Rampini and Mookerjee, JJ.
1. The facts which have given rise to the litigation out of which this appeal arises, so far as it is necessary to state them for the decision of the questions of law raised before us, are practically undisputed. The property which is the subject matter of this litigation originally belonged to the appellant. On the 2nd January 1898 he granted a maurasi and mokarari lease of this property, reserving an annual rent of one rupee, to his daughter Pravabati. Pravabati died in 1900 and on the 16th May 1901, the plaintiff took a sub-lease of the lands comprised in the tenancy from her husband, and on the basis of this sub-lease, the plaintiff seeks to recover possession. The appellant, who was the first defendant in the Court below, resisted the claim on the ground that as Pravabati died childless, leaving her mother as her heiress according to Hindu Law, her husband had no title to the property and could not confer any on the plaintiff. The Courts below have concurrently held that the interest created by the appellant in favour of her daughter-constituted her stridhan, but while the Court of the first instance held that the mother was entitled to succeed in preference to the husband, the learned Subordinate Judge held that the husband was entitled to succeed in preference to the mother. The substantial questions of law, therefore, which arise in this appeal and which have been elaborately discussed at the Bar, are, first, whether the property in dispute was stridhan as understood in the Bengal School of Hindu Law, and, secondly, whether the husband or the mother is the preferential heir to it.
2. As regards the first question we do not entertain any doubt that the property in dispute has the charecteristies of stridhan as defined in the Dayabbaga. It was indeed contended by the learned vakil for the respondent that a leasehold interest was unknown in the times when the authoritative text-books on Hindu Law were written, and that consequently the interest in property, which was created by the appellant in favour of his daughter, was not property to which the rules laid down in the text-books on Hindu Law Could have any possible application. In our opinion there is no force in this contention. In the first place no authority has been cited in support of the proposition that leasehold interests were unknown at the time when the Dayabhaga was written. In the second place, we are not prepared to hold that the rules of Hindu Law are so inelastic as to he capable of application only to such descriptions of interests in properly as formed the subject matter of transactions at the time when the rules were first formulated. Indeed if the rules of Hindu Law were so narrowly construed and applied it would be impossible to administer them, because in any case, the Courts would be called upon to hold a preliminary enquiry as to when a particular rule was first laid down and also as to what kinds of interest in property were recognized at that time. In the third place, if leasehold interest was not recognized as property, it is difficult to see how the plaintiff could have acquired any right on the basis of which his claim could be sustained. We must therefore hold that the property in suit is one to which the rules of Hindu Law are applicable. We are further of opinion that it possesses the characteristics of stridhan--according to the Dayabhaga in Chap. IV, Section 2, paras. 18 and 19 of which it is laid down that, '''that alone is her peculiar property which she has power to give, sell or use independently of her husband's control; Katyayana expresses this rather concisely. The wealth which is earned by mechanical arts or which is received through affection from any other (but the kindred) is always subject to his (husband's) dominion. The rest is pronounced to be the woman's property.' No doubt this definition may be open to the objection that it defines one unknown quantity by means of another. But it is clear from the text of Katyayana referred to, as also from the text of Katyayana quoted in the Dayabhaga Chap. XI, Section 1, para. 56 that under the Bengal School of Hindu Law, a female has not absolute power of disposition over (i) what she earns by the mechanical arts, (ii) what is given to her by strangers at any time other than that of marriage and (iii) what she inherits from a male or a female relation. The property in suit does not come under any of these categories, and must be taken to be one which Pravabati had power to give, sell or use, independently of her husband's control. It was therefore stridhan within the meaning of that term as used in the Dayabhaga. We think it is also clear that it comes within the description of ayautuka stridhan as it was given to her by her father after her marriage. Further it comes within the class known as anwadheya, which is thus defined in the Dayabhaga in paras. 15 and 16, of Chap. IV, Section 3.--'15. For anything received by her subsequently to her nuptials is comprehended under the denomination of anwa theya (gift subsequent). '16. Katyayana describes anwadheya (a gift subsequent) what has been received by a woman from the family of her husband and at a time posterior to her marriage, is called a gift subsequent and so is that which is similarly received from the family of her kindred.'
