1. The question to be decided in this appeal is a question of Hindu Law and arises under the following circumstances. The property in 'suit belonged originally to one Piare. Ha give it away absolutely to his daughter Mt. Sugna in whose hand therefore it was her stridhan property. Mt. Sugna had three sons viz., Durga Prasad, the husband of the plaintiff respondent and Jamna Das and Ganga Prasad, the defendants-appellants. The plaintiff-respondent claimed a third share in the property as being the separate property of Durgaprasad.
2. The defence was that Durga Prasad died as a member of a joint Hindu family with the defendants and therefore the plaintiff inherited nothing.
3. It has been found as a matter of fact that Durga Prasad and his two brothers ware living together as members of a joint Hindu family. The question is whether under the circumstances the share which Durga Prasad inherited was his absolute property inheritable by his widow on his death or whether Durga Prasad held the property as any other joint ancestral pro-party inherited from father which would go by survivorship to his brothers. The learned Judge of the lower Appellate Court has mentioned the authorities quoted before him and has come to the conclusion that the stridhan property of mother is inherited by the sons without any right of survivorship attaching to it.
4. Before the casa of Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu (1902) 25 Mad. 678 was decided by their Lordships of the Privy Council, there was no doubt in the proposition that property inherited from a maternal grandfather was inherited without any attachment of 6he right of survivorship to it. But their Lordships of the Privy Council ruled in the above mentioned case that where three joint brothers inherited their grandfather's property they took it with right of survivorship attaching to the property The question before ma is how far this principle can be applied to the case of the inheritance of the stridhan property of their mother by three brothers who lived jointly.
5. It seems to me that the expression 'ancestral property' has nowhere been so applied as to include property inherited from a female. The property inherited from Mt. Sugna is therefore not likely to be termed as 'ancestral.' Indeed, there is a direct decision on the point by the Madras High Court in the case of Karuppai Nachiar v. Sankaranarayyan Chetty (1904) 27 Mad. 300 (F.B.). This was a decision of five learned Judges and it was held there that 'When the stridhan property of a woman devolves on her sons, who, with their father, form an undivided Hindu family at the time of the mother's death, the sons take it as co-owners or tenants-in-common without benefit of survivorship.'
6. A similar decision was arrived at by two learned Judges of the Bombay High Court in the case of Bai Parson v. Bai Sowalu (1912) 36 Bom. 424. It is worth mentioning that the Privy Council case in Venkayyamma Garu v Venkataramanayyamma (1902) 25 Mad. 678 was cited and was present in the minds of their Lordships in both the cases.
7. It is a matter of some conjecture how far the case of Atar Singh v. Thakur Singh (1908) 35 Cal. 1039, decided by their Lordships of the Privy Council, modified or affected to the law as laid down in Venkayyamma Garu v. Venkataramanayyamma (1902) 25 Mad. 678. In this latter case, the property, as in the case in Venkayyamma Garu v. Venkataramanayyamma (1902) 25 Mad. 678 was inherited from maternal grandfather by one Dayal Singh. Dayal having transferred the property hi3 sons claimed that the property was ancestral in the hands of their father and sought to set aside the alienation. Their Lordships of the Privy Council remarked that it was for the sons to prove that the property was 'ancestral' in the hands of Dayal Siagh. It is, however, clear that the case in Venkayyamma v. Venkataramanayyamma (1902) 25 Mad. 678 does not directly govern the case before me and that there are at least two cases having the authorities of seven learned Judges of two different Courts which establish the proposition that in the circumstances of the present ease the property is taken by the heirs as tenants-in-common and not as joint tenants with right of survivorship.
8. In the circumstances. I dismiss the appeal with costs which will include counsels fees in this Court on the higher scale.