Couch, C.J (who, after shortly stating the facts, continued):— Pontifex, J., by whom the case was heard, held that the estate which the daughter Lackey Bibee took, on the death of her father, was only a qualified one, and that on her death, the plaintiffs, as heirs of her father, became entitled to the property in dispute. And upon the case being sent back by me and Macpherson, J., before whom it came in the first instance, to try the issues which had been raised, the first of which was, was Thakoor Dass a Jain? and the second, if so, what is the law of succession applicable to Jains? the learned Judge found that the case should be decided according to the law of the North-Western Provinces. We have therefore to determine whether, according to that law, the decision of the learned Judge is right.

The first authority on the subject that I am aware of, is Mussamut Gyan Koowur v. Dookhurn Singh, in which it was held that by the Hindu law (it being a case from Behar) a daughter had no power to alienate by gift her ancestral property to the detriment of the other heirs of her father. The reply, of the Hindu Law Officers of the Court who were asked to declare according to the Mithila and Western schools of law, whether Gyan Koowur (the daughter) “was competent to bestow the estate in gift on Jaga Koowur; and, if not, who was entitled to the estate on her decease,”— which is the very question in this case, — was, “When a person dies, leaving no male issue, the widow who succeeds to his estate has no right to alienate any part of it, except for religious purposes; and there-fore the daughter, whose right of inheritance is weaker, that is, who only succeeds on failure of the widow, a fortiori, can have no such right. Now it appears from the docree of the Sudder Dewanny Adawlut, dated 6th of October 1814,” (this is the fact which applies particularly to the present case) “that the property in question is ancestral, and not Gyan Koowur's peculiar property (stridhan), and also it seems from the deed of gift that such gift was not made for religions purposes. According; therefore, to the law as current both in Mithila and the West, the deed is invalid; such being the ease, the property will go, after her death, to the nearest heir of her father, Kehur Singh, then living. For, as in the case of the widow, the property goes on her decease not to her heir, but to the nearest heir of her husband who may be then living, so the same rule is to be observed a fortiori as regards the daughter.”

The next decision on the subject is Sheo Sehai Singh v. Mussamut Omed Koowur, in a suit relating to the same property. It was held that there being a sister's son's son, and a daughter the former succeeded and that per capita and not per stirpes. The Court in their remarks say:— “There is no doubt that the sister's son's sons were very distant indeed in the order of succession, and in fact are not included among the heirs, by almost the whole of the Hindu legal authorities. As, however, under no circumstances, can the daughter succeed to ancestral property inherited by her mother, the Court considered, under the vyavasthas of the Pundits, that the plaintiffs had the better right to the estate of Kehur Singh, the common ancestor of the parties.”

We have next a decision of the Sudder Court in Heralal Baboo v. Mussamut Dhuncoomary Beebee, where it was held that the estate of a Hindu proprietor having devolved on his three daughters qualified to succeed him, they held the property during lifetime only, and not as their stridhan; that so long as any one of the daughters survived, no daughter's son could inherit; and that as no son survived when all the three daughters died, the plaintff, as heir of the deceased proprietor, succeeded to the estate.

The decision in this case appears to have been founded upon a passage in Sir William Macnaghten's work, p. 22, where he says:— “But though the schools differ on these points, they concur in opinion as to the manner in which such property devolves on the daughter's death, in default of issue male.

According to the law as received in Benares and elsewhere, it does not go, as her stridhan, to her husband or other heir; and according to the law of Bengal also, it reverts to her father's heirs.”

The two decisions in the North-Western Provinces, — Buryar Singh v. Mussamut Hunsee and Mussamut Ramdan v. Beharee Lall, — do not seem to me to be in point on this question; but in Punchanund Ojhah v. Lalshan Misser, we have a decision of this Court in the case of a mother inheriting from her son. The learned Judges held that, on the death of the mother, the property went to the heirs of the son, and they said that the rule was the same in the case of a woman inheriting from her father. More recently there are two decisions in this Court, one of them Deo Persad…Plaintiff; v. Lujoo Roy…One Of The Defendants.*, by Phear and Ainslie, JJ., and another Dowlut Kooer v. Burma Deo Sahoy, by Phear and Morris, JJ. in which the same law laid down.

In the High Court at Madras the same question as we have before us arose in Kattama Nachiar v. Dorasinga Tevar.

