1. One Virasangappa, who originally held considerable property, including that in litigation in the present suit, by his will dated 10th January 1826 devised it to his daughters Kusavva, Malakavva and Dadavva on terms and conditions which it is unnecessary to state fully. It is sufficient for our present purpose to say that he directed that the three ladies should live in union and enjoy the property jointly, and that, if they should find it inconvenient to do so, the same should be divided into four shares, of which Kusavva and Malakavva should each take one share and Dadavva and her husband the remaining two shares. Up to 1860 no separation took place, but in September of that year an arrangement was made, which was brought about by Kusavva, and to which all the descendants of Virasangappa that were then alive were parties, they being (i) Kusavva, the eldest daughter; (ii) Nanjavva, daughter of Malakavva, the second daughter, who had died before that time; (iii) Nanjavva's daughter Rudravva; and (iv) the plaintiff (appellant), the only son of Dadavva, the youngest daughter of the testator, she also having died before 1860. The arrangement was not a mere partition in accordance with Virasangappa's will, but a transaction which went beyond it, as the plaintiff thereunder got, as the representative of the third daughter's branch, more than two-thirds of the properties instead of half, which was his proper share under the will. Exhibit B, which evidences the transaction, after referring to the will of Virasangappa, the marriage of Dadavva, as the first wife of Nagappa Shetti and, after her death, that of Nanjavva, daughter of Malakavva as his second wife, the birth of children to him, viz., the plaintiff by Dadavva and Rudravva by Nanjavva states that, for the prevention of disputes among the parties, it was agreed and arranged that, excepting a house and a garden obtained on mulgeni by the first daughter Kusavva and reserved to her moveables worth Rs. 19,000 and immoveable valued at Rs. 5,000 were to be taken by Nanjavva and Rudravva, and that the rest of the properties was to go to the plaintiff. It also provides that whichever of these parties has no descendants should enjoy the properties allotted to him or her for life only, and then the same should go over to and be enjoyed by the party having descendants. Three years after this arrangement, Kusavva made a gift, under Exhibit C, of the house and garden which she had reserved to herself, to Nanjavva and Rudravva. These properties, as well as those granted to them under Exhibit B, were, on the death of Nanjavva, the survivor of the grantees, held by her grand-daughter Kusavva till her death in 1892. The question at issue is, who is entitled to succeed to these properties left by the last-mentioned lady, she having died unmarried?
2. The plaintiff's case, as put before us, is as follows: The grant under Exhibit B was to Nanjavva alone, Rudravva her daughter being mentioned therein only to indicate that the estate granted was not a life estate, but one of inheritance. On Nanjavva's death, Kusavva, her grand-daughter, inherited the property, Rudravva having predeceased Nanjavva. The interest taken by Kusavva in the property thus inherited by her was only a limited interest similar to that taken by a woman in an estate inherited by her from a male. Consequently on Kusavva's death, the succession should be traced from the last full owner Nanjavva, and there being no nearer heir than the plaintiff, he is entitled to the properties in question either as Nanjavva's co-wife's son or as her husband's sole sapinda, the defendant (respondent) Kusavva's father not being, as Nanjavva's son-in-law, entitled under the Hindu law to claim the same. Further, if it should be found that the grant under Exhibit B was not to Nanjavva alone, but to her and Rudravva, as is contended on behalf of the defendant, even then the plaintiff's the party entitled. For in this case, as well as under Exhibit G, Nanjavva and Rudravva took as joint tenants and consequently, on Rudravva predeceasing Nanjavva, the whole vested by survivorship in the latter to whom he is the heir.
3. The case for the defendant is that Exhibit B conferred on Nanjavva and Rudravva only a life interest in the properties with remainder to their descendants. Kusavva as their descendant took not as Nanjavva's heir, but directly under the instrument as grantee. Consequently the succession is to be traced from her, and the defendant, her father, and not the plaintiff, is her heir. It was also urged that, if the above contention be held to be unsustainable, and if it be found that Kusavva took only by inheritance, then the estate which she thus took was a heritable one and consequently the defendant succeeded to the same. Should this contention also fail, it was argued lastly that the plaintiff's claim should be held unsustainable so far at least as a moiety of the property granted under Exhibit B as well as that given under Exhibit 0 is concerned, inasmuch as Nanjavva and Rudravva took as tenants in common and the latter's share passed first to her daughter Kusavva and, even assuming this lady took only a limited interest under the law as contended by the plaintiff, it passed after her to the defendant, the last full-owner Rudravva's husband and heir.
4. In these circumstances the points which arise for determination are-
(i) As to Exhibit B-
Was the grant to Nanjavva alone, or to her and Rudravva? Did the grantee or grantees take only an estate for life, or a heritable estate? If the grant was to both, did they take as joint tenants?(ii) As to Exhibit C-
Did the donees take as joint tenants?(iii) If Kusavva took any property as Nanjavva's heir, what interest did she take as such heir?
