(1) This Second Appeal coming on for hearing on Thursday the 11th day of March, 1965 Friday, the 26th day of March 1965 and having stood over for consideration till this day, the Court delivered the following judgment:
(2) The question raised in this appeal looks to me is settled law, but, as considerable argument has been directed in the matter, I shall deal with it in greater detail than is strictly necessary. The contention raised is that while daughters succeeding to their father, as a class, take the estate as joint tenants with rights to survivorship inter se, daughters, succeeding to their mother, inherit the estate only as tenants in common, without rights of survivorship inter se; and for this proposition reliance is placed particularly upon certain observations in Karuppai v. Sankaranarayanan Chetty, (1904) ILR 27 Mad 300 (FB).
(3) The facts which have given rise to this controversy and must be taken as final for the purpose of this second appeal may be briefly set out. The property in the suit belonged to one Venkatalakshmiammal, who died somewhere about 1898, leaving two sons Subbiah Naidu, and Venkatasamy Naidu, and three daughters, Rukmaniammal, Venkatammal and Pappammal. After the death of Venkatalakshimiammal, the two sons dealt with her property as if belonged to them solely, and under Ex. B-7, dated 5-12-1918, Venkataswami conveyed his share in the property to his brother Subbiah Naidu. Defendants 1 and 2 in the suit out of which this second appeal arises are the son and widow of Subbiah Naidu. The daughter Rukmani Ammal died 0n 28-6-1953, leaving two daughters Ramganayaki and Rajammal defendants 3 and 4 in the suit. The plaintiffs in the suit, who are the appellants now in the second appeal, are the other two surviving daughters of Venkatalakshmiammal. It is also to be taken as established beyond challenge that after the death of Venkatalakshiammal, the property of Venkatalakshmiammal was held by the sons Subbiah Naidu and Venkataswami Naidu, adversely to the claims of the daughters.
After the purchase by Subbiah Naidu of Venkatasami's share under Ex. B-7, Subbiah Naidu solely and after his death on 21-10-1951, his heirs have been holding and enjoying the property in their own right. The suit has been filed by the plaintiffs for partition and recovery of possession of the one-third share in the property, which according to the plaintiffs belonged to the daughter Rukmaniammal and which they claimed to be entitled to on her death in 1953 as reversionary heirs. It is contended that even though with reference to their own two-third share in the property they may be barred by adverse possession and limitation, in regard to the share of Rukmaniammal on her death, it reverted back to Venkatalakshmiammal and as per stirdhana heirs, they were entitled to the property.
The contention is that the three daughters inherited to their mother as tenants in common and that on the death of any one of them inheritance in respect of the share of the deceased must be traced from the mother. The trial court decreed the plaintiff's suit, holding that the succession opened and cause of action for the suit arose only on the death of Rukmaniammal on 28-6-1953, and that, as next reversioners, under Art.141, of the Indian Limitation Act, of 1908, the plaintiff's were within time. On appeal, the learned District Judge, has, accepting the contention that the three daughters formed one class of limited owners and took jointly in the same manner as co-widows by survivorship, held that the suit was barred. It was taken as settled law, that when there are more daughters than one, they succeeded jointly with rights of survivorship.
(4) On the question of limitation on the footing that the property was taken jointly, reference was made to the decision in Sachindra Kishore v. Rajani Kant, 18 Cal WN 904: (AIR 1915 Cal 234) and I. Atchama v. I. Bapiah, ILR 44 Mad 131: (AIR 1921 Mad 24). Once it is conceded that the daughters inherited jointly a woman's estate even in their mother's property the estate being determinable on the death of the last survivor, when only the succession would devolve on the next heir of their mother, there can be no difficulty on the question of limitation. If there is no tenancy in common, the claim to the property can only be by survivorship and the right of survivorship is incident to the right of joint possession. It cannot exist separately and independently of possession after the right of joint possession and enjoyment has been lost. As laid down by the Judicial Committee in Katama Natchiar v. Raja of Shivagunga, (1863) 9 Moo Ind App 539 at p. 611 the right of survivorship cannot exist apart from the right of joint possession and enjoyment.
