1. The appellants in these four appeals are the four sons and the respondents are the three married daughters of Saroda Moyi Basu. On the 15th June 1853, Saroda Moyi received a gift from her father of taluk Roy Chandra Sarma No. 5480. This was after her marriage. On the 7th October 1903 she died, leaving four sons and three daughters her surviving. Three of the sons, other than the appellant in appeal No. 2095 of 1906, applied to the Collector to be registered as heirs of the taluk by right of inheritance from their mother. They were opposed by the three daughters, and, on the 24th August 1904, the applications of the sons were refused and an order was passed to register the three daughters as proprietors of the taluk by right of inheritance from Saroda Moyi Basu. The four brothers then filed four suits on the 5th July 1905 and following days, praying for declaration of their title each, to one-fourth share in the taluk and for recovery of possession.
2. In the Court of first instance the suits were heard ex parte in the absence of the defendants, and were decreed, the Munsif holding that the taluk was ayautuka stridhan of the mother and that the plaintiffs as sons were preferential heirs to the married daughters.
3. On appeal the lower Appellate Court has set aside the judgment and decree of the Munsif in all the cases and has dismissed all the suits.
4. The plaintiffs, the four sons, have appealed to this Court in four appeals. These have been heard together and will all be governed by this judgment.
5. Admittedly the taluk, which is the subject of the present litigation, is the pitridatta ayautuka stridhan of Saroda Moyi Basu, and the question, which we have to decide, is whether the sons or the married daughters are the preferential heirs.
6. The learned Subordinate Judge has gone with great care and detail through the various authorities, and has come to the conclusion that the balance of authority is strongly in favour of the married daughters. In this appeal it has been argued by the learned Counsel for the appellants that the learned Subordinate Judge has erred in law in the view which he has taken of those authorities, and that in fact they support the contrary view that the sons are the preferential heirs.
7. The determination of the matter in dispute depends on the construction, which should be placed on the passage in paragraph 16, Section 2, Chapter IV of the edition of the Dayabhaga of Jimutavahana (as translated by Colebrooke). In that passage Jimutavahana has adopted the law as laid down by Manu in Sloka 198, Chapter IX. The passage, which is given in the vernacular in the judgment of the Subordinate Judge, runs as follows: 'As for a passage of Manu.' The wealth of a woman, which has been in any manner given to her by her father, let the Brahmini damsel take; or let it belong to her offspring.' Since the text specifies 'given by her father,' the meaning must be that property, which was given to her by her father even at any time other than her nuptials, shall belong exclusively to the daughter, and the term Brahmini is merely illustrative, indicating that a daughter of the same tribe inherits.' The words used, which are translated as the 'Brahmini damsel,' are 'Brahmini kanya,' and the whole contest has centred round the point, whether 'kanya' should be translated to mean generally any daughter, and so to include married or widowed daughters, or should be confined to the unmarried daughters alone. If the first meaning be accepted, the defendants must succeed in these suits; if the second be preferred, the plaintiffs must succeed.
8. Now it is suggested by the learned Counsel for the appellants that the first and obvious way to ascertain the meaning of the word 'kanya' in the passage is to search through Chapter IV of the Dayabhaga, and see where the word 'kanya' occurs, and what is the meaning which has been given to it. In s. I, the word is used twice as meaning a bride at the time of marriage, which may be taken to imply a maiden daughter. In s. II, irrespective of the passage in dispute, the term 'kanya,' wherever it occurs, means maiden or unmarried daughter. In s. III, 'kanya' is used in the same sense, except in verses 32 and 33. These are the passages on which the Subordinate Judge relies to expose, as he says, the fallacy of the hypothesis that the word 'kanya' is used by Jimutavahana in the restricted sense of unmarried daughter. It is unfortunate that the two passages, on which the Subordinate Judge relies, are held by some commentators to be of doubtful authenticity, and by others have been pronounced to be interpolations, and that in a case on the Original Side of this Court, lately heard by a Special Division Bench, of which one of us was a member, it was held that the two passages were forgeries. The final decision on that point will no doubt rest with their Lordships of the Privy Council, but meanwhile it is apparent that the result of the search through Chapter IV of the Dayabhaga goes strongly to support the argument that the word 'kanya' is used in that work to mean an unmarried daughter.
9. Any argument based on the use of the word 'kanya' in modern conversation and literature seems to me to be dangerous. In the course of 300 years words in all languages change and modify their original meaning.
10. The other method of ascertaining the meaning of the word 'kanya' as used in the passage is to look first to the context, and then to enquire and ascertain how the passage has been interpreted by other authors and commentators. The decision of this case depends, as I have already noticed, on the meaning to be given to the word 'kanya' in that passage.
11. Now, in dealing with the question by the light of opinions expressed by authors and commentators, we are met with a difficulty, which the Subordinate Judge has either not recognized or ignored, that these high authorities, in the works which they have produced and in the different editions of their works, have contradicted themselves and have displayed a wavering of opinion, which cannot but have the effect of weakening confidence in them. In fact the point appears to be one of considerable doubt and difficulty, and in dealing with it I have endeavoured to give to the various authorities a most careful and impartial study and consideration.
12. Dealing with the question first on principle, we have it that the property in suit having been given to Saroda Moyi Basu after her marriage comes under the head of ayautuka stridhan. In the ordinary line of inheritance to ayautuka stridhan the sons succeed as preferential heirs to the married or widowed daughters. In the cases before us the property can only go to the married daughters, if the Hindu law makes an exception between ayautuka stridhan, which is 'pitridatta,' or given by the father, and ordinary ayautuka stridhan. The case for the defendants is that the texts, on which they rely, lay down a special line of succession to pitrida Ma ayaaiuka stridhan. Apparently it is not suggested that the exception is governed ', by either the principle of spiritual benefit or natural affection. The learned Subordinate Judge has however suggested that it is governed by a 'natural desire to make a sort of equitable distribution of the effects of the parents amongst children, male and female,' and 'to a very laudable desire on the part of the sages to provide for helpless and indigent relations.' It does not however appear to follow of necessity that married daughter should be more indigent and helpless than sons.
