1. This is a defendants' appeal against an appellate decree passed by Mr. Tirath Dass Sehgal, Senior Subordinate Judge, Karnal dated 2-1-1951, confirming the decree passed by the trial Court whereby the plaintiff's suit, was decreed. In order to understand the facts of this case, it is necessary to refer to the following pedigree-table:
| | | | | |
Bukha Prabhu Shibba Ban Singh (died Mathra Ghappu
| | childless) | |
Kishan Lal ________|________ Baru Partapa
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____________|__________ Amolak Ram Gobind Lal Mst. Kako (widow), Matu Ram
| | | |
Balak Ram Plaff. Mangal Ram Dina Nath Defdt. 1. Mst. Utml and Moorti (widow)
Matu Ram and Mst. Kako on 9-11-1916, mortgaged the property in suit for a sum of Rs. 3000/- in favour of Mukand Lal and Parma Nand. On 3-4-1917, Matu Ram sold his share and that of Mst. Kako in favour of Gokal Chand predecessor-in-interest of defendants 2to 4. Matu Ram died on the 8-12-1923 and Mst. Kako died in November 1924. Mst. Utmi and Mst. Moorti widows of Matu Ram sold their one-half share in the property in dispute to Dina Nath defendant No. 1, who filed a suit for redemption against Mukand Lal and Parma Nand, but his suit was dismissed. Defendants 2 to 4 then brought a suit for redemption against the heirs of Mukand Lal and Parma Nand and succeeded in getting the land redeemed. Thus defendants 2 to 4 became the mort-gagees of the property in suit.
2. Mangat Ram and Balak Ram, on 19-2-49, brought a suit for redemption in regard to theshare of Mst. Kako. The defendants pleaded that the plaintiffs had no right to redeem in the presence of the widows of Matu Ram. who were preferential heirs, but the suit was decreed and the first appeal against that decree was also dismissed and the defendants have come up in second appeal to this Court.
3. The sole point for decision in this case is as to who is a preferential heir to the estate of Mst. Kako's husband Baru, the widows of Matu Ram, who was the nearest reversioner or the plaintiffs Mangat Ram and Balak Ram, who are more distant collaterals than Matu Sam but claim to have preferential right tosucceed under Hindu Law to that of Mst. Utmi and Mst. Moorti.
4. According to the Mitakshara, the wives of 'sagotra sapindas' are included in the term 'gotrajah', but while the wives of ancestors are recognised by Mitakshara to be heirs, nothing is said about the wives of descendants and collaterals. It is not necessary to mention with regard to the widows of other 'sapindas'. The only question that we are concerned with is of the widow of the son of a 'first cousin on the paternal side. As stated by Mayne on Hindu Law, 11th edition, at page 605,
'logically there does not seem to be any insuperable objection why wives of descendants and collaterals within seven degrees should not come in after all the male 'sapindas' are exhausted and before the 'samanodakas' (Mit. II, v. 6). But the decisions of all the Courts, except in Bombay, have refused to recognise their rights.'
Thus widows of 'gotrajah sapindas' have been recognised only in Bombay and have not been recognised in any other part of India.
5. A widow can succeed to her husband's estate which is actually vested in him. It may be either in title or in possession at the time of his death. Again as stated by Mayne at page 606, she takes at once at his death, or not at all. No fresh right according to Hindu Law accrues to her as a widow on the subsequent death of some one to whom her husband would have succeeded if he had lived; See -- Balamma v. Pullayya', 18 Mad 168 (A). Acousin's widow has no right to succeed on the death of her husband's cousin. In -- 'Sooren-dronath Roy v. Mt. Heeramonee Burmoneah', 12 Moo Ind App 81 (B), it was held that according to the Mitakshara, a first cousin is entitled to succeed to the estate to the exclusion of his deceased cousin's childless widow. It has been held in cases of contest between the widow and some 'sapindas' and some other heirs that she does. not succeed on the general principle that she does not come within the line of heirs at all. In -- 'Gauri Sahai v. Rukho', 3 All 45 (C), it was held that according to the Mitakshara Law none but females expressly named can inherit and the widow of the paternal uncle of a deceased Hindu, not being so named, is therefore not entitled to succeed to his estate. The same rule was laid down in -- 'Ananda Bibee v. Nownit Lal', 9 Cal 315 (D), a case from Bihar, where it was held that under the Mitakshara a daughter-in-law, whose husband has predeceased his father, is not in the line of heirs of her father-in-law. This was before the Hindu Women's Rights to Property Act,
6. Under Hindu Law, there is a line of named heirs, who succeed one after the other and unlike other systems of law there is no representation in Hindu Law except in the case of a son, grandson and great-grandson and what has been engrafted into that law by the usages of this State as was laid down by a Bench of this Court in - 'Hem Raj v. Bawa Mathra Das', AIR 1952 Punj 197 (E), but that principle is not applicable to widows, who take on a different principle and that is that the 'patni' (wife) acquired from the moment of her marriage a right to everything that belongs to him so as to become a co-sharer. Sastri's Hindu Law, p. 370 (7th Edition), -- 'Jamna v. Machal Sahu', 2 All 315 (F); -- 'Sonatun Bysack v. Jaggut Soondree', 8 Moo Ind App 66 (PC) (G).
7. I would like to point out that the learned Senior Subordinate Judge has taken an erroneous view when he went into the question of inheritance by widows by right of representation. The theory on which a widow succeeds is not the right of representation, but because she was the partner of her husband during his life and is believed to become his partner in the next world. She is called 'ardhangi'. See p. 727 of Sastri's Hindu Law.
8. I am, therefore, of the opinion that theCourts below have rightly decreed the plaintiffs' suit and I would, therefore, dismiss thisappeal with costs throughout.Appeal dismissed.