold accordingly that neither according to Jimutabahana nor according to Srikrishna, does the fact that stridhana is Pitridatta make any difference in deciding the question of preference between the mother and the husband. As we have already held that the mother is the preferential heir, according to Jimutabahana, in the case of Ayautuka stridhana, the conclusion follows that under the Bengal School of Hindu law, the mother is entitled to succeed to the Pitridatta Ayautuka stridhana of a woman in preference to her husband. This is also in accordance with the view propounded by Raghunandan in his Dayatawa; see the tarnslation by Shastri Golap Chandra Sarkar, Chap. X, para 11, which justifies the inference that to a property, other than a nuptial gift, given by a father to her daughter, the successive heirs after the step-son's son, are her brother, mother, father and husband.
We may point out that the conclusion at which we have arrived upon an examination of the original authorities, is supported by the cases of Jadoo Nath Sircar v. Bnssant Goomra Chowdhury, Hurry Mohan Shaha v. Shonatun Shaha, and Gopal Chandra Pal v. Ram Chandra Pramanik. The first of these cases was originally heard by Norman, C.J, and Loch, J., 16 W.R 105, and the learned Judges held, adopting the construction put by Srikrishna on the original texts, that according to the Bengal School of Hindu Law, the husband is entitled to succeed to the property which a woman receives from her father either before or after her marriage, in preference to her brother or mother. Upon an application for review, this judgment was subsequently set aside, 11 B.L.R 291, and the case was re argued before Mr. Justice Jackson and Mr. Justice Dwarkanath Mitter, 19 W.R 192 : 11 B.L.R 288. Mr. Justice Mitter with the concurrence of Mr. Justice Jackson, held, upon an elaborate examination of the authorities, that according to the Hindu law as current in Bengal, the mother succeeds to the property of her daughter bequeathed to her by her father before her marriage in preference to her husband, and that such property falls within the category of stridhan, Although the process of reasoning by which that learned Judge arrived at this conclusion may be partially open to criticism and although we are unable to adopt the construction placed by him upon the passage of the Dayakrama Sangraha, quoted from Chap. II, sec. 5, we entertain no doubt that the rule laid down by him is correct. This decision was followed in Hurry Mohan v. Shonatun, where it was held upon a construction of Chap. IV, sec. 3, para 10 of the Dayabhaga, that with respect to property given to a woman after her marriage by her husband's father's sister's son, the brother, mother and father, are under the Bengal School of Hindu law, preferable heirs to the husband; and in the recent case of Gopal Chandra Pal v. Ram Chandra, the principle which underlies the decision in Jadoo Nath v. Bassant Goomar, was accepted as well founded, and, it was ruled that the brother is the preferential heir to the husband to moveable property obtained from her father after her marriage, by a woman who has died childless.
Reference was made at the bar, in the course of the argument to two modern text books in support of the view taken by the learned Subordinate Judge in the Court below, namely, to Mayne's Hindu Law, sec. 670, and Shama Charan Sarkar's Vyavastha Darpana, 2nd Ed., Vyavastha, 473, p. 722. The first of these passages from Mr. Mayne's book does not help the Respondent, beoause, it refers to Yautuka stridhan, as is clearly shown by a reference to secs. 669 and 672; on the other hand, the statements contained in secs. 673 and 674 which refer to the point under examination are in agreement with the conclusion at which we have arrived. As to the second passage, which occurs in Shama Charan Sircar's Vyavastha Darpana (2nd Ed., p. 722; 3rd Ed., p. 249) the author seems to adopt the rule laid down by Srikrishna in preference to that enunciated by Jimutabahana; but if we turn to the table of order of succession given at p. 733 (3rd Ed., p. 262), we find, that as regards stridhan property of a childless married woman, bestowed upon her by her parents after marriage, the mother is stated to be a preferential heir to the husband, as is indicated by the authorities cited on pp, 719 and 720 of the same work; (3rd Ed., pp. 246, 247). It follows consequently that the view taken by the Subordinate Judge cannot be successfully maintained.
The result, therefore, is that this appeal must be allowed and the decree of the Subordinate Judge reversed. The suit will stand dismissed with costs in all the Courts.
N.G
Appeal allowed.