Now in the present case the daughters had no joint possession or enjoyment with the deceased, the deceased herself having no possession for laying any claim to survivorship. In 18 Cal WN 904 : (AIR 1915 Cal 234) above referred to, two daughters of a Hindu male had been kept out of possession of his properties for more than 12 years by the daughter-in-law. On the death of one of the daughters after both had been ousted for more than 12 years the surviving daughter somehow dispossessed the persons in adverse possession, but in the suit by that person who was dispossessed, it was held that the surviving daughter could not maintain her possession against the person who by 12 years adverse possession had acquired title to the entire property, including the interest of the deceased daughter to which she succeeded by survivorship and not by inheritance. Of course, it was a case of succession by the daughters to their father but there can be no distinction in principle on the question of limitation.
It is observed therein at p. 907 (of Cal WN): (at p. 234 of AIR) :
"The nature of the right acquired by these two daughters is made apparent by the decision of the Privy Council in Amrito Lal Bose v. Rajonee Kant Mitter, (1874) 2 Ind App 113 (PC); and, it is abundantly clear from that case that the survivor of the two daughters came into the death of her sister not by way of inheritance as reversioner, but by right of survivorship. It necessarily follows from this that Art. 141 does not apply and that the surviving daughter cannot now claim that she acquired a title, on the death of Harasundari of the nature described in Art. 141. The result appears to me to be that so far as Kashiwari is concerned, her right was extinguished not only in the original 8 annas that developed on her, but in respect of the whole 16 annas which passed to her and her sister as a single inheritance on the death of their father".
On the same reasoning in this case if the three daughters took their mother's stridhanam as joint tenants, plaintiffs 1 and 2 would be barred not only in respect of their own two-third share, but also in respect of the one-third share in the property to Rukmani Ammal. It is unnecessary to express any opinion as to what will be the position and whether any claim could be made to this property by the reversionary heirs of Venkatalakshiammal after the life time of both the plaintiffs.
(5) On the principal question whether the daughters took their mother's property as tenants in common or as joint tenants, learned counsel for the appellants draws my attention to Ch. III, General Principles of Inheritance in Mulla's Principles of Hindu Law, 12th Edition. Learned counsel points out that under S. 31 referring to co-heirs, who, according to the Mitakshara school, take as tenants in common, in the case of daughters, the learned author includes only two or more daughters succeeding as heirs to their father. Learned counsel submits that there is no reference to daughters succeeding as heirs to their mother. My attention is then drawn to S. 159 at p. 234, of the same edition where the learned author states:
"Two or more stridhana heirs inheriting stridhana together take as tenants-in-common without benefit of survivorship, even if they are members of a joint family".
But it will be notices that the illustration under this section refers only to male heirs inheriting the stirdhana property of a female Hindu. In Ch. IV the learned author at p. 124, observes.
"Two or more daughters of a class take the estate jointly as in the case of widows, with rights of survivorship".
With reference to this observation, it is submitted for the appellants that this proposition is given only under Ch. IV dealing with order of inheritance to Males. But in Ch XI dealing with women's property jointly, under the heading of succession to property inherited by females, at p. 239 the learned author, under the heading survivorship as between daughters refers back to the passage above noted, giving the impression that there is no distinction in the character of the estate inter se between the daughters whether the succession is to the mother or to the father.
