1. This appeal arises out of a suit brought by the plaintiffs to recover certain property by right of inheritance to one Panchi Barmani who died unmarried on 6th Jane 1906. The Subordinate Judge has decided in the plaintiffs favour and the defendants have appealed. Kinu Sinha Roy, father of the plaintiffs, and Lac lima n Sinha Roy were two brothers. Kinu Sinha Roy died on 17th August 1891, leaving three sons, the plaintiffs, and Gopal Chandra, who subsequently died unmarried. Lachman Sinha Roy died on 18th April 1903, leaving a will dated 20th July 1902, of which his son-in-law, defendant No. 1, is executor. Lachman Sinha Roy left a widow Sasikala and three daughters, defendants Nos. 2 and 3, and Panchi Barmani. Lachman by his will made a disposition of his property in favour of his wife and daughters. The particulars are immaterial for our present purpose. Sasikala died on 18th April 1905, having made a will, dated 20th December 1901, by which she gave her property to her three daughters absolutely. The parties are by caste Khatrias and are governed by the Mitakshara School of Hindu Law. Kinu Sinha Roy and Lachman Sinha Roy bad separated in the lifetime of the former.
2. The only question which has so far been argued before us is that raised by issue 13, whether the plaintiffs are preferential heirs of Panchi Barmani, and entitled to her estate before her sisters Kanaklata (defendant No. 2) and Jogmaya (defendant No. 3) and Birendra Narain (defendant No. 4), son of defendant No. 2. If this be decided against the plaintiffs, their suit must fail. If in their favour, then other questions arising in the suit must be considered.
3. The law on the point admittedly lies within a very narrow compass, a text of Baudhayana cited in the Mitakshara, and the commentary on that text in the Viramitrodaya. The whole question turns upon the meaning to be given to the words 'their nearest relations' in the Viramitrodaya. The text of Baudhayana is to be found in the Mitakshara, Chapter II, Section XI, Sub-section 30. For Baudhayana says: 'The wealth of a deceased damsel, let the uterine brethren themselves take. On failure of them, it shall belong to the mother, or, if she be dead, to the father.' In the Viramitrodaya (at page 240--1 of Golap Chandra Sarkar Shastris Translation) we find 'besides as it is expressly declared that the father inherits the property of a maiden on failure of the mother, so the same order is proper in this case also 5 thus Baudhayana declares: 'the wealth of a deceased maiden, let the uterine brothers themselves take; on failure of them it shall belong to the mother; in her default, to the father. On failure of the mother and the father, it goes to their nearest, relations.' Who are their nearest relations? Had it not been for the elaborate arguments which were addressed to us, I should have been inclined to say that there was not much room for argument. As it is, it appears to me not to admit of any doubt. In this case Lachman and Sasikala were admittedly married according to one of the approved forms. The wife therefore became absolutely a member of her husband's family, and his relations were her relations. Now whether defendants Nos. 2, 3 and 4 be regarded as relations or as heirs of Lachman, it makes no difference. The word sapinda in the Mitakshara denotes affinity; 'sapinda relationship arises between two people through their being connected by particles of the one body' (see Mayne's Hindu Law, 7th Ed., page 690). From this point of view defendants Nos. 2, 3 and 4 are manifestly nearer in relationship to Lachman and Sasikala than the plaintiffs. They would undoubtedly as heirs of Lachman he preferred to the plaintiffs. A daughter and a daughter's son both come in before a brother's son. The argument of the learned pleaders for the respondents resolves itself into this, that agnates must be preferred to cognates. But why? No authority was cited for the proposition which involves a constrained and unnatural interpretation of the words 'their nearest relations' in the Viramitrodaya. As a matter of fact, it was the (only possible line of argument by which the plaintiffs could hope to succeed. It was said that this was a case of first impression and that the point has not been decided before. A very similar case, however, arose in Bombay: see Janglubai v. Jitha Appaji (1908) I.L.R. 32 Bom. 409. There also the question was as to the