3. With reference to these 'passages, it was argued by the learned vakil for the respondent that nothing is anwadheya which is not given as a 'gift' and as in the case before us the appellant created in favour of his daughter a leasehold interest, such interest is not comprised within the class anwadheya. We are unable to accept this contention as sound. As is shown by the definitions we have referred to, what is received is called Anwadheya, which is also the derivative meaning of the term, and the phrase 'gift subsequent' which has been adopted as the English equivalent of ancadheya cannot be allowed to restrict its meaning. Looking to the substance of the transaction in the case before us, the appellant parted with all his interest in the property in favour of his daughter, reserving the right to receive a nominal sum annually. It is conceded that, if such right had not been reserved and the transaction had been described as a gift, the property acquired by the daughter would have been comprehended in the term anwadheya. We are unable to hold that the reservation of a nominal rent altered the character of the transaction so far as the question now before us is concerned There cannot be any reasonable doubt that the daughter received from the father a substantial interest in the property, although it was not the entire interest, which the father was competent to transfer. We hold accordingly upon the first question raised before us that the intrent, in the property transferred to Prava-bati under the deed of the 2nd January 1898, constituted her ayautoka stridhan and falls within the class known as armadheija.
4. As regards the second question raised before us, namely, whether the husband or the mother was the preferential heir to the property in suit upon the death of Pravabati, the answer must depend upon the interpretation of certain passages in the Dayabhaga. But before we refer to these passages, it is desirable to point out that for the purposes of inheritance Jimutavahana divides stridhan property into two broad classes namely, ayautuka or property given to a female at a time other than that of marriage and yautuka or property given to a female at the time of marriage. The rules laid down for these two classes which are mutually exclusive are subject to modifications in the cases of (a) maiden's property and (b) pitridatta or property given by the father, for which special rules are laid down. It is clear from Chap. IV, sees. 2 and 3 that general rules are first laid down for ayautuka stridhan and then follow special rules for yautuka stridhan. This is quite clear from the Dayabhaga, Chap. IV, Section 2, paras. 1--6 which contain the general rules laid down by Jimutavahana relating to the devolution of the stridhan of a female, who leaves issue. Then follows special rules relating to yautuka stridhan in Chap. IV, Section 2, paras. 13 and 16. If now we refer to Section 3, which deals with succession to the stridhan quoted in the Dayabhaga, Chap. IV, Section 3, para. 12, and by the text of Baudhayana set out in the Dayabhaga Chap. IV, Section 3, para. 7. These texts lay down that in certain specified cases, the husband or the parents succeed first, and the inference is irresistible that in other cases, by the general rule, the brother succeeds first. It is argued, however, by the learned vakil for the respondent that the rule by which the husband is postponed to the brother, mother and father in the case of succession to the ayautuka stridhana of a childless female, applies only to the property of a female married in one of the inferior or disapproved forms, and in support of this proposition reliance is placed upon Srikrishna's Dayakrama Sangraha, Chap. II, Section 4, para. 11, which provides as follows:
Failing either of these (that is barren and widowed daughters), the other succeeds, and, in default of successors including the barren and widowed daughters, the succession devolves in due order, by the rule of analogy, as in the case of wealth received at nuptials, namely, on the woman's husband, brother, mother and father, if she were married according to any one of the five forms denominated Brahma and the rest; or if she were married according to any of the three forms styled Asura, &c;, on her mother, father, brother and husband.
5. Reference is also made to the summary given by Srikrishna at the end of his commentary Chap. IV, Section 3 of the Dayabhaga, where the same view is enunciated. This opinion of Srikrishna, however, though apparently founded upon the first interpretation of the text of Manu quoted in the Dayabhaga, Chap. IV, see. 2, para. 16, is directly contrary to that of Jimutavahana as expounded in Chap. IV, Section 3, paras. 12 and 13 of the Dayabhaga, which is to this effect--
12. That is confirmed by Vriddha Katyayana, who says immoveable property which has been given by parents to their daughter, goes ahcays to her brother, if she dies without issue. For it appears that the brother's right of succession is founded simply on her leaving no issue (which is the case equally of a maiden, as of a childless wife).
13. The remark of Viswarupa that property of a childless woman married by any form of nuptials from that of Brahma to that of the Pissachas (as hinted by the term always)goes to her brother, should, therefore, be respected.