5. Now as to the first point arising with reference to Exhibit B, it is quite clear to us that the grant was not to Nanjavva alone, but to her and Rudravva. Exhibit B distinctly says so. And the evidence shows that the plaintiff as well as the other parties were also of that opinion. For, when some of the property set apart under Exhibit B had to be mortgaged in 1878, the instrument of mortgage was executed by both Nanjavva and Rudravva as owners, and the plaintiff signed the instrument as a witness. We are unable, therefore, to uphold the plaintiff's contention with reference to this point.
6. Passing on to the next point, we have, after a careful consideration of the language of Exhibit B and the circumstances in which it came to be executed, arrived at the conclusion that it gave a life-estate to Nanjavva and Rudravva only in the event of their having no descendants, but an estate of inheritance otherwise--a disposition perfectly valid in law (see Mayne's Hindu Law, 5th edition, paragraph 382, and the cases therein cited). And as they had in Kusavva a descendant, their estate must be held to have been a heritable one to which Kusavva succeeded by inheritance. This was also the view taken in Suit No. 33 of 1883 instituted by the present plaintiff against Kusavva and the present defendant whereby he sought to eject Kusavva on several grounds, one of them being that Nanjavva and Rudravva took only a life-estate. In dealing with this contention the Subordinate Judge who tried that suit found in unmistakeable terms that 'Nanjavva and Rudravva jointly took an absolute estate.' On appeal to this Court the learned Chief Justice (Sir Charles Turner) and Muttusami Ayyar, J., agreed with the Subordinate Judge as to the construction of the document in question, though it must be admitted that the passage in their judgment which immediately follows this expression of their concurrence with the Subordinate Judge is somewhat ambiguous. We think, however, that we are justified in holding that the learned Judges did not intend to lay down that Kusavva took directly under Exhibit B, even if that document were susceptible of a construction different from that put upon it by us, as it is clear that, not having been in existence at the date of the instrument, she was precluded from so taking by the well-established rule of Hindu law that a grantee or donee must be a person capable of taking when the transaction begins to operate, and must, either in fact or in contemplation of law, be then in existence. We are confirmed in this view by the circumstance that in the concluding portion of the paragraph of the judgment wherein this question is discussed, the learned Judges speak of Kusavva 'as entitled to inherit the property set apart for these ladies and their descendants by this instrument.'
7. We must, therefore, hold that the interpretation put by the learned Judges upon Exhibit B is in accordance with the view now adopted by us.
8. Coming now to the third point, we may conveniently consider together that and the question raised with reference to Exhibit 0. We think that the plaintiff's contention is sound. Considering that the manifest object of the arrangement under Exhibit B was to secure the enjoyment of the properties to Nanjavva and Rudravva and their descendants, and in default of any such descendant, to the plaintiff and his descendants, it seems to us more likely that; the intention was that in the event of either of the female grantees dying in the life-time of the other, the share of the deceased should pass to the survivor. Compare Vydinada v. Nagammal I.L.R. 11 Mad. 258. We see nothing in the circumstances of the arrangement or the terms of the instrument to show that a tenancy in common was intended. Nor was it otherwise in the case of the gift under Exhibit C. For considering that the donor was the very lady who brought about the arrangement evidenced by Exhibit B, considering also that the donees were mother and daughter, and further that the donees were, as stated in the document itself, under an obligation to maintain the donor during the rest of her life-time, it appears to us that what was in the contemplation of the parties was a joint tenancy. If, on the other hand, it be supposed that they took as tenants in common, it might well have happened that Rudravva's share would, even in the life-time of the donor, have passed to a comparative stranger had she died leaving only her husband and no issue, she having, as a matter of fact, predeceased the donor. That a tenancy which might possibly result in such a devolution was intended seems to us improbable.
9. In our opinion, therefore, on Rudravva's death, her share in all these properties passed by survivorship to Nanjavva, who thus became the sole full owner of the whole estate, and it follows that the defendant's claim to a moiety on the ground that he is Rudravva's heir is unsustainable.
10. We have now to deal with the last point, which relates to the nature of the interest taken by Kusavva in the property in question. If she took a heritable estate, the plaintiff must fail; but if, on the other hand, she took a limited estate, he must succeed. The contention on his behalf is that she took only a limited interest, since in this Presidency property inherited by a woman even from another woman, is not the former's stridhanam, and since in stridhanam property alone a woman takes an estate of inheritance; and the contention on behalf of the defendant is that the property in question was Kusavva's peculiar property. In Sengamalathammal v. Velayuda Mudali 3 M.H.C.R. 312 the question arose as to property which devolved upon a daughter from her mother, and it was held by Bittlestion, C.J., and Ellis, J., that the estate did not become the daughter's stridhanam. On behalf of the defendant, however, we have been referred to the decision in C.M.A. No. 130 of 1890 Narasayya v. Venkayya 2 Mad. L.J. 149 which no doubt is in the defendant's favour. But we find that, though this case was distinctly before the Division Bench which decided Mullangi Ammanna v. Chinna Kamayya Second Appeal No. 169 of 1893 unreported, yet it was there held that property to which a woman succeeds as the heir of another woman does not become the successor's stridhanam.