(6) Considerable emphasis is placed by learned counsel for the appellants to the observations in (1904) ILR 27 Mad 300 (FB) referred to at the beginning, My attention is drawn to the observation at page 305, where it is stated:
"There is not a single instance indicated in the Mitakshara of the benefit of survivorship between co-heirs inheriting stridhanam property, and, in our opinion, there is no divergence between the mitakshara and the Dayabhage as to the character of the estate which in the case of Stridhanam property, devolves upon co-heirs. It would be revolutionary to hold that all property which comes to two or more persons who happen to be members of an individual family is taken by them with benefit of survivorship, and there is no warrant whatever in the Mitakshara for such a general proposition. It has been held in more cases than one that property which comes to members of an undivided family by devise or gifts is not taken by them with benefit of survivorship. Rewam Pershad v. Mt.Radha Beeby, (1846-51) 4 Moo Ind Aoo 137 at p. 174 (PC); Bai Divali v. Bechardas, (1902) ILR 26 Bom 445. The Privy Council no doubt has ruled in Venkayamma v. Venkatarama Nayamma (1902) ILR 25 Mad 678 (PC) that the position taken by the High Court of Calcutta, Jesoda Koer v. Sheo Pershad Singh, (1890) ILR 17 Cal 33, and by this court, Chelikani Venkataramanyamma Garu, v. Appa Rau Bahadur Garu, (1897) ILR 20 Mad 207 that obstructed heritage universally devolves on co-heirs as tenants in common and not as joint tenants with benefit of survivorship, is one that is erroneous, but their Lordships have abstained from laying down that, as a universal rule, a heritage which develops upon co-heirs who happen to be all or some of the Members of an individual family under the Mitakshara, is taken by them with benefit of survivorship. They refer only of two instances as disproving the universal proposition laid down by the Calcutta High Court, viz., the case of widows and daughters on whom the inheritance devolves with benefit of survivorship. both under the Mitakshara and Dayabhaga, and that even they effect a partition between themselves of their limited estate in which they have no interest surviving them either joint or several, transmissible to their heirs Muthu Vaduga badha v. Dora Singha (1881) ILR 3 Mad 290 at p. 301 (PC). But we may observe that both these cases are cases of inheritance of the property of a male, and do not affect the question of the devolution of Stridhanam property".
(7) Learned counsel strenuously relies on the last sentence in the extract above made of the opinion of the Full Bench. My attention is also drawn to another passage at p. 308 to the following effect:
"We must, therefore, hold that none of the arguments addressed to us show that stridhanam property, when it devolves upon a plurality of heirs, is held by them with benefit of survivorship, or that at, any rate, it is so in the case of stirdhanam property of a mother devolving upon her sons. We must also hold that in the case of the devolution of stridhanam property there is nothing peculiar in the Mitakshara law as distinguished from the Dayabhaga law, so as to import the doctrine of survivorship as between the co-heirs, and thus restrict the operation of the rules of inheritance laid down for the devolution of stridhanam property".
Though the passages taken by themselves support the proposition of the learned counsel for the appellants, it must be noted, that the question before the Full Bench was whether when the stridhanam property of a woman devolved on her sons who, with their father formed an undivided Hindu Family at the time of the mother's death the sons took as joint tenants with benefit of survivorship or jointly or in common without benefit of survivorship. Their Lordships were there not concerned with the rights inter se between two daughters inheriting the stridhanam property of the mother. As would be pointed out presently, there is no reference by the Full Bench to an early case of this court is Sengamalathammal v. Velayudha Mudali (1866-68) 3 Mad HCR 312, in which the matter was directly under consideration. In Mayne's Hindu Law Eleventh Edition at p. 646, the proposition is thus set out:
"Where daughters of the same class exist all of them except in Bombay take jointly in the same manner, as widows with survivorship. If they choose to divide the property for the greater convenience of enjoyment they can do so, but they cannot thereby create estate of severalty, which would be alienable or descendable in any different manner".
Proceeding, the learned author states:
"Daughters can enter into a partition so as to put an end to their right of survivorship. but it will not let in the next reversioners till the death of the survivor. In brief, where daughters take jointly, their rights are governed by the same rules as are applicable to co-widows. If at the death of the last survivor, there exists another class of daughters who have been previously excluded they will come in as next heirs, if admissible".
Here also the context is not with reference to stridhanam succession.
(8) Reference was made by learned counsel for the respondents to the decision in Mt. Dewala v. Rupsir, . But this case, far from helping the respondents, may help the appellants. One dasode, who owned the property in suit, died leaving three daughters, Mst. Dewala, Rupsir and Mst. Tejia. Mst. Tejia died later leaving her son Jhitu. Mst Dewala claimed a half share in the property and filed the suit for joint possession of the half share. Several questions arose for consideration in the case and whether Rupsir was the more indigent and unprovided of the daughters as to be entitled to the whole of the inheritance. The ultimate question for consideration was whether the plaintiff was to have one half share or only a third share; Reference was made to S. 159, in Mulla's Hindu Law, already referred to where it is stated that Stridhanam heirs take as tenants in common without benefit of survivorship.
