Skip to content


Gangu Vs. Chandrabhagabai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 95 of 1907
Judge
Reported in(1908)10BOMLR149
AppellantGangu
RespondentChandrabhagabai
Excerpt:
hindu law-exclusion from inheritance-disqualification of husband an murderer-wife not affected by disqualification-construction of texts.; the wife or widow of a disqualify-hindu does not become incapable of inheriting property marely by reason of her husband's disqualification, whether she claims as heir to a deceased person through her husband or otherwise, if she is herself free from any of the defects which exclude a person from inheritance under the hindu law.;it is a canon of interpretation in hindu law that a special text forming an exception to a general text should be construed strictly and applied only to the cases falling clearly within it. - - it directs that the sonless wives of the persons specified in the first text as being excluded from inheritance shall be maintained,.....chandavarkar, j.1. the property in dispute belonged to one dashrath ramshet, on whose death in 1900, his widow, kashi, succeeded as heir. in 1902, she was murdered by govind purshotam, son of her husband's half-brother, purshotam ramshet. for that offence govind was tried, convicted, and hanged in the same year.2. the respondent in this second appeal, chandrabhagabai, who is the widow of govind, thereupon sued to recover the property of dashrath ramshet upon the ground that, on kashi's death, the property descended to govind as the next reversionary heir of dashrath, and that, on govind's death, it descended to her (the respondent) as his widow and heir. she also maintained in her claim that, in the event of its being held by the court that in consequence of the murder of kashi by him.....
Judgment:

Chandavarkar, J.

1. The property in dispute belonged to one Dashrath Ramshet, on whose death in 1900, his widow, Kashi, succeeded as heir. In 1902, she was murdered by Govind Purshotam, son of her husband's half-brother, Purshotam Ramshet. For that offence Govind was tried, convicted, and hanged in the same year.

2. The respondent in this second appeal, Chandrabhagabai, who is the widow of Govind, thereupon sued to recover the property of Dashrath Ramshet upon the ground that, on Kashi's death, the property descended to Govind as the next reversionary heir of Dashrath, and that, on Govind's death, it descended to her (the respondent) as his widow and heir. She also maintained in her claim that, in the event of its being held by the Court that in consequence of the murder of Kashi by him Govind had lost his right of inheritance to Dashrath, the property must be regarded as having devolved upon her in her own right as reversionary heir of Dashrath, by reason of her being his gotraja-sapinda.

3. The Subordinate Judge of Poona, who tried the suit, rejected the claim upon the ground that the offence of murder committed by Govind excluded him from the right of inheritance to Dashrath and that the respondent, claiming through Govind as his widow, was affected by the same disability.

4. On appeal by the respondent, the Appeal Court has held that, as she claimed the property in her own right as gotraja-sapinda of Dashrath, the disability of her husband cannot affect her and that she is entitled to succeed as Dashrath's heir.

5. Three points of law have been made before us on this second appeal-(1) that, in consequence of the murder by him of Kashi Govind was absolutely disqualified from inheritance under the Hindu law; (2) that the same disqualification extended to his widow, either absolutely so as to deprive her of all rights of inheritance, or, at least, to the limited extent of rendering her incompetent to inherit as the gotraja-sapinda of Dashrath, since she claims that capacity through her husband; (3) that, in any case, on grounds of public policy the respondent's claim must be disallowed. Reliance is placed in support of the 1st point on the authority of the ruling of the Madras High Court in Vedanayaga Mudaliar v. Vedammal ILR (1904) Mad. 591.

6. It will be convenient to deal with the second point first, because, if it fails, the determination of the first becomes unnecessary.

7. The argument on the second point amounts to this that whatever ground of exclusion from inheritance applies to a Hindu male applies to his wife also ; and that, if the former becomes incompetent to inherit, the sameincompetency extends to the latter also, either absolutely or at least when she claims a right of inheritance through him as her husband.

