Alfred Henry Lionel Leach, C.J.
1. In this appeal the Court is concerned with the succession to the estate of one Tirupathamma who died on the 14th December, 1926. The following genealogical tree will help in the appreciation of the facts.
| | | Venkayya=Seshamma
Subbarayudu (died Kristiah (died before Nellayya sastri (died on 2-1-1938)
before Seshamma's Seshamma's death) (died 29-3-1938). |
death) | Sambayy=Tirupathamma
Suryanarayana Sastri (plaintiff) (d.3-7-1916). (d.14-12-1926)
An unnamed son (d. 6-10-1916)
Sambayya, Tirupathamma's husband, died on the 3rd July, 1916 being succeeded by his widow and his son. The son died on the 6th October, 1916. On the son's death the properties left by Sambayya devolved upon Tirupathamma. She claimed to be entitled to the estate in her own right under a will alleged to have been left by Sambayya. The validity of this will was disputed and Subbarayudu, Kristniah and Neelayya Sastri, the uncles of Sambayya, instituted in the Court of the Subordinate Judge of Guntur, O.S. No. 142 of 1917 for a declaration of its invalidity. On the 20th December, 1918, by consent a decree was passed under which Tirupathamma received in absolute right a half of the properties left by her husband. Consequently the properties which she received under this decree became her own stridhanam. On Tirupathamma's death the properties devolved upon Sambayya's mother Seshamma, who died on the 2nd January, 1938. Under the Mitakshara law the heir was Neelayya Sastri. He died on the 29th March, 1938.
2. On the 26th October, 1938 Neelayya Sastri's son instituted this suit. He claimed to be entitled to the properties which had fallen to Tirupathamma under the compromise decree of the 20th December, 1918 as the heir of his father Neelayya Sastri and as the nearest agnate. There were 19 defendants. The first defendant was the sister of Sambayya. The other defendants were tenants of the properties in suit. The first defendant claimed that she was entitled to the properties because the succession was governed by the Hindu Law of Inheritance (Amendment) Act of 1929. The District Munsiff held that this Act had no application and that the ordinary rule of succession to stridhanam properties applied. His decision was upheld by the Subordinate Judge on appeal. The first defendant appealed to this Court. As there are two decisions, one of the Lahore High Court and one of the Bombay High Court, which support her contention, the appeal was referred to a Bench by Chandrasekhara Aiyar, J. before whom it came in the first place.
3. The Hindu Law of Inheritance (Amendment) Act, 1929, only applies to the separate property of a Hindu male who dies intestate. In such a case a son's daughter, daughter's daughter, sister and sister's son is, in the order so specified, entitled to rank in the order of succession next after a father's father and before-a father's brother. If this Act applied here, as the first defendant maintains it does, she would be entitled to the properties in suit; but it is manifest that the Act does not apply, because the estate with which the suit is concerned is the stridhanam property of Tirupathamma. It is accepted that the compromise decree of the 20th December, 1918, conferred upon Tirupathamma an absolute right in a half of what her husband had died possessed of. In the circumstances the properties can only be regarded as belonging to Tirupathamma in her own right.
4. We will now refer to the two decisions relied upon by the first defendant. The first is the judgment of a Judge of the Lahore High Court sitting alone. The case is Mt. Charjo v. Dinanath A.I.R. (1937) Lah. 196, where it was said that in order to ascertain who the heirs of the husband were, the Court must ex necessitate rei refer to the law governing succession to the property of the husband in force at the time when succession opened out. The second is the judgment of a Judge of the Bombay High Court, also sitting alone and delivered in Shamrao v. Raghunandan I.L.R. (1939) Bom. 228, where the same reasoning was applied. With great respect we cannot accept the opinion expressed in these cases. Here, as there, it is not a question of deciding who are the heirs of a Hindu male. The question is who are the heirs in respect of properties belonging to a Hindu woman in her own right. In the footnote on page 84, of the tenth edition of Mayne on Hindu Law it is pointed out that the decision in Mt. Charjo v. Dinanath A.I.R. (1937) Lah. 196 overlooks the express provisions in Sub-section (2) of Section 1 of the Act which limits the altered order only to the property of a male. In our judgment the correct view of the law was expressed in the judgment of a Bench of the Nagpur High Court in Shakuntalabai v. Court of Wards I.L.R. (1942) Nag. 629. As the Act does not apply to this estate, the succession is governed by the ordinary rule of Hindu Law and under this rule the plaintiff is the heir.
5. We hold that the case was rightly decided by the Courts below and consequently the appeal must be dismissed with costs in favour of the first respondent.