1. This appeal arises out of a suit for rent for the years 1326 -to 1328. The defendants denied the relationship of landlord and tenant between the plaintiffs and themselves and set up their own title. They succeeded in the first Court but the learned Additional District Judge of Midnapore decreed the plaintiffs' suit. The present appeal is by the defendants and four points have been urged by the learned Advocate appearing on their behalf.
2. The property in suit, it appears, belonged to one Kirtibash Maity, who had in his keeping a woman of the name of Saraswati Devi. He executed a deed of gift of the property in suit in favour of his mistress in 1915. He left two children by Saraswati, a son Rampado and a daughter Haripriya. After that Saraswati died leaving these two children behind her, Haripriya having been married before her death. On the 16th October, 1920, the plaintiffs purchased the entire property from Rampado and on the 30th March, 1921, the defendants purchased the entire property from Haripriya. The plaintiffs have brought this suit for recovery of arrears of rent on the allegation that the property devolved upon Rampado and as purchasers from him they are entitled to receive rent from the defendants who admittedly were the tenants on the land under Saraswati and have since been in occupation of it. The defence as made out in the written statement was that Rampado was not born of the womb of Saraswati and therefore he was not her heir and that the purchase by the plaintiffs from Rampado was not genuine. The trial Court dismissed the plaintiffs' suit on the ground that Saraswati was an up-country woman and presumably governed by the Mitakshara School of law; and as under that school the daughter is the preferential heir in respect of the stridhan property. Rampado did not inherit any interest in it and therefore the purchase by the plaintiffs did not give them any title to the property. On appeal the learned Additional District Judge has not given effect to this plea on the ground that it was not raised in the, pleadings and that it was only brought out in the cross-examination of one of the plaintiff's witnesses that Saraswati's father was an up-country man. The learned Judge notes that the witness after making the statement added that he did not know whether Saraswati's father was governed by the Mitakshara law or not.
3. In the first place, the learned Advocate for the defendant pressed for our consideration the point that Saraswati being governed by the Mitakshara school of law, succession to her property should be governed by that law. I am of opinion that the view taken by the learned Judge is correct and that we should not allow the defendants to raise this question at a late stage. I observe in the pleadings that the plaintiffs' title was questioned only on the grounds-first that Rampado was not a son born of the womb of Saraswati; and, secondly that the purchase by the plaintiffs was not genuine. No suggestion was made in the written statement that the plaintiffs' right could be challenged on any other consideration such as that the son of a person governed by the Mitakshara law has no right in preference to the daughter to succeed to stridhan property. It is undoubtedly a question of fact. The presumption that a Hindu migrating from one place to another carries with him his personal law is a rebuttable one. Since the defendants did not attack the plaintiffs' title on this ground, the plaintiffs were unable to adduce any evidence to show by what law Saraswati was governed.
