Manohar Lall, J.:— In this appeal by the plaintiffs an interesting question arises for decision, namely whether the rule of the stridhan succession according to the Mitakshara School has been altered by Hindu Law of Inheritance (Amendment) Act (II of 1929) hereinafter to be referred to as the Act.

This is an appeal by the plaintiffs who are aggrieved by the decision of the first Additional Subordinate Judge of Chapra, dated the 31st January, 1944, by which he has dismissed their suit which was instituted for recovery of possession of the disputed property in these circumstances.

Gossain Jag Mohan Datt Pandit, the common ancestor of the parties, had two sons, Gossain Gopal Dutt Pandit and Gossain Chatturbhuj Dutt Pandit. Gopal Dutt had four sons, two of these, Radha Kisbun Dutt and Basudeo Dutt, died before the relevant date; the third son, Ramkishun Dutt, died in 1934 leaving to widows—the two plaintiffs in the action. The fourth son, Chandra Shekhar Dutt, is also dead. The plaintiffs' case was that all these four sons and Gopal Dutt died separate from one another.

Chatturbhuj Dutt was the father of Praduman Dutt Prasad who was married to one Musammat Akho Kuer. He also had a daughter, Babui Bacha Kuer, who is the defendant in the action. After the death of his son Praduman Dutt Prasad, his father Chatturbhuj Dutt executed a will by which he gave twelve annas out of his properties to Musammat Akho Kuer in absolute right and the remaining four annas he gave to his daughter, Bacha Kuer, the defendant, similarly in absolute right. Praduman Dutt and Musammat Akho Kuer had three daughters, Suruj Kala Kuer, Chandra Kala Kuer and Bindhyachal Kuer—the latter two died issueless during the life-time of Musammat Akho Kuer. On the death of Musammat Akho Kuer the twelve annas share in the property of Chatturbhuj Dutt—which is the property in dispute—was inherited by her daughter, Suraj Kala Kuer. Suraj Kala Kuer admittedly died in 1929. The plaintiffs' case was that she died in January, 1929, but the defendant's case was that she died in March, 1929. The learned Subordinate Judge on an examination of the evidence has come to the conclusion that Suraj Kala Kuer died on the 12th of March, 1929, and not on the 2nd of January, 1929, and this conclusion is based upon ample evidence and cannot be seriously challenged in appeal. Accordingly, it must be held that Suraj Kala Kuer died on the 12th of March, 1929. On her death disputes arose as to the succession to the properties which were held by her as the stridhan heir of Musammat Akho Kuer. The plaintiffs' case was that their husband came into possession of the property and “continued in possession till the date of his death in 1934. The defendant's case on the other hand was that she came into possession from the date of the death of Suraj Kala Kuer. The dispute between the husband of the plaintiffs and the defendant began in the land registration department. It is unnecessary to refer to the various stages at which the mutation courts passed different orders. It is enough to state that the matter was ultimately referred to the civil court under section 55 of the Land Registration Act. The plaintiffs instituted the suit giving rise to this appeal on the 11th of August, 1941, basing their cause of action on the date of dispossession of the plaintiffs' husband on the 1st of February, 1933.

As already stated, the defendant's case was that she was in Dossession from the date of death of Suraj Kala Kuer, that is from 1929. Her further case was that by the provision of Act II of 1929, she being the sister of Praduman Dutt was entitled to succeed to her estate as the Act was in operation at the date of her death.

The learned Subordinate Judge has come to the conclusion that after the enforcement of Act II of 1929 the plaintiffs can have no title as the defendant is the preferential heir. He has also come to the conclusion that the story of possession put forward by the plaintiffs was false and the suit was barred by limitation. Hence the appeal to this Court.