8. On the subject of exclusion from inheritance and from the right to share at a partition, there are four texts in the Smriti of Yajnavalkya. These four texts occur one after the other and are explained by Vijnaneshwara in the Mitakshara. Before quoting the first text and adding his gloss to it, he states by way of introduction that it is an exception to the general rules laid down in the preceding texts as to unobstructed and obstructed succession, and succession in a reunited family. The first, text specifies the kind or class of persons who are debarred from the right to inherit property or to share at a partition. The second text declares that the aurasa or kshetraja son of any of the persons mentioned as disqualified in the first text is not excluded from that right merely by reason of his father's disability, if the son is himself free from it or similar defects. The third text states that the unmarried daughters of the disqualified persons, specified in the first text, shall be maintained until marriage. Then comes the fourth and last text on which the argument inthis second appeal turns. It directs that the sonless wives of the persons specified in the first text as being excluded from inheritance shall be maintained, if those wives are of good behaviour ; but that, if they are adulterous or perverse, they should be cast out.

9. The first argument of the learned pleader for the appellant is that because in this last text it is laid down in express terms that the wife of a disqualified person mentioned in the first text shall be maintained, if she be virtuous, it must be inferred that she is placed in the same category as her husband and declared incompetent to inherit.

10. But in the first text it is expressly stated that the persons specified therein ('the impotent, the outcast, the lame &c.;') are niromshakas, that is, incompetent to inherit or to take a share at a partition, but that, they must be maintained in consequence of the incompetency. In the fourth text, which relates to the wives of such persons, the word niramshalca does not occur at all. Had it been intended to extend the personal disqualification of the husband to the wife, though she might be personally free from all disqualifying defects, she would have been declared in the fourth text incompetent to inherit in terms as express as those used in the case of the husband in the first text. According to a well-known rule of interpretation in Hindu law For an illustration of this rule, see Bhattoji Dikshit's Siddhaahta Kaumudi, page 55 [The ShriVenkateshawara Press Edition], For an-pther application of the rule, which answvrstothe legal maxim expressio unius est exclusio alterius, see Westropp C.J.'s Judgment in L.R. R. 3 Bom. 280, when there is a collocation of two texts, dealing with the same subject, and in the first of them two words or expressions occur, of which only one is repeated in the second text, the other word or expression must be excluded as not applying to cases falling within that second text. So here in the first text, which specifies the persons excluded from inheritance, it is said that those persons shall be maintained (bhartavyah) but that they are incompetent to inherit (niramshakah). In the text relating to their wives, only the word bhartavyah (''shall be maintained') is repeated. Hence, according to the rule, disinherison was not intended to apply to them. Further, had it been a rule of Hindu law that the disqualification of a husband per se attaches to his wife, that also would have been specified in the first text among the grounds mentioned in it as excluding a person from inheritance.

11. So far from specifying it, the text by necessary implication from its language suggests that a woman does not lose her right to inherit merely because of her husband's disqualification. The text runs as follows:-

An impotent person, an outcaste and his issue, one lame, a madman, an idiot, a blind man, and a person afflicted, with an incurable disease, as well as others (similarly disqualified), must be maintained, excluding them, however, from participation' (Stokes's Hindu Law Books page 455).

12. It will be observed that each disability except one is here declared to be personal. Each of those specified is mentioned as being personally incompetent to inherit except the outcaste, in whose case alone it is stated that his incompetency extends to 'his issue.' The sole exception so made in the case of the outcaste is founded on the Hindu Shastra and must be familiar to those acquainted with its root ideas and principles. When a Hindu is outcasted, it does not necessarily follow that his wife and his children born before his excommunication become out-castes with him, unless by living with him they contract the taint of excommunication themselves. It is otherwise with children born after the Hindu has been outcasted. In that case, such children are regarded by the Shastras as being born with the taint of excommunication. Hence their exclusion together with their father from the right of inheritance.

13. If the outcaste is singled out in the text as the only person whose disqualification extends beyond himself, the disqualification in the case of others who are specified in the text must be held to attach to them only, and not to their issue or their wives.

14. That is the natural construction of the first and leading text on the subject of exclusion from inheritance and that construction is warranted not only by its language but also by the fact that it is introduced by Vijnaneshwara with the prefatory remark that the text forms a special exception to the general rules laid down in the preceding texts of Yajnyavalkya, regulating unobstructed (apratibandha) and obstructed (sapratibandha) succession, and succession in a reunited (samshristi) family. And it is a canon of interpretation in Hindu law that a special text forming an exception to a general text should be construed strictly and applied only to the cases falling clearly within it.

15. We pass on now to the second text. It relates to the sons of those who are specified in the first text as persons debarred from all rights of inheritance and partition.

