1. This is a plaintiff's appeal arising out of a suit for recovery 6f possession. Both the Courts below have dismissed the claim.
2. The property in dispute belonged originally to one Kesri Mai alias Kesri Singh, who admittedly died some time before the Mutiny. On his death he left a widow Musammat Cheno and two daughters Musammat Durga and Musammat Cheno and also a sister's son Baijnath. Before his death Kesri Mai is said to have executed a document, dated the 28th of January 1838, the genuineness of which was challenged by the plaintiffs in the Court below. Both the Courts below, however, have found that this was a genuine document and that finding is a finding of a fact.
3. The terms of this document are admittedly very vague and ambiguous, we have had the original read over to us and there can be no doubt that the language of this document is at places ungrammatical and not quite clear. On the whole, however, I do Hot find it possible to differ from the interpretation put on it by the Courts below. What the lower Appellate Court has understood this document to mean is as follows: The testator made a bequest of his property in favour of four persons, his widow, his two daughters and his nephew Baijnath in four equal shares. There was a provision that in case any of the daughters had a son born he would get the property (of the two daughters). In case of there being no son born to the daughters that property would go to the nephew Baijnath and his heirs.
4. It is not disputed that on the death of Kesri Mai his widow did not take possession over any definite portion of this property but the entire estate was divided in the ratio of one third each between Bijnath and the two daughters. I may here mention that one of the arguments put forward before us was that it must be assumed that the widow Musammat Chunno had made a gift of her interest in favour of her daughters and Baijnath. As to this the learned Judge has remarked that there is no evidence in support of it and he has refrained from drawing this inference from the mere fact that there was no mutation of names in favour of Musammat Chunno. The case of a gift by Musammat Chunno not having been put forward in the pleadings we cannot make any such assumption in favour of the respondents. It may, therefore, be taken for granted that for some reason or other Musammat Chunno did not take possession of the one fourth estate to which she was entitled under the will. Musammat Chunno died shortly after Kesri Mai and on her death two-thirds share remained in possession of her daughters Musammat Chunno and Musammat Durga while the other one-third share remained in possession of Baijnath. Musammat Durga died some 40 years ago. During the life time of the two daughters a son named Bhagwa n Das was born to Musammat Chunno; and Harcharan Das whose widow, Musammat Sumarti Kunwar, is defendant No.1, was the son of this Bhagwan Das. In 1907 Musammat Chunno's son Bhagwan Das died. After his death Musammat Chunno exeeuted a deed of gift of the property which had remained in possession of herself and her deceased sister Musammat Durga, in favour of her grand-son Harcharan Das. Musammat Chandan Kunwar, the mother of Harcharan Das, acting as his guardian, then transferred this gifted property to Shib Charan Das, defendant No.3. On the other hand, Baijnath's grand-son Shib Charan and grand-daughter Musammat Lareti are said to to be in possession of the one-third share which he had got under the Will.
5. The plaintiffs' case was that the estate held by Musammat Chunno and after her death by her two daughters Musammat Durga and Musammat Chunno, was the estate of Hindu widows, which passed to the reversioners of Kesri Mai on the death of Musammat Chunno in 1907, and that the suit having been brought within 12 years of her death the claim was maintainable.
6. The plaintiffs, however, admitted that on the death of Musammat Chunno the two collaterals to whom succession opened were Sri Kishen and Mukh Earn. Sri Kishen has a daughter who is still alive. The property having been inherited by collateral succession it is clear that the plaintiffs cannot in any case succeed to the half share inherited by Sri Kishen so long as his daughter is alive. They would be only entitled to the one-half share which was inherited by Mukh Ram, their father. We may also add that the lower Appellate Court has found that Sri Kishen and Salig Ram were not members of a joint Hindu family but were separate. In this view it is quite clear that the plaintiffs' claim with regard to the one-half of the estate which ought to go, if at all, to Sri Kishen's daughter, cannot succeed.
7. Under the Will there can be no doubt that Baijnath got one-fourth of the estate. His grandson is now in possession of it. Is is impossible to see how the plaintiffs can ever succeed with regard to this share.