11. The learned vakil for the defendant strenuously maintains that the rule laid down in Narasayya v. Venkayya 2 Mad. L.J. 149 referred to above is in accordance with the Mitakshara, the leading authority in this Presidency, and though the passage in Section XI 2 Mad. L.J. 149 of that work, which includes inherited property under the head of stridhanam, has been held not to lay down the law correctly as to property inherited by a woman from a male, yet there is no good ground for overruling its authority in respect of property inherited from a female. There would be some force in this argument if the view that, notwithstanding that the language of Vijnaneswara in the passage in question is broad and general, the author did not really intend to include in his description of stridhanam what passes by inheritance from a male to a female were well founded. For in that case it might be urged with some show of reason that the authority of the Mitakshara on the point at issue now is not necessarily affected by the decision laying down that property inherited from a male is not stridhanam. But that view has been shown to be clearly erroneous by Messrs. West and Biihler (Digest, 3rd edition, pages 269 and 272), Dr. Gooroodas Banerjee (Marriage and Stridhanam, pages 283-7) and Dr. Jolly (Lectures on Hindu Law, pages 242-251). It is, therefore, difficult to see how Vijnaneswara is still to be treated as an authority on the point under consideration, whilst, except in Bombay, the Courts, including the Privy Council, have unanimously declined to follow him as to property inherited from a male. Moreover, so far as this Presidency is concerned, the Courts, in thus rejecting Vijnaneswara's doctrine that the word '&c.;' in the text of Yajnavalkya relating to what constitutes stridhanam includes property inherited, have not proceeded solely on the authorities peculiar to the Dayabhaga school, but have been influenced considerably by the fact that the Smriti Chandrika and Daya Vibhaga or Madhavyam have put an entirely different construction on the same word in the said text. Bittleston, C.J. and Ellis, J. in Sengamalathammal v. Velayuda Mudali 3 M.H.C.R. 312 refer to and rely on the Smriti Chandrika as supporting their conclusion, and the Privy Council in Mutta Vaduganadha Tevar v. Dorasinga Tevar L.R. 8 IndAp 99 observes there are two commentaries which are received as authority in the Carnatic, the Smriti Chandrika and the Daya Vibhaga of Madhaviya, neither of which follow the cited passage of the Mitakshara in assigning to a woman as her stridhan property inherited by her.' It will thus be seen that the contention that property inherited is not stridhanam, though opposed to the Mitakshara, ?is supported by two out of the three commentators accepted as high authorities in the southern or the Dravida school, and one of whom wrote several centuries after Vignaneswara.
12. Our attention was next drawn to the observations of Telang, J. in Manilal Rewadat v. Bai Rewa I.L.R. 17 Bom. 758 on what has been called the doctrine of reverter. The learned Judge at p. 763 says with truth that 'this doctrine of reverting to the heirs of the last male owner is one which is nowhere expressed, as far as we are aware in either the Mitakshara or the Mayukha.' No doubt the circumstance thus alluded to by the learned Judge furnishes an excellent ground against the introduction of the doctrine of reverter in the provinces where the doctrine of the Mitakshara that inherited property is stridhanam is accepted to be law as it is in Bombay. But the argument has no force here, that doctrine not having been adopted by the Courts in this Presidency. And when once it is held that a woman inheriting property takes but a limited estate and does not become a fresh stock of descent, the doctrine of reverter is a necessary consequence, since inheritance must be traced from the last full owner, whether such owner is a male or a female.
13. Following, therefore, the rule laid down by Bittlestion, C.J. and Ellis, J. in Sengamalathammal v. Velayuda Mudali 3 M.H.C.R. 312 so far back as 1867, and affirmed recently by the Chief Justice and Shephard, J. in Mullangi Ammanna v. Chinna Kamayya Second Appeal No. 169 of 1893 unreported, we hold that Kusavva took only a limited interest in the property in question, and that on her death the plaintiff, as the heir of the last full owner, is entitled to succeed to it.
14. The result is the plaintiff is entitled to the property left by Kusavva out of what was inherited by her from Nanjavva.
15. We must ask the Subordinate Judge to submit findings on the first, second and sixth issues. Further evidence may be taken on either side.
16. After the Subordinate Judge had submitted the findings required, the Court passed a decree for the plaintiff.