13. Dealing next with the authorities we have first to take Chapter IV(sic)2, of the Dayabhaga, in which the passage occurs. The chapter first lays down the general rule of succession with regard to the separate property of a woman, and provides that it devolves in the first instance in equal shares on her sons and unmarried daughters, and in support of this view quotes passages from Sancha, Lichita and Devala. It then goes on to lay down the order of succession of other heirs, and in paragraph 11, when noting that the son's son is preferred to the daughter's son, it explains that the reason of it is that the married daughter is debarred from the inheritance by the son. In paragraphs 13 to 15 the nature of yautuka stridhan, or property received by a woman at her nuptials, is explained, and it is pointed out that the authorities, e.g., Narada, Catyayana, and Yajnavalka, which give the preference to all unmarried daughters over sons, are referring to property of that class only. Then follows paragraph 16, in which the passage occurs, on which the decision of this case mainly depends. It deals with property given to a woman by her father 'in any manner' 'even at any time besides that of the nuptials,' and provides that it shall be taken by the Brahmini damsel, or let it belong to her offspring.'Her offspring' is generally accepted as meaning the offspring of the deceased. The next two passages in the paragraph offer a possible explanation of the use of the word 'Brahmini.' The concluding passage runs: 'Such is the meaning of the passage, for else according to the preceding interpretation all the texts, which declare the equal right of the son and daughter to the mother's property in certain cases would be incongruous.'The texts here referred to are those dealt with in the preceding paragraphs of the section, and which lay down the general rule that the sons and unmarried daughters equally divide the property of the mother, and the passage seems to lay down that the paragraph provides in respect of ayautuka stridhan received from a father an exception to that rule, and nothing more.
14. The succeeding paragraphs 17 to 24 seem clearly to go back to paragraph 13 and to deal with the text referred to in that paragraph. They explain that the term 'her issue' in the text of Narada refers to the issue of the mother and not of the daughters. Section 13, however, distinctly provides that the texts relate only to the (yautuka) wealth given at the nuptials because these passages contradict the text of Devala cited in paragraph 6. That text runs: 'A woman's property is common to her sons and unmarried daughters, when she is dead.'
15. Paragraphs 22 and 23 go on to lay down the line of succession to the property of a woman received at her nuptials, and the passages following explain how the order of succession is modified by the form adopted at the time of marriage.
16. For the appellants it is argued that paragraph 22 resumes the discussion of the succession to yautuka stridhan from paragraph 13 and that the intervening paragraph 16 alone deals with the succession to pitridatta ayautuka stridhan, and provides in the case of such property the exception to the general rule of succession that the unmarried daughters succeed in preference to the sons, and not jointly with them. This view is supported by the order of succession to pitridatta ayautuka 'stridhan, which is given in the synopsis of Srikrishna at the end of Chapter IV.
17. For the respondents it is argued that the word 'Kanya' in paragraph 16 is used generally to include all daughters; that therefore all daughters, whether unmarried, married, or widowed, are preferred to sons, and that is the view, which Srikrishna himself adopted in his Dayakrama Sangraha. Further, it is argued that the discussion in the subsequent. paragraphs of the words'her issue'would be unnecessary, if the expression 'Brahmini kanya' did not cover married as well as unmarried daughters of the deceased. This contention does not, however, seem to be sustainable for the discussion in paragraphs 17 to 21 seems clearly to refer to the meaning of the words 'her issue'as used in the text of Narada in paragraph 13.
18. It is not easy to determine the exact meaning of the text of the Dayabhaga, but the synopsis in which Srikrishna gives the order of succession shows clearly enough that he then interpreted it to mean that the unmarried daughters alone were preferred to sons in the succession to property given to a woman by her father not at her nuptials.
19. The next authority we come to is the Dayakrama Sangraha of Srikrishna. This is described in the preface as containing a good compendium of the law of Inheritance according to Jimutavahana's text as expounded in his commentary on the Dayabhaga. Chapter II deals with the order of succession to the peculiar property of a woman. Section 1 deals with the succession to the property of a maiden; Section 2 defines the peculiar property of a married woman; Section 3 deals with the succession to the separate property of a woman, when received at her nuptials, and Section 4 with the separate property not received at her nuptials. Then comes Section 5, which is important for the purposes of this case, and which deals with the succession to the separate property of a woman, when given to her by her father. Paragraphs 1, 2 and 3 deal with the order of succession. It has been pointed out to us that in the original the text is not divided into paragraphs, and that the paragraphs 1 and 2 and the first half of paragraph 3 down to'received at nuptials'form one paragraph. These passages, as well as the remaining part of paragraph 3 and paragraph 4, have been interpreted by the Subordinate Judge to mean that the order of succession to ayautuka stridhan is the same as that of yautuka stridhan given by the father, and is first the maiden daughter, then the married daughters, who have, or are likely to have, male issue, then the barren and widowed daughters, and on these failing, the sons and the rest. This construction is supported by the learned pleader for the respondents, who argues that the latter portion of paragraph 3 and paragraph 4 merely confirms the preceding paragraphs.
