1. This second appeal has been filed by the plaintiff Mst. Dewala whose suit for possession against the defendants-respondents has failed in the Courts below.
2. The undisputed facts of the case are that the properties in suit (i.e. lands, a house and some moveables worth Rs. 600/- as detailed in the plaint) belonged to one Dasoda, who died on 10-7-1949, leaving behind three daughters --Mst. Dewala (appellant), Rupsir (respondent No. 1) and Mst. Tejia, mother of Jhitu (respondent No. 21. The plaintiff claimed to be entitled to one-half share in the suit properties and sued for joint possession to the extent of her share.
3. The respondent No. 2. Jhitu, did not. appear to contest the suit. The respondent No. 1, Mst. Rupsir, contested the claim on the ground that she was more indigent and unprovided for than the plaintiff and was, therefore, better entitled to inheritance to the properties of Mst. Dasoda than the plaintiff. She had also raised other pleas to resist the claim, but they are no longer pressed and need not be stated. The plea that the appellant being better provided for was excluded by the respondent No. 1 has prevailed in the Courts below and the suit has, therefore, been dismissed.
4. It appears from the finding of the trial Court that the appellant's husband, along with his five other brothers and father, owns a share in about 30 acres of family lands. His share would thus amount to about 3 or 4 acres in the family lands. This is also the finding of the lower appellate Court. As a finding of fact it has to bet accepted in second appeal. Further, the respondent No. 1's husband, who was living with Mst. Dasoda, has no property of his own.
5. The only question which now arises is whether on these facts the plaintiff should be supposed to be better provided for and should be excluded by the respondent No. 1 in accordance with the conception of Hindu law of inheritance which' provides that of two daughters the one who is unprovided for should exclude the other who is provided for. This principle was laid down as early as in 1878 in Smt. Uma Devi v. Gokoolanund Das Mahapatra, 5 Ind App 40 (PC). It was held in that case that an unprovided daughter excluded her richer sister. From the facts of the case the extent of property held by the competing daughters in that case is not clear, but that one of them was unprovided for seemed to be clear from the circumstances of the case.
In Parvatibai v. Maruti, AIR 1945 Bom 69 the same principle was applied to exclude one ofthe daughters from inheritance. In that case, the daughter who was excluded was found to hold tenancy lands assessed to a rental of Rs. 19/- and although the other sister held some lands, it was found that she was in indigent circumstances and was indebted. The findings in the case were that! the first sister was maintaining her livelihood mainly from the income of the land that she had, while the other sister had to work as a labourer to eke out a living. Under these circumstances, it was held that there was marked difference between their financial position.
6. The point came in for decision in Savitribai v. Sidu, ILR (1945) Nag 871 : (AIR 1946 Nag 108) in which it was observed that in judging the respective claims of the married daughters their pecuniary condition is not to be examined minutely so as to find out if there is any shade of difference in their financial circumstances but it is only to be Been whether there is any marked degree of difference in such conditions so as to give one daughter prior right of inheritance.
The test thus seems to be that the difference between the financial position of the two daughters should be so marked as to justfy the exclusion of one from inheritance. If the difference is merely nominal, there should be no exclusion and both the sisters should inherit equally. In that case, it was found that one sister had 40 acres of land, while the other sister had none. Under these circumstances, exclusion of the first sister was found justified.
7. Coming to the facts of the instant case as I have said, the only property which the plaintiff's husband possesses consists of three or four acres of land. It is well known that this small area would hardly be sufficient to maintain a family of two persons. It is in evidence that the plaintiff's husband and the plaintiff herself had to go out to Tatanagar to work as labourers to earn their living. If they were in affluent circumstances and could maintain themselves from the income of their fields, this would have been hardly necessary. Under these circumstances, it does not appear to me that there is any marked difference between the financial position of the two sisters.
At any rate, the difference is not so marked as to justify the plaintiff's exclusion from inheritance. The properties in dispute consist of 40 acres of land and a house,' besides some moveables. The total value as given in the suit is about Rs. 2300/-. The property held by the plaintiff (i.e. three acres of land) would hardly be worth Rs. 100/- or Rs. 200/-. It appears to me that the principle of exclusion has been wrongly applied by the Courts below to the facts of the case.
