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Suraya Bhukta and anr. Vs. Lakshminarasamma and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1881)ILR5Mad291
AppellantSuraya Bhukta and anr.;lakshminarasamma and anr.
RespondentLakshminarasamma and ors.;jaganadham and ors.
Cases ReferredUmaid Bahadur v. Udoi Chand I.L.R.
Excerpt: declaring the order of succession up to gotrajas, places the grandmother for the like reasons as are given in the mitakshara immediately after brother's sons. 35. adverting to the text of katyayana-'the widow *or the daughters or, on failure of them, the father, or the mother, or the brother, or his sons 'the author observes 'the term 'sons 'means the sons of the brother alone, as that is the term immediately pre-ceding 'sons 'in the text. 55. although some portions of the estate alienated by jogamma have come to the hands of persons connected with her by marriage, we agree with the judge that the defendants established a prima facie case as to the necessity for the sales which the plaintiff's failed to rebut......plaintiffs in original suit no. 5, who are the appellants in regular appeal no. 75 are the great grandsons of kurmesam's father, that is to say, grandsons of kurmesam's brother. it is a question raised in these suits in whom the right of succession has vested.7. the suits are brought to recover the estate of kurmesam and to set aside alienations made by his widow and daughter-in-law. it is objected in appeal that both suits are barred by limitation, and to this question we shall first address ourselves. it is argued that the title of kurmesam's heir, whoever he may be, accrued on the death of jogomma, and that, inasmuch as that event preceded the institution of the suits by more than twelve years, the right of suit is barred, and it may be admitted this would have been the case in.....

1. These appeals are brought from the decrees of the District Court of Ganjam in Suits Nos. 4 and 5 of 1878 on the [292] file of that Court, and inasmuch as the matters in issue in both suits are the same, we shall dispose of the appeals in one judgment.

2. It appears that Kurmesam, whose heirs the plaintiffs claim to be, had adopted as his son Ramayya.

3. Ramayya died leaving a widow Lakshminarasamma, appellant in Regular Appeal No. 78, and it is admitted by the learned Counsel who appeared for the lady that he cannot resist the proof that Ramayya died in the lifetime of Kurmesam.

4. Kurmesam died in July 1853 leaving a widow Jogamma, who died on April 19th, 1866.

5. The plaintiffs in Original Suit No. 4 were respectively the grandsons and great grandson of the grandfather of Kurmesam, but Jaganatham has died since the institution of the suit and the surviving plaintiffs are the appellants in Regular Appeal No. 81 of 1879.

6. The plaintiffs in Original Suit No. 5, who are the appellants in Regular Appeal No. 75 are the great grandsons of Kurmesam's father, that is to say, grandsons of Kurmesam's brother. It is a question raised in these suits in whom the right of succession has vested.

7. The suits are brought to recover the estate of Kurmesam and to set aside alienations made by his widow and daughter-in-law. It is objected in appeal that both suits are barred by limitation, and to this question we shall first address ourselves. It is argued that the title of Kurmesam's heir, whoever he may be, accrued on the death of Jogomma, and that, inasmuch as that event preceded the institution of the suits by more than twelve years, the right of suit is barred, and it may be admitted this would have been the case in respect of the alienations made by Jogamma unless the plaintiffs can bring themselves within the provisions of the 5th Section of the Limitation Act.

8. It appears that the period of twelve years expired on the 20th April when the sittings of the Court were suspended for the vacation, but the offices of the Court were open on certain days, and amongst others on the 20th and 24th April for the presentation of plaints.

9. The suits would have been presented in time had they been lodged on the 20th April. In the register of the proceedings in [293] each suit, which is known as the B diary, the date of filing the plaint is in each case given as the 24th April.

10. In the margin of the plaint in Original Suit No. 5, there appears the figures 20-4-78, and 1229 originally written 1239.

11. It has been disclosed on an inquiry directed on the first hearing of the appeals that the figures 1239 were a clerical error for the figures 1229, that the group of figures, which is in the handwriting of the proper officer, represents the number in the general register of the Court, that 1239 is the number of a paper unconnected with the suit which was filed on the 20th July, and that the plaint was delivered to, and lodged with, the proper officer of the Court on the 20th April.

12. There is no longer room for doubt that Original Suit No. 5 was filed within time.

13. Greater suspicion attached to the Original Suit No. 4. At the time it was filed, it was supposed that Jogamma had died on April 22nd, 1866. This is the date entered in both plaints. The plaintiffs, therefore, considered it immaterial whether the plaint was filed on the 20th or 24th April.

