1. The question involved in this second appeal is as to the quantum of the share which a widow takes when a daughter is postponed to the paternal uncle by Section 2 of Bombay Act V of 1886.
2. One Mahmulal died leaving his widow, defendant No. 1, the plaintiff, his paternal uncle, and a daughter Duranbi. Both the Courts held that the widow, defendant No. 1, was entitled to one-eighth share and the paternal uncle was entitled to the seven-eighths as a residuary, the daughter Duranbi being postponed in the order of succession by Section 2 of Act V of 1886.
3. It is contended in second appeal that as the daughter is incapable of taking, she must be considered to be non-existent for the purposes of inheritance, and defendant No. 1 should be held entitled to one-fourth of the share of the inheritance and the plaintiff to three-fourths share. The learned Assistant Judge in appeal held that the widow was entitled to one-eighth share on the ground that she had a daughter in existence, and further relied upon the principle of Mahomedan law that a person though excluded from inheritance may exclude others wholly or partially and relied upon Mulla's Principles of Mahomedan Law, page 35, and further held that under Section 2 of Act V of 1886 the daughter as a female heir is not absolutely excluded but is merely postponed in the order of succession till all the male heirs are exhausted.
4. The general principle relied on by the learned Assistant Judge is stated at page 35, Mulla's Principles of Mahomedan Law. While discussing the share of the mother in competition with the father and two sisters it is stated that when there is in existence only the mother and the father, the mother takes one-third and the father takes two-thirds as the residuary; but when there is a mother, two sisters and the father, the mother takes one-sixth because there are two sisters and the two sisters are excluded by the father, and the father, therefore, takes five-sixths as residuary, and in the last mentioned case the two sisters, though they do not inherit at all, affect the share of the mother and prevent her from taking one-third, and this is said to proceed on the principle that a person though excluded from inheritance may exclude others. This is based on Sirajiyyah 28. It is urged on behalf of the appellant that this is a solitary instance, and the special rule based on special circumstances cannot be extended so as to prevail under all circumstance, and cannot be applied as a general rule. The same principle, however, applies in two other instances mentioned in paras. (g) and (q) at pages 36 and 37 of Mulla's Mahomedan Law. When there is in existence the mother, sister and father, the mother takes one-third and the sister is excluded by the father and the father takes two-thirds as residuary, but if there is the mother, a brother, a sister and the father, the mother takes one-sixth because there is a brother and also a sister and the brother and sister are excluded by the father and the father takes five-sixths as residuary. The mother takes one-sixth and not one-third when there are two or more brothers or two or more sisters or one brother and one sister or two or more brothers and sisters, the brother and sister, though they are excluded from inheritance by the father, prevent the mother from taking the larger share one-third. Similarly, when there is a father's mother, mother's mother's mother and father's father, the father's mother takes one-sixth, the mother's mother's mother is excluded by the father's mother and the father's father takes five-sixths as residuary, but when there is in existence the father's mother, mother's mother's mother and father, the father's mother is excluded by the father and the mother's mother is excluded by the father's mother and the father takes the whole as residuary. Thus, the father's mother, though she is excluded by the father, excludes the mother's mother's mother, and this is said to proceed on the rule that one who is excluded may himself exclude the others wholly or partially. This principle is said to be based on Sirajiyyah 28.
5. It appears, however, that besides the three specific instances mentioned above, the principle which is stated to be a general principle is not shown to apply, and we are not satisfied on the materials placed before us that it is a general rule applicable in all circumstances. It is a special rule obtaining in three special circumstances and cannot be extended to other circumstances. This rule is said to be a general rule in Rumsey's Mahomedan Law of Inheritance at page 127, and the illustration of the true grandmothers is specified and the case of two brothers, though themselves excluded by the father, is also specified as making the mother to take one-sixth instead of one-third. But it appears that a person incapable of inheriting cannot, in the opinion of the author of Sirajiyyah, exclude another or even cause him to take a smaller share. Thus, a son who is an infidel will not exclude a brother who is a believer though he would exclude him if both were believers. Apart from the contrary opinion of Ibnu Masuud, it is clear from the opinion of the author of the Sirajiyyah that the person who though himself excluded excludes another, must not be incapable of inheriting. See also translation of Al Sirajiyyah, Vol. VIII, Sir William Jone's works, page 226, where it is observed that 'a person incapable of inheriting doth not exclude any one at least in our opinion'. Though by Section 2 of Act V of 1886, the daughter is postponed in the order of succession to the paternal uncle, she is for all practical purposes excluded and is incapable of inheriting. The paternal uncle after he takes away his residuary share will be a fresh stock of descent and the daughter will never be able to inherit to the uncle. In the absence of any other male person the daughter would have been entitled to succeed according to the decision in Rahimkhan v. Fatu Bibi ILR (1895) 21 Bom. 118, but as she has been postponed in the order of succession to the paternal uncle, she is for all practical purposes in the present case excluded from inheritance.