8. As regards the estate taken by the two daughters, there can be no doubt that before they died a son Bhagwan Das was born. Under the defeasance clause contained in the Will the interest of Mst. Durga and Mst. Chunno came to an end and the estate became vested in Bhagwan Das. On the death of Bhagwan Das his son Harcharan Das would be the owner of this property. The plaintiffs are, by no means, the heirs of Bhagwan Das. The claim with regard to the two shares must, therefore, also fail.
9. There remains the half of one-fourth share which ouget to have gone to Mst. Chunno. The first point which we have to consider is the nature of the estate taken by Mst. Chunno. It has been contended before us that she got only a limited estate, that is to say, a Hindu widow's estate under the Will and not an absolute estate. I am not prepared to accept this contention. When we find that Baijnath, one of the legatees, was given an absolute estate and that the two daughters also were given estates which were obviously antagonistic to the interest of Mst. Chunno, the natural inference would be that the nature of the estate given to Mst. Chunno was also the same. Having considered the language of the document I have come to the conclusion that the testator intended to confer an absolute estate on Mst. Chunno with respect to the one-fourth share in the estate.
10. This, however, does not dispose of the appeal. Assuming that Mst. Chunno got an absolute estate, this would be her stridhan which on her death would be inherited by her daughters Mst. Durga and Mst. Chunno. Although the daughters obtained possession during her lifetime yet it is clear that Mst. Chunno herself died within a few years of the death of her husband and even adverse possession against her has not been completed. The question we have then to consider is whether the estate taken by Mst. Durga and Mst. Chun1no from Chunno was such stridhan estate as could be disposed of by them freely or whether it was a limited estate of a Hindu daughter which, though subject to alienation under certain circumstances, would revert to the heirs of their mother after their deaths.
11. Dr. Sen on behalf of the respondents has', strongly urged that the estate taken by the two daughters was their absolute estate. He has argued that under the Hindu, Law there is a clear distinction between succession to property acquired before or at the time of the marriage and property acquired by a woman after her marriage, and he has urged that, so. far as the latter kind of property is concerned, it is inherited by sons and daughters jointly and they got the property as absolute owners and not only as limited owners. On the other hand, Mr. Banerji has relied on two cases of their Lordships of the Privy Council and a case decided recently by a Division Bench of this Court, and contended that, although the rule of succession may be different, nevertheless the nature of the estate taken by a female is always the same whether she inherits it from a male or a female. In the case of Sheo Shankar Lai v. Debi Sahai 25 A. 468 : 13 M.L.J. 330 : 5 Bom. L.R. 828 : 7 C.W.N. 831 : 80 I.A. 202 : 8 Sar. P.C.J. 465 (P.C.). their Lordships of the Privy Council held that on the death of the daughter who had inherited certain property from her mother and which was her mother's stridhan the property ought to go to her son in preference to her daughter. In the case of Sheo Partab Bahadur Singh v. The Allahabad Bank 25 A. 476 : 7 C.W.N. 840 : 23 M.L.J. 336 : 5 Bom. L.R. 833 : 30 I.A. 209 : 8 Sar. P.C.J. 535 (P.C.). their Lordships of the Privy Council remarked that under the Hindu Law of the Benares School there is no distinction, as to the nature of the estate taken, between property inherited by a woman from a male, and property inherited by her from a female. In both cases she takes it not absolutely as her stridhan, but for a qualified estate alienable only under the condition applicable to such an estate and with reverter after her death to the heirs of her predecessor -in-title.' The question has been recently considered by this Court in the case of Sham Behari Lai v. Earn Kali 25 A. 476 : 7 C.W.N. 840 : 23 M.L.J. 336 : 5 Bom. L.R. 833 : 30 I.A. 209 : 8 Sar. P.C.J. 535 (P.C.). In that case a Hindu lady owned certain stridhan property which after her death descended on her daughter. After the daughter's death there was competition between her daughter and a grandson of the original female owner. This High Court relying on the observation of their Lordships of the Privy Council in the last-mentioned case held that the estate held by the deceased daughter was a limited one which on her death would not go to her own heir but would go to the stridhan heir of her own deceased mother, who in that case was, the original female owner's grand-daughter, i.e., the deceased daughter's daughter. The point having been so recently considered we must accept it as laying down the correct rule of succession.