4. It is argued in the second place that even if the worsen Saraswati was governed by the Dayabhaga School of Hindu law, she being a prostitute her daughter is to be preferred to her son according to the law of inheritance that governs Hindu women who have taken to prostitution. This point, too, was not raised in the pleadings and it was not taken in any of the Courts below. We have therefore not the advantage of the opinion of the Courts below who were in touch with the parties and the evidence. But it is urged that it is a pure Question of law and the plaintiffs in order to succeed in this suit must prove their title strictly. We have therefore allowed the learned Advocate for the appellant to argue this point. No authority has been placed before us in support of this contention nor any text from any original authority on Hindu law. But reliance is placed upon certain observations in the Hindu Law of Stridhan and Marriage by Sir Gurudas Banerjee, 5th Ed., at p. 458. There the learned author deals with the succession of property of dancing women. It is not necessary to go into the cases in which a similar point came up for consideration as the question seems to have been set at rest by the Full Bench decision of this Court in the case of Hira Lall Singha v. Tripura Charan Roy (1913) 40 Cal. 650 which holds that the mere fact that a Hindu has adopted the life of a prostitute does not sever the tie which connects her to her kindred by blood; and consequently her stridhan property passes upon her death according to the law of succession laid down under the Bengal School of Hindu law. The judgment of the Full Bench is based upon the theory approved by that decision that the Hindu law makes no distinction between rules of succession applicable to the property of a Hindu degraded woman and that of a respectable woman. This view so adopted in the Full Bench case has called for some severe criticism at the hands of the editor of Sir Gurudas Banerjee's book. But it is worthy of note that-in the case of Swarnamoyee Bewa v. Secretary of State (1897) 25 Cal. 254 to which Sir Gurudas was a party, it was held that a woman of the town who is Hindu by birth does not cease to be a Hindu by reason of the degradation, and succession to her property is governed by the Hindu law. The law as regards dancing women has been properly characterised as peculiar to the Presidency of Madras as was observed; in the case of Swamamoyee (1913) 40 Cal. 650 already referred to; and it is admitted by the Madras High Court in the case of Meenakshi v. Muniandi Panikhan (1914) 38 Mad. 1144 that the law of succession as obtaining in that Presidency to the estate of dancing women is based upon local custom and usage. As a matter of fact, as the learned Advocate for the respondents rightly points out, there is no departure in that Presidency from the ordinary Hindu law of succession even in the case of dancing girls, for in that Presidency Mitakshara School of Hindu law prevails; and according to that law as regards stridhan property the daughter is preferred to the son. The nearest approach to the facts of the present case is the case of Tripura Charan Banerjee v. Harimati Dassi (1911) 38 Cal. 493, the decision of which covers a portion of the points raised in this case. This case was not approved of by the Full Bench in respect of some of the observations made by the learned Judge; but the rule of succession of degraded Hindu women leaving illegitimate children as laid down there has not been dissented from. In that case a Hindu prostitute died leaving six children two of whom were sons and four daughters. It was held that each son would take l/6th of the property left by the deceased. This being the state of the case law, it may now be taken to be fairly settled that succession to stridhan property of a degraded Hindu woman is to be governed by the ordinary Hindu law of inheritance and that daughter is not to' be preferred to the son in the line of succession. According to the Hindu law of succession to the stridhan property of a woman the son succeeds in preference to the married daughter under the Dayabhaga School of Hindu law. The daughter Haripriya having been married before the death of Saraswati, Rampado, her son, succeeded to the entire property left by her. The second contention of the defendants fails accordingly.
5. The third point urged is that on the findings of the learned Judge, Rampado was a minor at the time when he executed the kobala in favour of the plaintiffs on the 16th October, 1920, and therefore the plaintiffs derived no title under it. The learned Judge remarked that in 1915, the date of the deed of gift by Kirtibash in favour of Saraswati, Rampado was 12 years of age and Haripriya was 11 years old. This point even was not raised in any of the Courts below nor even before the learned Judge. It is well-known that in this country in giving the age of a person the number of years he has completed is mentioned without taking into account the months by which he may have exceeded that age, so that a person nearing the age of 13 is said to be 12 years old though actually he may be very near 13. As this point was not raised and as it is a question of evidence, we do not think that we should be justified in holding that merely because he was said to be 12 years of age in 1915 he was below 18 on the 16th October, 1920.
6. Fourthly and lastly, it is urged that there is no finding in the Judge's judgment that the plaintiffs' kobala is genuine. There is doubtless no distinct finding on this point in the Judge's judgment, but it may be due to the fact that its genuineness was not disputed before him by the defendant for the reason that the defendant himself was one of the attesting witnesses to that kobala. On a perusal of the Judge's judgment it seems to have been conceded that the plaintiffs' kobala was genuine as the learned Judge's finding with regard to certain rent-receipts filed by the defendant is based upon the fact that the defendant himself signed the kobala as an attesting witness. There is enough indication in his judgment to show that he believed the plaintiff's kobala to be genuine.
7. All the points raised by the appellant fail and this appeal must be dismissed with costs.
8. I agree.