succession to the stridhan of a maiden, and the contesting parties were the maternal grand-mother, plaintiff, and the father's mother's sister's son, defendant. That case differed from the present in that the parents of the propositus had been married apparently according to one of the blamed rites, and the contest was between the relations of the mother on the one side and of the father on the other. It was there argued (though unsuccessfully) for the plaintiff that the maternal relations were to be preferred to the paten nil. Many of the remarks of Mr. Justice Chandavarkar are applicable to the present case, and I do not propose to go over the same ground again. I may, however, repeat one remark of the learned Judge that 'the sapindas, i.e., the nearest relations of the parents,' means the sapindas of the fathers, who are also sapindas of the mother by virtue of her identity with her husband as half of his body. The various commentators who have touched on the question appear to be of the same opinion: see Dr. Gooroo Das Banerjee on Marriage and Stridhan, 2nd ed., p. 424; Mayne's Hindu Law, 7th ed., pp. 890-1; and Golap Chandra Sarkar Shastri's Hindu Law, 4th ed., p. 460. I would therefore hold that any one of defendants 2, 3 or 4 is entitled to succeed to the estate of Panchi Barmani in preference to the plaintiffs. As between defendants Nos. 2 and 3, the sisters, and defendant No. 4, the sister's son, I would leave the question of preference undetermined, as they are all before us in the position of defendants. Whatever may be the rights of the defendants as between themselves, the plaintiffs must fail. The learned Subordinate Judge in coming to the opposite conclusion has, I think, fallen into error by not adhering closely to the texts, and by confounding the case of succession to a female with that of succession to a male. Here we have to look for the heirs of the unmarried female in the nearest relations of her parents, and the only question is which of the parties before us answers to that description. It is unnecessary to go into any other questions arising in the suit.
3. For the reasons given, I would allow the appeal and dismiss the plaintiffs' suit with costs in both Courts.
N. R. Chatterjea.
4. The plaintiffs-respondents in this case sued to recover certain properties by right of inheritance to one Panchi Barmani. The facts are these: There were two brothers, Kinu Sinha Roy and Lachman Sinha Roy, who were separate in mess and estate. The plaintiffs are the sons of Kinu Sinha Roy who died in 1894. Lachman Sinha died in 1903, leaving a widow Sasikala, and three daughters, Kanaklata (defendant No. 2), Jogmaya (defendant No. 3) and Panchi. By his will he gave to his widow some of his properties absolutely, and a life interest in others, and provided that on her death the daughters would get the latter in absolute right and appointed defendant No. 1 executor. Sasikala by her will dated the 20th December 1904 gave all the properties to the three daughters absolutely, and died on the 18th April 1905. Each of the daughters therefore obtained 3rd of the properties as her stridhan. Kanaklata and Jogmaya were married in the life-time of their father, and Kanaklata has a son Birendra, the defendant No. 4. Panchi Barmani died unmarried in June 1906, and tire plaintiffs as her father's brother's sons claim to be her nearest heirs.
5. The parties are governed by the Mitakshara School of Hindu Law. The lower Court decided in favour of the plaintiffs, and the defendants have appealed.
6. The 13th issue in the case raised the question whether the plaintiffs being the father's brother's sons are the heirs of Panchi Barmani in preference to Birendra, the defendant No. 4, and Kanaklata and Jogmaya, the defendants Nos. 2 and 3. If the issue is decided against the plaintiffs, the suit will fail, and it will be unnecessary to try the other questions involved in the case.
7. The rule of succession to the stridhan property of a maiden is contained in a text of Baudhayana, which runs as follows.
8. The wealth of a deceased damsel let the uterine brothers themselves take; on failure of them, it shall belong to the mother; or if she be dead, to the father.' (See Mitakshara, Chapter II, Section 11, paragraph 80; Dayabhaga, Chapter IV, Section 3, paragraph 7; and Dayakrama Sangraha, Chapter II, Section 1, paragraph 1, where the same text is attributed to Narada).
