1. The plaintiff in this case (1st respondent) sued to set aside a deed of exchange dated 1st June 1911, executed by her father (2nd defendant) in favour of the 1st defendant (appellant in respect of certain lands, the property of her plaintiff's) deceased mother, Subbamma and which she claims by inheritance as the latter's sole heir. The District Munsif dismissed the suit on the ground that the property passed on the death of Subbamma not to the plaintiff alone but to plaintiff jointly with her brothers, who are no parties to the suit and that the suit was not maintainable by the plaintiff alone. The District Judge differing from the Munsif, held that the plaintiff alone succeeded to the property on her mother's death and finding the other disputed point in favour of the plaintiff, gave her a decree.
2. The sole question argued before us is whether the plaintiff is the sole heir of her mother in respect of the plaint property, and as such entitled to maintain the suit alone.
3. Subbamma purchased the property on the 27th September 1905 by Exhibit B for Rs. 200 which appears to be very much less than its real value. She raised the sale price by means of a mortgage of the very same property. This sounds somewhat improbable; but it is the finding of the District Munsif which was not questioned either in the Lower Appellate Court or before us; and we must take the facts to be so. The plaintiff in effect acquired this property by her wits; and it must, in my opinion, be regarded as her separate acquisition.
4. The question is whether property so acquired descends to her daughter in preference to her sons in accordance with the method of devolution laid down in Chapter II Section XI Clauses 12 and 13 of the Mitakshara : or, in other words, whether it comes under what Mr. Mayne called the mysterious word ' adyam' in the text of Yajnavalkya therein dealt with.
5. The leading case on the point in this presidency is the Full Bench decision reported in Subramania Chetti v. Arunachellam Chetti I.L.R. (1904) M. 1. The property in that case had been acquired by a widow by means of savings out of moneys received by her under a maintenance decree : and it was held to descend to the widow's own heirs in the female line just as it were Stridhanam in the narrowest sense of the term.
6. The. present case is, of the two, the stronger from the plaintiff's point of view. The learned vakil for the appellant in fact, admits that if the above ruling be followed our decision must go against him; but he contends that its authority has been destroyed by a later decision of the Privy Council in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh I.L.R. (1911) A 284 on which he himself relies.
7. Now the decision in Subramaniam Chetti v. Arunachellam Chetti I.L.R. (1904) M. 1 seems to me to be entitled to the very greatest weight. It was that of a Full Bench of this Court, the ,main judgment being delivered by a very eminent Hindu Judge, then Officiating as Chief Justice. The question was evidently most elaborately argued by vakils on both sides of quite phenomenal ability and repute. The decision has been followed ever since and was based on the Mitakshara, universally recognised as the leading authority in this part of India. I do not think we should be justified in departing from the principle laid down in the decision, unless it is quite clear that adherence to it would be counter to the view taken by an even higher tribunal.
8. A careful consideration of the judgment of the Privy Council in Debi Manual Prasad Singh v. Mahadeo Prasad Singh I.L.R. (1911) A. 234 does not seem to me to necessitate anything of the kind. The question for decision in that case was thus propounded by Lord Robson who delivered the judgment (page 238).
Whether immoveable property obtained by a Hindu widow on partition under the Mitakshara law, is part of her Stridhan in the narrow sense of that word, indicating her separate property or peculium which passes on her death to her own heirs; or is merely part of her Stridhan in the wider sense in which the word is sometimes used, as indicating any property in which she may have some right of proprietorship.
9. Such a question could never arise in this presidency, where the custom of allowing a share on partition to the widow of a deceased co-parcener does not obtain and the effect of the decision was simply to place property thus acquired by a widow on the same footing as regards devolution, as property acquired by inheritance. That property acquired by inheritance is an exception to the general rule laid down by Vijnaneswara is recognised by Subramania Aiyar, C.J. in the Full Bench case.
10. Reliance is placed by appellant's vakil on the general remarks regarding Chapter II, Section 11 of the Mitakshara to be found on pages 239 and 240 of the report. Their effect is simply this. Their Lordships say that Yajnavalkya's language is open to the meaning that a woman's property of whatsoever kind descends always to her own heirs. They say ' It is difficult to adopt the latter construction in view of the undoubted fact that, as Sir Arthur Wilson said in delivering the Judgment of their Lordships Board in Sheo Shankar Lal v. Debi Sahai I.L.R. (1903) A. 468 ' most of the old commentators recognise, with regard to the property of a woman, whether called Stridhan or by any other name, that there may be a room for differences in its line of descent according to the mode of its acquisition.'