6. The Sirajiyyah states four grounds for exclusion from inheritance, namely, (1) homicide, (2) slavery, (3) difference of religion, and (4) difference of allegiance. The two impediments to inheritance, namely, slavery and difference of religion or apostasy, have been removed by statute, slavery being abolished by Act V of 1843, and apostasy or change of religion ceasing to be a ground for exclusion of inheritance by the provisions of Act XXI of 1850. If the impediments to inheritance prescribed by Mahomedan law can be removed by statute, they can also be created by statute, and Section 2 of Act V of 1886, though in terms does not exclude the female heir absolutely and postpones her in the order of succession, practically creates an impediment to inheritance. If the daughter is incapable of inheriting on account of the impediment created by statute, it would not be reasonable to reduce the share of the widow from one-fourth to one-eighth.
7. The widow would get one-fourth in the absence of any issue, but the share is reduced to one-eighth when she has a child or a child by a son how low soever. When there is no son and when there is one daughter she takes half and if there are two or more daughters they collectively take two-thirds, but with the son the daughter or daughters become residuaries, the son taking double the share of the daughter. The reason of the rule reducing the share of the widow from one-fourth to one-eighth appears to be to make provision for her children and is not intended to benefit a residuary other than the son and daughter. The reason of the rule would not apply in the present case where the daughter is incapable of taking and the paternal uncle will have the benefit of a larger share. I think, therefore, that the daughter being incapable of inheriting, the widow's share cannot be reduced from one-fourth to one-eighth.
8. In apportioning the inheritance of Mahmulal, we have to ascertain the heirs of Mahmulal who are capable of inheriting. The only persons who are capable of inheriting are the widow and the paternal uncle. The widow is not postponed in the order of succession though a female, but will only take a life-estate according to Section 2 of Act V of 1886. The daughter is not capable of inheriting and is not one of the heirs competent to inherit. Under these circumstances, the inheritance will have to be divided between the widow and the paternal uncle, and there is no reason why the widow should not get one-fourth of the inheritance and the paternal uncle the remaining three-fourths.
9. I would, therefore, vary the decree of the lower Court by awarding the plaintiff three-fourths share of the four lands, survey Nos. 239, pot No. 2, 322, 379 and 307 of Karoshi on partition with defendant No. 1, and defendant No. 1 to get possession of one-twelfth of the two lands, survey Nos. 387 and 585 on partition with the plaintiff. In other respects the decree will be confirmed. The appellant will be entitled to her costs of this appeal.
10. This is a second appeal from the decree of the Assistant Judge, Belgaum, confirming the decree of the Subordinate Judge, Chikodi, in original suit No. 248 of 1926. That was a suit for partition and possession of a share of the estate of one Mahmulal who died on February 22, 1917. The plaintiff Aba is the brother of Mahmulal's father. The defendant-appellant is Mahmulal's widow. The property in suit is patilki watan, Mahmulal's heirs were the defendant, a daughter named Duranbi, and his uncle the plaintiff. Duranbi being excluded under Section 2 of Act V of 1886, the plaintiff has been awarded seven-eighths of the estate and the defendant one-eighth. In appeal she claims one-fourth.