14. The clerk, whose duty it was to receive plaints, has, however, deposed that the plaint was brought to him on the 20th, but that on finding it had not been signed by one of the plaintiff's who was reported to be ill, he returned it to the parties who presented it that the signature might be obtained; that, inasmuch as he understood it was important the plaint should be lodged on the 20th April, he kept the office open until 6 p.m., but that the plaint was not again returned until the 24th April. The Judge accepts the evidence of the clerk as reliable, and holds the presentation sufficient, and we are not prepared to dissent from him. We, therefore, find that neither suit was barred by limitation.

15. We proceed to consider, to whom did the right accrue to succeed to Kurmesam's estate on the death of Jogamma? On the difficult question as to the place in the order of succession, which is occupied by the brother's grandson, we have consulted our colleague Mr. Justice Muttusami Ayyar, and we desire to acknowledge our obligations to him for the great assistance he has rendered us.

16. The claim of the brother's grandson to priority of succession over the uncle's son has been supported by the following arguments : (a) that the term 'sons' in Mitakshara, Chapter II, Section 4, Section 7, and Section 5, Section 1 must be construed as including grandsons; (b) that the brother's grandson is a sapinda, and that no other place is assigned to him in the table of succession by Vijnaneswara; (c) that he is nearer by consanguinity than sapindas who are mentioned; and (d) that by the Hindu writers by whom he is expressly mentioned he is placed next in succession to the brother's son.

17. The argument that 'brother's sons' in the passages mentioned includes grandsons was originally employed by Mr. Harrington to sustain a contention which is now established by decision that the tables of gentiles and cognates given in the Mitakshara is not exhaustive, and that the sixth descendant of a sixth ascendant is entitled to succeed in preference to a mother's sister's son. The argument is not necessary to Mr. Harrington's conclusion, for the person whose claims he held should prevail would succeed as included in the class of gotraja sapindas. Its correctness has been disputed by Sanskrit scholars--see Mandlik's note on the Vyavahara Mayukha, p. 360--and it appears to us that it cannot be maintained. Where words have a primary and particular import and also a secondary and more extensive import, they are generally to be understood in their primary sense unless the context shows they were used in the more extensive sense.

18. The passages cited to show that in the Mitakshara, the word 'son' is used in the more extensive sense were Chap. I, Section 1, Section 3, and Chap. II, Section 1, Section 1. In both these places, it is apparent from the context that the larger sense is intended.: in both, the author refers to the successors whose inheritance is not liable to obstruction, and we doubt whether any instance can be shown in which the term 'son' includes grandson, except in cases in which the grandson takes by right of representation.

19. In the passages we are called upon to construe, there is not only nothing in the context to necessitate the adoption of the more extensive signification, but if it be adopted to the same extent as is required in the passages cited, its adoption creates a new difficulty. In the passages cited, it includes the great grandson, who is entitled to succession in priority to the widow, but by no authority, so far as we are aware, is the great grandson of the brother ranked among the near sapindas, and on principle he could not be for he is a sapinda of the divided offering. Again, Vijnaneswara (Mitakshara, Chap. II, Section 5, Section 2) places the grandmother first in the succession of gotrajas immediately after brother's sons. He adverts to the text of Manu--' and the mother being also dead, the father's mother shall take the inheritance '--and explains the reason that the place to which in virtue of this text she is apparently entitled is not assigned to her. Alluding to the text of Yajnavalkya, he says 'no place is found for her in the compact series of heirs from the father to the nephew * * *. She must, therefore, of course succeed immediately after the nephew. 'The term nephew' may perhaps be susceptible of the larger interpretation so as to include a nephew's son, but it is unlikely that the author who considered the text of Manu, Chap. IX, 217, constrained him to postpone the grandmother to the heirs actually mentioned by Yajnavalkya would not have expressly mentioned the nephew's son had he too been entitled to priority to her.

20. The 4th paragraph repeats the rule: 'Here on failure of the father's line (Santana), the heirs are successively the paternal grandmother,' &c.; The term Santana 'in this passage is explained by Visveswara in the Subhodini the line of the father must be understood to end with the brothers and their sons.' Next to the paternal grandmother, the Mitakshara places 'the paternal grandfather, the uncles and their sons.' On failure of the paternal grandfather's line (Santana) the paternal great grandmother, the great grandfather, his sons and their ' unava' which Mr. Colebrooke translates issue,' Mr. Mandlik, 'sons.'