16. Vijnaneshwara introduces this second text with a prefatory remark, which, we think, is very material. The remark is translated by Colebrooke as follows :-

The disinherison of the persons above described seeming to imply disinherison of their sons, the author adds.' (Stokes's Hindu Law Books, page 455).

17. Implied by what? Not by the first text, because, as we have pointed out, there is no such implication in it. On the other hand, its implication is clearly the other way.

18. The prefatory remark moans this :-When a person is incompetent to inherit property or to obtain a share at a partition on account of any of the defects mentioned in the first text, the incompetency of his son also is apt to be inferred. Whence is the inference likely to arise? Vijnaneshwara does not stop to give the answer, because it is plain from the texts of Hindu Law and of the Shastras dealt with in the preceding portion of the Mitakshara, which, treating the son and the father as identical, make the son's rights of succession and partition in the case of his grandfather's property dependent on the father's. From them, remarks Vijnaneshwara, it is possible to argue that given a disqualified father, a disqualified son must follow.

19. When a son is born, his father has to address the child on the occasion of his birth-day ceremony (jata karma) in words which constitute a sacred formula. The father says to the child:-- 'Though thou art called my son, yet verily thou art my own self'. This forms the basic principle of the mutual relation between a Hindu father and his son or sons. Hence a wife is called Jayashe who has reproduced the husband in her son.' And this theory of identity between a Hindu father and his son has found its practical application in Hindu Law. That is the origin of the doctrine that a son takes a vested interest by birth with his father, in ancestral property.

20. But, above all, there is the text of Yajnavalkya regulating partition 'among grandsons by different fathers.' That text says:-

Among grandsons by different fathers the allotment of shares is according to the fathers.' (The Mitakshara, Chapter I, Section V, plac. I Stokes's Hindu Law Books, page 391), Vijnaneshwara's exposition of this text is that 'although grandsons have by birth a right in the grandfather's estate, equally with sons, still the distribution of the grandfather's property must be adjusted through their fathers and not with reference to themselves.' That is, the sons share only what the father has to share-they have no independent right. If that is so, what is there for the son to share, when the father himself has no share to take, being excluded from all rights of inheritance and partition on account of some personal disability of the kind specified in Yajnavalkya's first text on the subject of exclusion from inheritance? The son must in that case fall with the father. This is in a joint family.

21. The same is the case in a re-united family. The rules regulating partition and succession as to it similarly provide that a son takes only what his father could have taken.

22. Hence Vijnaneshwara by way of introduction states that it is to remove the doubt arising from these texts relating to partition and succession, and to preserve the right of inheritance and partition to the son, in spite of his father's disability, that the second text of Yajnavalkya is intended. That text declares that, provided the son is legitimate (aurasa) or ' the offspring of the wife by a kinsman (kshetraja),' and is himself free from the defects or disabilities mentioned in the first text, he does not share his father's disqualification but remains entitled to the share which his father would have obtained, had he been not disqualified. That this is the scope and effect of this second text, with which we are now dealing, is explained in the Dayabhaga as follows:--

Therefore the sons of such persons, being either their natural offspring or issue raised up by the wife, as the case may be are entitled, provided they be free from similar defects, to take their allotments according to the pretensions of their fathers.' (Dayabhaga, Ch. V, plac. 19, Stokes's Hindu Law Books, page 2G5). And in a footnote Colebrooke gives Achyuta's explanation of 'allotments according to the pretensions of their fathers.' The explanation is: 'Such allotment as their fathers would have had, if capable of inheriting.

23. But the difficulty, which arose in consequence of the texts identifying a Hindu son with his father and rendering his right to inherit his grandfather's property or obtain a share at a partition dependent upon the existence of the same right in the father, and which had to be removed by the second-text, could not possibly arise in the case of a daughter or a wife. No identity similar to that of a father and his son is declared by any text as between a husband and his wife, or a father and his daughter. No doubt ''a wife is half of her husband'-but she is only a half, not the whole, and that also for certain defined purposes into which considerations as to rights of inheritance and partition do not necessarily enter in the same way that they do in the case of a father and his son. A son is by legal fiction the whole of his father. There is no text or rule of succession or partition, according to which, a husband dying, his widow can claim to take his place as his alter ego in the same way that his son can and to inherit or share what he would have been entitled to inherit or share had he been alive. This same consideration applies to a daughter.