It is argued by Mr. B.N Rai on behalf of the appellants that Act II of 1929 has; no application to the succession to stridhan property held by a female and draws attention to the preamble of the Act which says that the Act is passed to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate. On the other hand Mr. Mehdi Imam contends that the provisions of this Act ought to be applied in the present case because on the death of Suraj Kala Kuer then property would devolve on the husband of Musammat Akho Kuer, namely Praduman Dutt Prasad, and, therefore, the property though undoubtedly it was a stridhan property in the hands of Musammat Akho Kuer must henceforward be treated as if it belonged to Praduman Dutt Prasad. He, therefore, suggests that the succession to the property will now be governed by the new Act of 1929.

In my opinion, the argument of the appellants is sound and must prevail.

The ambit of the new Act II of 1929 was considered by their Lordships of the Judicial Committee in Musammat Sahodra v. Ram Babu. Sir Madhavan Nair, who delivered the judgment of the Board, pointed out at page 152 that the object of the Act was to alter the order of succession of certain persons mentioned therein; and at page 153. “The heading and preamble of the Act do not accurately summarise its provision, but having regard to the language of section 1(2) of the Act which says that ‘it applies only to persons who, but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions herein enacted ………………………’ it would apply to the persons specified so as to constitute them heirs……………………………” The provisions of section 1(2) of the Act are so clear that it is difficult to appreciate a contrary argument. It states that the Act applies

“to such persons in respect only of the property of males, not held in coparcenary and not disposed of by will”.

How can the Act apply to the property of females? The crucial question for decision in each case should be whether the property in question was the property held by a male at the time when succession opened or was it a property held by a female?

In the present case it is common ground that the property in dispute was the stridhan property of Musammat Akho Kuer, and on her death it was in possession of her daughter as a limited owner. On the death of the daughter the succession to the property opened out in March, 1929, and we have to discover who the stridhan heir of Musammat Akho Kuer is under the general rule prevailing in the Mitakshara School and not under Act II of 1929. It is admitted that the succession to the stridhan property is accurately stated in paragraph 146 of Mulla's Hindu Law, 1940 edition. It is stated therein that the property passes in the following order:—(1) uterine brother; (2) mother; and in default of these it passes to (3) father; (4) father's heirs, that is, his sapindas, samanodakas and bandhus. See also the decision of this Court in Kamla Prasad v. Murli Manohar where it is held that according to Mitakshara the stridhan of a woman (if she was married in the Brahma or the three other approved forms), who dies leaving no daughter, nor daughter's daughter, nor daughter's son, nor son, nor son's son, devolves on her husband and failing trim on his nearest kinsman (sapindas). See also the decision of Dhavle, J. in the case of Nawat Singh v. Shambarat Kuer. With regard to the property inherited by a female from a female, the succession is accurately stated in paragraph 169 of Mulla's Hindu Law, 1940 edition, that is to say a female inheriting property (stridhan) from a female takes only a limited estate in such property and on her death it passes not to her heirs but to the next stridhan heir of the female from whom she inherited it. It follows, therefore, that on the death of Suraj Kala Kuer, the property would pass to the stridhan heir of Musammat Akho Kuer. Bacha Kuer, the defendant, is not the stridhan heir of Musammat Akho Kuer and, therefore, she has no title to this property under the general law. It is also admitted that under the general law, Ramkishun Dutt, the husband of the plaintiffs, had title to the property on the death of Musammat Akho Kuer.

Mr. Mehdi Imam, however, argues that as the property must be taken to devolve upon the husband of Musammat Akho Kuer on Suraj Kala's death, it must be treated as his property from that date and thereafter by the application, of Act if of 1929 the title vests in the defendant, who is the sister of Musammat Akho Kuer.

The cases relied on by Mr. Mehdi Imam may now be shortly dealt with.

Chulhan Barai v. Akhli is a decision of the learned Chief Justice sitting single and it only decides that the question whether certain persons are the heirs under Act II of 1929 where a widow is in possession of her husband's estate as a limited owner, depends upon the date of her death and not on the date of death of the last male holder.