20. The meaning and effect of the four paragraphs have been considered by a Bench of this Court in the case of Ram Gopal Bhuttacharjee v. Narain Chandra Bandopadhya (l905) I.L.R. 33 Calc. 315; 10 C. W.N. 510; 3 C.L.J. 15. In that judgment the learned Judges express the opinion that the first paragraph of Section 5 should be taken to apply to the separate property of a woman given to her by her father both at her nuptials and at any time other than her nuptials, that is to say, to both yautuka and ayautuka stridhan, that Sections 2 and 3 should be taken to lay down the rule of succession in the case of yautuka stridhan, and paragraph 4 the right of succession applicable to ayautuka stridhan. They take the words'as in the case of property received at nuptials'in the 3rd paragraph to mean that it refers to such property only. The learned Judges also point out that, if this view be accepted, there will be no difference between the line of succession as laid down by Srikrishna in his synopsis to Chapter IV of the Davabhaga and in the section of his Dayakrama Sangraha, with which we have been dealing. The learned pleader for the respondents contends that; it is impossible to reconcile the views expressed in the two works, and that the line of succession given in the Dayakrama Sangraha should be accepted as correct.
21. One thing is, however, clear that, if the two opinions be held to be irreconcilable, the authority of the 'earned commentator is considerably weakened.
22. The next authority is the Dayatatwa by Raghunandan. Chapter X deals with the succession to woman's property. The first paragraph lays down the general rule that a woman's property is common to her sons and maiden daughters, when she is dead, and the succeeding paragraphs up to paragraph 10 deal with the succession on failure of sons and married daughters. Paragraph 12 deals with property received by a woman at the time of her marriage and prefers the married daughters to the sons. Paragraph 16 deals with ayautuka stridhan received from the father and quotes the passage from Manu relied on in the Dayabhaga, Chap. IV., Section 2, para. 16. Paragraph 17 provides that on default of these the son succeeds, quoting in support the authority of Manu. The question then arises whether this applies to ayautuka stridhan or whether it follows in natural order of sequence paragraph 13, which deals with yautuka stridhan. The Subordinate Judge has accepted the former alternative, but here, as in the other authorities, the succession to ayautuka stridhan is introduced seemingly in parenthesis, and it seems open to doubt, whether paragraph 17 really refers to it or to yautuka. Paragraph 18 points out that similarly also other texts declaring the succession of daughters previous to that of sons refer to this description of woman's property. This description may refer to 'property given by the parents'as mentioned in paragraph 11 or to nuptial presents as mentioned in paragraph 13.
23. Mr. Macnaghten, in his Principles and Precedents of Hindu Law, published in 1829 in Vol. I, pp. 39 and 40, follows, in the case of ayautuka stridhan received from the father, the line of succession given by Srikrishna in his synopsis at the end of Chapter IV of the Dayabhaga.
24. Sir Thomas Strange, in his Elements of Hindu Law, Vol. I, p 247, notices the intricacy with which the succession to woman's property is regulated, and in the Appendix, Vol. II, p. 403, extracts the order of succession as given in the synopsis of Srikrishna to Chapter IV of the Dayabhaga, and states that it is the settled order of succession to the separate property of a woman.
25. Neither of these learned authors could claim to be, as those previously mentioned, expounders of the text of the Hindu law, but both had large experience in the Courts of law, and presumably were well aware of the authorities that were accepted in them.
26. The next authority is the Vayavastha Darpana of Shama Churn Sircar. In his first edition, published in 1859, he adopts the exposition of the law of succession to the property of a woman received from her father at any time other than her nuptials given by Srikrishna in his synopsis attached to Chapter IV of the Dayabhaga in preference to that given in the Dayakrama Sangraha, because, being consonant with the Dayabhaga, it is respected above the Dayakrama Sangraha. He also accepts the view that in the passage in Chap- ter IV, Section 11, para. 16 of the Dayabhaga 'kanya' means 'maiden daughter.'
27. In the second edition of the Vayavastha Darpana published apparently in 1867 (see pp. 718-719), the learned author accepts the order of succession to the property of a woman given to her by her father at any time other than at her nuptials, given in Srikrishna's commentary on the Dayabhaga. In a remark, which follows the portion of the text dealing with this subject, the author notices that in the Dayakrama Sangraha Srikrishna lays down that succession to the property given by a father to his daughter, whether at the time of her marriage or at any other time, is regulated according to the principles applicable to the property received at nuptials and he expresses the opinion that this view is supported by the note of Jimutavahana in the Dayabhaga on the passage in Manu. But he goes on to say'the order of succession as given in the commentary on the Dayabhaga seems to be more consistent with reason, for in the succession to this kind of stridhan, why should the son, who confers the greatest benefit on the mother, be postponed even to the widowed and barren daughters, (who confer no spiritual benefit on her), in the same way as in the succession to the ayautaka property, which descends to the daughters in preference to the son solely on account of certain texts of the sages and especially the text of Manu, Chapter III, v. 49. The text and note indicate the opinion of the earned author that in the line of succession sons should be preferred to daughters other than unmarried daughters.
28. In the edition of his work published in 1883 after his death, a different order of succession is adopted, and all daughters married and widowed are preferred to the sons.
29. Here, again, we have a learned commentator expressing diametrically different views at different times, a circumstance which goes to weaken confidence in him as an authority.
30. Among later commentators we find in the work on Hindu Law of Marriage and Stridhan by Dr. (now Sir) Gooroo Das Banerjee, that the learned author in the first edition remarks that the order given by Srikrishna's commentary on the Dayabhaga is'generally'accepted as correct, while in the later edition, p. 408, he qualifies it by saying it is accepted as correct by some authorities. The learned author points to the difference between the authorities on the point, and expresses no certain opinion himself.
