1. The facts, material for the purposes of the question of Hindu law argued before us, are shortly these.
2. One Varubai died possessed of property and left her surviving a son by name Dinkar, and three daughters. The property in dispute formed the anvadheya stridhan of Varubai, she having received it in gift from her father after her marriage.
3. The daughters of Varubai, who are respondents before us, were plaintiffs in the suit, which has led to this second appeal. They claimed the property as sole heirs of their mother. The appellant before us asserted his right to it under a title derived at a Court sale from Varubai's son Dinkar. His case was that Dinkar was the sole heir of Varubai.
4. Both the Courts below have awarded the respondents' claim, holding that they were the heirs of Varubai.
5. The question argued before us is, whether the son and the daughters of Varubai take the property as joint heirs of their deceased mother, or whether the daughters alone take it as heirs in preference to the son.
6. It was held by Green J. in an unreported case, (Hurry Shankar v. Krishnarao:-Suit No. 84 of 1876), that the term anvadheya applied only to a gift to a woman from her husband or his family subsequent to her marriage. In Ashabai v. Haji Tyeb ILR (1882) 9 Bom. 126 Sargent C.J., sitting as a single Judge, held that sons and daughters were all entitled as heirs to share equally in the anvadheya stridhan of their deceased mother. This latter decision was followed by the late Chief Justice of this Court, Jenkins C. J., also sitting as a single Judge, in Sitabai v. Wasantrao Nana Moroba (1901) 3 Bom. L.R. 201 where he pointed out that, in limiting the meaning of anvadheya stridhan to a gift made to a woman by her husband or his family after her marriage, Green J. had been misled by the wrong rendering by Borradaile of the passage in the Mayukha dealing with the question of succession to that stridhan. The view taken of the Mayukha law in these two decisions, is the same as that taken by West and Buhler in their Digest (page 145, 3rd Edition), by Sir Gurudas Banerjee in his Tagore Law Lectures on the Hindu Law of Marriage and Stridhan, (page 371, and Edition), and by Mr. Bhattacharya in his ' Commentaries on Hindu Law' (page 583, Second Edition).
7. It is contended for the respondents that the decisions of Sargent C. J. and Jenkins C. J. rest upon a misapprehension of the passage in the Mayukha, which deals with the question of succession to anvadheya stridhan', that Nilakantha does not state his own opinion on the question whether sons and daughters share equally or whether the daughters take the property to the exclusion of the sons; but that he merely states the opinion of the Mitakshara and that of others who differ from it. Under these circumstances, it is urged, we must apply to the case; the law of the Mitakshara on the established principle of this Court, enunciated in Vasudev Bhat v. Venkatesh Sanbhav (1873) 10 B.H.C.R. 139 and Krishnaji Venkatesh v. Pandurang (1875) 12 B.H.C.R. 65, that, wherever Nilakantha expresses no opinion of his own, conformity with the Mitakshara should be aimed at, as far as consistency will allow, in cases governed by the law of the Mayukha.
8. This contention is founded upon a misconception of the import of the language used by Nilakantha in dealing with the question of succession to anvadheya stridhan (a gift subsequent to marriage). He first mentions the opinion of the Mitakshara; then he states the contrary opinion in the following terms:-
Others (however)say that, in the case of anradheya and a gift through affection, the association of daughters and sons is independently laid down (by this text). (Mandlik's Hindu Law, page 95).
9. In urging before us that in this passage Nilakantha does no more than express the opinion of those who differ from the Mitakshara without stating his own view, the respondent's pleader loses sight of the fact that the form of expression used in the passage is not uncommonly employed by an author in Sanskrit when he means to state his own view on a point under discussion. He would first state the opinion of the author from whom he means to differ, and then express his own by using such language, as 'others, however, say'-(paretu or anye tu, both of which have the same meaning in Sanskrit). Another mode of. expressing dissent from the opinion of an author is to state that opinion and say: ' Some, however, say,' (kechit tu). Of this form of expression, however, it must be observed that/ more than the other form, it depends on the context whether it should be interpreted in the same sense as the expression :-' Others/however, say,' because the word 'others' is. prima fade -more comprehensive than the word ' some.' There is yet a third mode. Where an author differs from older authors on a point, he states the opinion of the latter as that of a ancient authors' and expresses his dissent in these words:-' modern authors' (arvanchaha or navyaha) 'however, say.' By ' modern ' the writer is presumed to refer to himself as one falling in the category of authors later than the ancient. The reason why this indirect form of language is not uncommonly used to express dissent is that it is considered unbecoming and presumptuous on the part of a writer to adopt such expressions as ' I think so,' or ' I say so,' or ' I am of opinion,' especially when-he is differing from another author of repute and recognised authority. It is regarded as a mark of culture and scholarship for an author to express his own opinion modestly and humbly, in differing from another author. When he states the latter's opinion and then says ' others, however, take a different view,' by ' others ' he implies his ' own humble self.'