21. In two out of the series of collaterals mentioned, the term 'son' alone is used. The term 'line' is explained, by a commentator on the Mitakshara of some authority, to extend only to brothers and their sons, and the third series of collaterals is concluded with a term which strictly interpreted signifies sons. We may repeat that we desire not to he understood as suggesting that the list of persons who would succeed as gotrajas is exhausted by those expressly named. We have sought to show by an examination of the whole section that the more extended sense of the term 'sons' is not required by the context, and that the primary sense appears to be the sense more consistent with it. But the strongest objection to the adoption of the larger sense of the term is afforded by the writings of authors who succeeded Vijnaneswara and more or less followed his teaching. With a single exception, of no high authority, the [296] writers of this school, whose works are available to us, mention only-brother's sons as entitled to succeed in priority to the grandmother, and one of them expressly declares that brother's grandsons are not entitled to such priority.

22. The argument that brother's grandsons are sapindas and that no other place is assigned to them by Vijnaneswara would no doubt be entitled to considerable weight, if the table given by him was exhaustive, and if it followed from the adoption of the construction we consider the more correct that no place could be assigned to them.

23. The argument that in respect of consanguinity he is nearer than sapindas who are mentioned would also be of weight, if consanguinity were the sole ground of preference indicated by the author of the Mitakshara.

24. The argument that by those of the commentators by whom he is expressly mentioned he is placed immediately after the brother's son would certainly afford a presumption in his favour, unless it was shown that these authors belong to a school which had adopted a principle of succession at variance with that adopted by the school of the Mitakshara.

25. If it be found that the commentators of one school agree in assigning a particular place to the brother's grandson, and that the commentators of another school agree in omitting to assign that place or refuse it to him, there is at least a probability that the omission is not fortuitous, and if a satisfactory reason be afforded for it, we may assume it was intentional.

26. It appears, on an examination of the commentators whose works are available to us, that, with the single exception we have mentioned, those who place the brother's son next in succession to the brother follow what is known as the doctrine of the Bengal school.

27. The Dayabhaga, Chap. XI, Section 6, Section 6, declares that 'the brother's grandson excludes the paternal uncle, for he is a giver of oblations to the deceased owner's father who is the person primarily considered.'

28. The Dayakrama-Sangraha, Chap. I, Section 9, Section 1, declares that, if there be no brother's son the brother's grandson is heir, both because he presents is a sapinda

29. Both these commentators diverge widely from the Mitakshara in the next stage of the line of heirs. They introduce the father's daughter's son and the brothers daughter's son, who are classed with bandhus by Vijnaneswara in priority to the paternal grandmother and justify their introduction by reason of the number and proximity of the oblations they offer; and on the same principle they introduce the grandson of the paternal uncle and paternal great uncle.

30. On the other hand, the Viramitrodaya, giving the series of heirs, declares that failing brother's sons gotrajas succeed--gotrajas other than the aforesaid father brother and brother's son, are to be understood. Vijnaneswara says that they are the father's mother, etc.,' * * 'On failure of the father's issue the fathers mother father's father, father's brother and their sons are takers' of wealth in order. On failure of the issue of the father's father, father's father's mother, father's fathers father, father's father's brothers and their sons [inherit]'--Mandlik Vyavahara Mayukha, pp. 362-364.

31. Here it will be seen there is no mention of the grandsons of collaterals.

32. We have already noticed Visesvara's explanation of the term 'Santana' in Mitakshara, Chap. II Section 5, Section 4. He enumerates in the Subhodini the gotrajas up to the sixth ancestor and, while including the sons in no case mentions the grandsons of collaterals--Ibid. p. 361.

33. The author of the Vyavahara Mayukha, following the same text of Yajnavalkya which had been accepted by Vijnaneswara as declaring the order of succession up to gotrajas, places the grandmother for the like reasons as are given in the Mitakshara immediately after brother's sons. He ranks the half-brother with the paternal grandfather, and next to these the sons of the half-brother, but he makes no mention of grandsons of the brother or half-brother--Vyavahara Mayukha, Chap. IV, Section 8, Sections 18 and 20.

34. In the Smriti Chandrika, the brother's grandson is expressly excluded as are also the grandsons of other collaterals.

