Deo Persad v. Lujoo Roy

Phear, J.:— We think that this question, upon which the lower Appellate Court decided the case, is concluded by authority adversly to the view which the lower Appellate Court took of it. It appears to us that there is no doubt now on this side of India that in such a case is this, where the daughter takes her father's property upon the death of the widow in default of a son, she takes the inheritance with a qualified powers as regards alienation. She it in respect of alienation in no better situation than the widow; and any alienation which may be made by her is liable to be called in question by the heir of her father, who will take the inheritance at her death in default of a valid alienation. Whatever may be the state of the authorities in the Bombay presidency (as for instance a case(a) cited on the part of the respondent) here, we think, there is no doubt that on the death of the daughter who has taken the property as I have said, it is the heir of her father (the ancestor) who succeeds, and who takes it as the heir of the ancestor, not as her heir. It is not necessary to enquire whether the plaintiff was in existence or not at the time when the alienation was effected, because we think that at no time during the daughter's life had she an absolute unqualified power of alienating the property. With these views we think that the decision of the lower Appellate Court must be reversed and the case be sent back to that Court for retrial on the merits. Costs will abide the event.