11. Now the Full Bench decision of this Court does not by any means proceed on the construction that a woman's property of whatsoever kind always descends to her own heirs : as already pointed out, one important exception (property acquired by inheritance) is specifically recognised. On the other hand, their Lordships of the Privy Council do not go so far as to say that the dictum of Vajnaneswara regarding property derived from the additional sources specified in Clause 2 of the section is devoid of authority. Twice in the course of their judgment they are careful to explain the very limited question for their determination (the devolution of a woman's property acquired by partition) and as I understand them, they go no further in the passages relied on, than to point out. that the Mitakshara passage should not be regarded as an authoritative and conclusive rule of law placing all kinds of woman's property in the same footing as regards devolution. What their decision would have been regarding the devolution of property acquired in the way the suit property was acquired, it is impossible to say.
12. I therefore am of opinion that the Privy Council decision is no authority for refusing to follow the ruling in Subramaniam Chetty v. Arunachellam Chetty I.L.R. (1904) M. 1.
13. I would therefore dismiss this second appeal with costs.
14. The question in this appeal is whether the plaintiff who is the daughter of one Subbamma is entitled to the property referred to in the plaint, as against her brothers. It has been argued before us with reference to the questions (1) whether the property must be considered to be the Stridhanam property of the said Subbamma and (2) whether the incidents annexed to this property, so far as devolution and succession are concerned must be determined by the rules prevailing in regard to Stridhanam property or whether some other rule of succession must be applicable to it.
15. The property in question was, it is admitted, acquired by Subbamma without the aid of any funds derived either from her husband or from any third party. It has been found that she purchased it and paid the purchase money by means of a loan secured on the mortgage of the very property which she purchased, and that subsequently the loan was paid off and the mortgage redeemed.
16. The texts relating to Stridhanam property have often been the subject of interpretation, and they have recently been considered by the Privy Council in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh I.L.R. (1911) A. 234. The argument before us has been that the property in question cannot be considered to be the Stridhanam property of Subbamma inasmuch as it does not fall within any of the six specified classes of what has been termed strict Stridhanam. It is beyond dispute that the property was not given to Subbamma by (1) the father (2) the mother (3) the husband or a brother or (4) received by her at the nuptial fire (5) presented to her on her husband's marriage to another wife; and the only question is whether it can fall under the final word 'adyam' occurring in Yajnavalkya's description of Stridhanam, which word in the light of judicial interpretation, may be rendered as ' and the like.' The argument for the appellant has been that the interpretation of that expression 'adyam' or ' and the like ' by the Mitakshara cannot now be accepted, that as that interpretation has been made to include property acquired in five different modes, namely by (a) inheritance (6) purchase, (c) partition (d) seizure or (e) finding and as there are decisions (See Sheo Shankar Lal v. Debi Sahai I.L.R. (1903) A. 468), binding upon this Court that property acquired by a woman by inheritance and by partition do not form her Stridhanam in such a sense that on her death it passes to her Stridhanam heirs in the female line to the exclusion of males--therefore it must follow that property acquired in any of the other three modes referred to by the author of the Mitakshara is not Stridhanam and in particular that property acquired in the mode in which Subbamma acquired the property in question should also be excluded from stridhanam property in the said sense.
17. The real question before us, however, seems to be what is the rule of succession applicable with reference to this property of which Subbamma died possessed. It seems to me that the decisions holding that, where a woman has inherited property or acquired it in the course of partition she does not form a stock of descent, but that she is to be considered to have held it as a limited owner and that succession is to be traced again as from the last full owner--decisions to that effect are not sufficient to form the basis on which we ought to proceed for the purpose of the decision in the present case. In Subramaniam Chetti v. Arunachellam Chetti I.L.R. (1904) M. 1 the underlying principle is more than once suggested, or I might say assumed to be whether the property in question was at the absolute disposal of the woman. On page 5, Sir Subramania Aiyar says : 'In the absence of any clear provision of Hindu Law, denning the character of her interest in the income, it must, on general grounds, be held that what becomes vested in her in her own right and what she can dispose of at pleasure is her, own property, not limited but absolute, exclusive and separate in every sense and devolving as such '. On the other hand in page 6 he says. ' No doubt it is now settled that, notwithstanding Vijnaneswara's authority, property inherited by a female from a male or a female would not pass to her own heirs, that is to say, the woman so inheriting takes a limited and qualified estate with reverter annexed to it.'
