Norris and Banerjee, JJ.
1. The question raised in this appeal is, whether, under the Hindu law of the Bengal School, a daughter is precluded from inheriting the property of her father by reason of unchastity.
2. The Courts below have answered this question in the affirmative, and have accordingly dismissed the suit of the plaintiff who claims under a purchase from the daughter.
3. It is contended in second appeal that this decision is wrong in law, and that unchastity is no bar to a daughter's inheriting the estate of her father. After giving our best attention to the elaborate argument of Babu Golap Chun-der Sarkar, who appeared for the appellant, we must say we do not consider this contention correct.
4. In the Dayabhaga, which is the leading authority in the Bengal School, the author, in treating of the daughter's succession, observes:
But if there be no maiden daughter, the succession devolves on her who has, and on her who is likely to have, male issue. That is declared by Vribanpati: 'Being of equal class, and married to a man of like tribe, and being virtuous and devoted to obedience, she (namely the daughter), whether appointed or not appointed to continue the male line, shall take the property of her father who leaves no son [nor wife],'' (ch. XI, Section II, 8).
5. The passage in the original which Colebrooke has translated as 'virtuous and devoted to obedience' in some editions of the Dayabhaga has a slightly different reading , of which the correct rendering is 'devoted to obedience to the husband.' But whichever reading is adopted, there is not much difference in meaning, chastity being evidently the qualification intended by both.
6. Babu Golap Chunder Sarkar has argued that, though this may be the meaning of the text of Vrihaspati, yet when the author of the Dayabhaga, in commenting on that text, says nothing to indicate that in his opinion chastity is a necessary condition for a daughter to inherit from her father, and when on the contrary all that he says about the portion of the text which specifies obedience to her husband is that it indicates that she is not a widow, and may have issue (ch. XI, Section 11, 12), it is not open to us to deduce from this text the condition of chastity; and in support of this argument, the well-known passage in the judgment of the Privy Council, in the case of the Collector of Madura v. Mutu Ramalinga Sathupathy 1 B.L.R. P.C. 1 : 10 W.R. P.C. 21 is relied upon, where their Lordships say:, 'The duty of an European Judge, who is under the obligation to administer Hindu Law, is not so much to enquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has therefore been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.' 'No doubt in this passage the Judicial Committee of the Privy Council discountenance our deducing from any text of the ancient sages, not referred to by the received commentators of the school which governs the case before us, any doctrine of law not sanctioned directly or indirectly by such commentators. But that is not the case here. The text we rely upon is the one that is cited by the author of the Dayabhaga as the basis of the married daughter's right to inherit, and the rule we deduce from it, namely, that chastity is a necessary qualification for entitling her to inherit, is expressly laid down in the text, and though not directly stated, is indirectly indicated with sufficient clearness in the Dayabhaga. For it is said in more than one place in that treatise that the daughter's right of succession to her father's property is founded on her offering funeral oblations by means of her son (ch. XI, Section II, 11, 15)', that is, on her capability of having legitimate male issue, and for the existence of this foundation of her right chastity is an essential condition. It was argued for the appellant that this would be true only in the case of a married daughter succeeding in the lifetime of her husband, and that in the case of a widowed daughter having a son, which was the case before us, chastity would not be a necessary condition. We cannot accept this argument as correct. The question is whether that portion of the text of Vrihaspati cited above which requires that a daughter must be chaste, in order that she may inherit, should be followed as a rule of law, or regarded as a mere moral injunction; and when once it is shown to be operative as a rule of law, we cannot leave it aside as a mere moral injunction.
7. Moreover, the author of the Dayabhaga has expressly declared that the daughter does not succeed merely in right of her relation as daughter, but she must, in order to be entitled to inherit, satisfy the conditions laid down in Vrihaspati's text, for he says: 'Thus by the conditions specified that she be of equal class and married to a man of like tribe, etc., the author shows that she does not inherit her father's wealth merely in right of her relation as daughter' (ch. XI, Section II, 13).
8. There is another passage in the Dayabhaga bearing upon this question- towards the end of the section treating of the succession of the daughter and the daughter's son. Jimutavahana, the author of the Dayabhaga, after stating that the daughter, like the widow, takes a qualified interest in the estate which at the death of either goes, not to her heirs, but to the next heir of the last full owner, and after giving in support of that view a certain reason, adds another and a better reason in these words:
Or the word 'wife' (in the text above quoted, Section 1, Section 56) is employed with a general import, and it implies that the rule must be understood as applicable generally to the case of a woman's succession by inheritance.' (Ch. XI, Section II, 31).
9. The words within brackets 'in the text above quoted, Section 1, Section 56,' are not in the original, and they have been supplied by Colebrooke, as his footnote indicates, from Srikrishna's Commentary. But the word 'wife' does not occur in the text, ch. XI, Section 1, Section 56, to which reference is here made. In Colebrooke's translation of that text, the word 'widow' occurs, but even that word is not to be found in the original, which if literally rendered would run thus:
Let the childless preserving unsullied the bed of her lord and abiding with her venerable protector, enjoy with moderation until her death. After her death let the heirs take.'(Ch. XI, Section 1, 56).
10. This apparent difficulty is explained by Raghunandana, a high authority in the Bengal School, in his commentary on this passage of the Dayabhaga, in which he says:
The word 'wife' implies females generally. In the text of Katyayana: 'Let the childless preserving unsullied the bed of her lord and abiding with her venerable protector enjoy with moderation until her death. After her let the heirs take'; and in the first half of the next text of the same sage, namely, 'the wife who is chaste takes the wealth of her husband,' the word 'wife' is illustrative.