9. The further succession after the father is not dealt with in the Mitakshara. The Viramitrodaya, after quoting the above text of Baudhayana, states: 'On failure of the mother and the father, it goes to their nearest relations' (see Viramitrodaya, Chapter V, Part II, Section 9; Golap Chandra Sarkar's Translation, pages 240-2-11). The words in the original are mata-pitrorabhabe tat pratyasannagami. But in what way this nearness is to be determined is not stated either in the Mitakshara or in the Viramitrodaya, and the question upon which the parties are at variance, is how is this nearness to be determined. There is no doubt that the sister (father's daughter) and sister's son (father's daughter's son) are nearer than the father's brother's son, but the questions raised on behalf of the plaintiffs-respondents are that the words tatpratya-sannah have reference to sapinda relationship of the maiden herself, that the word sapinda means 'sagotra sapinda,' and that a sister is no heir at all, and the sister's son is a very remote heir in the Benares school. In determining the nearness of relationship therefore we have to consider whether the sapinda relationship is to be traced through the father, and if so, in what order of succession and the meaning of the word 'sapinda' as used in the Mitakshara in this connection.
10. In the absence of any express rule for determining the nearness of kinsmen in the case of succession to a maiden's property, we should see how this nearness has been determined in the case of succession to a married woman dying without issue.
11. The rule of succession to the stridhan of a married woman dying childless is thus laid down in the Mitakshara--'Of a woman dying without issue as before stated, and who had become a wife by any of the four modes of marriage denominated (Brahma, Daiva, Arsha and Prajapatya), the (whole) property as before described belongs in the first place to her husband; on failure of him, it goes to his nearest kinsman (sapinda) allied by funeral oblations. But in the other forms of marriage called Asura, Gandharva, Rakshasa and Paisacha the property of a childless woman goes, to her parents, that is, to her father and mother. The succession devolves first (and the reason has been before explained) on the mother who is virtually exhibited (first) in the elliptical phrase pitriqami, implying 'goes' (gachchati) to both parents (pitarau); that is to the mother and to the father. On failure of them, their next-of-kin take the succession': see Mitakshara. Chapter II, Section XI, paragraph 11, Colebrooke's Translation.
12. It is hardly necessary to point out that Colebrooke's translation of sapindas as allied by funeral oblations is not correct: see Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 Cal. 119.
13. The words used in the above text with reference to the heirs on failure of the husband are pratyasannanang sapindanang (nearest sapindas); and though the word used in connection with the rule of succession on failure of the father in the latter part of the text is only pratyasannanang (nearest) and the word sapindanang is not repeated, the author must have meant pratyasannanang sapindanang (nearest sapindas) as in the first part.
14. So that according to Vijnaneswara the nearest sapindas of the husband in the one case and the nearest sapindas of the father in the other are the heirs; but who are successively the next-of-kin in either case, in other words, what is the order of nearness among the kindred, is not stated in the Mitakshara.
15. Vyavahara Mayukha, Chapter IV, Section X, Placita 28, dealing with the question of succession to a childless woman married in the two forms of marriage respectively states as follows.
16. [In the one case] if there be no husband, then the nearest to her in his [tat] own family takes it; and [in the other case] if her father do not exist, the nearest to her in (her) father's family succeeds [for the law that]. 'To the nearest sapinda the inheritance belongs' as declared by Manu denotes that the right of inheriting her wealth is derived even from nearness of kin to the deceased (female) under discussion; and though the Mitakshara holds that on failure of the husband it goes to his (tat) nearest kinsmen (sapinda) allied by funeral oblations and on failure of the father, then to his (tat) nearest sapindas, yet from the context it may be demonstrated that her nearest relations are his nearest relations and (the pronoun 'tat' being used in the common gender) it allows of our expounding the passage 'those nearest to him through her in his own family,' for the expressions are of similar import.'
17. So that according to Nilakantha the nearest relations of the woman in the husband's or the father's family, as the case may be, succeed, and relying upon the above text it was contended on behalf of the respondent that it was not the father's heirs but the nearest sapindas of the maiden in the father's family in the present case that are to succeed.
18. But Vyavahara Mayukha, though a very high authority in the Bombay school, cannot be accepted in the Benares school in preference to the Mitakshara, where the former differs from the latter. Besides I do not think that the above text of Vyavahara Mayukha by itself advances the case of the plaintiffs respondents. It merely shows that the nearest sapindns of the maiden in the father's family will succeed, but the nearest sapindas of an unmarried daughter will be the same as those of her father. So that after all, upon the question as to how the nearness among the sapindas is to be determined, the above text of the Vyavahara Mayuk' a does not throw any light. The plaintiffs respondents can succeed by showing not only that the heirship is not to be traced through the father but also that the 'nearest relations' mean nearest 'agnate sapindas'.
