W. Comer Petheram, C.J. and Banerjee, J.
1. We come now to the third question, viz., whether Kasi Prasad's interest in the property in dispute passed by inheritance to his widow and his daughter, or lapsed by survivorship to his brother Sheo Das. Upon this question also, we think the decision of the Court below is wrong. We are bound to say that the question is not altogether free from doubt or difficulty. But we think from an examination of the authorities the following propositions may be deduced as correct, namely (1) that the principle of survivorship applies only to those descriptions of joint-property in which the right of co-owners arises by birth, or which form the property of re-united co-parceners under special texts of the Mitakshara Law, or which are accretions to either of these two; and (2) that the property inherited by brothers from their maternal grandfather is not of any of these descriptions. According to the rule laid down by the Privy Council in Katama Nachiar v. The Raja of Shivagunga 9 Moore's I.A. 539 and Chowdhury Chintamun v. Nowluckho Konwari L.R. 2 I.A. 263, the rule of succession applicable to any case depends upon the nature of the property and not upon the status of the family. And though some of the observations made in those cases and specially the proposition therein laid down that joint-property follows the principle of survivorship might apparently be construed in favour of the respondent's contention, it should be borne in mind that their Lordships in those cases had only to distinguish between joint-property and separate property, and were not called upon to distinguish between different descriptions of joint-property. One thing, however, is clear from the Shivagunga case 9 Moore's I.A. 539, namely, that the text of the Mitakshara, limiting the widows' succession, is to be regarded ''as a qualification of the larger and more general proposition in favour of widows; and consequently in construing it, we have to consider what are the limits of the qualification rather than what are the limits of the right.' Construing the Mitakshara in the light of these remarks, we find the first of the above two propositions clearly established. After noticing the conflicting texts relating to the widow's succession and the various reconciliation's proposed by different writers, the author of the Mitaksharasums up his own opinion thus: '' Therefore the right interpretation is this: when a man who was separate from his co-heirs and not re-united with them, dies leaving no male issue, his widow (if chaste) takes the estate in the first instance, for partition had been premised, and re-union will be subsequently considered' (Mitakshara, II, i, 30). What the author means in other words is this, that the widow succeeds to all descriptions of property except those which form the subject of partition in Chap. I, and also those which form the subject of re-union in Chap. II, Section ix. Leaving this last description out of consideration, as no question of re-union arises in this case, let us see of what descriptions of property partition is provided for in Chap. I of the Mitakshara. From an examination of Chap. I it will be seen that they are evidently the grandfather's and father's property in which the right of sons and grandsons arise by birth. And it accords with reason and common sense that succession to such property should be by survivorship. As the Privy Council point out in Approver v. Rama Sabba Aiyan 11 Moore's I.A. 75, and Sir Barnes Peacock observes, in Sadaburt Pershad Sahoo v. Foolbash Koer 3 B.L.R. F.B. 31 : 12 W.R.F. B. 1, no co-owner of such property can, at any time before partition, say what the extent of his share is, his share being subject to variation by successive births of other co-owners. And if the right is undefined at its inception and unascertained until partition, it is most natural, as it is most convenient, that it should lapse by death to the surviving co-owners instead of passing to the heirs of the deceased.
2. The same considerations do not apply to property taken by several persons jointly under the ordinary law of inheritance. Here their shares are defined from the beginning and are not subject to any variation by the sub-sequent birth of any coheir. In illustration of this, we may contrast the rule given in the Mitakshara, Chap, II, Section iv, paras 8, 9, as to succession to property inherited jointly by several brothers, with the rule laid down in Debi Parshad v. Thakur Dial I.L.R. 1 All. 105, see in particular pp. 111-113, and followed in Bhimul Doss v. Choonee Lall I.L.R. 2 Cal. 379, regarding unobstructed heritage, or estate in which the rights of the co-owners arose by birth. The same view, namely, that the exclusion of the widow from joint-property is based upon the ground of her husband having no specific share, is supported by the Viramitrodaya. Upon the question of the widow's exclusion the author of that treatise remarks: 'There is not, however, conflict with any reason, for there is no reason against it; but rather there is a reason in support of it. Since when the husband dies unseparated he had no (specific) share at all, then what will the wife take?' ('G. C. Sarkar's Translation,' p. 164). Now can the same thing be said in the present case '? Can it be said that Kasi Prasad took no definite share in his maternal grandfather's estate, when the law is that the daughter's sons inherit per capita (see 'Mayne's Hindu Law,' 4th Ed., Section 519), and when the fact of Kasi Prasad and Sheo Das taking a joint estate was a mere accident, seeing that a man's estate may pass to his grandsons by different daughters who belong to different families.
3. The second of the two propositions enumerated above, follows, we think, clearly from the Mitakshara, Chap. 1, Section i. para. 3 (where unobstructed heritage is defined) and para. 27 (where the author states his conclusion), and also from Chapter I, Section iv. As to Chapter I, Section i, para. 27, we would only observe that there is an inaccuracy in 'Colebrooke's Translation,' which may raise doubts upon the present question. What is translated, ancestral is in the original paitamaha that is, grandfather's or belonging to the grandfather. The view that right by birth arises only with regard to what is called unobstructed heritage, that is, the property of the father, the grandfather, and (perhaps also) the great-grandfather, is in accord with the opinions of West and Buhler (Digest, 2nd Ed., p 323) and 'Mayne's Hindu Law,' (4th Ed., Section 251), and has been accepted as correct by Sir Richard Couch in Nund Coomar Lall v. Razeeooddeen Hossein 10 B.L.R. 183 : 18 W.R. 477. This case, it was contended, has been overruled by the Privy Council in Muttayan v. Zammdar of Sivagiri I.L.R. 6 Mad. 1. But this contention is not right. The Judicial Committee have reserved their opinion upon the question and have simply held that property inherited from the maternal grandfather was not self-acquired property. But though not self-acquired property, it does not become ancestral property of that description in which the sons acquire a right by birth.
4. The only case in which the question now before us was raised is the case of Gopal Sami v. Chinna Sami I.L.R. 7 Mad. 458. In that case the learned Judges were of opinion that there was great force in the contention that the principle of survivorship did not apply to property inherited jointly by daughters' sons and they gave effect to that principle only upon the ground that the property had been so dealt with as to subject it to that incident, a ground which is wholly inapplicable to this case, as Kasi Prasad and Sheo Das had no opportunity of dealing with the property in dispute, the same not having been actually recovered until after their death.
5. Upon the whole, we think, it is in accordance with the letter as well as with the spirit of the Mitakshara law to hold that the principle of survivorship is limited to two descriptions of property, namely (1) what is taken as unobstructed heritage and property acquired by means of it; and (2) what forms the joint-property of re-united co-parceners; and that property obtained in the ordinary course of inheritance is not subject to that incident. We therefore hold that the interest of Kasi Prasad in the estate, which he and his brother inherited from their maternal grandfather, passed, on Kasi Prasad's death, to his widow, and, after her death, it has passed to the plaintiff; and we accordingly direct that the decree of the Court below be varied, and the plaintiff's suit decreed as regards an undivided moiety of the property in dispute with costs in proportion in both Courts.