1. Certain property was given to one Sellayi by her father after her marriage. She died leaving a son and a daughter her surviving. Both the Courts below have held that the plaintiff who is the daughter of Sellayi was entitled to the inheritance to the exclusion of her brother.
2. The rule of succession for such a case is clearly stated in the Mitakshara. The author after mentioning the various sorts of woman's property recognized by Manu and others and referring particularly to gifts made after marriage, proceeds to discuss the distribution of such property. 'In all forms of marriage' he says 'if the woman leave progeny' that is, if 'she have issue, her property devolves on her daughter or her daughters.' Then he explains the matter further declaring that unmarried daughters are to take first, but on failure of them married daughters. He cites Gautama as an authority--'A woman's property goes to her daughter unmarried or unprovided.' Then he gives the exception from the rule 'But this is exclusive of the fee or gratuity.' For that goes to brothers of the whole blood, conformably with the text of Gautama: 'the sister's fee belongs to the uterine brothers after the death of the mother.' (Chapter II, Section 11, verse 14). In the woman's property governed by the general rule is included that which is bestowed after marriage. And thus if the authority of the Mitakshnra is to prevail, judgment has been rightly given in the plaintiff's favour whether or not the gift in this particular case is correctly denoted by the name Anvadheya.
3. Looking to the work of Yajnavalkya which forms the subject of Vignanesvara's commentary, we find ample foundation for the view taken by him. ' After the death of the parents, the sons should divide equally their wealth and debt. The daughters share the residue of their mother's property after the payment of her debts, and the issue succeed in their default.' (Verse 117, Mandlik's translation, page 214). And again 'The property of a childless woman married in the Brahma or any other of the four approved forms of marriage goes to her husband; in the remaining four forms of marriage, it goes to her parents. But if she leave issue, it will go to her daughters.' (Verse 145, Ib. p. 224). Among the Smriti writers there is further in support of the same view the text of Gautama already cited (Chapter XXVIII, verse 24, vol. 2, Sacred Books, page 302) and the text of Vishnu which runs as follows: Chapter XVII, verse 18, 'What has been given to a woman by her father, mother, sons, or brothers, what she has received before the sacrificial fire, what she receives on supersession, what has been given to her by her relatives, her fee (sulka) and a gift subsequent, are called woman's property (stridkana).' Verse 19, 'If a woman married according to one of the first four rites, beginning with the Brahma rite, dies without issue, that (stridhana) belongs to her husband.' Verse 20, ' If she has been married according to one of the other rites, her father shall take it.' Verse 21, 'If she dies leaving children, her wealth in every case goes to her daughter' and lastly Narada says: 'Let daughters divide their mother's wealth; or, on failure of daughters, their male issue.' Coming now to the other commentators whose treatises are current in Southern India, though not carrying the weight which is due to the Mitaksbara (Strange's Hindu Law, page 11) we find that it is only in the Smriti Chandrika that a view directly opposed to that already stated is put forward. According to the Sarasvathi Vilasa in which the subject is discussed at length it is to the daughters that woman's property is to go; and the same reason is given as is put forward in the Mitakshara (Chapter I, Section 10) 'because of the preponderance of the woman's members in the daughters' (Section 138). The exception in the case of sulka is recognized (Section 311; see Section 130, &c.;, Section 382). The same view seems to be taken in the Madhaviya so far as gifts from the father and his family are concerned. (See Section 10, page 10, Burnell's translations and Section 50). The text of Manu, 'On the mother's death let all the uterine brothers and sisters divide equally the maternal wealth' is explained to mean, not that sons and daughters jointly succeed, but that there is to be an equal division if the sons do succeed. A similar construction is put on the text in Sarasvati Vilasa (paragraph 310, page 62). Varadaraja's commentary is perhaps not quite BO clear. Dealing with the same text, after citing the text of Gautama and that of Yajnavalkya, he says with reference to the latter: 'In default of daughters, the descendants, (i.e.,) Sons should take it, such is the meaning'--and then cites Narada's text. Further he contrasts yautaka, that which is received by the mother from her family and which the daughters share, with stridhana received from her husband's family. As to this latter he says: 'The sons and daughters are equal because of their Sapindaship.' He draws the same distinction as Madhaviya between what is received from the husband's family and that received from her own family.
4. So much for the commentaries which have been translated. Dr. Jolly observes that the unpublished digests of the Mitakshara school agree more or less with the Mitakshara (Jolly's Tagore Lectures, page 268). In spite of this consensus of opinion it is argued upon us that we ought to follow the Smriti Chandrika and recognize the distinction which is there made between three classes of stridhanam. One class is that called ' yautaka ' property given by any one to the bride and bridegroom while seated together at a marriage or the like when unmarried daughters alone succeed. The second class includes what a woman has received after marriage (anvadheya) and what her lord may have given her through affection (Frithidatta). For that class the devolution is prescribed in Section 9 (Chapter IV, Verse III). Thirdly, there is maternal property not included in the above kinds which devolves on the daughters only in the first instance. According to the commentator it is to this class only that the text of Gautama applies. It is by no means clear that the property in the present case can be accurately called anvadheya--the doubt is as to whether the term includes property given by the father as well as property given by the father's family (verse 195, Chapter IV, Manu, and verse 5, Chapter IX, Section 1, G. Banorjee, page 278). We think we may pass by that question as also the. question whether Devanda Bhatta's interpretation of the text of Manu is or is not the correct one. It may be that his view represents a re-action against the admission of women to the enjoyment of proprietary right (see Jolly's Tagore Lectures, page 202). Certainly the Smriti Chandrika is far less favourable to women than the Mitakshara. And it was argued that because the Courts have refused to follow the latter in dealing with the case of property inherited by a woman, we should, therefore, give preference to the authority of the Smriti Chandrika in the present instance. The grounds, however, on which the cases deciding the point proceed (Bachiraju v. Venkatappadu, 2 M.H.C.R., 402 ; Sengamalathammal v. Velayuda Mudali, 3 Ib. 314 --other cases in Mayne's Hindu Law, Section 567) do not affect the general authority of the Mitakshara on the question of stridhan. They afford no reason why in the present instance in which the Mitakshara does not stand alone and unsupported, the views propounded in it should give way to those expressed in the Smriti Chandrika. A practical objection to the latter is that the adoption of them would complicate the law of inheritance and render the solution of many questions more difficult than would be the case if the Mitakshara were followed, for in dealing with anvadhaya and prithidutta, the author of Smriti Chandrika contents himself with stating how it should devolve in the first instance and makes no provision for the case in which there is a failure of sons as well as daughters (see Tagore Lectures, G. Banerjee, page 398;.
5. We have been unable to find any decided case in which the question has been expressly raised. In Bhujanga Rau v. Ramayamma, I.L.R. 7 M. 387 however, the point might have been, but was not, taken. There a village had been given by a husband to his wife as a mark of affection (Prithidatta) and on the death of the parents the question arose whether the daughter or the son in whose favour the mother had made a gift by will was entitled. Other questions were argued, but it was assumed that the daughter was the heir of her mother and the suit was decided in her favour. This was a case in which according to the Smriti Chandrika (Section 6, Lecture III, Chapter IX) the son and daughter should unquestionably have taken together because the property came within the second of the classes mentioned above.
6. We think the question has been rightly decided and, therefore, dismiss the appeal with costs.