1. The land in dispute formed part of the emoluments attached to the office of Maniem in a Government village.
2. The second defendant formerly held the office, but having been found guilty of embezzlement he was dismissed. The land was a few years afterwards enfranchised in favour of his wife, Ellammal, since deceased. With reference to the issue remitted for trial, viz., what right, if any, and under what circumstances the land was en. franchised in favour of Ellammal, the District Judge states in effect that the evidence does not enable him to do more than find that the enfranchisement took place because Ellammal was in possession of the land at the time.
3. The District Munsif gave a decree to the plaintiff, being of opinion that she, as the unmarried daughter of Ellammal, was her heir and entitled to the property. But the District Judge on the strength of an observation contained in Section 616 of Mnyne's Hindu Law, held that the property, though acquired by Ellammal, became on her death the second defendant's in his sole right and that the plaintiff had no title to it.
4. The chief authority relied on in support of the lower appellate Court's decision is a text of Kafyayana. As translated it runs thus: 'Wealth acquired by mechanical art or received through affection from any but the kindred is subject to the husband's dominion. The rest is stridhanam.'
5. Whether an acquisition such as that in the present case falls within either of the two classes mentioned in the text is open to doubt. For it can scarcely be said with any degree of accuracy that the land was acquired by mechanical arts or was received through affection entertained by the Government towards Ellammal. But it has been suggested that the text was intended to cover all acquisitions which are not stridhana in the technical sense of the term as understood by Smrithi writers. We propose, therefore, to deal with the present case on the supposition that it comes within the spirit of the rule laid down by the text.
6. The first question then that arises is, in whom is the ownership of property of the kind mentioned in the text--is it in both husband and wife or in which of the two ?
7. The language of the text may seem to vest the ownership in the husband. But it being well established that whatever may be the law intended to be laid down by the Smrithi writers, that law must be sought for in the writings of the commentators, we have to look to what those commentators, who are authorities in this part of India have said on the subject.
8. At the outset we may state that no commentator, known to us by name, has said that the ownership vests in both husband and wife. But Mr. Mayue, in the line of devolution pointed cut by him would seem to assume the joint ownership of both. In support of this, be refers to Jagannatha, 3, Digest 628. No doubt we find therein a statement that the property goes to the survivor and afterwards passes to his or her heirs. But Jagannatha simply mentions this as the opinion of certain lawyers. Who these are does not appear. Jagannatha's own opinion, as will be shown further on, would seem to be different. Under these circumstances it is not safe to assume the joint ownership so as to allow the survivor to take the property.
9. If the property does not belong to both, to whom then according to the commentators does it belong? First and foremost comes the Mitakshara. It is significant to note that Vignanesvara does not refer to the text at nll nor was it necessary, for him, in the view ho took of the subject of stridhanam, to refer to it. For according to him whatever is lawfully acquired in any manner by a woman married or not--is her stridhanam. The Smrithi Chandrika, however, does not seem to recognize property of the kind mentioned in the text as her stridhanam. (The translator of the work was evidently of that opinion). The Madhaviya and Varadaraja's Vyavahara Nirnayam cite the text but express no opinion on it. The Saraswathi Vilasa like the Mitakshara does not refer to the text and would seem to follow the Mitakshara. The author of the Vira-mitrodaya expressly recognizes such property as her stridhanam. For he says, 'The answer is, in the above texts ' (one of which is that in question) 'the denial is not of their being woman's* property but of its consequences such as distribution (by her choice amongst her heirs), &c.; Accordingly in the latter text' (the one in question) 'it is said therein the husband's ownership arises. The meaning is that the husband and not the woman has independence in dealing with such property.' (Golapchandar Sircar's translation, page 222). In this state of the authorities, when there is not such a consensus of opinion among the commentaries prevalent in this part of India as to suggest that the law of the Mitakshara on the point was not recognized or was departed from, it seems to us to be best to follow the Mitakshara. No doubt, judicial decisions have established that property inherited by a woman is, notwithstanding the opinion of Vignanesvara to the contrary, not stridhanam. But those decisions do not go the length of holding that Vignanesvara's doctrine as to stridhanam is otherwise unsustainable.
10. It is scarcely necessary to say that Vignanesvara's statement that stridhanam is to be understood in a technical sense was not a mere philological observation. By Jaying down that proposition, Vignanesvara and other great commentators, who followed him, succeeded in effecting a beneficial change in the archaic smrithi law and placed women almost on a footing of eqaulity with men as regards the capacity to hold property. It is on account of the boldness and reach of mind evinced by Vignanesvara, as pointed out by Messrs. West and Buhler Digest, page 291, 3rd Edition, in propounding his doctrine of stridhanam and his other theories that property is a matter of secular not of religious cognizance and sapindaship rests on consanguinity, that the Mitakshara has become the chief authority on Hindu Law. A departure from the law, laid down by such a high anthority, must not be made unless supported by adequate grounds. And as no such grounds exist, we hold that the property in the present case belonged to Ellammal and was her stridhanam descendible to her heirs. This conclusion is in accordance with that of Jagannatha who is relied upon by Mr. Mayne in support of his view. After referring to the opinion of certain lawyers as noticed above, Jagannatha says in the paragraph immediately following, 'But according to Jimuthavahana, Baghunandana and the rest, the wife is the sole owner of wealth acquired by her even during coverture: yet she has not independent power over it so long as her husband lives; for the negative in the text of Manu (Book III, Chapter I, verse 52) conveys the sense of imperfection. Consequently, they have no wealth exclusively their own and the imperfection of their property consists in the want of uncontrolled power. It must be, therefore, understood that the legal heirs of a woman's peculiar property succeed also to this wealth.' (Higginbotham's Edition, Vol. II, page 608. See Bannerjee's 'Marriage and Stridhanam,' page 319, 2nd Edition, also page 439).
11. The next question is who is the heir to the property? No special rule as to the devolution of the property comprised in the text of Katyayana is laid down in any of the commentaries. In this matter of the devolution of stridhana too, as in the comprehensive character of the definition of stridhanam, the superiority of the Mitakshara is evident. While the other commentators, in their attempt to reconcile the various smrithis, complicate the matter by prescribing different lines of devolution--those too not complete--according to the class of stridhanam to which the particular property belongs, the Mitakshara lays down rules which are easy of application, complete in themselves and on the whole equitable. We think, therefore, we ought to follow the Mitakshara and hold that the plaintiff is the heir.
12. It only remains to observe that though, as we have seen, a wife's earnings and gifts to her by strangers are her stridhanam despendible to her heirs, yet a question may arise whether her husband has any and what control over such property. That question, however, does not arise in this case and it is unnecessary to consider it.
13. The decree of the lower appellate Court is reversed and that of the District Munsif restored. The appellant's costs in this and in the lower appellate Court must be paid by the 1st defendant.