24. Hence it is that while Vijnaneshwara expressly introduces the second text, which relates to sons, with the remark that its purpose is to meet the difficulty arising from the father's disability being possibly supposed to descend upon the sons also, he makes no such remark while introducing the third or the fourth text, relating respectively to the daughters and the wives of disqualified persons.

25. If he interpreted the third and the fourth text in the sense of disinheriting the daughter and the wife also and substituting for their right of inheritance, a right to maintenance it is singular and quite unusual in a commentator of Vijnaneshwara's clearness and consistency that he did not say so explicitly either by way of preface to the texts or by way of exposition, when he had taken special care to say it in dealing with the second text, relating to sons. He would have at least added the word 'others' after 'sons' in his introductory remark to the second text, which is a hemistich, the other hemistich being the third text providing maintenance for the daughter.

26. What, then, it may be asked, was the necessity of providing by means of the third and the fourth text for the maintenance of the unmarried daughters and the wives of disqualified persons, if the intention was not to declare them as sharing the incapacity of those persons in virtue of their relation to the latter?

27. The necessity is plain. If the second text-that which relates to the sons of a disqualified person-is an enabling clause, inasmuch as it preserves to the particular kind of sons therein mentioned the right which they would have had if the father had not been disqualified, the third and the fourth text coming immediately afterwards and in the same connection must also be construed in the same light. They too preserve to the unmarried daughter and the wife of a disqualified person respectively the right which they would have had if that person had not been disqualified. 'What, under the general rule of Hindu Law, is an unmarried daughter's right as against her father or the undivided family of which he is a member? It is the right of maintenance until marriage and the right to be given away in marriage. Similarly, a wife, has a right of maintenance against her husband and the undivided family of which he is a co-parcener. If the father of a girl or the husband of a woman, being a co-parcener in a joint or reunited family, becomes disqualified for the purposes of inheritance and partition, the daughter and the wife whose right of maintenance in either case is founded on their relation to that co-parcener, must, logically speaking, lose that right in consequence of that disqualification. It is against that loss that the third and the fourth text provide.

28. If that is the conclusion on a legitimate construction of the language of the texts and their examination by the light of other texts bearing on the subject, what warrant is there for construing the fourth text-that relating to the wives of disqualified persons-as not an enabling but a disqualifying clause giving the right of maintenance as a solatium for the deprivation of a totally different, higher, and independent right -the right of inheritance-upon which the text itself is silent and with which it does not profess to deal even by implication? So far from there being any warrant for it, the construction lends itself to the very vice, which Vijnaneshwara declares in one of the earliest portions of the Mitakshara ought to be avoided in the interpretation of texts. For, according to that construction, the text in question, must in effect be read as being in the nature of an implied prohibition (a parisankhya in the technical language of Hindu jurists), because (it is said) by directing maintenance to be given to the sonless but chaste wife of a disqualified person, it impliedly prohibits her from inheriting property. But, according to Vijnaneshwara and other commentators such as Medhatithi, no text ought to be construed as being in the nature of an implied prohibition, if that construction involves, first, departure from the plain and natural meaning of its language; secondly, it requires the reading into it of words with another meaning; and, thirdly, the result of that departure and that importation is to exclude or prohibit something which the shastras or the law have or has expressly sanctioned. The text we are discussing simply directs the doing of anact-i.e., the giving of maintenance to the sonless but chaste wife of a disqualified Hindu. That is the natural meaning of its language. There is nothing prohibitive of any right in it. How then can the implied prohibition of the right of inheritance come in unless we read into the text words which are not there? But if we import such words into it, the wife becomes excluded from the right which both the shastras and the law have allowed to her as a sapinda by marriage in her husband's family. Such a mode of construction is condemned as vicious in emphatic terms by Vijnaneshwara and other commentators.

29. The conclusion that the text is merely enabling, not disqualifying, in its operation, is further supported by certain portions of Vijnaneshwara's discussion in the Mitakshara on a widow's right of heirship to her husband.

30. In that discussion he quotes the following text of Narada:-

Among brothers, if any one die without issue, or enter a religious order, let the rest of the brethren divide his wealth, except the wife's separate property. Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of their lord.' [Mitakshara, Ch. II, Section I, plac. 7, Stokes's Hindu law Books, p. 429].