19. According to the Mitakshara the theory of sapindaship is based upon community of corporal particles or in other words consanguinity. Vijnaneshwara in explaining the word sapinda used by Yajnavalkya in the verse declaring that a man shall marry a girl who is not a sapinda states as follows: 'She is called his sapinda, who has (particles) of the body of same ancestor, etc., in common with him. Sapinda relationship arises between two people through their being connected by particles of one body...therefore one ought to know that wherever the word sapinda is used there exists (between the persons to whom it is applied) a connection with one body either immediately or by descent.'
20. Mitakshara Achara Adhyaya--see translation in West and Buhler's Digest, Vol. I, pp. 120-121.
21. The doctrine applies to sipindaship not only in its ceremonial aspect but for purposes of inheritance also. The point is now concluded by authority: see Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 Cal. 119 and Lallu Bhai v. Mankuvar Bai (1876) I.L.R. 2 Bom. 338; Mayne's Hindu Law 7th Ed. p. 690.
22. It is, however, contended on behalf of the plaintiffs respondents that though the word sapinda means 'related by particles of body' it is used in the Mitakshara as meaning sagotra sapindas, and bhinna gotra sapindas are called bandhus and as the brother's son is a sagotra sapinda (agnate) lie is entitled to preference to the sister's son who is a bhinna gotra sapinda (a cognate) and certainly to the sister, who is not in the line of heirs at all in Northern. India.
23. Now, what is the meaning of the words nearest sapindas as used in the text of the Mitakshara quoted above? Do they mean sapindas in the restricted sense, i.e., nearest sagotra sapindas or sapindas according to nearness or propinquity whether sagotra or not? It is true, as contended on behalf of the plaintiffs-respondents, that in the Mitakshara females generally are excluded unless expressly named, and near cognates are postponed to remote agnates, but that principle has no application to the case of succession to a male owner dying without male issue, and if the succession is to be traced through the male owner (the husband or the father as the case may be) according to the well known order laid down in the Mitakshara the principle contended for will not apply. It should also be remembered that there is a fundamental distinction between succession to a male and succession to stridhan. In the latter case preference is given to females and cognates in many instances to agnates.
24. Sir Gooroo Das Banerjee, in his Hindu Law of Marriage and Stridhan. 2nd Edition, page 860, after referring to the above text of the Mitakshara, observes as follows: One thing, however, seems clear, namely, that the word sapinda in the foregoing passage is used in the same sense assigned to it in the Achara Kanda of the Mitakshara. It means sagotra sapinda...and also a bhinna gotra sapinda or bandhu.
25. The nearness of sapindas in the text of the Mitakshara quoted above has been determined by tracing the relationship from the husband or the father as the case may be according to the text of Yajnavalkya by at least one commentator and in several judicial decisions.
26. Kamalakara, one of the commentators, in dealing with this question states in the Vivida-Tandava as follows.
27. In default of the husband, the husband's nearest relations, the widow and the daughters also and the rest inherit, husband's widow, (i.e.,) the co-widow, (husband's) daughter, i.e., daughter by a co-widow. This is stated by Vijnaneswara' (see Vivada-Tandava, Bombay Edition, page 462).
28. So that according to Kamalakara the nearness of kinsmen in the rule laid down in the Mitakshara is to be determined according to the well known text of Yajnavalkya relating to the succession to a male owner dying without male descendants. The text runs as follows:
29. The wife and daughter also, both parents, brothers likewise and their sons, gentiles, cognates, a pupil and a fellow student. On failure of the first among these, the next in order is indeed heir to the estate of one who departed for heaven leaving no male issue. This rule extends to all classes.