6. In other words, the text of Devala, namely, that 'a woman's property is common to her sons and unmarried daughters, when she is dead; but if she leave no issue, her husband shall take it her mother, her brother, or her father,' Which is quted by Jimutavahana in the Dayabhaga, Chap. IV, Section 2, para. 6. Is regarded by him as enumerating the heirs, and not as indicating the order in which they are entitled to succeed. The question, therefore, Ultimately resolves into this, whose opinion is to Previl, whether that of Jimutavahana or that of his commentator Srikrishna; and we have no hesitation in holding that we must accept the view propounded by Jimutavahana. We hold accordingly that as the property in this case was aua stridhana, the mother would be entitled to succeed in preference the husband subject to the decision of the question with which we shall presently deal.
7. It is contended in the next place that as the property in dispute in this case was not merely ayautuka striphana, but stndkana received from the father, the husband is entitled to succeed in preference to the mother. In support of this proposition, reference is made to the Dayabhaga, 'Chap. IV, Section 2, para. 16, and to the Dayakrama Sangraha, Chap. II, Section 5, para. 3 in the passage of the Dayabhaga, relied upon, Jimutavahana first quotes the text of Manu (Chap. IX-198) namely, '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,' and then comments on it as follows: 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 nuptials, shall belong exclusively to her daughter and the term Brahmini is merely illustrative, indicating that a daughter of the Same tribe with the giver inherits.'' No doubt this passage is an authority for the proposition that an unmarried daughter alone inherits the Pitridatta stridhan whether it is yatuka or ayautuka. But as we understand the' passage, it throws no light upon the question of the devolution of the property, when there is no unmarried daughter. The only inference legitimately deducible from this passage appears to be that according to Jimufavahana, subject to the one variation mentioned in this passage, yautuka given by the father is inherited as other yautuka, and ayautuka given by the father is inherited as other ayautuka. As regards the passage of the Dayakrama-Sangiaha relied upon, it occurs in Section 5, which treats of the succession to the stridhana of a woman when given to her by her father and runs as follows:
1. 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 been in any manner given to her by her father, let the Brahmini damsel take or let it belong to her offspring.
4. Here by the specification of 'given by the father,' it is intended, that whatever has been given by the father even at any other time than that of the wedding, belongs first to the damsel, and. after her it goes to her offspring, her son.
8. The first paragraph of this passage refers explicitly to yautuka as also to ayautuka stridhan. The second and third paragraphs may at first sight be supposed to have an equally extensive application, but in our opinion, the words 'as in the case of property received at nuptials' clearly indicate that the list of heirs given by the author in paras. 2 and 3 is applicable only to Pilridaita yautuka. This view is considerably strengthened by a reference to the summary given by Srikrishna in the concluding portion of his commentary on Chap. IV, Section 3 of the Dayabhaga. He states there in unmistakeable terms that as regards Pitridatta ayautuka, that is, property given by the father at any other time but the wedding, a maiden daughter succeeds in the first instance; next a son; then a daughter who has, and one who is likely to have male issue; after them, the daughters' son, the son's son, the great-grandson in the male line, the son of a contemporary wife, and her grandson and great-grandson in the male line, next to these, the barren and widowed daughters inherit together. If, therefore, paragraphs 2 and 3 of Srikrishna's Dayakrama Sangraha, Chap. II, Section 5, be interpreted as applicable to yautnka as well as apautuka stridhana, the conclusion is irresistible that his view as set forth in his treatise is absolutely irreconcileable with his view as summarised in the commentary on the Dayabhaga. On the other hand, according to the interpretation put by us on paragraphs 2 and 3 of the Dayakrama-Sangraha, Chap. II, Section 5 by which the rule laid down therein is restricted in its application to pitridatta yautuka stridhnna, the views indicated in the two places become substantially identical, the only points of difference being that in the passage in the Dayakrama-Sangraha, no distinction is observed between a maiden daughter and a betrothed one, and no provision is expressly made for the exclusive succession of one member of each of the two groups of different classes of daughters in the absence of the other members. We must, therefore, bold that the statement contained in the second paragraph is equivalent to the proposition that after the maiden daughter, a married daughter who has and one who is likely to have male issue inherit together the pitridatta yautuka or the property given by the father at the time of the nuptials. Thus interpreted the passage lends no support to the contention advanced on behalf of the respondent; but it makes it consistent with paragraph 4 which refers clearly to pitridatta ayautuka, and we may add that it removes the difficulty which Mr. Justice Dwarka Nath Mitter found in dealing with this passage in the case of Judoo Nath Sircar v. Bussunt Coomar Roy Chowdhry (1873) 19 W.R. 264 : 11 B.L.R. 286. We must hold accordingly that neither according to Jimutavahana nor according to Srikrishna, does the fact that stridhm is pitridatta make any difference in deciding the question of preference between the mother and the husband. As we have already held that the mother is the preferential heir, according to Jimutavahana, in the case of ayautuka stridhan, the conclusion follows that under the Bengal School of Hindu Law, the mother is entitled to succeed to the pitridatta aynutuka stridhnna of a woman in preference to her husband. This is also in accordance with the view propounded by Raghunandan in his Dayatatwa; see the translation by Sastri Golap Chandra Sircar, Chap. X, para. 11, which justifies the inference that to a property, other than a nuptial gift, given by a father to his daughter, the successive heirs, after the step-son's son, are her brother, mother, father, and husband.
