S.K. Chakravarti, J.
1. An interesting point under the Mahometan Law arises for determination in this second appeal. It is as to whether a husband is entitled to inherit from his wife both as husband and as a distant kinsman.
2. The properties in dispute belonged to one Makdunnessa who died in Ashar 1357 B. S., and was survived by her husband Bechu. On the death of Makdunnessa,Bechu contracted a second marriage with one Mazinannessa who is the main defendant in this suit. Bechu died thereafter. The plaintiff claims that Bechu inherited 8 annas share of the property of his wife Makdunnessa as a sharer and that the other half she has got as a distant kinsman. The plaintiff claims to be the grand-son of one Hamidun Bibi, the paternal aunt of Makdunnessa and to have inherited and possessed the residuary eight annas share as heir of Makdunnessa in his capacity as a distant kinsman. The suit was contested by Maji-rannessa, and her case is to the effect that Bechu was also the son of the maternal uncle of Makdunnessa, and therefore, he was also a kinsman and a nearer kinsman to Makdunnessa than the plaintiff, and as a distant kinsman, he inherited the residuary eight annas share, and thus became the owner of the 16 annas share in the properties left by Makdunnessa. She further claimed to have got the properties from Bechu by way of an oral gift in lieu of her dower debt.
3. The learned Subordinate Judge accepted the defence case and dismissed the suit. On appeal, the learned Additional District Judge, Hooghly, held that under the Mahomedan Law, Bechu was not entitled to the residuary share which has devolved on the plaintiff and decreed the suit accordingly.
4. In this appeal, it is contended on behalf of the defendant No. 1, appellant, that the learned Additional District Judge erred in so holding.
5. The point in issue revolves round the interpretation of Section 66 of the Principles of Mahomedan Law by D. F. Mulla. It is stated therein that
'If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the residue reverts to the Sharers in proportion to their shares. This right of reverter is technically called 'Return' or 'Radd.'
6. There is, however, an exception to that Rule and it reads as follows:--
'Exception--Neither the husband nor the wife is entitled to the Return so long as there is any other heir, whether he be a Sharer or a Distant Kinsman. But if there be no other heir, the residue will go to the husband or the wife, as the case may be by Return.'
7. The learned Additional District Judge proceeded on the basis that as Bechu was the husband, under the Exception, he was not entitled to the Return. In our view, the learned Additional District Judge has erred in so holding. He, so to say, overlooked the fact that Bechu was claiming the residuary of eight annas share not qua husband but in bis capacity as a distant kinsman. The Exception, which we have quoted above, or the Rule, does not rule out a husband's inheriting the property ofhis wife in a different capacity. It is only if the husband could not inherit in any other capacity, that he would not be entitled to get the residuary by way of Return, Even the Mahomedan Law recognises that a person may inherit in more than one capacity. B. E. Baillie in his digest of Mohammedan Law at page 287 has observed as follows:--
'When two causes of inheritance combine in the same person, he inherits by virtue of both, if one of them does not counteract or impede the operation of the other; as in the case of ..... the son of a paternaluncle who is also the husband, or the daughter of a paternal uncle who is also the wife..... If one of the causes is animpediment to the operation of the other, the person in whom they combine inherits by virtue of the impeding cause, as in the case of the son of a paternal uncle who is also a brother, and inherits by virtue of brotherhood alone.'
8. This passage would clearly show that a person could inherit from, his wife in his capacity as the husband as also the son of a paternal uncle. There is no impediment as envisaged in that paragraph in this particular case. In Mohammedan Law in India and Pakistan by Babu Ram Venna it has also been stated that:
'Where a person is entitled to inherit in more ways than one, he will inherit in each of the ways.'
It is further stated that:
'It is possible for a person to be so related as to be entitled to inheritance through different relationships. In such case, the person would be entitled to inherit as an heir by reason of different relationships.'
'According to Shia law also, there is the same right to inheritance by different relationships, provided that the right by one relationship is not impeded in operation by the other.
The author has also given an illustration that:
'A wife dies leaving a husband who is also a paternal uncle's son. He will inherit in both rights.'
In F. B. Tyabji's Muhammadan Law at page 892 it has also been observed that:
'A claimant related to the deceased in more ways than one inherits in respect of each such relation except that Abu Yusuf holds that a grandmother inherits in only one way, notwithstanding that she be related to the deceased in more ways than one.'
The author has stated at page 894 that:
'Where no blood relation of the deceased of any description whatever can establish his claim to inherit, the husband or wife (if either is surviving) will take the whole of the estate, subject however to any testamentary disposition by the deceased, which, where the deceased is a male and has no heir except his widow, may validly affect 5/6 of the estate.'
9. Thus on a consideration of all these authorities, we are of opinion that in this particular case, Bechu inherited eight annas share in his wife's properties in his capacity as a sharer, and he also inherited the residuary eight annas share as distant kinsman being the son of the maternal uncle of his wife Makdunnessa. He did not forfeit the right to inherit as a distant kinsman on marrying her, as is contended.
10. Both the courts below have held that Bechu was a nearer kinsman to Makdunnessa than the plaintiff. That finding is not challenged. We hold further that there is nothing in Mahomedan Law to prevent a husband or a wife inheriting the other spouse's property in some other capacity. The learned Additional District Judge, therefore, erred on this particular point, and in decreeing the suit accordingly.
11. This appeal, therefore, succeeds and the judgment and the decree passed by the learned Additional District Judge are set aside. The judgment and decree passed by the trial court are hereby restored.
12. The appeal is, accordingly, allowed.
13. There will be no order as to costs.
Anel K. Sen, J.
14. I agree.