1. This is a second appeal by defendant 1, Bhagelu Singh, against a decree of the lower appellate Court, awarding the plaintiff, Mt. Murti Kun. war, possession of one-third share of certain immovable property. It is found as a fact by the lower appellate Court that one Bisheshar Singh died leaving immovable property, and on his death a dispute arose between his brother on the one side, Mahadeo Singh, and his four daughters on the other side. A somewhat strange compromise was entered into on 5th July 1912 by which Mahadeo Singh admitted the rights of the daughters and daughters' sons to the property, and apparently, therefore admitted that Bisheshar Singh died as a separated Hindu, but the compromise proceeded to give Mahadeo Singh a life-interest in the property by way of maintenance, and after him his widow or male issue was to hold the property, and only in case there was no male issue was the property to revert to daughters. This is certainly a most extraordinary compromise, because under it Mahadeo Singh got practically everything that he would have got if he had been joint with Bisheshar Singh.
2. The explanation is probably found in the fact that the daughters were at the time married, and apparently all were sufficiently well off to allow Mahadeo Singh to have this property for maintenance. Of the four daughters one Mt. Surati Kunwar is now dead, and the remaining three are alive, and all three have sons. On 27th April 1925 Mahadeo Singh executed a deed cf relinquishment in favour of defendants 1 and 2, who are sons of two of the daughters, and the deed of relinquishment was not in favour of any of the four sons of Mt. Murti Kunwar. Mt. Murti Kunwar has objected to this proceeding of Mahadeo Singh and has sued for possession of one-third of the property as one of the three remaining heirs of her father Bisheshar Singh. Both the lower Courts have proceeded to consider her claim as if it was a claim of one daughter contested by two other daughters. It is true that defendants 3 and 4 are the two remaining daughters, but they did not enter a written statement, and only their sons, defendants 1 and 2, have contested this suit. The lower appellate Court applying the doctrine of Hindu law as to the preference between a rich daughter and a poor daughter has considered that the plaintiff is not shown to be excluded by this rule, as on the facts she is not shown to be richer than her sisters.
3. The appellant before me, Bhagelu Singh, son of one of the daughters, contested this decree of the lower appellate Court on the following grounds: (1) because comparative poverty being the criterion to settle the claims of married daughters, the claim ought to have been dismissed; (2) because the test of comparison does not justify a minute investigation of the means of the daughters; and (3) because the lower Court should not have calculated the share of the daughters on partition. In referring to the doctrine of Hindu law, as shown in Gour's Hindu Code, Edn. 3, p. 1317, para. 2692, I find that it is stated that the grounds of preference between them inter se are that the unmarried excludes the married, the poor daughter the rich, and that the rule is to apply between daughters inter se and is not to apply between a daughter and a daughter's son. This has been further laid down in Dulari v. Moolchand  32 All. 314 where it is stated that the rich daughter was entitled to inherit a holding upon the death of her sister in preference to the son of a sister; the right of the rich daughter, which had accrued on the death of her father having been merely postponed during the lifetime of the indigent daughter.
4. In the present case the appellant is a daughter's son and he and his brother entered written statements that they were entitled to remain in possession. It is admitted by learned Counsel that Mahadeo Singh had no right to make a deed of relinquishment of 27th April 1925, and that therefore the compromise of 5th July 1912 was terminated by that action. Learned Counsel argued that his client had a right to remain in possession unless the plaintiff established that she had a right to possession. The plaintiff claims as the daughter of her deceased father. It is true that her sisters might have contested her claim on the grounds of alleged poverty, but they have not done so. I do not think that it is open to their sons to contest the claim of the plaintiff on these grounds, when it is admitted that their mothers are alive and in view of the doctrine that this particular claim of poverty is not a claim which can be set up by the son of a daughter.
5. Learned Counsel for the appellant argued that he might be considered to appeal in the representative capacity for all the defendants under Order 41, Rule 4. It appears to me very doubtful whether an appellant in second appeal could claim under that rule to represent a defendant who had never filed a written statement. But in any case the rule refers to a case where a decree appealed from proceeds on any ground common to all the defendants. In the present case there is not a ground common to all the defendants, because the male defendants were not entitled to raise the point of preference among the daughters inter se, and that point could only be raised by the female defendants. Accordingly I dismiss this second appeal with costs including counsel's fees in this Court on the higher scale.