31. Jogendro Smarta Siromoni, in his commentary on Hindu Law, published in 1885 at page 398, deals with pitridatta stridhan. He points out first that there is a special rule with regard to this class of property, that it goes in the first instance to the unmarried daughter alone. He notices that in the Dayakrama Sangraha Srikrishna has laid down that the course of succession to pitridatta is similar to that in the case of yautuka, but he goes on to say that in Srikrishna's commentary on the Dayabhaga he has expressed a different opinion. He however notices that property given by the father before or after marriage must be regarded as ayautuka, and the course of successions to such property must be the same as in respect of any other ayautuka, except so far as the operation of the general rules is qualified by special texts, and he'adds that there is no direct authority for saying that all daughters succeed to the pitridatta before the sons. The learned Subordinate Judge in dealing with this authority fails to notice that the opinion above expressed is clearly in favour of the view that the sons succeed to pitridatta ayautuka stridhan after the unmarried daughters. In commenting on the judgment of Mr. Justice Mitter in the case of Jodoo Nath Sircar v. Basunt Coomar Roy Chowdhry (1873) 19 W.R. 264; 11 B.L.R. 286, the learned author remarks that the conflict between Srikrishna in the Dayakrama Sangraha and his master in the Dayabhaga cannot be reconciled except by showing that the text of the Dayabhaga is capable of being interpreted in the manner Srikrishna has done.
32. Babu Golap Chandra Sarkar Sastri in his work on Hindu Law notices the conflict between the Dayakrama Sangraha and Srikrishna's synopsis to Chapter IV of the Dayabhaga in respect of the line of succession to ayautuka stridhan, which is given by a father at any time other than the nuptials, and notices that the question is beset with considerable difficulty arising from apparent contradiction.
33. Mayne, in his work on Hindu Law and Usage, 7th ed., p. 900, Section 673, accepts the view that all the daughters are preferential heirs to the sons.
34. Taking next the decisions of the Courts, we find that in the case of Gopal Chunder Pal v. Ram Chunder Paramanik (1901) I.L.R. 28 Calc. 312 this Court refused to follow the Dayakrama Sangraha in respect to the order in which a brother or a husband were entitled to succeed to moveable property received by a woman from her father after her marriage, and relied in preference on the text of the Dayabhaga as being the paramount authority in the Bengal School.
35. In the case of Ram Gopal Bhuttacharjee v. Narain Chandra Bandopadhya (1905) I.L.R. 33 Calc. 15; 10 C.W. N, 510; 3 C.L.J. 15, to which reference has already been made, a similar view was accepted in respect of the mother's right to succeed to anwadheya stridhan of a childless woman in preference to her husband. The learned Judges in dealing with paragraph 16, Section 2, Chapter IV of the Dayabhaga expressed the opinion that, subject to the one variation made in that passage, 'yautuka given by a father is inherited as other yauluka, and ayautuka given by the father is inherited as other ayautuka': and they attempt to reconcile the paragraphs 1 to 4 of Section 5 of the Dayakrama Sangraha with this view in the manner already noticed in this judgment.
36. In the case of Judoo Nath Sircar v. Bussunt Coomar Roy Chowdhry (1873) 19 W.R. 264 the exact words of the Dayakrama Sangraha have not been accepted and in preference an attempt has been made to reconcile them with the text of the Dayabhaga.
37. The result of a careful examination of the commentators and authorities on Hindu law and of the cases, which have come before the Courts, in which the question of the succession to the pitridatta ayautuka stridhan of a woman has been considered, does not at all go to support the opinion expressed in rather over-confident terms by the Subordinate Judge in the lower Appellate Court that the balance of authority is heavily in favour of the married daughters being preferred to the sons.
38. If we rely on the Dayabhaga itself, and the earliest interpretation put on it by Srikrishna in his synopsis, we must hold that the sons should be preferred in the line of succession to the married daughters. If we take the words of the text of the Dayabhaga, we find that it is only in two exceptional passages, and those of doubtful authenticity, that the word 'kanya' is used by itself in the Dayabhaga to mean a daughter in the generic sense. When the author intends to convey that meaning, the word 'duhita' is used. 'Kanya' is used to mean'a bride at the time of bridal'and'an unmarried damsel,'and in fact the original meaning of the word appears to have been'a girl up to 10 years of age.'According to the ordinary rule, unmarried daughters and sons succeed jointly to the separate property of their mother, and the question is whether in the passage of the Dayabhaga under consideration it was intended to give the unmarried daughters preference to the sons, or to give all the daughters preference to them. Certainly the use of the word 'kanya'seems to go far to support the former conclusion.
39. To support the contention that the word'kanya' is used in the generic sense to include all daughters, the learned pleader for the respondents has relied on the passages in the Dayakarama Sangraha to which we have referred, and has argued that the learned Judges in the case of Ram Gopal Bhuttacharjee v. Narain Chandra Bandapadhya (1905) I.L.R. 33 Calc. 315; 10 C.W.N. 510; 3 C.L.J. 15, have failed to reconcile the discrepancy between these passages and the synopsis in the Dayabhaga, which it is contended are irreconcilable.
40. The texts of the ancient authors do not however yield readily to those methods of construction which we are able to adopt in dealing with books of recent date. The style is often involved. No rules of punctuation are observed, and matters are introduced in parenthesis, both in passages and in sections of the works, without any apparent system or rule. One of the learned Judges, who was a party to the decision under consideration, is a Sanskrit scholar, who was able to seek elucidation of difficulties by reference to the original texts. Under these circumstances, it seems to me that we should hesitate before differing from the view expressed in that judgment. The Dayakrama Sangraha is supposed to have been written by Srikrishna after his synopsis to the Dayabhaga, but as to this there is no certainty. At all events, there is nothing in the Dayakrama to explain why the learned author had modified his previous opinion, and therefore there is every reason to attempt to reconcile the two expressions of opinion, if it be possible. If that can be done in the manner adopted by the learned Judges in the case under notice, all further difficulties will disappear.
41. If such reconciliation be impossible, then it seems that the credit to be attached to Srikrishna as an authority is much weakened.
42. The meaning of the text of the Jayatattwa of Raghunandan is far from being clear owing to the introduction 'in parenthesis' of the reference to ayautuka stridhan given by the father.
43. Macnaghten and Strange both accept Srikrishna's synopsis at the end of Chapter IV of the Dayabhaga as laying down the correct law.