30. West and Buhler referring to the above opinion of Kamalakara observe as follows: 'This opinion seems to be based on the consideration that as the sapindas inherits only through the husband, they virtually succeed to property coming from him, and that consequently they must inherit in the order prescribed for the succession to a male's estate. Against this it may be urged that the word pratyasanna 'nearest' if employed in regard to persons generally has the sense of 'nearest by relationship,' and that the list of heirs to a man without male descendants is not made solely with regard to nearness by relationship, since, for instance, it places the daughter's son before the parents and brothers, though he is further removed than the former and not nearer related than the latter. If the objection be admitted, we should take the words pratyasanna in its first sense, and assume that Vijnaneswara really intends 'nearness by relationship' to be the principle regulating the succession of the sapindas. On this interpretation the heirs of a childless widow is the first instance would be those kinsmen related in the first degree, i.e., rival wives of deceased, their offspring and the husband's parents, all inheriting together. Next the kinsmen related to the husband in the second degree as the husband's brothers, deceased stepchildren's children, etc., and so on to the sixth degree inclusive: see West and Buhler's Digest, volume I, page 518. Sir Gooroo Das Banerjee, in his Tagore Lectures, 2nd edition, at page 363, observes that in this conflict of authority it is not easy to say which view is correct, but Kamalakara's opinion is entitled to be followed as authority in the Benares school when it is not in conflict with that of any higher authority, and in the present instance the rule based on his opinion has the further recommendation of being simple, as it makes the order of succession to stridhan correspond after a certain point to that applicable to a man's property. It may also be urged that if this were not Vijnaveswara's meaning and if he had not referred to this known order of succession after the husband, he would in all probability have expressed himself more explicitly: see also Jogendra Siromoni's Hindu Law, page 386. The conflict of authority referred to above does not affect the present case, for even according to the view taken by West and Buhler, the sister, as father's daughter, is entitled to preference to father's brother's son as a nearer relation.
31. According to the rule laid down by Kamalakara, the successive heirs after the husband of a woman married in an approved form dying without issue would be her husband's widow (rival wife), his daughter (step-daughter), his daughter's son (step-daughter's son), then the husband's mother, next his father and so on.
32. Following the above mode of determining nearness in the case of a childless woman married in a disapproved form, the successive heirs after the father would be the step-mother, the father's daughter (sister), father's daughter's son (sister's son), the father's mother, the father's father, the paternal uncle, his son, and the father's gotraja sapindas and bandhus in the same order in which they would succeed to his property.
33. In the case of a maiden, the heirs expressly enumerated are: (i) brother, (ii) mother, (iii) father. The succession then goes to their (mother and father's) nearest relations. There is no question in the present case that Sasikala was married in an approved form. So her husband's nearest relations would be her nearest relations also.
34. In the absence of any rule determining the nearness among relations of the father in the case of succession to a maiden's stridhan, the question, I think, should be decided by analogy to the order of succession relating to the property of a childless woman married in a disapproved form stated above, so far as it is applicable, for in both cases the succession is confined to the father's family. I say, so far as it is applicable, because in the case of a maiden, the brother comes before the mother and the father, being in fact the first heir expressly named.
35. According to the views of some writers the son and the grandson of the husband, i.e., the step-son and the step-grandson of the woman, come next after the offspring of the woman herself and before her husband, and according to the views of others they come in after the husband but before his other wives and such other wives, daughters, etc. Sir Gooroo Dass Banerjee, in his Tagore Lectures at pp. 863-64, places the son and the grandson of the husband, i.e., the stepson and step-grandson of the woman, after the husband and before the co-widow and step-daughter, etc., as they are undoubtedly the nearest sapindas of the husband and, therefore, consistently with the view taken above, ought to come in before the co-widow and step-daughter, etc., and next after the husband. Similarly, he places the son and the grandson of the father, i.e., the brother and the brother's son of a woman married in a disapproved form, after the father and before the step-mother and sister, etc. The same view was taken in the case of Gojabai v. Shrimant (1892) I.L.R. 17 Bom. 114 where the step-grandson was held to be a nearer sapinda than the co-widow or the husband's brother's sons.