12. It follows, therefore, that on the death of Mst. Chunno her two daughters Mst. Durga and Mst. Chunno got a limited interest in the estate and not absolute rights. When Mst. Durga died her half share again went to Mst. Cunno either as the surviving sister or as the heir of Mst. Chunno. Mst. Chunno again held the estate as a limited owner and the nature of that estate continued as such till the 6th of October 1907 when she died. On her death Sri Kishun and Mukh Earn, being the nearest sapindas of the husband of Mst. Chunno, were the next heirs. There is no suggestion that any daughter's daughter or any other heir nearer than those sapindas was then alive. The deed of gift made by her in her life-time could, in no way, affect the interest; of the nearest reversioners to the estate. The present suit was brought within 12 years of Mst. Chunno's death. I am, therefore, of opinion that the plaintiff's claim with regard to a half share in the estate inherited by Mst. Durga and Mst. Chunno from Mst. Chunno must succeed, that is to say, the plaintiffs' claim with regard to the one-eighth share of the entire estate should be decreed, I may note here that item No.4 which was included in the list given in the plaint has been found by the Courts below not to have belonged to Kesri Mai and not to have been covered by his Will. The claim as regards this particular item will stand dismissed in toto.
13. This appeal relates to the property of one Kesri Mai alias Kesri Singh. He made a Will and disposed of the property in favour of four persons, namely, his widow, two daughters and his sister' son Baijnath. The Will has been found to be genuine. Its interpretation has caused some difficulty, but agreeing with my learned brother, I have came to the conclusion that it gave an absolute estate to all the four persons. There is a clause in the Will which may be interpreted as meaning this: 'On the death of any of the daughters without an issue her share would go to the remaining two persons, namely, the remaining daughter and the nephew or to the nephew and his descendants. As a matter of fact one of the daughters had a son Bhagwan Das. On his birth his mother's share would go to him. The other daughter died about 40 years ago and her share would go to her sister, and cousin Baijnath or to Baijnath's heirs. It follows that, in respect of the estate of three persons, namely, the two daughters and the nephew Baijnath, the reversioners to the estate of Kesri Singh cannot have any claim.
14. There remains now to consider the case of the estate of the widow. It appears that, on the death of the last daughter there were two persons entitled to the property of Kesri Singh, namely, Sri Kishen and Mukh Ram. Sri Kishen's daughter is alive and is not one of the plaintiffs in the suit. The plaintiffs are Mukh Ram's sons. Thus, the plaintiffs can claim only one-half of such property as may be called the property of Kesri Singh.
15. The property of the widow was inherited under the law by the two daughters. It appears that, although they got the property as a stridhan of their nother, they got only a life estate in the property. On the death of the last of the daughters the property would revert to the stridhan heirs of the widow and these would be the heirs of Kesri Singh himself. Thus one-half of the one-fourth share given to the widow would come to the plaintiffs. For, these reasons I agree to the order which has been proposed by my learned brother.
16. We allow this appeal and modify the decree of the court below to this extent that we dismiss the plaintiffs' claim with regard to item No.4, but we decree the claim for possession with regard to one-eighth share in the remaining properties as against the present defendants. The parties shall pay and receive costs in proportion to their respective failure and success throughout including, in this Court, fees on the higher scale.
17. As there has been no determination of the amount of the mesne profits to which plaintiffs would be entitled, we direct an enquiry to be made by the Court of first instance as to the exact amount of mesne profits to which the, plaintiffs are entitled for a period of three years prior to the suit. The amount of mesne profits payable to the plaintiffs under Clause (c) Ruler 12, Order XX, Civil Procedure Code will also be determined. The case for this purpose is remanded to the Court of first instance through the lower Appellate Court.