But the relevant passage which deals with the question in issue for the present is the following:
"It will thus be seen that on the death of the female who had inherited the stridhana property, the property passes to the heirs of the female from whom she had inherited it. In other words on the death of Mst. Tejia, the property will pass to Mst. Dasoda's heirs, Mst. Dewala and Mst. Rupsir who were preferential heirs to Mst. Tejia's son Jhitu will inherit the property".
It will be noticed that the question was treated as one of inheritance, the share of the deceased daughter reverting back to the mother and heirship being traced to the mother. This is in conformity with the contention of the counsel for the appellants. But in that case, whether it was by survivorship or by inheritance, the plaintiff could have got the same half share in a partition between herself and her sister and the question in the present form was not mooted. That case, therefore, cannot be relied upon as an authority by the appellants, and certainly it is not an authority for the respondents, the observations being against the respondents' contention.
(9) But we have the clear pronouncement in Pappamma v. kamaraju, 1955 Andh WR 779 at p. 781 by Viswanatha Sastri, J., that:
"The law applicable to the case is well settled in Madras. Daughters succeeding to the estate of their father or mother take only a limited estate as joint tenants with rights of survivorship. They are in the same position as widows inheriting the estate of their husband".
It must be noted that case was one where the estate of the mother was in question. The question has also been answered directly in favour of the respondents by a Division Bench of the Kerala High Court in Pathumma Beebi v. Krishnan Asari, . The relevant head note in the case runs thus:
"The incidents of an estate taken by a limited heir like the daughter are similar to those of a widow's estate and the daughters take the property as qualified owners with rights of survivorship. The fact that the estate to which the daughters succeed is not the estate of their father, but of their mother makes no difference. Hence an alienation by one of such daughters without the consent of others is not valid".
True there is not much discussion about the proposition.
(10) We have also the clear expression of view in Sir Gooroodass Banerjee's Hindu Law of Marriage and Stridhana, fifth Edn.. at page 409, thus noted:
"Where several daughters jointly inherit their mother's stridhana, it has been held by the High Court of Madras that, upon the death of any one of them, her share would pass to surviving co-heirs".
The reference given is (1866-68) 3 Mad HCR 312, though the volume of the report is incorrectly given. The learned author continuing observes:
"Though this rule may hold good in the case of succession of daughters, its correctness as a general rule under the Mitakshara law is open to question. Succession by survivorship is recognised by Vijnaneswara only in the case of joint male coparceners. Moreover, it has been held by a Full Bench of the Madras High Court in (1904) ILR 27 Mad 30 (FB) that under the Mitakshara law sons inheriting their mother's stridhana take as tenants in common without any right of survivorship"
It must be noticed that the learned author does not dispute the proposition so far as daughters succeeding to their mother are concerned that they take with rights of survivorship. In (1866-68) 3 Mad HCR 312, the property belonged to the mother and upon her death was divided between and daughters. The question that arose for consideration was as to the right of the husband of one of the daughters who had died, as against the claim of the surviving sister with reference to the share which was taken by the deceased daughter in the partition inter se between the daughters At page 317, the principle is set out thus:
"But whether the sisters were divided or not divided, it seems to us that so long as there was a daughter living, she was entitled to the mother's estate in preference to any other claimants, for it is only on failure of daughters that any other claimant can come in. The general rule of Hindu law is that amongst co-heirs survivorship takes place: and Sri F.Mc. Naghten (R. 34) puts the case of 3 sisters succeeding jointly to their father's estate and all dying childless or having daughter only; and he says that upon the death of one, the two others would succeed to her share in equal proportions and upon the death of one of these, the whole estate would vest in the survivor of her life".
(11) Mayne be in his Hindu Law, refers to this case in the foot note at p. 647. No case has been brought to my notice where the proposition that daughters inheriting to their mother take as joint tenants with rights of survivorship has been dissented from.
(12) No other question is raised.
(13) In the result, the second appeal fails and is dismissed with costs. Appellants to pay the court-fee payable on the second appeal. No leave.
(14) Appeal dismissed.