8. The next question is whether the plaintiff is entitled to a half share in the property or to one-third share only. As I have said Mst. Dasoda died on 10-7-1949, leaving behind three daughters: appellant Mst. Dewala, respondent No. 1 Mst. Rupsir and Mst. Tejia. Mst. Tejia died in 1950 leaving behind her son Jhitu, who was respondent No. 2 (since dead, and represented by his legal representatives). Shri R.K. Pandey, for the respondent No. 1, contends that Mst. Dewala has only one-third share in the property and that the share of Mst. Tejia, who died after Mst- Dasoda, passes to her son Jhitu. As stated above, Jhitu died during the pendency of the appeal here, and rone appeared to contest the claim on behalf of his legal representatives. However, it has to be decided whether Mst. Dewala is entitled to one-half share, as claimed by her, or to one-third share, as contended by the respondent No. 1.
9. It is common ground between the parties! that the property in suit was the stridhan property of Mst. Dasoda. Shri Pandey relies upon the observations in Mulla's Principles of Hindu Law (11th Edn.) in Section 159 wherein it has been stated that two or more stridhana heirs inheriting stridhana together take as tenants-in-common without benefit of survivorship. In the illustration given below the section it is stated that the two sons, who inherit the stridhana of a female Hindu, take as tenants in-common; and after the death of one of them, his share passes to his heirs, and not to the surviving brother. It will be noted that the illustration, given deals with the case of males and it is well known that under Hindu Law every male on his death forms a fresh stock of descent to property.
10. Shri J.V. Jakatdar, for the appellant, relies upon Sees. 168 and 169 in Mulla's Principles of Hindu Law. The law regarding the inheritance of stridhana by a female from a female is stated in those sections. Under the Benares School of Hindu Law 'a female inheriting property from a female takes only a limited estate in such property, and at her death the property passes not to her heirs, but to the next stridhana heir of the female from whom she inherited it'. It will thus be seen that on the death of the female, who had inherited the stridhana property, the property passes to the heirs of the female from whom she had inherited! it. In other words, on the death of Mst. Tejia, the property will pass to Mst. Dasoda's heirs, and not to her heirs, in the instant case. Accordingly, Mst. Dssoda's daughters, Mst. Dewala and Mst. Rup-sir, who are preferential heirs to Mst. Tejia's son Jhitu, will inherit the property.
11. The point was considered in Sheo Shankar Lal v. Debi Sahai, 30 Ind App 202 (PC). In that case, the stridhana property of Mst. jadonath passed to her daughter Mst. Jagaroath, and the question arose as to who would get the property after the death of Mst. Jagarnath. It was held that the property did not pass to the stridhana heirs of Mst. Jagarnath but to the heirs of Msi. Jadonath. That case was explained in Subramanian Ghetto v. Aranachelam Chetti, ILR 28 Mad 1 (FB) as laying down the law that 'on the death of a female inheriting stridhanam succession was to be traced again as from the last full owner and that the property de-volyed on that person who, at the death of the qualified owner, was the heir to the sridhauam of the full owner'. According to this view, the share held by Mst. Tejia passes to the heirs of Mst. Dasoda i.e. to the plaintiff Mst. Dewala and the res-pondent No. 1 Mst. Rupsir. Thus, the plaintiff has one-half share in the property left by Mst. Dasoda.
12. The plaintiff has also claimed a share in moveables worth Rs. 600/-. The defendant No. 1' did not specifically deny in the written statement that she was in possession of these moveables. It must, therefore, be assumed that she is possessed of these moveables. She is liable to pay Rs. 300/-to the plaintiff as her share of their value.
13. Accordingly, the appeal is allowed. Thedecree of the Courts below dismissing the suit isset aside. Instead, it is ordered that the respondentsdo place the appellant in joint possession of thelands and house in suit to the extent of her one-half share. Respondent No. 1 shall further pay Rs.300/- to the plaintiff (appellant) as her share in themoveable properties. The costs incurred by theplaintiff-appellant throughout shall be paid by therespondents. Copy of the decree be sent to the Collector for realization of court-fees.