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Bai Raman Vs. Jagjivandas Kashidas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 847 of 1913
Judge
Reported inAIR1917Bom229; (1917)19BOMLR629; 41Ind.Cas.277
AppellantBai Raman
RespondentJagjivandas Kashidas
DispositionAppeal dismissed
Excerpt:
.....grand-daughters take then great great grand-daughters, on their failure sons take and then grandsons, then great great grand-sons and the same result follows in the case of non-technical stridhana under the mitakshara. 117 'let eons divide equally, both the effects and the debts after their parents,'nilkantha says the text relates to what is acquired by inheritance or spinning and the like, excepting the technical stridhana. moreover, nilkantha himself in the passage following that relating to inheritance of non-technical stridhana quotes the well-known text of manu that 'of the nearest sapinda the wealth shall be,'declaring propinquity to the deceased as the criterion of the right to take wealth. it appears to me that the argument on behalf of the respondent is well-founded and..........grand-daughters take then great great grand-daughters, on their failure sons take and then grandsons, then great great grand-sons and the same result follows in the case of non-technical stridhana under the mitakshara. in the mayukha, in the case of technical stridhana the rule of inheritance is worked out in the same way as in the mitakshara and it is laid down that in default of daughters and the rest, that is, grand-daughters and great great grand-daughters, the sons, grand-sons and the rest succeed. with regard to nontechnical stridhana, the relations preferred are different in the mayukha to those preferred according to the mitakshara. the passage relating to non-technical stridhana is as follows on p. 97 of mandlik's translation : 'as to the text of yajnavalkya, ch. ii, v......
Judgment:

Basil Scott, Kt., C.J.

1. The only question which arises for decision in this appeal is whether the appellant claiming as the widow of Chunilal Lakhmidas has an equal right by inheritance to the property left by Bai Parvati with the plaintiff Jagjiwandas Kashidas who is admittedly an heir. Parvati had two sons, Jagjiwandas the plaintiff and Lakhmidas who pre-deceased his mother, leaving a son Chunilal of whom the appellant Bai Kiki is the widow. Jagjiwan therefore is the son and Chunilal in whose place Kiki stands was the grand-son. The property is. admittedly Stridhana of the class styled in the Mayukha nontechnical. In the case of any difference between the Mitakshara and the Mayukha the parties will be governed by the Mayukha. 'With regard to Stridhana of the class which is known as technical, that is Anvadheya Stridhana and what wealth is given through affection by the husband, the three writers on Hindu law to whom reference has been made in the arguments, namely Vijnaneshwara, Nilkantha and the author of the Smriti Chandrika, are all agreed upon the principle by which inheritance is governed. It is stated concisely in the Smriti Chandrika, Chap. 9, paragraph 4:' the property of a woman leaving children will not be inherited by the husband, even 'though he survives her but only by the surviving children of the woman.' Thus a child who does not survive cannot pass on by the doctrine of representation any right to his children to succeed to technical Stridhana of his mother in competition with her surviving children. In the Mitakshara the descent with regard to technical Stridhana is worked out in detail. The property first devolves on daughters, then on failure of all daughters grand-daughters take then great great grand-daughters, on their failure sons take and then grandsons, then great great grand-sons and the same result follows in the case of non-technical Stridhana under the Mitakshara. In the Mayukha, in the case of technical Stridhana the rule of inheritance is worked out in the same way as in the Mitakshara and it is laid down that in default of daughters and the rest, that is, grand-daughters and great great grand-daughters, the sons, grand-sons and the rest succeed. With regard to nontechnical Stridhana, the relations preferred are different in the Mayukha to those preferred according to the Mitakshara. The passage relating to non-technical Stridhana is as follows on p. 97 of Mandlik's translation : 'as to the text of Yajnavalkya, Ch. II, v. 117 ' Let eons divide equally, both the effects and the debts after their parents,'' Nilkantha says the text relates to what is acquired by inheritance or spinning and the like, excepting the technical Stridhana. Therefore even if there be daughters, the sons or other heirs, putradaya, alone succeed to their mother's property, save the technical Stridhana.

2. Upon this reference to the text of Yajnavalkya, the whole argument oh behalf of the appellant has been based. It is contended that this text is the basis of the discussion as to the descent of the inheritance of the father discussed on p. 46 of Mandlik's translation and as that text was taken by Nilkantha to govern also the inheritance to non-technical Stridhana, it must follow that the sons, grand-sons and great great grandsons will all be entitled collectively, inasmuch as they are so entitled in relation to the inheritance of the father, the rule of inheritance being that they take by birth.

3. As against that argument, it is pointed out for the respondent that the doctrine of religious efficacy in the offering of Shradha is what governs the inheritance in the case of the property of the father; that the offerings of a son, of a grandson, of a great grand-son all have religious efficacy and all in theory are combined for the benefit of the deceased ancestor and that is why where inheritance rests upon the basis of religious efficacy, the sons, grand-sons and great grand-sons will take collectively irrespective of their propinquity to the deceased ancestor. In the case of the inheritance of a woman's property, it is pointed out that the doctrine of religious efficacy in the ministrations to the manes can have no place and it has been so laid down by the Allahabad High Court in Musammat Ganga Jati v. Ghasita w; moreover, Nilkantha himself in the passage following that relating to inheritance of non-technical Stridhana quotes the well-known text of Manu that ' of the nearest Sapinda the wealth shall be,' declaring propinquity to the deceased as the criterion of the right to take wealth. It is clear that in dealing with technical Stridhana Nilkantha has followed this principle of propinquity and there is no reason why in the discussion of non-technical Stridhana which follows that of inheritance to the technical Stridhana and precedes that in which the doctrine of propinquity is again enforced, it should be assumed, merely because a reference is made to a certain text of Yajnavalkya, that Nilkantha abandons the principle of propinquity and reverts quite unnecessarily, since he is discussing woman's property, to the doctrine of religious efficacy. It appears to me that the argument on behalf of the respondent is well-founded and no sufficient reason has been shown for holding that there is any different principle at the base of the rule of inheritance according to the Mayukha with regard to nontechnical Stridhana from the principle which clearly obtains under the three writers above referred to with regard to technical Stridhana. I would, therefore, confirm the decree and dismiss the appeal with costs.

Heaton, J.

4. I concur.


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