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Dalpat Narotam Vs. Bhagvan Khushal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom301
AppellantDalpat Narotam
RespondentBhagvan Khushal and ors.
Excerpt:
.....whose heirs it would devolve on his death, and these would clearly be the defendants who are the sons of his half-brother kusbai, whether according to the mitakshara or mayukha west and buhier's hindu law, pp......full owner of the property on whose heirs it would devolve on his death, and these would clearly be the defendants who are the sons of his half-brother kusbai, whether according to the mitakshara or mayukha west and buhier's hindu law, pp. 112 and 117. we must, therefore, confirm the decree, with costs.
Judgment:

Charles Sargent, C.J.

1. This suit raises the much-disputed question as to the devolution of property inherited by a daughter from a male. Till the decision of the privy Council in Mutta Vaduganadha Tever v. Dorasinga Tevar L.R. 8. I.A. 92, where it is laid down distinctly that under the Mitakshara 'a woman taking by inheritance from a male does not take a stridhan estate transmissible to her heirs.' the doctrine of this Court was that; a daughter inheriting from a male took an absolute estate transmissible to her heirs-Hari-bhat v. Damodarbhai I.L.R. 3 Bom. 171, Babaji bin Narayan v. Balaji Ganesh I.L.R. 5 Bom. 660. Since that decision, however, it would seem, as stated by the learned authors of West and Buhler's Hindu Law, p. 432 (3rd ed), that 'the heritage taken by daughters roust in future be regarded as but a life-interest whether with or without the extensions recognised in the case of a widow, except in cases governed by the Vyavahara Mayukha.' The present case, being one from Gujarat;, is, by the established practice of this Court, governed by the Mayukha. Hera again we meet with a difficulty arising from the ambiguity of the language used by Nilkantha. According to the construction placed upon Mayukha, oh. iv., sec 10, slc, 26 by the Court of Appeal, consisting of Sir M. Westropp, C. J., and West, J., in Vijiaramgam v. Lakshuman 8 Bom. H.C. Rep. 44 O.C.J the property would devolve on the woman's death on her sons, and the rest as if she were a male. Mr. Mayne, however, in his Treatise on Hindu Law, para. 530, dissents from this view of the passage. He says: 'It is very questionable whether Nilkantha meant anything of the sort,' and explains it as meaning that the estate 'does not devolve according to the rule applicable to stridhan but is taken by such heirs, being sons or otherwise, as would have taken it if the accident of its falling to a woman had never occurred.'

2. In the present case it is not material which view is adopted, as in either view on the death of Divali (Narotam and Nahani being then dead), Atmaram, whether as father's sister's son or as sister's son, would be the nearest bandhu relation both of Divali and her father. Atmaram thus became the full owner of the property on whose heirs it would devolve on his death, and these would clearly be the defendants who are the sons of his half-brother Kusbai, whether according to the Mitakshara or Mayukha West and Buhier's Hindu Law, pp. 112 and 117. We must, therefore, confirm the decree, with costs.


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