N.G. Chandavarkar, Kt., J.
1. Upon the evidence adduced in this case we are of opinion that the parties, who are Kamathis settled in Bombay, are governed for the purposes of inheritance by the law of the Mitakshara and the Mayukha, where these agree; where they differ, the Mayukha law must prevail.
2. The property in dispute belonged originally to one Laxmibai. She had obtained it after marriage by way of gift from her husband on the nth of January, 1894. Therefore it became her stridhan of the kind designated in Hindu Law as anwadheya or gift subsequent to marriage. Laxmibai died in 1896, leaving a son by name Elissha and a daughter named Narsubai. As was held by this Court in Dayaldas Laldas v. Savitribai (1909) 12 Bom. L.R. 386, the anwadheya stridhan of a woman descends on her death to her stms and daughters jointly, not to the daughters alone. Accordingly, the property in dispute was inherited by Narsubai and her brother Elshetty in equal shares. Narsubai died in 1903, and the question is, who inherited her moiety of the property? It is proved from the evidence in the case that, although Nursubai had been married to one Narsinga, yet she had lived in adultery with respondent No. 2 and gave birth to a son. When she died, she left her surviving her husband and the son. The husband sold the property in dispute to the plaintiff on the 10th of June, 1904. Respondent No. 2's case in the Court below was that Narsubai became his lawful wife by marriage after she had obtained a divorce from Narsinga. The Subordinate Judge has held the divorce not proved, and we agree with him. The evidence to prove divorce is of an unsatisfactory character and establishes no more than that Narsubai lived with respondent No. 2 and had a son by him.
3. Now the question is, whether her moiety descended on her death to the son born of her in adultery, or to her husband Narsinga?
4. It is contended before us that the son inherited, because the law as to stridhan is that a woman's son is heir as to it before her husband. But that law applies to a married woman, that is one whose marriage was celebrated according to one of the recognised forms. When the text-writers say that the stridhan of a married woman, who died ' without issue', goes to her husband where she was married in one of the approved forms, the words ' woman,' ' issue,' and ' husband ' were intended to be used as correlative, or, as Vijnaneshwara in another part of the Mitakshara terms it, in the prati yaugika sense, to show that the issue contemplated was issue of the woman by her husband and none else. Therefore, where a woman was married according to the approved form, the term, dies ' without any issue' means ' issue of that marriage. There is no authority whatever in the Hindu law for the proposition, which is contended for by Mr. Pradhan, that, where there is competition between a husband and a son born of his wife by adulterous interecorse, that son supersedes the husband as heir to her stridhan
5. It is next contended by Mr. Pradhan that we must presume under the circumstances of this case that the marriage of Narsubai with Narsinga was according to the unapproved form. That, however, is not the law. See Mussamat Thakoor v. Deyhthe Ray Baluk Ram (1866) 11 M.I.A. 139; Gojabai v. Shreemant Shahajirao Malojce Raje Bhosle ILR (1892) 17 Bom. 114. Even among Shudras, the law will presume a marriage to have been according to the approved form, if the parties belonged to a respectable family. The Kamathis are an intelligent and respectable section of the Hindu community. We must, therefore, act upon the presumption that the marriage of Narsubai was according to one of the approved forms. Under these circumstances the plaintiff obtained a valid title by the sale of the property to him by Narsubai's husband, and, therefore, he is entitled to a half share in the property in dispute.
6. We reverse the decree and allow the plaintiff's claim to the extent of a moiety of the property.
7. Costs throughout in proportion.
8. We also direct an inquiry as to mesne profits of a moiety of the property from the institution of the suit until-
(i) the delivery of possession to the decree-holder, or
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.