36. It will be observed, however, that Kamalakara does not mention the son and the grandson of the rival wife in the order of succession after the husband. But the reason is, as pointed out by Telang J., in the case of Gojabai v. Shrimant (1892) I.L.R. 17 Bom. 114 cited above, that Kamalakara dealt with the rights of the offspring of the rival wife not under the exposition of words 'husband's sapindas' but in the earlier portion dealing with the woman's own offspring, and he there actually cites the text of Manu, Chapter IX, 183 (that the son of a man by one of his wives is as a son to all his wives) and naturally from that point of view treats of the rival wife's children immediately after he had dealt with the rights of the woman's own offspring. In that view, the stepson and the step grandson would take not as sapindas of the husband after him, but before him. In the case of a disapproved form of marriage the son and grandson of the father, i.e., the brother and brother's son of the woman, may, I think, come in as the nearest relations and sapindas of the mother and, therefore, before those of the father. It is true in the case of Janglubai v. Jetha Appaji (1908) I.L.R. 32 Bom. 409 it was held that the mother's relations are not to be preferred to those of the father, but the objections would not apply with the same force to the son and grandson who are the nearest relations and sipindas of the mother as well as of the father. The question is not free from difficulty, but it is not necessary to determine in the present case the precise position to be assigned to the son and grandson of the husband or the father, i.e., whether they should come in as sapindas of the husband or the father and, therefore, after them and before the co-widow or the stepmother as the case may be, or before the husband and the father. The latter view is apparently taken by Kamalakara and according to him, therefore, the succession after the husband or the father would be governed by the rule of succession laid down in the text of Yajnavalkya quoted above.
37. It is contended on behalf of the plaintiffs-respondents that Kamalakara is a modern author, as it cites Raghunandana a recent authority, and is not entitled to weight, but Kamalakara is of the same age as Nilkantha (who is said to be the cousin of Kamalakara) the author of the Vyavahara Mayukha and Mitra Misra, the author of the Viramitrodoya: see Sarvadhicari's Tagore Lectures, pp. 404--408. Vivada-Tandava of Kamalakara is one of the text-books of Benares school (see 1 Morley's Digest, Introduction ccxxi), and is a very high authority in that school (see Sarvadhicari's Tagore Lectures, p. 406, and Siromani's Hindu Law, pp. 29-30). Kamalakara is to be followed as authority in the Benares school, when it is not in conflict with any higher authority: see Sir Gooroo Das Banerjee's Tagore Lectures, pp. 363-364. The text of Kamalakara referred to above was cited as an authority by Chandavarkar J. in Bhimacharya v. Ramacharya (1909) I.L.R. 33 Bom. 452, 459.
38. The above principle of determining the nearness of sapindas after the husband or the father in the case of a childless woman married in an approved form and in a disapproved form, respectively, has been acted upon in the following cases.
39. In the case of Bai Kesserbai v. Hunsraj Morarji (1906) I.L.R. 30 Bom. 431 where the question was whether a co-widow was entitled lo succeed to the property of a woman married in an approved form dying without issue in preference to her husband's brother or husband's brother's son, it was held by the Privy Council that the former was entitled to succeed as the nearest sapinda of the husband. The case was decided with reference to the Bombay school, viz., the Mitakshara, subject to the doctrine to be found in the Vyavahara Mayukha where the latter differs from it. But it was observed by the Privy Council referring to Mitakshara, Chapter II, Section XI, placita 8, 9 and 11: 'If the case rested on Mitakshara alone their Lordships are of opinion that the appellant would be entitled to succeed and that there could be no reasonable doubt that according to the Mitakshara definition of sapinda, husband and wife are sapindas to each other.
40. In Krishnai v. Shripati (1905) I.L.R. 30 Bom. 333 which also was a case of succession to the property of a childless woman, married in an approved form, the plaintiff who was the co-widow of the deceased claimed her estate as against the nephews of her husband (father-in-law's brother's grandsons) and it was contended on her behalf that in the absence of the husband the succession devolved upon his nearest sapinda (tatpratyasanna sapinda) and that the widow was the next-of-kin, and reliance was placed on the wellknown rule of succession laid down in the Mitakshara. Jenkins, C.J., and Russell, J., held that the widow was the nearest surviving sapinda according to the order prescribed in the Mitakshara and entitled to succeed in preference to the nephews of the husband of the deceased. The case was decided with reference to the Mitakshara alone, which was the governing authority in the district from which it came up.