44. Shama Charn Sircar in his Vyavastha Durpana wavers in opinion, and it is remarkable that, in the first and second editions, which were published during his lifetime and in which he follows Srikrishna's synopsis and accepts the meaning of 'kanya,'to be unmarried daughter, he gives reasons for his conclusions, while in the third edition, which was published after his death, no reasons whatever for his change of opinion, (if in fact the opinion expressed in that edition be his), are mentioned.
45. Jogendro Smarta Siromoni refuses to accept the view that all daughters should be preferred to sons. The other learned authors invite attention to the difficulty, which has arisen, in interpreting the passage in the Dayabhaga owing to subsequent contradiction, but do not assist us to elucidate it.
46. The decisions of the Courts, to which we have referred, indicate that where there is a difference between the Dayakrama Sangraha and the Dayabhaga, the former has been rejected and the Dayabhaga followed.
47. Taking the passage of the Dayabhaga as it stands, and giving due effect to the use of the word 'kanya', and taking also into consideration the context and the fact that the earliest interpretation of the text was in favour of giving the sons preference to the married daughters in the succession to the pitridatta ayautuka siridhan, the reasonable conclusion appears to be that the intention of the Dayabhaga was to lay down a general law of succession to ayautuka stridhan, and to make an exception in the case of such property received from a father only to the extent that in the first instance the unmarried daughter is preferred to the son. I see no reason to differ from the view taken by the learned Judges in the case of Ram Gopal Bhuttacharjee v. Narain Chandra Bandopadhya (1905) I.L.R. 33 Calc. 315; 10 C.W.N. 501; 3 C.L.J. 15 that the synopsis of Srikrishna to Chapter IV of the Dayabhaga and the paragraphs in the Dayakrama Sangraha are capable of reconciliation.
48. I would, therefore, set aside the judgment and decree of the lower Appellate Court and decree the appeal and restore the judgment and decree of the Court of first instance with costs
49. As, however, my learned brother differs in opinion from me the case must be referred to the Honb'le the Chief Justice orders under Section 575 of the Code of Civil Procedure,
50. In this case the sole point in issue is, whether sons succeed in preference to married daughters to property given to a woman by her father at a time other than the time of nuptials; and the decision of this question turns exclusively, or almost so, on the further question, whether the word 'kanya' in paragraph 16, Section 2, Chapter 4 of the Dayabhaga refers exclusively to unmarried daughters or includes all daughters. It will be convenient to deal with the authorities in order, and the first that must necessarily be considered is the Dayabhaga itself. The Dayabhaga deals first with the succession to woman's property generally, and lays down that the property of a woman goes on her death, first to her son and unmarried daughter, and then to the married daughters. The author then deals with the yautuka property, which he apparently regards as exceptional, and lays down that it goes on the mother's death to the daughters. Then comes the text on which this controversy hinges (iv, ii, 16). The author quotes a text of Manu, which runs,'The wealth of a woman, which has been in any manner given to her by her father, let the Brahmini damsel (kanya) take, or let it belong to her offspring.'And as I have said, the controversy arising in this case turns principally on the question whether the word 'kanya' is intended to refer only to the unmarried or to all daughters.
51.There is no dispute that the term means'daughter.' It is not suggested that any girl, who was not a daughter, could by any possibility Succeed. But it is strenuously argued that the word ordinarily means a maiden daughter only, and is only used to signify daughters in general, when used in conjunction with the word putra (son). Particular reference is made to the use of the word in the text of Devala, quoted in paragraph 6 of the same section of the Dayabhaga, which runs,'A woman's property is common to her sons and 'kanya,' when she is dead, but if she leave no issue, her husband shall take it, etc.'It is curious that, if the word 'kanya' here refers only to unmarried daughters, there is no direct reference to unmarried daughters at all, though admittedly they succeed before the husband. But it is not disputed that the word 'kanya'in this passage means unmarried daughters only.
52 At the same time, it cannot be denied that the word is occasionally used to signify daughters generally, and the sense in which it is used in this passage must in my opinion be gathered from the context. It has been argued that the paragraphs succeeding paragraph 16 deal with the question whether in the text of Manu quoted above, the words'her offspring'refer to the daughter's offspring or the offspring of the deceased mother. And it has been argued that the fact that this point has been thought worthy of serious discussion shows conclusively that the word'daughter'must include married daughters, for obviously an unmarried daughter could not, in the eye of the law, have any offspring at all and therefore, if only unmarried daughters were referred to, there could be no controversy or discussion as to what was meant by the words 'her offspring.' To this argument there could, in my opinion, be no answer, if the paragraphs really referred to the text of Manu before quoted. But if I understand the paragraphs aright, they refer to a text of Narada quoted in paragraph 13, and not to the text of Manu at all. Still the fact remains that the author of the Dayabhaga deals with the succession to yautuka property in paragraphs 13, 14 and 15. He then deals with this special subject of the succession to pitridatta property. He then devotes paragraphs 17 to 21 to a possible misconception that might arise with regard to the succession to yautuka property laid down in paragraph 13.. And then he goes on dealing with the succession to yautuka property generally. Taking the whole arrangement of the section, with the parenthetical reference to the succession to pitridatta property in paragraph 16 embodied in the general discussion of the succession to yautuka property, it seems to me that the author of the Dayabhaga regarded pitridatta property as coming under the rules relating to yautuka property so far a daughters were concerned.
53. Ayautuka property goes first to the son and unmarried daughter, then to the other daughters. Yautuka goes first to the daughters and then to the sons. If really there were a third and entirely distinct order of succession to pitridatta property, it seems reasonable to suppose that in a work that is certainly not inattentive to detail, it would have been stated distinctly what it was.