11. In the ordinary way, apart from Section 2 of Act V of 1886, the defendant would get one-eighth, Duranbi half, and the plaintiff the residue, i.e., three-eighths. If there had been no child, the defendant would have got one quarter and the plaintiff three quarters. Although the daughter Duraubi takes no share at all, the lower Courts have allowed the defendant one-eighth share only. The Assistant Judge has relied on the so-called principle that a person, though excluded from inheritance, may exclude others wholly or partially, He has cited a note in Mulla's Principles of Mahomedan Law, page 35, where the learned commentator has referred to a passage in the Sirajiyyah, We have looked at the chapter on Exclusion in the Sirajiyyah and do not find that any general principle of the kind is laid down. There are certain particular cases in which heirs are excluded or have their shares reduced by reason of the existence of other heirs who take no share being themselves excluded by nearer heirs. One such instance, the only one specified in the Sirajiyyah, is where the heirs are mother, two sisters and father. The sisters take no share being excluded by the father, and yet the mother's share is reduced from one-third to one-sixth by reason of the existence of the two sisters. (The same is the case if instead of two sisters there are two brothers or a brother and a sister.) This, however, is an anomalous case which can be explained on special grounds. See Tyabji's Principles of Mahomedan Law, pages 851 and 852. No general rule can be based upon it. Two other instances have been referred to by my learned brother, but there also there is nothing which would require us to hold on principle that the share of the widow should be reduced in the case before us.
12. The real difficulty arises from the ordinary rule as to the share of a widow, that she takes one-fourth if there are no children, but one-eighth if there is a child or children. But here the law has to be applied with a statutory limitation which alters the conditions under which it operates, and must, therefore, affect the principles on which it is based, One of those principles is that there are certain persons who have claims on the estate and the shares are adjusted so that as far as possible the claims of all those persons may be satisfied. The widow's share of one-fourth is reduced to one-eighth when there is a child or children, because if she takes one-fourth there may not be enough for the children, If the only child is a daughter who can take nothing, as in this case, the reason for the reduction disappears. When a statute intervenes and provides that the daughter shall take no share until all male heirs are exhausted, the Mahomedan law cannot be applied strictly. We must look to the spirit and not the letter of it, and decide according to justice, equity and good conscience. As their Lordships of the Privy Council have pointed out in Hamira Bibi v. Zubaida Bibi ILR (1916) All. 581, 18 Bom. L.R. 999, the rules of equity and equitable considerations commonly recognized in the Courts of Chancery in England are not foreign to the Mussalman system, but are in fact often referred to and invoked in the adjudication of cases.
13. Moreover, the Mahomedan law itself furnishes a principle which without unreasonable extension may be applied here. Certain persons are excluded from inheritance on the ground of incapacity, e.g., infidels, homicides and slaves. The legislature has removed some of the grounds of exclusion, such as apostasy and slavery, and it can presumably impose fresh ones, as it has done in effect by Section 2 of Act V of 1886 so far as some females in watan families are concerned. The important thing to notice is that persons excluded from inheritance on the ground of incapacity do not exclude others. So far as the other heirs are concerned they are as if they were dead. See Rumsey's Sirajiyyah, 27 and 28. It has been argued that female heirs are not excluded from inheritance or rendered incapable of inheriting by Section 2 of the Act of 1886 but merely postponed in the order of succession to other male members of the family qualified to inherit. But though this distinction may be important for some purposes, it appears to me to have no real substance when applied to the facts of a case like the present, To say that if there happened to be no male heir in the family the daughter would inherit is to say no more than that she would inherit if the bar did not operate. But what we have to decide is what is the effect of the bar when it does operate, and, as I understand the matter, the effect here is tantamount to complete exclusion. The share which the paternal uncle now takes becomes his property and ceases to form any part of the estate of Mahmulal, As regards the succession to it, therefore, on the death of the plaintiff, Mahmulal's daughter would come in among the distant kindred, and would be a somewhat remote member even of that class. Moreover, if there was any male member of the family, even more remote, he would under the statute be preferred to her. As the widow takes only a life interest, her share would form part of the estate of her husband, and in certain circumstances the daughter might ultimately succeed to it after the death of the widow, if all the male heirs were exhausted But this remote possibility of the daughter succeeding to the widow's share after the death of the latter seems to be no reason whatever for reducing the share which the widow takes for her lifetime.
14. It was also urged that Duranbi would take her share in any lands belonging to the family which are not watan lands, and that that ought to make a difference in dealing with the widow's share in the latter. But I do not see why it should. Besides the decree has been made to apply to some property of Mahmulal besides that included in the plaint, and it does not appear as a matter of fact that there is any other property of his at all in which the daughter has a share.
15. I agree with the order proposed by my learned brother.