There the Chief Justice and Holloway, J., held that the daughter of the first defendant (that is the person who had inherited from her father the suit being brought in her life-time for a declaration of title) were not her rightful successors to the zemindari, and that the plaintiff as the eldest grandson of the istimrar zemindar, was entitled to be, preferably to the second defendant, declared reversionary heir to the zemindari on the death of the first defendant. Sir Colley Scotland, the Chief Justice, said:— “With reference to the second question raised by the appellants' objection to the declaration of the plaintiff's right, whether the zemindari is the stridhan property of the first defendant, I need not add anything, as my conclusion on the first question is obviously decisive of it. But I ought perhaps to say with reference to the arguments (contradictory to those on the first question) advanced on behalf of the appellants, that the authorities do not, I think, present any ground for them. There are some texts and comments recognizing as stridhan paternal property devolving on a daughter, but they appear to me to relate only to an appointed daughter who was declared to become by the appointment the third description of son … The fundamental principle of the law of successions, too, is adverse to the contention of the appellants, for if paternal property passing to a daughter were to become her stridhan, the succession would pass away from those who were the nearest heirs by virtue of their capacity to offer oblations to the last male owner.” Holloway, J., rested his judgment upon the same grounds. Towards the end of it he said: “On the question whether property coming to women by inheritance is stridhan or not, I do not consider it of the least consequence for the decision of this case to determine. By calling it stridhan we should not be in the least assisted to the solution of the order of its transmission, for the various sorts of stridhan are transmitted in very various ways … I will shortly sum up the grounds upon which I come to the conclusion that the decree of the Civil Judge ought to be affirmed.” The learned Judge then states the grounds to be: “1. — The principle of the law is to determine the descent by the nearness or remoteness of connexion with the offering; there is no taking by or through or by virtue of any individual, the only effect of relationship is to connect with that offering; the very name sapinda is the clearest etymological proof of the predominant notion-2. — That this principle is the reason for the daughters taking at all. 3. — That neither in this nor in any other case has what is called vesting, the slightest influence; the very notion of heritable blood is, as applied to Hindu law, meaningless. 4, — The principle of the law is the (only safe ground for deducing a rule of descent; the attempt to argue from subordinate propositions will as the cases show, lead to a departure wider and wider from the real reason of the law.” As far as the law in that part of India is the same as in the North-Western Provinces, this is an express authority upon the question before us.

On the other hand, there are certain cases in the High Court at Bombay which were relied upon as being opposed to the doctrine which appears to have been consistently held both by this Court and the High Court at Madras. One of them is Pranjivandas Tulsidas v. Devkuvarbai, and is known by the name of Devkuvarbai's case. It appears to have been there laid down by the Supreme Court at Bombay, that a widow is entitled to the moveable property absolutly and to the immoveable property for life, and subject to the widow's interest, the moveable property descends to the daughters absolutely.

It appears from the judgment of the Chief Justice, Sir Matthew Sausse, and Sir Joseph Arnould in Venayak Anandrav v. Lakshmibai, that this decision was based mainly on the authority of the Mayukha, an authority in that part of India. The judgment in the latter case, which seems to have been written by Sir Matthew Sausse to be forwarded to the Privy Council, contains this passage, p. 121:— “In Devkuvarbai's case this Court held that the widow of an intestate, childless, and separated brother takes the moveable property absolutely, and the immoveable for life only, with remainder to the heirs of the intestate. That decision was very much based upon the principle of allowing the law of usage to control the letter of that portion of the written law which was infavor of the widow. In the Mitakshara on Inheritance, Ch. ii, s. 1, entitled ‘Right of the widow to inherit the estate of one who leaves no male issue,’ the commentator, after declaring the order of succession (see para. 2) in words quoted from Yajnavalkya, and after discussing various interpretations and opinions, states the conclusion (para. 39) as follows:” — The learned Chief Justice then quotes the passage. He is speaking of his own judgment in the former case, and says that he based it on the authority of the Mayukha.

