1. The defendant-appellant and the plaintiff-respondent are the sons of one Kameshwar, who left a will assigning two different houses to the present parties. The only question argued in appeal is whether Kameshwar could not make a will in respect of this property, because this property was ancestral property in the sense in which that term is used in Hindu law or whether it was absolute property which he could dispose of by will.
2. The property in question originally belonged to one Mayaram whose daughter Bai Parsan was the mother of Kameshwar. On the death of Mayaram it descended to Parsan and on her death, to Kameshwar, father of the present parties.
3. It was argued for the appellant that in view of the decision of their Lordships of the Privy Council in Raja Chelikani Venkayyama Garu v. Raja Chelikani Vmkataramanayyamma : S.C. 4 Bom. L.R. 657 property inherited from the maternal grandfather must be held to be ancestral property, as was held by the Madras High Court in Karuppai Nachiar v. Sankaranarayanan Chetty I.L.R. (1903) 27 Mad. 300 and Vythinaiha Ayyar v. Yeggia Narayana Ayyar I.L.R. (1903) 27 Mad. 382, and that the contrary view in Jamna Prasad v. Ram Partap I.L.R. (1907) 29 All. 667, and to a certain extent in Rao Bahadur Man Singh v. Maharani Nawlakhhati I.L.R. (1923) 2 Pat. 607 was not correct. The trial Court held that it was not ancestral property and that he was entitled to make a will. The District Court saw no reason to differ.
4. Until the decision in Raja Chalikani Venkamma Garu v. Raju Ghelikani Venkataramanayyamma such property was not considered to be ancestral. The question arose on the Privy Council decision above and particularly on the remarks of their Lordships at p. 164 which are as follows :-
What then was the character of the property which they took In the grandfather's hands it was separately acquired property. In the hands of the grandsons it was ancestral property which had devolved on them under the ordinary law of inheritance.
5. That case was, however, from Madras. In the preceding para their Lordships expressly observe that the law of inheritance in the case of women is left in great obscurity by the Mitakshara and that in Ghotay Lall v. Chunno Lall the daughter's estate inherited from the father is a limited and restricted estate only and not stridhan. It was these observations which led to the difference of opinion in the High Court of Madras on the one hand and the High Court of Allahabad on the other, the Patna High Court seeking a way out of the difficulty by suggesting that their Lordships of the Privy Council had treated the property as an accretion to the nucleus to other admittedly joint family property of the grandsons. The present case from Gujarat is governed by the Mayukha. In the Bombay Presidency, the question admits of a decisive answer. A daughter in the Bombay Presidency inherits an absolute estate from her father. It is her stridhan and it is only in default of daughters that it passes to her sons. In the present case, therefore, Parsan, and after her Kameshwar, took an absolute estate which could be disposed of by will. It is not, therefore, necessary to take into consideration the further fact that the present parties were already divided and not joint. The appeal fails and is dismissed with costs. The rule for stay is discharged with costs.