10. This mode of expressing dissent is employed, for instance, by Nagoji Bhatta in his Paribhashen dushekhara(page 106, last line : Kielhorn's Edition), and his Shabdendushekharct. It is adopted also by Jagannatha in his Rasagangadhura (Nirnaya Sagara Edition, page 276 and page 501). Among Sanskrit scholiasts it is a rule of construction that, when these forms of expression occur in a work, they should be interpreted, generally speaking, as meaning that the author who uses them intends thereby to represent that the dissenting opinion is either his own or is shared by him.
11. Nilakantha, therefore, in the passage above quoted from the Mayukha, may be fairly presumed to have dissented from the opinion of the Mitakshara and to have stated it as his own opinion that both sons and daughters are joint heirs to the anvadheya stridhan of a woman.
12. This interpretation of Nilakantha's meaning is confirmed by what follows immediately after the passage quoted above from the Mayukha. He proceeds to point out a distinction with reference to the daughters. As to them he says, the unmarried come in as heirs before the married. In support of that distinction he quotes a text of Manu which provides :-
Stridhan (woman's property) goes to her children, (for) the daughter is a sharer thereof, provided she be not given away in marriage.' (Mandlik's Hindu Law, page 95, lines 33 to 36).
Having quoted this text, Nilakantha explains what Manu means by the expression : ' the daughter is a sharer thereof', (tadamshini). It means, says Nilakantha, that the daughter becomes u the receiver of a share equal to (that of the) son.' This explanation would be out of place, if Nilakantha meant to accept the opinion of the Mitakshara that the sons and daughters do not inherit jointly but that the daughters come in in the line of heirs first and that the sons take only in default of them. It is because the son is, in Nilakantha's view, a sharer, with the daughter that he says that the daughter's share is equal to the son's. That is why he concludes his treatment of the subject by citing Katyayana's text, which provides that ' sisters having husbands should share with brothers. (Mandlik, page 96, line 2).
13. These considerations, coupled with the fact that, in dealing with the question of succession to stridhan property, Nilakantha treats the two forms of technical stridhan known respectively as anvadheya (a gift subsequent) and priti datta (gift through affection) separately from the other technical forms, make it clear, beyond doubt, that in his opinion, daughters and sons are joint heirs to the former and share equally.
14. It is, however, argued for the respondents that it cannot be so because, later on, after pointing out on the strength of a text of Katyayana that in default of daughters and their issue ' the sons, grandsons and the rest' (of the deceased) should succeed Nilakantha remarks : ' This right of inheritance of daughters and the rest in the mother's property exists only in (respect of) the adhyagni, adhyavahanika, and other aforesaid (kinds of the) technical stridhan', (Mandlik, page 97, lines 7 to II). This remark is made merely for the purpose of emphasising the distinction which, in Nilakantha's opinion, exists between strid-han technically so called and other kinds of stridhan. He says that the right of daughters to succeed to their mother's property exists only as to technical stridhan. That does not mean that the right is exclusive of the right of sons in the case of every kind of technical stridhan without exception. The daughter succeeds to her mother's stridhan, whether she inherits it jointly with a son or to his exclusion. In short, the purpose of Nilakantha's observation is no more than to show that a son excludes the daughter in all cases except technical stridhan. It does not follow from that that the son does not share equally with the daughter in certain kinds of technical stridhan, such as a gift subsequent (anvadheya)and a gift through affection (priti datta).
15. The result is that, as held in Ashabai v. Haji Tyeb by Sargent C. J., and in Sitabai v. Wasantrao Nana Moroba by Jenkins C. J., under the law of the Mayukha, when a Hindu woman dies possessed of stridhan property called anvadheya (a gift subsequent to marriage), and the claimants to that property are her sons and daughters, these all become entitled to share the property equally as heirs, with this difference, however, as to daughters, that the unmarried have preference over the married.
16. In the present case, Varubai on her death left her surviving one son and three daughters. The question whether any of the daughters was unmarried at the time of Varubai's death when the succession opened was not raised in either of the Courts below, because the daughters claimed the right of heirship jointly to the exclusion of the son. From the conclusion of law we have arrived at, it follows that the son and the daughters of Varubai became co-owners having equal shares in the property. They have no right to eject the appellant, who stands in the shoes of the son. But, though the exclusive title set up by them is negatived by our conclusion of law, yet relief can be given to them in this suit for ejectment by way of joint possession with the appellant: Naranbhai Vagjibhai v. Ranchhod Premchand ILR (1901) 26 Bom. 141 : 3 Bom. L.R. 598. But before a decree for joint possession is passed, it is necessary to determine whether all or any of the respondents (plaintiffs) were unmarried when their mother Varubai died, because it is only the unmarried who would be entitled to share in the property with the son in preference to the married. Unless the parties are agreed on this question of fact, we must ask the lower Court to find on the following issue after taking such evidence as either party may adduce:-
(1). Was any, and if so, which of the plaintiffs, unmarried when their mother Varubai died and the succession to the property in dispute opened?
17. The onus will lie in the first instance on the plaintiffs.
18. Finding to be returned within three months.
19. On its return there will be a decree for joint possession in favour of those entitled.