31. Having quoted this text of Narada and other texts usually cited by the opponents of a widow's right of inheritance in support of their opinion, Vijnaneshwara proceeds to give Dhareshwara's view on the question, which is that a widow is entitled to inherit her husband's property only when she obtains authority to have male issue raised up to her husband by means of Niyoga (levi-rate); that, if she obtains no such authority, she cannot inherit but is merely entitled to maintenance. And Dhareshwara in support of that view relies on the above quoted text of Narada and also on the very text of Yajnavalkya, now under discussion, which says that the sonless wives of disqualified persons shall be maintained, if they be chaste. [See Stokes's Hindu Law Books plac. 12, p 430, and plac. 13, page 431]. Vijnaneshwara combats that view by pointing out that Dhareshwara has misapplied each of the two texts and extended its veal scope and effect by wresting it from the context in which it occurs and interpreting it so as to affect a wife's or widow's right of inheritance, whereas it deals merely with another right-that of maintenance-arising under circumstances unconnected with inheritance. Narada's text, says Vijnaneshwara, as it is quoted by Dhareshwara in support of his view, is the latter half of a text, the first half of which shows expressly that the whole relates to coparceners in a re-united family; that the first half, declares the right of the coparceners to a partition of their re-united property; and that the latter half merely directs that if in such a family one of the coparceners has died or entered a religious order and the surviving coparceners choose to effect a partition subsequently, they shall not include in such partition the stridhan (separate property), if any, of the wife of the coparcener who has died or entered a religious order, and that they shall give her maintenance. The text in fact, says Vijnaneshwara, merely provides for the maintenance of such a wife by the coparceners of her husband but does not pretend to deal with or touch her right of inheritance. And as to Yajnavalkya's text, which is relied upon by Dhareshwara, as being of the same purport and having the same effect as Narada's text, Vijnaneshwara points out that it relates to the maintenance of the wives of impotent and other disqualified males, implying thereby that it does not touch the rights of inheritance or other rights of those wives.

32. What, again, is the result of Narada's text itself as explained by Vijnaneshwara? According to that explanation, if, after a coparcener in a reunited family has died or entered a religious order, the other coparceners choose to effect a partition, they are prohibited from touching at such partition the stridhan (separate) property, if any, of that coparcener's wife. Now, such property may have been acquired by her as much by inheritance as in any other way sanctioned by Hindu Law. The text of Narada does not say that it must be stridhan property inherited by her before her husband's death or before he entered the religious order. It may be inherited before then or afterwards. All that is required is that it must be stridhan existing at the date of the partition which the husband's coparceners propose to effect after his death or his entrance into a religious order, as the case may be. After that event and before the partition, the wife may have inherited stridhan property. If she has,such stridhan must fall within the rule of Narada enjoining the husband's coparceners to leave it to her undisturbed. And if Narada's text thus contemplates inheritance by her of has property as stridhan after her husband has entered a religious order, the conclusion follows that the wife of a disqualified man is entitled to inherit property notwithstanding his disqualification. It follows, we say, because a man who enters a religious order is, according to Hindu law, as much a disqualified person for the purposes of inheritance as an impotent person, an idiot, a blind man, a leper and so on; and if the wife of such a man can inherit, the wile of any other man, suffering from any of the other disabilities or defects causing disinherison, must be likewise held competent to inherit. No distinction is made between one kind of disqualification and another-all are alike in their legal effect on the person disqualified.

33. Having dealt with the question from the point of view of the Mitakshara, we turn now to Nilakantha's treatment of it in the Vyavahara Mayukha, which, shortly stated, is as follows. He first quotes the texts prescribing the different grounds of exclusion from inheritance; he then quotes the texts which preserve the right of inheritance to the aurasa or the kshetroja son of a disqualified Hindu; and, lastly, he quotes the texts of Yajnavalkya which provide that the unmarried daughter and the virtuous but sonless wife of a disqualified person are each entitled to maintenance. This last quotation is prefaced by Nilakantha as follows :-

Yajnavalkya delivers a special rule concerning the daughters and wives of these.' [Vyavahara Mayukha; Chapter IV, Section XI, plac. 12: Stokes's Hindu Law Books, p. 110].