41. So in the case of succession to a woman, married in a disapproved form, in Raju Gramany v. Ammani Ammal (1906) I.L.R. 29 Mad. 358 the question was whether the plaintiff, who was the sister of a childless woman married in a disapproved form, was entitled to preference to the defendant, her son, and it was held by Subramaniya Iyer and Benson, J.J., that according to the Mitakshara the plaintiff as the daughter of the deceased woman's father takes precedence over the defendant his daughter's son.
42. It thus appears that in cases governed by the Mitakshara the authorities are in favour of the view that succession to the stridhan of a childless woman after the husband or the father, according as the marriage was in the approved or disapproved form, is regulated in the same order in which succession takes place to the husband or the father as the case may be, i.e., it descends in the same way as if it had belonged to the husband or the father himself.
43. It is true that in none of the cases cited above there was any competition between an agnate and a cognate, but the order of succession was determined according to the order laid down in the Mitakshara regulating succession to a male owner, and the heirship was traced through the husband or the father.
44. The case of a maiden as already observed stands on the same footing as a childless woman married in a disapproved form, and the principles governing the order of succession to the latter is applicable to the case of a maiden.
45. In the case of Janglubai v. Jetha Appaji (1908) I.L.R. 32 Bom. 409 the question related to the succession to the stridhan of a maiden and the competing claimants were her maternal grandmother and her father's mother's sister, and the actual point to be determined was whether the sapindas of the mother or the sapinda of the father was entitled to preference. It was held that as the sapindas of the father are also the sapindas of the mother in virtue of her identity with her husband, the succession to the stridhan of an unmarried female goes to the sapindas of the father and the father's mother's sister was entitled to preference to the maternal grandmother. Chandavarkar, J., pointed out that the same rule of succession applies whether the deceased woman was a maiden or a woman married according to one of the blamed rites and quoting the text of Viramitrodaya that in default of the mother and the father the succession goes to their nearest relations, observed that, according to that rule, in default of the heirs specified by Baudhayana the sapindas of the parents of a maiden inherit her property, in the due order given in the text of Yajnavalkya regulating obstructed succession.
46. The same view is taken in Golap Chandra Sarkar Shastri's Hindu Law, 4th Edition, p. 460; and Sir Gooroo Das Banerjee, in his Tagore Lectures, 2nd Edition, p. 424, in dealing with the question of heirship to the property of a maiden, refers to Baudhayana's text and states his opinion as follows: 'On failure of the heirs mentioned in the text the next heirs would, I presume, be the paternal kinsman in order of proximity'.
47. I have not alluded to the order of succession laid down in the Viramitrodaya based upon the authority of a text of Vrihaspati (see Viramitrodaya, chapter V, Part II, Section 14; Golap Chandra Sarkar's Translation, page 243) according to which the sister's son is an heir, as it has been held that the line of succession given by Viramitrodaya is altogether inconsistent with that given in the Mitakshara and that it appears to give promiscuously the sapindas of the husband and those of the father without noticing the distinction in the devolution of the property depending upon the form of marriage of the deceased proprietress and cannot be accepted as authority in the Benares school which recognizes the authority of the Viramitrodaya only when it is not contradicted by the superior authority of the Mitakshara: see Jagannath v. Runiit (1897) I.L.R. 25 Calc. 354 Bai Kesserbai v. Hunsraj (1906) I.L.R. 30 Bom. 431; Sir Gooroo Das Banerjee's Tagore Lectures 2nd Ed. pp. 361-362.
48. I hold that in the present case the plaintiffs, the father's brother's sons, are not entitled to preference to the defendants Nos. 2 and 3 who are the father's daughters, or to defendant No. 4, the father's daughter's son. It is not necessary to decide in the present case as to who among the defendants themselves, viz., the daughter and daughter's son, is entitled to preference. The plaintiff's suit will equally fail whether the daughter or daughter's son is the heir, and in this view of the case it is not necessary to enter into the other questions which are involved in the suit.
49. I accordingly agree that the appeal should be decreed, the decree of the lower Court set aside and the suit dismissed with costs in both Courts.