1. The question of Hindu law on this second appeal relates to the succession to the stridhan of an unmarried female, the competing claimants in the case being her maternal grand-mother and her father's mother's sister.
2. The Subordinate Judge, in whose Court the suit was filed by the maternal grand-mother, decided it in her favour and awarded the claim.
3. The District Judge, on appeal, has reversed the Subordinate Judge's decree, holding that the father's mother's sister, as a pitru-bandhu of the propositus, is entitled to succeed in preference to the maternal grand-mother, because the latter, being a matri-bandhu, can come in only in default of pitru-bandhus.
4. Both the Courts below have dealt with the question of succession on the principle that he who is the nearest sapinda of the propositus, who in this case is an unmarried female, is entitled to inherit her stridhan. But the succession to such stridhan is regulated by a special rule which is contained in a text of Baudhyayana. The Subordinate Judge nowhere notices it. The District Judge cites it and his judgment proceeds upon it.
5. The text in question is given by Vijnaneshwara in the Mitakshara as follows:-
For Baudhyayana says :-' The wealth of a deceased damsel, let the uterine brothers themselves take. On failure of them, it shall belong to the mother ; or, if she be dead, to the father.
6. The text is silent on the question what is to happen and who are the heirs of an unmarried female, if she dies leaving neither a uterine brother, nor mother nor father. The Vira Mitrodaya supplies the omission and answers the question. After pointing out that in the case of a female, married according to one of the blamed rites, her stridhan goes, in default of daughters and sons and those included in those terms, to her parents, and that among parents the mother precedes the father, Mitra Misra. author of the Vira Mitrodaya, observes that the succession to an unmarried female is regulated by Baudhyayana's text, which he quotes as above. And then he continues: -
In default of the mother and father, it goes to their nearest relations.' [The Vira Mitrodaya translated by Golap Chandra Sarkar Shastri, page 241, Section 9].
7. According to this rule in default of the heirs specified by Baudhyayana, the sapindas of the parents of a maiden inherit her property in the due order given in the text of Yajnyavalkya regulating obstructed succession. The same rule holds good in the case of succession to a woman married according to one of the blamed rites and dying without any of the specified heirs in her case surviving. In her case, the order of heirs specifically enumerated is as follows :-(1) daughters; (2) daughter's daughters; (3) sons of daughters; (4) sons and (5) grandsons. In the case of a maiden, the order of heirs specifically enumerated is : (1) brothers; (2) mother; and (3) father. In either case, in default of these enumerated heirs, the same rule of succession applies-that is, the estate goes to ' the nearest relations' of the parents of the deceased, whether she be a maiden or a woman married according to one of the blamed rites.
8. The reason of this is that the latter, having been married according to the blamed rites, continues to belong to her father's gotra (family), according to the Hindu Shastras, because in such marriages there is no giving away (kanyadana) of the bride by the father to the bride-groom, [See this explained in the judgment of this Court in bhagwan v. Warubai : (1908)10BOMLR389 Therefore her position, so far as her gotra is concerned, being similar to that of her unmarried sister, she is treated for the purposes of succession to her stridhan like an unmarried female, where she dies leaving none of the specifically enumerated heirs.
9. Then comes the question-what is meant by 'the nearest relations' (sapindas) of the parents? Does it mean the sapindas who are common to both, or the sapindas of the mother first, and the sapindas of the father afterwards ?
10. There can be no doubt that the sapindas of the father are the sapindas of the mother also, because the mother, as his wife, has her individuality merged in him, according to one of the leading doctrines of the Mitakshara. When, therefore, we speak of the sapindas, i. e. the nearest relations, of the parents, it means the sapindas of the, father, who are also the sapindas of the mother in virtue of her identity with her husband as half of his body. It may indeed be objected to this that this common sapindaship with reference to the father's sapindas must be held to be absent where the mother was married according to one of the blamed rites; because, as we have said above, in such marriages, the mother continuing in her father's family notwithstanding her marriage, her husband's sapindas cannot be her sapindas, who must be looked for in her father's family. The answer to the objection is that sapindaship, according to Vijnaneshwara, is constituted as between husband and wife by their jointure; whatever the form of marriage, they are one, so to say, in body; and by relation to his body she becomes a sapinda of his. The converse of that, however, does not follow and is not propounded by Vijnaneshwara-that is, the wife's sapindas in her father's lamily do not become the husband's. The reason is the wife's subordinate position and dependence.
11. In default of parents, therefore, the succession to the stridhan of an unmarried female goes to the sapindas of her father, and if these fail, the kinsmen of the deceased woman herself (her own mpindas) become entitled to inherit in the order of propinquity. This is obvious from the fact that, after quoting and explaining the texts of Yajnyavalkya, enumerating the different kinds of stridhan, Vijnaneshvara quotes the text which lays down the general rule regulating succession to it as follows:-
Her kinsmen take it, if she die without issue.' [The Mitak. Ch. II, Section XI, plac. 8, Stokes's Hindu Law Books, page 460].
12. Vijnaneshwara, in explaining this and the following text, says :-
The kinsmen have been declared generally to be competent to succeed to a woman's property.
13. Then he proceeds to enumerate the specified kinsmen-who these are in the case of a woman married according to the approved rites, or of one married according to the blamed rites or of a maiden. The specific enumeration, in which must be included the sapindas of the parents for the reasons above given, stopping there, the general rule above quoted must take effect. According to it, the kinsmen of the deceased woman herself become heirs in default of those specified. And this is in conformity with one of the leading rules of inheritance in Hindu law: 'Whoever is the nearest sapinda of a deceased person, to him the inheritance goes''-a rule of general application operating where all special rules of inheritance cease to apply.
14. It has been strenuously urged, however, before us by the learned pleader for the appellant that in the case of succession to the stridhan of a maiden, in default of parents, it must go to the sapindas of her mother first and that it is only on failure of them that the sapindas of the father are entitled to come in. For the purposes of this argument the learned Pleader interprets the expression 'their nearest relations' in the rule mentioned by the Vira Mitrodaya above quoted-namely, ' in default of the mother and the father, it goes to their nearest relations'-in a distributive, not in a conjunctive, sense, as meaning the nearest relations of the mother and, in default of them, the nearest relations of the father.
15. It is impossible to adopt this construction. Assuming that the words must be construed distributively, the mother's sapindas would be entitled to precedence over the father's on no other ground than that the mother inherits before the father. But this right of precedence given to the mother by Vijnaneshwara is obviously personal and there is not a single instance where he has extended that right to her relations. On the other hand, the fact that he meations the pitrv, bandhus (father's cognate kindred) as coming in as heirs before the matri-bandhus (mother's cognate kindred) in cases of obstructed succession shows that wherever the right of precedence is given to the' mother it is purely personal. The observations and authorities cited in the judgment in Saguna v. Sadashiv ILR (1902) 26 Bom. 715 : 4 Bom. L.R. 527 support our view.
16. The conclusion we have arrived at has this further merit that it brings the Mitakshara in conformity with the Maukha. 17. For these reasons we confirm the decree with costs.