Norman Macleod, Kt., C.J.
1. The plaintiff, the Secretary of State for India, in Council, filed this suit to recover possession of the plaint houses with, mesne profits on the ground that they were the property of one Ishwarappa who died some five and twenty years ago leaving a widow. If the properties should be treated in the hands of the widow as the property of her husband, then on the death of the widow the properties would revert to her husband's heirs, and if her husband had no heirs, then no doubt the property Would escheat to the Crown. But it is admitted that ' these houses were built by the widow after the husband's death. And it would only in the event of the Court being able to hold with absolute certainty that these houses represented or were in substitution of a certain part of the husband's estate that they would revert on the widow's death to the husband's heirs.
2. The trial Judge held that these houses must be treated as belonging to the husband's estate, since on the evidence he came to the conclusion that the houses were built by the widow out or money inherited from her husband. But the evidence with regard to that is of an extremely flimsy character. It may be that Ishwarappa left a small amount of property. At the most it could not have been more than one or two buffaloes and Rs. 150 in cash. That is the evidence of Yellappa, the brother of Ishwarappa's widow Lobhi, who said that Ishwarappa left a house and garden which was sold by the widow. But I do not think that we can even rely upon the statement of that witness alone, or the evidence of the other witnesses for the plaintiff, for establishing this fact, that these houses which are now in dispute did represent the property left by the husband though altered in form by the widow. It may very well have happened that the widow built these houses out of the income of the property left by her husband or out of money earned by herself, in which case the houses would be her Stridhan. The defendants in the suit are in possession, and the j plaintiff suing to recover these houses as having escheated to the ' Crown on the death of Lobhi was bound to prove his title. I do not think he has proved that these houses were part of her husband's estate. We may refer to the decision of the Privy Council in Diwan Ran Bijai Bahadur Singh v. Indarpal Singh (1899) L.R. 26 IndAp 226, in which it was held that :
Where a plaintiff sues as next reversionary heir to a Hindu husband alter the death of his widows it lies upon him to show that the property in suit had vested in the husband. There is no presumption of law to that effect resulting from the husband's estate at his death being shown to be considerable and the widow's title not being shown to have otherwise accrued.
3. Then it was argued that even if these houses were the widow's Stridhan, still the plaintiff was entitled to succeed. Undoubtedly the marriage being in an approved form, the widow's Stridhan in the first instance would go to the heirs of her husband. The question is whether on the failure of the husband's heirs the Stridhan should go to the blood relations of the widow in preference to the Crown. The question was decided in favour of the widow's blood relations in Kanakuramal v. Ananthamathi Ammal I.L.R.(1912) Mad. 293. The learned Judges say at p. 295 :
Passing to the second point, it is argued on behalf of the appellant, that on failure of husband's sapindas qualified to succeed the line of succession is exhausted, and the property escheats to the state. This is a doctrine contrary to the general spirit of Hindu law of inheritance, and one to which we should be loth to give effect. It is unsupported by any text to which our attention has been drawn. No ruling has been quoted on either side, but Dr. Bannerji in his Hindu Law of Marriage and Stridhanam discusses the point, and comes to the conclusion that the widow's blood relations would, at any rate, succeed to the exclusion of the Crown.
4. The same view is deducible from a passage in West and Buhler at p. 540, and we agree with it. It seems to me that there could be no valid reason why the widow's blood relations should not succeed on the failure of the husband's heirs. The blood relations would only be a more remote set of heirs who would be entitled to succeed on failure of the first line of succession. I agree, therefore, with the decision to which 1 have just referred, as no authority has been cited which is in contradiction to it. I think, therefore, that the learned Judge was wrong in coming to the conclusion that the plaintiff was entitled to succeed. I think the plaintiff has failed to prove his title to these houses. Therefore the appeal must succeed and the suit must be dismissed with coats throughout.
5. I agree.