54. It has been argued on behalf of the appellants that, if he intended that daughters as a class succeeded to pitridatta property, the author of the Dayabhaga would certainly have laid down their order of succession within the class. To me the fact that he has omitted to do so, and has merely stated the fact of the daughter's succession in a parenthesis embodied in the middle of the rules governing the devolution of yautuka property, in which the order of succession of daughters inter se is set out, seems to indicate that he did not regard the succession of the 'kanya' to pitridatta property as any exception to the rule governing the succession to yautuka property. It must be remembered that the word 'kanya' was not his own. He was quoting from the Code of Manu, which was in verse, and presumably subject to the laws of metre and style. He did not feel himself bound to assign any specific meaning at all to the word 'Brahmini' and it may well be that he did not feel himself bound to attach a restricted meaning to the word 'kanya.'With reference to the words'or let it belong to her offspring'in the text under consideration it may be asked why a word signifying both male and female offspring should be used, if the text means that on failure of daughters the property goes to the sons. It is clear, however, from the context that the word'offspring'cannot refer to all the children, but only to the children other than the 'kanya.' If therefore 'kanya'means all the daughters, the word'offspring'must refer to the sons. If, on the contrary, the word 'kanya' means unmarried daughter only, the text prescribes that in the absence of an unmarried daughter sons and married daughters inherit together, which is not suggested by any body. This consideration seems to me to support in some measure the view that the word 'kanya'refers to all the daughters. I do not however lay any stress on this beyond saying that in my opinion the use of the word 'offspring' is not inconsistent with the view that the term 'kanya' refers to all the daughters.
55. Next comes the strongest authority on the side of the appellants, namely, the summary by Srikrishna, at the end of Chapter IV of the Dayabhaga, of the rules of succession prescribed in that chapter. This clearly lays down that in the case of pitridatta property, not given at the time of marriage, the maiden daughter succeeds first, then the son, and then the other daughters.
56. It is argued, however, by the respondents that this authority has been destroyed by the fact that Srikrishna in his later work, 'The Dayakrama Sangraha'(Chapter II, Section 5) has laid down that the daughters succeed before the sons. It will be necessary to set out the first three paragraphs of the section in full. They run as follows:
In regard to the wealth given by a father to a woman at the time of the wedding, or antecedent or subsequent to it a maiden daughter inherits in the first place.
2 After her a married daughter, who has, and one who is likely to have, male issue, inherit together.
3. Next the succession devolves on the barren and widowed daughters, and in default of all daughters, the son and the rest succeed as in the case of property received at,'nuptials; for a text of Manu declares. 'The wealth of a woman, which has in any manner been given to her by her father, let the Brahmini damsel take or let it belong to her off spring.'
57. It was held in Ram Gopa Bhuitacharjee v. Narain Chandra Bandopadhya (1905) I.L.R. 33 Calc. 315; 10 C.W.N. 510; 3 C.L.J. 15, that though the first paragraph referred to both yautuka and ayautuka pitridatta property, the second and third could refer to yautuka pitridatta property only. This view was based principally on the words'as in the case of property received at nuptials,'and on the fact that, if the second and third paragraphs referred to ayautuka as well as yautuka pitridatta property, it would be impossible to reconcile the Dayakrama Sangraha with the same author's synopsis of the Dayabhaga. It has been argued, however, before us that a consideration of the original text renders this view untenable. We are informed that the first two paragraphs and the third paragraph as far as the words'widowed daughters' form one sentence prescribing that the maiden daughter is first entitled to succeed, then the married daughter, and then the widowed daughter; and ending with the word'entitled,'which applies equally to all the preceding nominatives. An entirely new sentence then begins with the words. 'In default of all the daughters.' If this is so, and the fact has not been disputed before us, then although I have the greatest diffidence in dissenting from the view of the learned Judges in the case cited above, I find myself unable to understand how any distinction can be drawn between the first and the two following paragraphs in their relation to all Made of pitridatta property. And it appears to me that the succeeding sentence-'In default of all daughters the seat and the rest succeed as in the case of property received at nuptials; for a text of Manu declares-'The wealth of a woman, which has in any manner been given her by her father let the Brahmini damsel take,'implies that in the view of Srikrishna at the time he wrote the Dayakrama Sangraha, the term 'Brahmini damsel' was in effect synonymous with 'all daughters.' In paragraph 4-, it is laid down that, whatever is given by the father 'belongs first to the damsel and after her it goes to her offspring, her son.' This paragraph is to my mind conclusive that Srikrishna at the time he wrote the Dayakarama Sangraha regarded the term 'kanya' as including married daughters, since otherwise he could not have referred to their sons.
58. Next comes the Dayatatwa of Raghunandan. Chapter X of this work begins by dealing with succession to stridhan generally. Then in paragraphs 12 to 15 the author deals with succession of yautuka. Paragraph 16 deals with the text of Manu that pitridatta property goes to the Brahmani damsel. Paragraphs 17 and 18 run as follows:
17. On default of these the son succeeds; since Manu says 'on default of daughters the inheritance goes to sons.'
18. Similarly also other texts declaring the succession of daughters previous to that of sons refer to this description of woman's property.
59. Then paragraph 19 begins,'On failure of sons and the others a woman's nuptial presents go to the husband.'
60. It is argued on behalf of the appellant that paragraph 16 is a parenthesis and that, at the end of it the author resumes the consideration of the succession to yautuka property. In this view, the words 'on default of these' at the beginning of paragraph 17 mean 'on default of the daughters mentioned in paragraph 13.' On the other hand, it is argued on behalf of the respondents that the words mean'on default of the Brahmini damsels mentioned in the preceding paragraph.' It seems to me that both views are tenable and that it would? be unsafe to build any firm conclusion on this passage. I may say, however, that the repetition of the words 'nuptial presents'in paragraph 19 tends in a small measure to show that the parenthesis about the pitridatta ends, and the discussion of yautuka property is resumed at that point.