9. We may point out that the conclusion at which we have arrived upon an examination of the original authorities, is supported by the cases of Judoo Nath Sircar v. Bussunt Coomar Roy (1873) 19 W.R. 264 : 11 B.L.R. 286, Hurrymohun Shaha v. Shonatun Shaha (1876) I.L.R. 1 Calc. 275 and Gopal Chandra Pal v. Ram Chandra Pramanik (1901) I.L.R. 28 Calc. 311. The first of these cases was originally heard by Norman C. J. and Loch J. (1871) 16 W.R. 105, and the learned Judges held adopting the construction put by Srikrishna on the original texts, that according to the Bengal school of Hindu Law, the husband is entitled to succeed to the property, which a woman receives from her father either before or after her marriage, in preference to her brother or mother. Upon an application for review this judgment was subsequently set aside (1) and the case was reargued before Mr. Justice Jackson and Mr. Justice Dwarka Nath Mitter(1). Mr. Justice Mitter, with the concurrence of Mr. Justice Jackson, held upon an elaborate examination of the Authorities, that according to the Hindu law as current in Bengal, the mother succeeds to the property of her daughter bequeathed to her by her father before her marriage in preference to her husband, and that such property falls within the category of stridhan. Although the process of reasoning by which that learned Judge arrived at this conclusion may be partially open to criticism, and although we are unable to adopt the construction placed by him upon the passage of the Dayakrama Sangraha, quoted from Chap. II, Section 5, we entertain no doubt that the rule laid down by him is correct. This decision was followed in Hurry Mohun Shaha v. Shonatun Shaha, where it was held upon a construction of Chap. IV, Section 3, para. 10 of the Dayabhaga, that with respect to property given to a woman after her marriage by [her husband's father's sister's son, the brother, mother, and father, are under the Bengal School of Hindu Law preferable heirs-to the husband; and in the recent case of Gopal Chandra Pal v. Ramchatidra (1901) I.L.R. 28 Calc. 311, the principle which underlies the decision in Judoo Nath Sircar v. Bnsmnt Coomar Roy (1873) 19 W.R. 264 : 11 B.L.R. 286 was accepted as well founded, and it was ruled that the brother is the preferential heir to the husband to moveable property obtained from her father after her marriage, by a woman, who has died childless.
10. Reference was made at the bar, in the course of the argument, to two modern text-books in support of the view taken by the learned Subordinate Judge in the Court below, namely, to Mayne's Hindu Law, Section 670 and Shama Charan Sarkar's Vyavastha Darpans, 2nd Ed. Yyavastha, 473, p. 722, The first of these passages from Mr. Mayne's book does not help the respondent, because it refers to yautuka stridhana, as is clearly shown by a reference to Sections 669 and 672; on the other hand, the statements contained in Sections 673 and 674, which refer to the point under examination, are in agreement with the conclusion at which we have arrived. As to the second passage, which occurs in Shama Charan Sarkar's Vyavastha Daipana (2nd Ed., p. 722; 3rd Edition, p. 249) the author seems to adopt the rule laid down by Srikrishna in preference to that enunciated by Jimutavahana; but if we turn to the table of order of succession given at p. 733 (3rd Ed., p. 262) we find, that as regards stridhan property of a childless married woman, bestowed upon her by her parents after marriage, the mother is stated to be a preferential heir to the husband, as is indicated by the authorities cited on pp. 719 and 720 of the same work (3rd Edition, pp. 246, 247). It follows consequently that the view taken by the Subordinate Judge cannot be successfully maintained.
11. The result therefore is that this appeal must be allowed and the decree of the Subordinate Judge reversed. The suit will stand dismissed with costs in all the Courts.