G.K. Misra, J.
1. Markand and Kumar were brothers. Bidyadhar and Kanhai (defendant No. 4) are sons of Markand. Defendants 2 and 3 are sons of Kumar. Bidyadhar died in 1954 leaving behind two daughters Dhubani (defendant 1) and Latabati (plaintiff). The suit is for partition of Una and Cha schedule-properties on the allegation that in a family partition by metes and bounds, these properties fell to the share of Bidyadhar and on his death both the daughters are entitled to inherit the same. It is unnecessary to give details of actual partition as the concurrent finding of fact of the Courts below, not assailed, in the second appeal, is that the suit properties fell to the share of Bidyadhar in a family partition by metes and bounds. The entire argument has been confined to the sole point whether defendant 1 alone is entitled to inherit the properties of Bidyadhar to the exclusion of the plaintiff. The trial Court found that there was no reliable evidence on either side to come to a definite conclusion as to whether the husband of the plaintiff is richer than the husband of defendant No. 1. The lower appellate Court reversed this finding and concluded that on a scrutiny of the evidence on record, there could he no doubt that the plaintiff was better provided for than defendant No. 1 and that defendant No. 1 alone was entitled to inherit the properties of Bidyadhar. Against the appellate decree the second appeal has been filed.
2. The Courts below are somewhat confused as to the correct position of law. Before the relevant law is examined, it would be pertinent to precisely record the finding which the learned advocates on both the sides accept, that at the time Bidyadhar died defendant 1's husband had one acre of land and used to work as a labourer while the plaintiff's husband had three and a half acre of land to his share in a large family. Though inflated cases had been advanced by both the parties alleging that the other party was very much affluent, such cases have not been established by any acceptable evidence. The question for consideration is whether on the aforesaid finding defendant No. 1 would exclude the plaintiff from inheritance.
3. A person pleading exclusion from inheritance must establish it and comparative status of the daughters must be examined on the date when succession opened. Plaintiff and defendant-1 are married. Law on the point has been very precisely summarised in Raghabacharia's Hindu Law, 5th Ed. At page 486. The passage may be profitably extracted.
'If all the daughters are married, though some of them are widowed, the daughters unprovided for 'exclude the daughters enriched'. If a marked difference is found in the financial position of the daughters, and one of them is in straitened circumstances, that is sufficient to bring her within the description of ' unprovided for' so as to give her precedence over her sister who is 'enriched'. The case has to be looked at from the point of view of comparative poverty of the respective daughters, and if one of them had married into a family of position and wealth and her surroundings are such that she should be regarded as a rich woman, this is sufficient to exclude her as against a daughter less favourably circumstanced, even though the 'poor' sister is not able to point out any definite acquisition of property, by the 'rich one.' This conclusion is based on a thorough discussion of the authorities, (5 Ind App 40 (PC), AIR 1946 Nag 108, AIR 1953 Bom 321 and AIR 1960 Madh Pra 35): Not a single decision had been brought to my notice taking a different view. AIR 1904 Orissa 140 also adopts the same view. The ultimate conclusions in different authorities, however, vary according to the facts and circumstances of each case.
Emphasis has been placed on the words 'APRATASTHITA or NlRSHAN ' (unprovided for, unsettled or indigent') in contradistinction to 'Pratishthita' or 'Swadhan' (provided for, settled or enrich). An elementary analysis of the aforesaid dictum would show that of two married daughters, if both are rich and well provided for, both are entitled to inheritance. If one of them is rich and the other is poor, the poor would exclude the rich. Only when both are poor, the difficulty arises. The differentia in such a case would be the comparative degree of poverty. To illustrate, one out of them had more means than the other, yet both cannot meet the two ends. Both must be entitled to inheritance. It is incumbent upon the courts, in the facts and circumstances of each case, to go into evidence and record a finding that the difference in their poverty is of such a nature that it is not merely one of degree but is one of kind and that the two can be put into two different classes so as to hold that as between them, one is unprovided for and the other is provided for. It is with this touchstone that the evidence must be tested.
4. On the finding recorded in this case, both the plaintiff and defendant-1 are poor. One has one acre of land while the other has three and a half acres of land. There is lack of evidence as to the respective income out of these properties and the difference in the quality of the lands. Without further material it cannot be said that there is a marked difference in their financial position and that the plaintiff is provided for, or enriched or free from wants. The conclusion is irresistible that both the plaintiff and defendant No. 1 are poor and unprovided for.
5. Much stress was placed by Mr. R. C. Misra on the ultimate conclusion in AIR 1964 Orissa 140, where his Lordship held that there was a marked difference in the financial position on the facts that the plaintiff had got three to four mans of land and was in occupation of her husband's house while her sister (defendant-3) had no landed property. It need hardly be said that the conclusion on a question of fact in a particular case can be no authority for a similar conclusion in another case. This would be manifest that almost on similar facts, as in the case before me, a learned single Judge held in AIR 1960 Madh Pra 35 that a case for exclusion was not established. The finding recorded in that case was that the appellant's husband along with five other brothers and father owned a share in about thirty acres of family land. His share was thus about three to four acres. Respondent No. 1's husband had no property of his own. The appeal was allowed on the finding that the difference was not so marked in the comparative poverty as to justify the plaintiff's exclusion from inheritance.
Each case must thus depend upon its own facts and circumstances and no hard and fast rule can be laid down; I am satisfied that on the finding recorded in this case, both plaintiff and defendant No. 1 are entitled to inheritance. Plaintiff's suit for partition of her eight-annas interest in Una and Cha schedule properties must be decreed.
6. In the result, the appeal succeeds. The judgment of the lower appellate Court is set aside and that of the trial Court restored.In the circumstances, parties to bear their owncosts throughout.