61. The authority next quoted is Jagannath's or Colebrooke's Digest. It is difficult to base any conclusion on this work as it quotes both the text of Devala, to the effect that the son and maiden daughter together, and that of Katyayana, to the effect that the daughters succeed, and draws no clear distinction between yautuka and ayautuka property But in quoting the text of Manu (paragraph ccccxcv) the author construes it as laying down that the property of a childless wife shall go to the daughter of a Brahman co-wife, or to the issue of that daughter. So that it is clear that the author did not regard the term 'kanya' as necessarily confined to an unmarried girl.
62. Subsequent commentators may be briefly referred to, although the case must be decided on the view that is taken of the earlier authorities. Macnaghten is wholly in favour of the appellant. Strange is claimed as being in his favour, but all that appears in that work is a reprint of Srikrishna's synopsis at the end of Chapter IV of the Dayabhaga. Jogendra Nath Bhattacharjya is in favour of the appellant's contention, but his views are in my opinion weakened by the distinction which he draws between the first and subsequent paragraphs of Section 5 of the Dayakrama Sangraha. Golap Chandra Sarkar seems to have been unable to make up his mind on the point, and a still more remarkable instance of this indecision may be found in the work of Shama Charan Sarkar. In the first edition of the work of that learned author he seems to have been wholly in favor of the view urged by the appellant. In the second (Section 4 64), he admitted that the Dayabhaga furnished full authority for the contrary view, but thought that reason required the postponement of the married daughters to the sons. But in the last edition of his work, published some months after his death, he went wholly round to the view, for which the respondents now contend. On the other hand, Mayne is wholly opposed to the view taken by the appellant.
63. I attach a good deal of importance to the comments in the second edition of Shama Charan Sarkar's Vayavastha Darpan and those in Mr. Justice Banerjee's work on stridhan. The first author gives the succession as laid down in Srikrishna'a Synopsis at the end of Chapter IV of the Dayabhaga. That was the order of succession, which he thought was right. He defends it as based on reason. But he admits, and, as it seems to me, reluctantly admits, that Srikrishna in the Dayakrama Sangraha lays down that succession to all pitridatta property is regulated according to the principles applicable to yautuka property, and then he goes on to say; 'The above is not the solitary opinion of Srikrishna alone but also of Jimutavahan, as is evident from the following note.'The note is a quotation of the paragraph 16 which has already been set out in full. Now, if the word 'kanya' must necessarily mean an unmarried daughter, I cannot understand how Shama Charan Sarkar can have felt himself forced to admit that paragraph 16 was opposed to the view, which he was defending. For if the word 'kanya' as we are now told, would necessarily convey to all Sanskrit scholars the signification'unmarried daughter,'it is clear that the commentator must have seen at once that the Dayabhaga was not opposed to the synopsis and did not support the view that the order of succession to all pitridatta property was the same as that of succession to yautuka. And the fact that this evidently did not occur to him indicates strongly to my mind that the restriction of the meaning of the word 'kanya' to unmarried daughters is untenable.
64. The same considerations apply, though in a less degree, to Mr. Justice Banerjee's observations on page 408 of his work on Marriage and Stridhan (second edition). Though he does not express any very decided opinion he seems to accept the order laid down in Srikrishna's Synopsis. But he observed that according to the Dayakrama Sangraha the order of succession was the same as for yautuka and that this'seems to be in accordance with the opinion of Jimutavahana and Raghunandan.'And clearly, if the word 'kanya' had conveyed to the learned commentator's mind the meaning of'unmarried daughter'only, he could have had no reason whatever for saying that it was the opinion of Jimutavahana, that the order of succession for all pitridatta property was the same as that for yautuka.
65. We have been referred to two cases, Judoo Nath Sircar v. Bussunt Coomar Roy Chowdhry (1873) 19 W.R. 264 and Gopal Chandra Pal v. Ram Chandra Pramanik (1901) I.L.R. 28 Calc. 311. But all that was held in the first of these cases was that the words'sons and the rest' in the Dayakrama Sangraha did not include collateral heirs, and this finding does not seem to me to have any bearing on the present case. The second case also has no real application to this case.
66. I think that the appellants have failed to show that the Subordinate Judge is wrong. The only clear authorities on the point are the two diametrically opposed statements of Srikrishna. If either of these is to be preferred, it should, I think, be the latest, namely, the. Dayakrama Sangraha. Otherwise the decision of the case must turn on the question whether the word 'kanya' in the Dayabhaga includes married daughters.' The Subordinate Judge is of opinion that it does include them. The arrangement of that portion of the Dayabhaga indicates that the author intended to include them. The interpretation of Manu's text given in Jagannath's Digest, and in the Dayakrama Sangraha, indicate that the term was understood as including married daughters. Among the later commentators Babu Gooroo Das Banerjee and Shama Charan Sarkar, in the second edition of his work, while accepting the order of succession laid down in the synopsis, were at the same time of opinion that that order was opposed to the Dayabhaga, a view, which necessarily implies that they thought that the term 'kanya' included married daughter. Against these authorities there are the clear opinions of Macnaghten and Jogendra Nath Bhuttacharjee, which in their turn are opposed to that of Mayne. I find it impossible to hold on these authorities that the term 'kanya' could not have been intended to include married daughters. I think that it does include them, and, if this view is correct, these appeals must necessarily fail.
67. Accordingly I would dismiss these appeals, but I agree that they should be referred to another Judge or Judges under Section 575 of the Civil Procedure Code.
68. [Owing to this difference of opinion, the case was referred to; a third Judge, Mitra J.]
69. The decision of the question of Hindu law raised in these appeals depends on the interpretation of Chapter IV, Section 2, para. 16 of the Dayabhaga of Jimutavahana, the paramount authority in the Bengal School. Other authorities may be followed, if there be any ambiguity in Jimutavahana's text. Srikrishna and Raghunandana undoubtedly deserve the greatest respect, but their opinions must yield to the authority of their great master, Jimutavahana, himself.