34. The rule embodied in the two texts in question is described by Nilakantha as a special rule. The original word for ' special rule' is vishesham, which means something in addition to the general rule. Now, the general rule with reference to disqualified persons is that they cannot inherit but can only get maintenance; and the special rule is that whoever inherits the property which the disqualified person would have inherited, had he been qualified, should maintain not only him but also his unmarried daughters and wife. The special rule, therefore, is an additional provision for the benefit of the daughters and the wife of a disqualified person, conferring a special right of maintenance upon them, because had the disqualified person been entitled to inherit; the property would have been a source of their maintenance. Had Nilakantha construed the general rule as implying that the wife also of a disqualified Hindu becomes disqualified by reason of his disqualification and the text providing maintenance for her as providing it in lieu of herright to inherit' he would have prefaced that text with the remark that it is a corollary to the general rule, involving the same consequent instead of describing it as a special rule, not at all implied by or flowing out of the general.

35. The idea conveyed by the text being a special rule is this When a man is held incompetent to inherit property on account of a certain defect, it is natural that the law should compensate him for the loss of the right of inheritance by giving him the right of maintenance out of that property. But that compensation does not adequately meet the hardship entailed upon him by the loss of the right of inheritance. His unmarried daughters and his wife are dependent upon him for their maintenance; and, therefore, to do him complete justice, a special or additional provision, says Nilakantha in effect, is made for their maintenance. Prom Nilakantha's treatment of the question, therefore, we arrive at the same conclusion as that yielded byVijnaneshwara's treatment of it. Both deal with the text in the light of an enabling, not a disqualifying clause.

36. If the disqualification of a husband disqualifies his wife, though she is herself free from the disqualifying defects, every wife, whether she has sons or not, ought to be subject to the disqualification on that account. But if the argument of the learned pleader for the appellant in this case, based on the 4th text of Yajnavalkya, is sound, it is only the wives having no sons who must be held to share the disqualification of their husbands, because the text refers in terms to them only and not to wives who have sons. Why should a distinction have been made between the two descriptions of wives 1 If it be objected that no distinction is intended by the text in point of disinherison but that it is made only in point of prevision by way of maintenance, because a wife, having a son, being entitled under the general Hindu law to maintenance from the son, does not stand in need of it, the objection is not a sufficient answer to certain crucial questions. In the text must be construed like the first text as substituting the right of maintenance for the higher rights of inheritance impliedly taken away from the sonless wife on account of her husband's disqualification, why is not the same substituted right accorded to his wife having a son, when the husband is given that right, whether he has sons or not? It is no answer to that to say that it is because she can get maintenance from, her son. Equally is the son bound, under the general.

37. Hindu law, to maintain his father-it is one and the game text of Manu which says that a son is bound to maintain his father as much as his mother.

38. On the other hand, on our construction of the text that it is merely enabling, not disqualifying in its operation, the distinction made between a sonless wife and a wife having a son in point of maintenance on account of the husband's disqualification is satisfactorily explained.

39. The right of maintenance accorded to the husband by the first text is, as it is plainly expressed to be,' a substituted right for the right; of inheritance of which he is deprived. Being in fact carved out of the latter right, it arises independently of the question whether he has a son or not to maintain him. But the right of maintenance dealt with in the fourth text is made dependent on the question of son or no son, because, it has nothing to do with the wife's disinherison or disqualification but is intended as a special provision by way of bounty to save her from destitution consequent upon the husband's disinherison on the one hand and the absence of a son to maintain her on the other.

40. Again, if the fourth text is a disqualifying clause, it affects only a wife having no son. What becomes then of a wife having a son? Is she also similarly disqualified or not? If she is, where is the text which says so? Not this fourth text, because it speaks only of ' sonless wives;' nor is there any other. A wife having a son must then be pronounced exempt from disqualification. That reduces the text to an absurd anomaly, for which there is no conceivable reason or justification in Hindu law.

41. So far we have dealt with the 1st branch of the second point made by the learned pleader of the appellant in support of this second appeal. The second branch of the same point is that the wife of a disqualified Hindu is affected by his disability, at all events to the limited extent of becoming incompetent to inherit the property of a deceased person, if she claims the inheritance as his heir through her husband.

42. For instance, in the present case the respondent claims to inherit the property of Dashrath as his gotraja sapinda through her deceased husband, Govind, who was Dashrath's half brother's son. And it is maintained for the appellant that, the capacity of gotraja sapinda having devolved on the respondent through her husband, his disqualification attaches to her and deprives her of the right to inherit.