Pokhan Dusadh v. Mausa. This case also decides that the date of death of the male owner is not material as the question as to who would be entitled to succeed to his estate as a reversioner cannot be determined until the death of the female owner. Mr. Mehdi Imam relies upon the observation at page 222 that by a fiction of law the husband's life is assumed to continue in the existence of his widow, and, therefore, he says that we must here also assume by fiction of law chat Praduman Dutt was alive on the date of the death of Suraj Kala Kuer. I am unable to agree with this contention, because the property was not the property of Praduman Dutt when he died, but it was the property of Musammat Akho Kuer.

The case of Musammat Charjo v. Dina Nath, decided by Tekchand, J. sitting single supports the contention of Mr. Mehdi Imam. The learned Judge held that the succession to the stridhan property of Musammat Nawahu which devolved upon her death on her husband would be governed by Act II of 1929. In my view, this decision is incorrect. I cannot understand how the succession to the property of a female could be governed by Act II of 1929 which distinctly states that it shall only apply to the succession to the property left by a male. This decision has been expressly dissented from by a Division Bench of the Madras High Court in Manda Mahalakshmamma v. Mautravadi. I respectfully agree with the observation of the learned Chief Justice dealing with Musammat Charjo's case: “Here, as there, it is not a question of deciding who are the heirs of a Hindu male. The question is who are the heirs in respect of properties belonging to a Hindu woman in her own right. In the footnote on page 84, of the tenth edition of Mayne, on Hindu Law it is pointed out that the decision in Mt. Charjo v. Dinanath overlooks the express provisions in sub-section (2) of section 1 of the Act which limits the altered order only to the property of a male. In our judgment the correct view of the law was expressed in the judgment of a Bench of the Nagpur High Court in Shakuntalabai v. Court of Wards.

Lakshmi Ammal v. Anantharama merely decides that it is the death of the female heir that opens the inheritance to the reversioner, and therefore, where a Hindu male died intestate before the passing of Act II of 1929 leaving a limited 1 female heir, who was alive after the Act came into force, the succession to the deceased male member is governed by the provisions of this Act.

In my opinion, none of the cases relied upon by Mr. Mehdi Imam supports his contention, and, therefore, I must hold that the title to the properties in dispute was with the husand of the plaintiffs on the date of the death of Suraj Kala Kuer.

The title to the property being thus found to be with the plaintiffs, the situation is that the plaintiffs and Bacha Kuer were co-sharers, and even if it is assumed that Bacha Kuer was a possession from 1929 onwards, her possession would be the possession of a co-sharer, and no question of limitation would arise. But apart from that the plaintiffs have produced the receipts (exhibit 2 series) which are printed in a tabular form at page 12, Part III of the paper-book. These receipts show that the husband of the plaintiffs, Ramkishun Dutt, was in possession for the years 1336, 1337, 1338, 1339 and 1340. The defendant's receipts on the other hand, which are exhibit B series, are all from the year 1339 onwards. There is only one solitary receipt (exhibit B3) of 1336. But the learned Subordinate Judge himself has disbelieved this receipt. He says in his judgment:

“It is curious, however, to find that the receipt of special print (exhibit B3) was granted to the tenant Gumashta in 1836 with respect to village Raslpur, Tauzi no. 830. If we examine Exhibit B(3) along with Exhibit 1(4) we cannot but come to the conclusion that Exhibit J?(3) or Exhibit 1(4) is a got up paper.”

The receipt exhibit B(3) must, therefore, be ruled out of consideration with the result that the defendant as was to be expected took possession after the death of the husband of the plaintiffs. The present suit, however, is filed within twelve years from the date of death of the husband of the plaintiffs. No question of limitation would arise, and the learned Subordinate Judge was wrong in holding that the suit was barred by limitation. He was no doubt influenced in taking this view by the fact that he had held that the title was with the defendant from the date of death of Suraj Kala Kuer.

For these reasons, the appeal must be allowed, the decision of the learned Subordinate Judge is set aside, and the plaintiffs' suit must be decreed with costs both here and in the court below.

Mukharji, J.:— I agree.

K.D

Appeal allowed.