70. Chapter IV, Section 2, para 16 of the Dayabhaga of Jimutavahana is as follows in Colebrooke's translation: 'As for a passage of Manu', The wealth of a woman, which has been in any manner given to her by her father, Jet the Brahmini damsel take or let it belong to her offspring' since the text specifies 'given by her father', the meaning must be, that property, which was given to her by her father, even at any other time besides that of the nuptials, shall belong exclusively to her daughter, etc.'The text of Manu referred to in the paragraph is this in original:
Chap. IX, v. 198.
71. The word 'damsel' in the translation by Colebrooke represents the word in the original text. In Jimutavahana's commentary on it in paragraph 16, he also uses the word. In the next sentence in that paragraph he uses the words. In this last sentence, the word is evidently used in contradistinction to the word.
72. The question then arises.-In what sense has the word 'been used by Manu and Jimutavahana The arguments before me, as well as those before my learned colleagues, Brett and Coxe, JJ., related principally to the meaning of the word and the sense in which it was used by Jimutavahana. Does it mean an unmarried daughter, or, daughters generally
73. The word primarily means a maiden daughter, a virgin (kumari). That is the interpretation of the word given by the celebrated lexicographers Amar Singh and Hem Chandra. In the Medini also, the first synonym of is (maiden daughter). The same meaning is given in the Savdakalpadruma by Rajah Sir Radha Kanta Deb Bahadur, and all the later lexicographers. Professor H.H. Wilson in his Dictionary also gives the same meaning: 'A maid, a virgin, a girl of nine or ten years of age.' Later writers have occasionally used the word to mean 'a woman' from the particular to the general. But that is not the meaning of the word as used in the Smritis. To illustrate the primary meaning of the word virgin, the learned author of the Savdakalpadruma has cited a significant passage from the Vanaparva in the Mahabharata, showing the root and inflexion of the word and its meaning kumari. He gives the secondary meaning 'woman' , following the earlier lexicographers. Sir Greaves Haughton in his dictionary confines the meaning to a 'maid, a virgin, a young woman.' In fact there can be no doubt as to the meaning of the word as used in earlier Sanskrit literature and law. The genus (woman) for the species (virgin) is of later use.
74. I have not been able to find the word used in its wider sense any where in Manu. The word means daughter, married, unmarried or widow. All female children are daughters. The word included in its significance, and the lexicographers, I have referred to, are unanimous in this respect. Amar Singh, Hem Chandra as well as the Medini, also give the wider meaning of the word, but they do not give the synonym to be; they use the word 'woman'. When Jimutavahana uses the words in paragraph 16, he must have used the word in its appropriate sense of daughter and the word as included in the genus The word occurs also in paragraphs 6 and 7 of the same chapter and section. In paragraph 6, the text of Devala is cited and in paragraph 7 the word is interpreted to mean, as it must In both the paragraphs Colebrooke's translation of the words is'unmarried daughter.' I am not disposed to come to the conclusion that the same word was used by Manu and Jimutavahana in an unusual sense in Chapter IX, v. 198 and paragraph 16, respectively. Such use would be inconsistent with its use in other parts of their great works.
75. Of the commentators on Manu's text, Kulluka carries the greatest weight. He seems to be of opinion that unmarried daughter first succeeds and, on her default, the sons of the deceased. He lays down distinctly that in the presence of both an unmarried daughter and sons, the former should be preferred and the sons follow the maiden daughter. This seems to be also the opinion of Manu's commentators, Raghavananda, Nandan and Ram Chandra, but Sarvajna Narayan may appear to be of a different opinion. The latter says i.e., the word 'kanya' is used for daughters generally. But Sarvajna Narayan's authority has never been recognised in Bengal as superior to Kulluka's and the sentence itself is very vague.
76. The commentators of Dayabhaga, Srinatha, Ram Chandra, Moheswara, Achyutananda, Raghunandana and Srikrishna, interpreted the word in the text as having its ordinary meaning of unmarried daughter. Srikrishna is abundantly clear in his commentary as has been pointed out by Brett and Coxe, JJ. Srikrishna and Raghunandana subsequently laid down in their respective treatises a different rule of succession, as if the word might mean daughters generally. In a conflict of authorities, however, Jimutavahana must be preferred. The later opinions of Srikrishna and Raghunandana, which are not based on the text of the Dayabhaga, ought not to be followed by the Courts in Bengal.
77. Macnaghten (Principles of Hindu Law, pp. 39-40), Strange (Vol. I, p. 251 and Vol. II, p. 403), Shyama Charan Vyavastha Darpana, p. 806, 1st Edition; pp. 717-8, 2nd Edition) and Elberling have followed Srikrishna's commentary on the Dayabhaga and not his individual opinion as given in the Dayakrama Sangraha. The order of succession-maiden daughter, son and other daughters-was accepted by all Anglo-Indian text writers, until a cloud was thrown in the third edition of Shyama Charan's Vyavastha Darpana published after his death. Sir Gooroo Dass Banerjee in his learned work on the Hindu Law of Marriage and Stridhan (p. 408, 2nd Edition) seems to be of opinion that Srikrishna did not follow Jimutavahana as regards succession to pitridatta stridhana. Raghunandana in his Dayatatwa did not also follow the Dayabhaga.
78. I am of opinion that we should follow the Dayabhaga and not Srikrishna and Raghunandana, when it is evident that the latter have not followed their master in giving preference to daughters generally. I am confirmed in my view by what Rampini and Mookerjee JJ. have said in Ram Gopal Bhutiachaejee v. Narain Chandra Bandopadhya (1905) I.L.R. 33 Calc. 315; 10 C.W.N. 610; 3 C.L.J. 15. I agree, therefore, with Brett J.
79. The result is that the appeals will be decreed with costs in all the Courts.