43. That is, she can inherit to her father as his daughter, to her brother as sister; but she cannot claim to inherit to any one through her husband. The texts on the subject of exclusion from inheritance contain nothing, express or implied, to warrant the inference of such a partial disqualification. The disqualification mentioned in the first and leading text is general and absolute. If the husband is disqualified on account of any of the defects specified in it, he becomes incompetent to inherit in every capacity, whether as son, father, brother, and so on. And if his disqualification extends to his wife, it must have the same effect in her case too, in the absence of anything in the text relating to her to render that effect narrower. No doubt in some particular cases partial disqualification is enjoined by Hindu law. Forinstance, an unchaste widow cannot inherit to her husband, though she can inherit to her father as daughter, or to her brother as sister. In the case of an unchaste widow, the law is declared in express texts and not left to implication; and as to her capacity to inherit as a daughter etc., in spite of her unchastity, the law is of modern growth, because, according to the strict Hindu law, unchastity, being either a vice or resulting in excommunication, rendered a woman incompetent to inherit in any and every capacity. But there is no text which declares that a woman becomes incompetent to inherit on account of the disqualification of her husband in cases where the inheritance is claimed by her through her husband.

44. There is a fallacy, besides, in the argument based on the fact of a woman claiming inheritance through her husband as a gotraja sapinda of a deceased person. It is no doubt because she is the husband's wife that she becomes a gotraja sapinda of the deceased. In other words, her status as wife is the cause of her status as gotraja sapinda. The former is the cause; the latter is the effect. They are what a Hindu lawyer, borrowing the language of the Naiyayikas (Hindu logicians), would call karana and karya respectively. But a cause and its effects are not necessarily the same in Hindu law. To take the familiar case of an earthen jar, so often given in the books to illustrate the principle, the earth of which the jar is made is the cause, the jar is the effect; but the jar is regardednevertheless as being substantially different from the earth. Similarly, the fact of a woman being the wife of a certain man is the cause of her being a gotraja sapinda of her husband's brother or the like; butnevertheless the sapindaship is an entity by itself, distinct from, though arising out of the cause. And it is the sapindaship which is the immediate cause of her heirship. And the Hindu law, like the English, does not, generally speaking, ' consider the causes of causes and their impulsions of one another.'

45. Lastly, the learned pleader for the appellant appealed to 'public policy' in support of his case. He urges that it is contrary to justice, equity, and good conscience that the widow of a murderer should be allowed to inherit property which the murderer himself was disqualified from inheriting. But Bombay Regulation III of 1827, by which we are bound to apply Hindu law to Hindus, says that English law directed by the principles of ' justice, equity and good conscience' should be resorted to only when the Hindu law is silent. And even if it were silent on the question under discussion, '' public policy is always an unsafe and treacherous ground for a legal decision' (Janson v. Driefontein Consolidated Mines Co. Ltd. [1902] A.C. 484, and we do not see why we should hold that the wife of a murderer is incompetent to inherit property under the circumstances proved in the present case.

46. The conclusion of law at which we have arrived is indeed contrary to the interpretation placed by Shri Krishna Tarkalancara in his Daya Krama Samgraha on Yajnyavalkya's text relating to the wives of disqualified persons. (See plac. 17, Stokes's Hindu Law Books, p. 501). But there is no discussion of the question and no reason is given for the interpretation by the learned author. The Daya Krama Sangraha being a commentary on the Dayabhaga, cannot be regarded as an authority in the interpretation of the Mitakshara; and from what we have said in the foregoing part of this judgment in support of our conclusion it will have been observed that we proceed upon not only the language of each of Yajnyavalkya's texts on the subject of exclusion from inheritance but also on the language employed by Vijnaneshwara in the Mitakshara and by Nilakantha in the Vyavahara Mayukha either in introducing some of those text-or explaining their proper scope and effect.

47. We hold, then, that the wife or widow of a disqualified Hindu does not become incapable of inheriting property merely by reason of her husband's disqualification, whether she claims an heir to a deceased person through her husband or otherwise, if the is herself free from any of the defects which exclude a person from inheritance under the Hindu law.

48. That being our conclusion on the second point argued before us, it is unnecessary to decide the first point. The decree must, therefore, be confirmed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //