Aikman and Burkitt, JJ.
1. This is an appeal brought by the defendant to a suit instituted by the plaintiffs-respondents to recover possession of landed property of considerable value together with mesne profits, and for invalidation of a deed of gift, dated the 8th October 1882, executed in favour of the defendant by one Musauimat Dilla Kunwari. According to the plaint Dilla Kunwari had only a life interest in the property. She died on the 25th September 1895, and the plaintiff's case is that with her death any interest which her donee, the defendant, had in the property, determined.
2. The property in suit at one time belonged to Bhawani Dayal and Basant Lal, two brothers, members of a joint Hindu family. Bhawani Dayal died in 1851, leaving him surviving two widows, Kishen Kunwari and Dilla Kunwari, and a daughter by Kishen Kunwari named Jado Nath Kunwari. On Bhawani Dayal's death the property passed by right of survivorship to his brother Basant Lal, who died in 1859, leaving two widows, but no issue. These widows, who had entered into possession of the estate, both died in 1861. On their death the widows of Bhawani Dayal in some unexplained manner got possession of the estate in equal moieties, although it is admitted the title to it devolved on the nearest reversioners, Hanuman Prasad and Han want Prasad. The latter died in 1865, and his rights in the estate passed to his son Debi Prasad. On the 8th September 1866, Debi Prasad and his uncle Hanuman Prasad executed a deed of gift of the whole estate in favour of Musavnmat Jado Nath Kunwari, daughter of Bhawani Dayal. At that time Jado Nath's mother, Kishen Kunwari and Kishen Kunwari's co-widow Dilla Kunwari, were in possession in equal shares. Jado Nath's mother died in 1869, and Jado Nath then got possession of half of the estate. In 1870, Jado Nath Kunwari brought a suit against Dilla Kunwari and one Ram Manorath Lal, in whose favour Dilla Kunwari had executed a deed of gift to recover possession of the rest of the property. The Court of First Instance decreed Jado Nath's claim for possession of all the property save eleven villages. As to these the decree declared that Dilla Kunwari would remain in possession for her lifetime without power of alienation, On appeal this Court reversed the decree of the first Court so far as it decreed to the plaintiff possession of any part of the property, and dismissed the suit, but with the declaration that any transfer or alienation made by Dilla Kunwari to Ram Manorath Lal was not to take effect against the reversioners. The defendant-appellant, in whose favour Dilla Kunwari executed the second deed of gift which this suit seeks to invalidate, is the son of Ram Manorath Lal abovementioned. Jado Nath Kunwari died in 1879, and it is admitted that on her death her rights in the property in suit passed to her daughter Jagarnath Kunwari, who died on the 13th November 1896. The plaintiffs are the sons of Jagarnath Kunwari, and claim that the right to the property in suit devolved on them on their mother's death.
3. The lower Court decreed the plaintiff's claim, and against that decree the present appeal has been brought by defendant. For the appellant it is contended, in the first place, that the deed of gift executed by Hanuman Prasad and Debi Sahai in favour of Jado Nath Kunwari, plaintiff's predecessor in title, is bad as being the gift of merely a contingent interest. We are of opinion that there is no force in this plea, as the succession of the donors opened upon the death of Basant Lai's widows, and their interest then ceased to be contingent. It is next contended that Musammat Dilla Kunwari, through whom the appellant claims, had acquired by adverse possession a complete title to the property. We are of opinion that in the face of the judgment of this Court, dated 19th April 1871, a judgment in a suit between the predecessors in title of the parties before us, and of the subsequent judgment of this Court dated 4th July 1883, also a judgment inter partes, in which the effect of the decree of 1871 was considered, this is a position which cannot successfully be maintained, it having been clearly held in these judgments that Musammat Dilla Kunwari had only a life-interest in the property.
4. A third and more formidable objection taken by the defendant is that the plaintiffs are not competent to maintain the suit.
5. It is admitted that the property in suit, having been conveyed by gift to the plaintiff's grandmother Jado Nath Kunwari, became her stridhan, and was inherited by her daughter Jagarnath Kunwari, mother of the plaintiffs. If it was stridhan, in the hands of Jagarnath Kunwari it is admitted that the plaintiff's suit cannot succeed, as the property would in that case pass on Jagarnath Kunwari's death, not to the plaintiffs but to the plaintiff's sisters, who, it is admitted, are alive. The question then, which we have to consider, is whether the property in suit was Jagarnath's stridhan. This question, which is by no means free from difficulty, has been the subject of long and learned argument at the bar.
6. For the appellant the text of the Mitakshara, Chapter II, Section 11 2, which includes amongst woman'3 property property which a woman has acquired by inheritance, is relied on.