18. If this be the principle, then it is possible to understand and reconcile the decisions restricting property which may be described as Stridhanam proper by excluding therefrom such property as a woman has inherited or acquired by partition; for in the case of property acquired by inheritance or partition it may be assumed on general principles that it was intended that the woman should take only a limited interest therein, and that after providing for her maintenance thereout during her lifetime, it should revert to the heirs of the last full owner.
19. With reference to the property now in question, however, it is difficult to see how it can be said to revert inasmuch as Subbamma cannot, by any stretch of the principle to which I have just alluded, be considered to have acquired this property only with limited rights, nor can the rights of any third persons and extended as to allow of our proceeding on the basis that during the life of Subbamma they had even any inchoate right in the property.
20. In this connection the following text and comment on it taken from Subramaniam Chetti v. Arunachellam Chetti I.L.R. (1904) M. 1 is particularly pertinent. 'Still more to the point' says Sir Subramania Aiyar 'is the text of Dewala; 'Her subsistence, her ornaments, her perquisites, and her gains are the separate property of a woman'. This is quoted and relied, on in the Digests of the Bengal, Benares and Southern Schools such as the Dayabhaga (Chapter IV, Section 1, verse 15) the Viramitrodaya (chapter V, part I, Section 7) the Madhaviya (Burnells 'Translation page 46) and the Saraswati Vilasa (Foulke's 'Translation' Section 276, page 57). Compare also the Smriti Chandrika Chapter IX, Section I, placita 6 to 10, This text is certainly not to be confined, as suggested on behalf of the defendants, to gifts for maintenance made out of affection, for as pointed out by Dr. Jolly (Hindu Law of Partition, Inheritance and Adoption, page 236), the Sanscrit term 'Vritti' (subsistence) in the text has been understood by commentators to include what is given by the heirs, and in Mani Lal Rewadat v. Rai Bewa I.L.R. (1892) B. 758 arrears of maintenance recovered by a wife under a decree against her husband were held to be stridhanam, though Aparibhashika Stridhanam with reference to the distinctions peculiar to the Mayuka.'
21. What then is the rule of succession applicable to property which must be taken to have been the absolute property under the entire control of a woman governed by the Hindu law--property with reference to the succession to which it was conceded before us that the woman must be taken to be the stock of descent? It seems to me that for the reasons indicated in Subramaniam Chetti v. Arunachellam Chetti I.L.R. (1904) M. 1 in the case of property found to be the absolute property of a woman under her entire and unfettered control there ought to be only one rule of succession recognised in Madras, namely, the rule of succession with reference to Stridhanam property. The learned pleader for the appellant had very great difficulty in suggesting any other rule as being applicable. It was impossible for him not to concede that Subbamma must be taken to be the stock of descent; and his argument could therefore, be only treated on the basis that Subbamma's heirs must be taken to be her sons either in preference to, or jointly with her daughter. It seems to me to be imposible give effect to a rule of law which cannot even be stated with certainty by the person who desires to rely upon it. The only authorities that could be cited in favour of the nebulous suggestion made by the appellant were drawn from Bombay and' based on the Mayuka, a text which, it is admitted, is not prevalent in Madras, This fact and the great weight due to Subramaniam Chetti v. Arunaohellam Chetty I.L.R. (1904) M. 1 enable me to omit from consideration the decisions given by the Bombay High Court, although, Westropp C.J. and West and Telang JJ. took part in those decisions Vijiarangam v. Lakshmanam I.L.R. (1871) 8 Bom. 244.
22. For the reasons that I have given, I am of opinion that the Lower Appellate Court was right in applying the Stridhanam rule of succession to the property in question, and agree therefore that the appeal should be dismissed with costs.