1. Mr. Gokuldas has endeavoured to argue, that, under the Hindu law, a mother succeeding as heir to her son takes an absolute, not a limited, estate. That point is, however, concluded by authority: bee Narsappa v. Sakharam (1869) 6Bom. H. C. 215. which has been since followed in this Presidency. As was said by the learned Chief Justice in Bhau v. Raghunath ILR (1906) 30 Bom. 229 : 7 Bom. L.R. 937 it has now come to be recognized as the rule in Bombay that female heirs, except those who come into the family of the proporties by marriage, take absolute interests'. On the ground of stare decision we must adhere to that rule.
2. The duty of performing the funeral ceremonies of a mother, that is, pinda dana or offering the funeral oblations, is laid down as a religious injunction binding on her son in absolute' terms by the Hindu law-(See Vijnaneshwara's Mitakshara,. Prayaschittadhyaya, Moghe's Edition, page 280)-, so much so that, even though the son is a minor and as such is not entitled' to read the Vedas, he is held competent to recite the Mantras prescribed in the Shastraa for the purposes of the shraddha of either of his parents. (See a Smriti of Gautama cited by Vijna-neshwara in his comment on Yajnyavalkya's Smriti No. 50 in the Chapter on Debts in the Mitakshara, page 140, Moghe's Edition) Omission on the part of the son to perform the funeral ceremonies on his father's or mother's death is denounced as a sin. (See the text to that effect of Sumantu and a passage from the Aditya Purana cited in Kamalakar Bhat's Nirnaya Sindhu, page 299, mana Sagara Edition). And, according to Vijnaneshwara, where an act is directed to be done and the omission to do it is stated to be sinful, the direction imposes upon the person, directed an imperative and absolute obligation to do the act (the Mitakshara, Moghe's Edition, page 192). Nilakantha, the author of the Vyavahara Mayukha, deals with the subject likewise in his Shraadha Mayukha.
3. If, then, Vallabh would have been bound by that religious duty had he survived his mother,Bai Mancha, he would not have been entitled to recover the charges incurred in respect of those ceremonies from her Stridhan, property. No doubt a Smriti of Yajnyavalkya, after enumerating the twelve kinds of sons known in the ancient times to Hindu law, goes on to point out that a son becomes on his father's death entitled to the father's property and to offer his funeral oblations(i.e., a pinda dana). And there is a text of Manu, cited both by Vijnaneshwara in the Mitakshara and by Nilakantha in the Mayukha, that the pinda (a funeral oblation) follows the gotra and the inheritance. The former smriti, as the context shows, relates to the pindi and inheritance of a father; and the latter is part of a special text relating to an adopted son. Both lay down the rule generally but neither can be regarded as having any application to a case like the present. If a Hindu woman dies, leaving a son and a daughter and also stridhan property of the kind which the daughter is entitled to inherit in preference to the son, the fact that the daughter takes The stridhan does not impose on her the obligation of performing the mother's funeral obsequies. The obligation lies on the son all the same and he must discharge it without any right to charge the stridhan with the expenses except under special circumstances.
4. The duty being laid upon him as her son, independent of any assets left by her, he is bound to discharge it as a sacred obligation attaching to sonship. Now, here, though Vallabh, in the events that have occurred, predeceased his mother, the estate in dispute has to bs treated and is in fact regarded in the eye of law, as Ms. The appellant take3 it as his reversionary heir; and the religious obligation to which Vallabh would have been subject, had he survived his mother, devolved upon and bound his estate on his death in the hands of any person taking it as his heir.
5. This is on the principle of equity known to Hindu law as nyayasamyatwa. (parity of reasoning) and illustrated, by the commentators, especially by Vijnaneshwara, by 'the argument exemplified in the loaf and staff.' [See Stokes' Hindoo Law Books, Colebrooke's translation of the Mitakshara: page 404]. According to it, though the son diedbefore his mother, the son's estate remained and took his place for the purpose of the religious duty.
6. Therefore, the appellant can recover Vallabh's property as his heir, only on condition of fulfilling the obligation binding the estate, or, if it has been fulfilled by another person, on condition of compensating that person for it out of the estate. When Bai Mancha died, the respondent fulfilled the obligation under the belief that she, not the appellant, was the reversionary heir to the estate. The payments which the respondent made for the funeral ceremonies cannot, however, on that account be regarded as voluntary payments, because, having regard to their nature according to Hindu law, they are a charge upon the property of Vallabh and it is immaterial who performed the ceremonies, so long as the appellant, being bound to perform them himself as the person entitled to Vallabh's estate, failed to perform them within the period within which their performance was indispensable, according to the Hindoo Shastras. We must, therefore, confirm the decree with costs and disallow the cross-objections.