7. If the plain meaning which the words bear is to be given to this passage, there is no doubt that the appellant is entitled to succeed.
8. On the part of the respondents, reliance is placed on a passage in McNaghten's Principles and Precedents of Hindu Law (p. 38, 3rd edition), to the effect that stridhan which has once devolved according to the law of succession which governs the descent of this peculiar species of property, ceases to be ranked as such, and is ever afterwards governed by the ordinary rules of inheritance and on certain decisions of the Calcutta and Madras High Courts in which this view has been adopted and given effect to.
9. The Mitakshara, however, is the paramount authority which governs such questions in these provinces, and we are unable to find in it any warrant for the opinion expressed by Sir William McNaghten, who does not cite any authority for the view which he expresses. It is true that he says that 'in the Mitakshara whatever a woman may have acquired, wether by inheritance, purchase, partition, seizure or finding, is denominated woman's property, but it does not constitute her peculium.' But, as Messrs. West and Bhler have demonstrated (Hindu Law, 3rd edition, p. 146, etc.), no such distinction between stridhan and what Sir W. McNaghten calls a woman's peculium, was present to the mind of the author of the Mitakshara. As to this see also Banerjee's Hindu Law of Marriage and Stridhana, 2nd edition, p. 276.
10. The doctrine that stridhan which has once passed by inheritance ceases to be stridhan is apparently derived from the Daya Krama Sangraha of Sri Krishna Tarkalankara, This work is described by Mayne as 'very modern, its author having lived in the beginning of the last century.' It, like the Daya Bhaga, is of high authority in the Bengal School, but it has never, so far as we know, been recognized as of any authority in the Benares school.
11. Mayne, in his 'Hindu Law and Usage,' considers that the author of the Mitakshara included in the term stridhanum property which a woman has acquired in any way whatever. But he is of opinion that the special line of descent of such property set forth in Section 11 of the Mitakshara does not apply to property which a woman has inherited from a male, that having already been treated of in earlier sections. He is also of opinion that there is no reason why the author of the Mitakshara should not have included in the property for which in Section 11 he prescribes a special line of descent property inherited from a female.
12. he question whether, according to the Mitakshara, property inherited from a female should be subject to the special rules of descent governing stridhan has not formed the subject of judicial consideration, either in the Privy Council or in this Court. But, so far as can be gathered, the views of their Lordships of the Privy Council are quite consistent with the opinion expressed by Mayne. The cases of Thakoor Deyhee v. Rai Baluk Ram (1866) 11 Moo. I.A. 139, and Bhugwandeen Doobey v. Myna Baee (1867) 11 Moo. I.A. 487, dealt with property which a woman had inherited from her husband, and the case of Chotay Lall v. Chunno Lall (1876) L.R. 6 I.A. 15, with property inherited by a daughter from a father. A case in this Court, Phukar Singh, v. Ranjit Singh (1878) I.L.R. 1 All. 661, had to do with property inherited by a grandmother from her grandson. In all these cases it was held that the woman took only a restricted interest, and that on her death the property passed to the heirs of the last male owner.
13. In the case Muttu Vaduganadha Tevar v. Dora Sing ha Tevar (1881) I.L.R. 3 Mad. 290, it was contended that a zamindari property inherited by a daughter from her father was her stridhan, and passed to her heirs on her death; and reliance was placed on what is called the much-discussed passage in the Mitakshara, Chapter II, Section 11 2. As to this their Lordships of the Privy Council remark at p. 301 of the judgment: 'It is not necessary now to state in any detail how impossible it is, whether with, regard to other commentators or to other passages of the Mitakshara itself, to construe this passage as conferring upon a woman taking by inheritance from a male a stridhan estate transmissible to her own heirs.' As the text in the Mitakshara refers to acquisitions by inheritance in general, the insertion by their Lordships of the words 'from a male' in the passage above cited from their judgment is significant, and, as said above, is an indication that the views of the Privy Council are not inconsistent with the opinion expressed by Mr. Mayne.
14. In the Bombay Presidency, save in the case of a widow succeeding to her husband, it is held that property which a woman takes by inheritance is her stridhan, and passes to her heirs.
15. In this state of the authorities, and in the absence of any authority to the contrary, which is binding upon us, we arrive at the conclusion that the estate which the mother of the plaintiffs inherited from her mother was stridhan, governed by the special rules of devolution applicable to this species of property. The sisters of the plaintiffs therefore and not the plaintiffs are entitled to succeed to it. We accordingly sustain the first ground set forth in the memorandum of appeal, and holding chat the plaintiffs are not competent to maintain the suit, set aside the decree of the lower Court and dismiss the suit with costs in both Courts.