11. The passage of Katyayana which Jimutavahana had in view when he said (ch. XI, Section II, 31) 'or the word 'wife' is employed with a general import, &c;,' must have been the entire passage given in Raghunandana's Commentary, and not merely the part of it that is quoted in the Dayabhaga (ch. XI, Section 1, 56); and if that is so, and if the word 'wife' in Katyayana's full text is used illustratively for any female heir, chastity must be a condition for a daughter to inherit just as it is a condition for the widow to do so.
12. The above text of Jimutavahana (ch. XI, Section II, 31), read with the gloss of Raghunandana, therefore also fully supports the respondent's case.
13. Against this it has been urged for the appellant in the first place that the authenticity of the commentary of Raghunandana has been doubted by Cole-brooko in his preface to his translation of the Dayabhaga; and in the second place that the passage of the Dayabhaga above referred to (Chapter XI, Section II, 31) has been construed by the Privy Council in the case of Moniram Kolita v. Keri Kolitani I.L.R. 5 Cal. 776 as only extending to other women the rule applicable to a widow as to the quantity and quality of the estate inherited, without laying down anything as to the conditions under which their right to inherit arises.
14. As to the first objection, notwithstanding that Colebrooke expressed his doubts regarding its authenticity, the late Pundit Bharat Chunder Siromoni, Professor of Hindu Law in the Sanskrit College, Calcutta, has given in full the commentary bearing the name of Raghunandana as a genuine production of that author, in his elaborate edition of the Dayabhaga, published under the patronage of Babu Prasanno Kumar Tagore, an accomplished Hindu lawyer. The work was published in 1863, and during the last thirty years no scholar or lawyer has ever questioned the genuineness of the commentary, but on the contrary it has been accepted and followed in this Court by Mitter and Maclean, JJ., in the case of Ram Nath Tolapattro v. Durga Sundari Debi I.L.R. 4 Cal. 550. We therefore see no reason to hesitate to accept it as genuine.
15. Then as to the second objection, the remarks of the Privy Council that are relied upon were made only incidentally, their Lordships not being called upon, except indirectly, and for a collateral purpose, to construe verso 31 of section II, Chapter XI of the Dayabhaga. The question before their Lordships was whether a widow having inherited her husband's estate is liable to forfeit it for subsequent unchastity, and they incidentally observe: 'It seems clear, however, that though an unchaste daughter is excluded from inheriting her father's estate, or an unchaste mother that of her son, it is not by virtue of either of the above mentioned texts of Vrihat Manu or Katyayana.'
16. These are the texts as cited in the Dayabhaga, chapter XI, Section 1, 7 and 5(5), and they certainly do not lead to the exclusion of the unchaste daughter or the unchaste mother from inheritance. But their Lordships had not before them the commentary of Raghunandana, and the additional text of Katyayana therein cited, and it is this last mentioned text which, read with verse 31, Section 11, ch. XI of the Dayabhaga leads to the exclusion of the unchaste daughter and the unchaste mother.
17. The Daya Krama Sangraha of Srikrishna Tarkalankar, another great authority in the Bengal School, also cites the above mentioned text of Vrihaspati as a basis of the carried daughter's right of inheritance (ch. 1, Section III, 4).
18. The three leading authorities of the Bengal School-Jimutavahana, Raghunandana and Srikrishna-are therefore all in favour of the view taken by the Courts below.
19. There is also an opinion of the Pundits approved by Macnaghten, and given in his Precedents of Hindu Law, p. 133, which is to the effect that a daughter who lives in prostitution or is unchaste is incompetent to inherit her father's estate.
20. Then there is the dictum of Mr. Justice Dwarkanath Mitter in the case of Kery Kolitany v. Moneeram Kolita 13 B.L.R. 1 (4.5), confirmed by the dictum of the Privy Council in the same case on appeal Moniram Kolita v. Keri Kolitani I.L.R. 5 Cal. 776 (787), that an unchaste daughter is excluded from inheriting her father's estate.
21. And lastly there is the decision of Mitter and Maclean, JJ., in the case of Ram Nath Tolapattro v. Durga Sundari Debi I.L.R. 4 Cal. 550, already referred to, that an unchaste mother is excluded from inheritance by verse 31, Section II, Chapter XI of the Dayabhaga, read with the gloss of Raghunan-dana which makes chastity a necessary condition for all female heirs to inherit.
22. As to this last mentioned case, it was very properly admitted for the appellant that, if the reasoning on which it was based was correct, it would conclude the present question; but it was argued that that reasoning had been practically overruled by the Privy Council in Moniram Kolita v. Keri Kolitani I.L.R. 5 Cal. 776. We have, however, shown above that that is not so, and that their Lordships in the case of Moniram Kolita v. Keri Kolitani had not before them the commentary of Raghunandana with the full text of Katyayana therein cited, upon which Mr. Justice Romesh Chunder Mitter's judgment is really based; and they could not have pronounced any authoritative opinion upon matters that were not before them.
23. While the foregoing authorities support the view which the respondents contend for, no text or case under the Bengal School of Law was cited, nor are we aware of any, in favour of the opposite view. The cases cited by the learned vakil for the appellant, namely, Advyapa v. Rudrava I.L.R. 4 Bom. 104, Gang a Jati v. Ghasita I.L.R. 1 All. 46 and Kojiyadu v. Lakshmi I.L.R. 5 Mad. 149, are in the first place not all in point, and in the second place they are all under Schools of Hindu Law other than the Bengal School, and were decided with reference to authorities different from those that are specially followed in the district with which we have now to deal. They do not, therefore, in our opinion affect the decision of the present case.
24. The result then is that the appeal fails and must be dismissed with costs.