35. Adverting to the text of Katyayana-' the widow * * * or the daughters or, on failure of them, the father, or the mother, or the brother, or his sons '--the author observes 'the term ' sons 'means the sons of the brother alone, as that is the term immediately pre-ceding ' sons ' in the text. It has therefore, been said by Yajnavalkya brothers likewise and heir sons '-Smriti Chandrika, Chap. XI, Section 4, Sections 22 and 23.

36. 'The separate mention of brothers and their sons' (in the text of Yajnavalkya) while they are comprehended in the term 'gotraia' is indicative of the rule that of the descendants severally belonging to the grandfather and others, only two, namely, the son and the grandson, are entitled to inheritance, as is the case with the descendants of the father.'--Ibid. Ch. XI, Section 5, Section 8

37. The same author quotes a passage from Dhareswara to justify the postponement of the grandfather to the brother of the deceased both being equal in propinquity from which we may extract the following--'By the text whoever is next in the line of kinsmen, it must be understood that in default of the descendants (these being only two i.e., the son and the observed in the latter part of paragraph 8 of this section) of the father, the descendants of the grandfather succeed.'--Ibid, Ch. XI, Section 5, 10.

38. Mr. Mandlik also refers (p. 385) to a passage from Kamalakara, which he translates as follows : ' Following the same direction (i.e., proceeding on the analogy of the order of succession mentioned by Yajnavalkya up to brother's sons), in default of her, the father's father, father's brothers and their sons take wealth; failing them, the father's father's mother, father's father's father, his sons and their sons : in this way, sapindas up to the seventh degree take. Failing those the samanodakas.'

39. The Madhaviya declares that 'in defalt of brothers, their sons take the paternal wealth according to their fathers; in default of brother's children, persons of the same gotra * * *. The wife of the same caste or daughters of a man who leaves no male issue take the property, or in their default, the father, mother, brother or his sons are mentioned * * *. In default of a paternal grandmother, paternal ancles and their sons succeed in order. In default of issue of the grandfather, the great grandfather, his sons and grandsons succeed.'--Madhaviya, Sections 40, 41.

40. In detailing the order of succession, the author passes from the sons of the brother to the paternal grandmother and from the sons of the paternal uncles to the great grandfathers' line: yet when it is necessary and would, in the view we take, be proper to express the third in descent, he does not employ the word sons' as embracing grandsons, and he says expressly sons and grandsons.

41. We have been unable to consult Varadaraja, the author mentioned by Mr. Mayne as extending the nearest sapindaship to the grandsons of collaterals; but the references we have already given are sufficient to show that the weight of authority in the Mitakshara preponderates greatly in favour of the primary and restricted sense of the term 'sons' in the passage we have to construe.

42. Is it possible to find a reason for this difference of doctrine in the two schools? It has been recognized that there exists a fundamental difference in their conceptions of sapindaship. While the school of the Dayabhaga looks to the efficacy of the funeral offering as constituting a claim to succession, the Mitakshara school, while not wholly discarding this principle, construes the term ''sapinda' as the connection resulting from the possession of particles of the same body and looks mainly to affinity.

43. The text of Manu, Chapter IX, v. 187--' To the nearest sapinda after him in the third degree, the inheritance belongs '--is the common rule which both schools have adopted to determine the propinquity which entitles to priority among sapindas, and it would seem that each school has placed on the pronoun 'him' an interpretation which, if it was not designed to give effect to a peculiar conception of sapindaship, at least had that result. Each accepts the 'third degree' as limiting the class of nearest sapindas, and the distinction between the schools lies in the selection of the person from whom the computation is to be made.

44. The Dayabhaga school regarded the common ancestor as 'the person primarily considered,' computing from the common ancestor, the person in the third degree is the great grandson, and, as will be seen from the passage we have cited, the efficacy of the offering presented by him to the person principally considered is the express ground for the inclusion of the brother's grandson in the list of nearest sapindas.

45. The school of the Mitakshara on the other hand commences the computation from the propositus, and including the common ancestor carries it only to his descendants in the second degree. Hence, in the Smriti Chandrika, we find in the passages before quoted the reiterated declaration that only two descendants of the common ancestor in each degree of ascent are included.

46. Although in Vijnaneswara's chapters on inheritance we may have no distinct recognition of this rule, if it be not in the passage we are construing, we find it sufficiently indicated in the Acharakanda where he treats of the sapindaship which opposes an absolute bar to marriage. He there points out that the relationship extends to two collaterals--' In case of a division of the line also two collaterals A and B are sapindas, if the common ancestor is not further removed from either of them than six degrees, and thus must the counting of the sapinda-relationsbip be made in every case.'--Umaid Bahadur v. Udoi Chand I.L.R. 6 Cal. 125.