That next case at Bombay is Navalram Atmaram v. Nandkishor Shivnarayan. There three of the learned Judges of that Court held that, according to the Hindu law of inheritance as received in the Bombay Presidency, immoveable property inherited by a married woman from her father, whether or not it be strictly entitled to the name of stridhan, decends on her death to her own heirs, and not to her father's descendants, according to what is called the “melancholy succession;” and that an inheritance descending on a married woman from her father classes as stridhan and descends accordingly. It is to be remarked upon this decision that the learned Judges considered the text of Menu and the opinions of the commentators and other authorities on Hindu law, but they do not appear to have been aware of (at least they do not notice) any decisions of the Courts on this side of India on the subject; and in considering whether we should treat this case as an authortiy, this is very material. We may fairly say that a judgment of another High Court in which no notice was taken of the decisions of this Court upon the point ought not to receive the same respect from as as it would receive if the learned Judges had Considered the decisions on this side of India.

The next case is Bhaskar Trimbak Acharya v. Mahadev Ramji, in which Sir Joseph Arnould, who was one of the Judges in the former case sat alone. He held that the property acquired by a married woman by inheritance, with the exception of property inherited by a widow from her husband, classes as stridhan, and descends accordingly. He appears to have held this upon the authority of Venayak Anandrav v. Lakshmibai. He says:— “Mr. Marriott's position, that upon the estate vesting in Lakhshmi as sister of Vithal, her son Ramji Krishnaji, and his son Mahadev Ramji thereupon became jointly interested therein as copartners with Lakhshmi, must, in my opinion, be regarded as untenable; it seems opposed to the principles established in Hindu law regarding property coming by inheritance to women, and is inconsistent with the position already adverted to, as established by the case of Venayak Anandrav v. Lakshmibai, that the sister takes absolutely.” But the learned Judge proceeds to notice the decision of the Judicial Committee of the Privy Council and the text of Katyayana, and allows that in the case of inheritance by a widow from a husband, the rule laid down in the Mitakshara does not apply. So far he departs from what had been previously decided, and it will be seen that in this he differs from the judgment I am about to notice of West, J., who gives as his opinion that the passage in the Mitakshara applies to the case of a widow inheriting from her husband just as much as to that of a daughter inheriting from her father. The case is Vijiarangam v. Lakshuman.

Now the decision in that case is founded upon the Mayukha. The Chief Justice says:— “The question of Hindu law arising from these facts is a difficult one, but looking (as I think we are in this island bound to do) to the Mayukha, for the law to regulate this case. Thamabai must be regarded as the legal representative of Yesubai in respect of the property in question in this suit, and not the plaintiffs:” and West, J., says:— “We must fall back either on the Mayukha, which is equally inconsistent with a current of decisions derived from the analogies of the Bengal law, or else on the Bengal law itself.” But the learned Judge took the opportunity of this case coming before, him to discuss at considerable length, and with much ability, the meaning of the passage in the Mitakshara, and to comment upon the authorities. He, too, does not appear to have noticed any of the decisions on this side of India, and what I have already said with regard to the decision in Navalram Atmaram v. Nandkishor Shivnarayan will apply to this part of his judgment. He lays down that the Mitakshara includes in stridhan all property acquired by a woman by inheritance, which is contrary, as I have already said, to what had been laid down by Sir Joseph Arnould in the case of Bhaskar Trimbak Acharya v. Mahadev Ramji, and contrary also to the decision of the Privy Council in Bhugwandeen Doobey v. Myna Baee. He argues, as I understand him, that this case was not rightly decided. It appears to me that what Holloway J., said, which I have read, applies very much to this judgment of West, J. Certainly, when we have the various decisions of the Sudder Court here upon the law which is applicable in this suit, and the decision of the High Court at Madras upon a similar law, in which no substantial difference can be pointed out, with reference to this question, we ought not to unsettle the law which appears to have been received on this side of India for the last fifty years, on account of the opinion of a Judge of the High Court at Bombay, however learned be may be. The consequences, at the present time, would be most serious. Courts ought always to bear in mind that it is no light matter to reverse a series of decisions which must have been acted upon for many years, and have been regarded as declaring what was the law.

It appears to me that the conclusion which Pontifex, J., arrived at in this case is the right one, and that his decision ought to be affirmed. The costs of the hearing on remand in which the appellant really was successful, ought to be regarded as part of the costs of the original hearing, and should be allowed in the same way as those costs were allowed, viz., out of the estate. The appellant must pay the costs of this appeal on scale No. 2.

Appeal dismissed.

Attorney for the appellant: Baboo B.M Doss.

Attorneys for the respondents: Baboo G.C Dutt, and Messrs. Beeby and Rutter.