47. The same principle pervades the rules regulating sapinda-marriages collected in the Dharmasindhu (Vyavahara Mayukha, Mandlik, p. 355) the third male, that is to say the great grandson, being the first of collaterals who is allowed to contract such a marriage where a departure from the stricter law is permitted.

48. The greater propinquity to the line in respect of particles of the body conferred on the nearer collateral of a more remote degree priority over the more distant collateral of a nearer degree notwithstanding the food offering of the latter would be offered to a nearer ancestor.

49. Principle and the probability afforded by the doctrines of writers of the same school appear to us alike to require that the term ' sons' in the passages of the Mitakshara on which the question arises should receive its primary sense, and, consequently, we hold that such of the plaintiffs in Original Suit No. 4 as were the grandsons of Kurmesam's grandfather are entitled to priority over the plaintiffs in Original Suit No. 5, the great grandsons of Kurmesam's father.

50. Having disposed of the difficult question as to the status of the respective plaintiffs, we may address ourselves to the other questions raised in appeal.

51. It is admitted that Kurmesam must be taken to have survived his adopted son, and the estate he left vested in his widow. It was made up of fractional shares in four villages, Kurmesam having succeeded to a one-third share in property which had been brought into the family by his mother.

52. The arguments addressed to us by the learned Counsel and pleaders of the several appellants impugned rather the conclusion deduced by the Judge from the facts found by him than the correctness of the findings of fact. It cannot be disputed, that Kurmesam, at the time of his death, was in embarrassed circumstances. Decrees for inconsiderable amounts were outstanding against him. After his death suits were instituted against his widow and daughter-in-law on obligations he had contracted and his lands were burdened -with mortgages.

53. It appears that Jogamma assigned to her daughter-in-law a moiety of the encumbered estate.

54. It is alleged by those of the defendants who support the alienations made by Jogamma that she was compelled to aliene in order to discharge the debts created by her husband. It is admitted by the Judge that the evidence in respect of the application of the funds is not conclusive, but he has regarded the surrounding circumstances and the absence of rebutting evidence as excusing the alienees from establishing their case by complete proof. Jogamma lived among her husband's kindred. They could not be ignorant of her dealings with property with which their own was intermingled. Jaganadham, originally the first plaintiff in Original Suit No. 4, assisted her when she attempted to procure the enfranchisement of the most valuable portion of the estate in her name and was opposed by a purchaser. He also obtained from her the transfer of a small portion of the estate for himself. Yet not only was no attempt made to call her acts in question during her life, but the same inactivity was maintained for nearly twelve years after her death, indeed until the latest day on which a claim could have been instituted. Lapse of time at once warrants the Court in demanding less complete proof, and justifies the inference that the persons interested to dispute the alienations had reason to think they could not be successfully assailed.

55. Although some portions of the estate alienated by Jogamma have come to the hands of persons connected with her by marriage, we agree with the Judge that the defendants established a prima facie case as to the necessity for the sales which the plaintiff's failed to rebut.

56. The Judge considered that, inasmuch as no right of succession, vested in Lakshminarasamma, she had no authority to make sales [302] even for purposes which would have justified sales by Jogamma. This is to a certain extent true. Jogamma appears to have, made an arrangement with Lakshminarasamma that in lieu of maintenance she should take a moiety of her father-in-law's estate. It is not clear whether this arrangement was intended to enure for her life only or permanently. In either case, it would not bind the reversioners, and in virtue of it, no power of alienation would be conferred on Lakshminarasamma, but the creditors were entitled to follow Kurmesams' estate, and we agree with the Judge in accepting the evidence that upwards of Rs. 2,000 were necessarily raised by her to meet the claims of creditors. In respect of these alienations also the long inaction of the plaintiffs suggests that they were aware the alienations were at least to some extent justifiable.

57. The contention of the second defendant cannot be sustained that Lakshminarasamma was entitled to alienate property assigned to her for her maintenance and which was subject to resumption by the reversioners in raising funds for pilgrimage or discharging debts incurred by her for religious purposes.

58. In the result, we affirm the decrees pronounced by the Judge and dismiss the appeals; and, under the peculiar circumstances of the case, we direct each of the several parties to bear his own costs.

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