P.N. Mookerjee, J.
1. This is the plaintiffs second appeal, arising out of a suit for declaration of title, permanent injunction and mesne profits.
2. The suit was decreed by the learned trial Judge. On appeal that decision has been reversed and the learned Subordinate Judge has dismissed the plaintiffs suit upon the view that to the admitted deceased owner of the property, the defendant respondent is a preferential heir to the plaintiff, and that, accordingly, the plaintiff cannot claim title to the same.
3. The whole question is whether the learned Subordinate Judge was justified in holding that the defendant respondent's claim of title by inheritance to the disputed property was to be preferred to the plaintiffs.
4. The suit property, admittedly, belonged to one Santosh Kumari and it was her Ayautuka Stridhan, Santosh Kumari died leaving no issue. Her husband was also dead at the time and it is not disputed thatthe disputed property would devolve on Santosh Kumari's husband's sapinda, according to normal rules o preference. The plaintiff appellant is Santosh Kumari's husband's brother's son's son. The defendant respondent is Santosh Kumari's husband's daughter by another wife. The contest is between these two persons.
5. It is clear and beyond dispute that the husband's brother's son's son is a sapinda of the husband. If however, the husband's daughter, though by another wife, be a sapinda, she will, obviously, be a sapinda nearer by one degree and would, accordingly, be preferable. The point for consideration thus reduces itself to this; whether the defendant respondent Kalidasi, who is the daughter of the deceased owner Santosh Kumari's husband by another wife, is a sapinda of Santosh Kumari's husband. The parties are governed by the Bengal or Dayabhaga School of Hindu Law ana, under the said system, five females are recognised as special sapiridas under special texts on the theory of spiritual benefit. The daughter comes in as a special sapinda after the widow upon the footing that, through her son, she offers funeral oblations to her father. This is stated in Sir Dinshaw Mulla's Commentary on Hindu Law (Vide Article 88) and that, read with Article 157, confirms the position. The same view is also to be found in Raghavachariar's Hindu Law, 5th Edn. (1965), at p. 524, where, speaking of the daughter as a female heir under the Dayabhaga, the author says that she comes under the class of sapindas. Further confirmation of this is to be found in Mayne's Hindu Law, 11th Edn., Article 568, at p. 684, where the learned author speaks in these terms: 'So too, a daughter is a sapinda as she offers funeral oblations by means of her son' and the learned author refers to Dayabhaga, Chapter 11, Section (ii), verses 1, 2 and 15, in support of his above statement. Of these verses, verse 1 speaks of the daughter's right of succession and places it on the footing that she comes in as a descendant within the group, presenting funeral oblations. This is elaborated by verse 2 where it is specifically pointed out that it is the daughter's son in the daughter's line, who alone offers funeral oblations, obviously explaining the position that the daughter presents funeral oblations through her son and gets the right of inheritance or comes within the class of sapinda only in that capacity. The view gets the fullest confirmation from Sloka (verse) 15 of the same section where the opening words are: 'Since a daughter's right of succession ' to the property of her father is founded on her offering funeral oblations by means of her son,' It is enough for our present purpose to refer to the above quotations and texts and authorities for holding that the daughter is a sapinda under the Bengal or Dayabhaga School. Whether this interpretation, given in Dayabhaga by 'Jimuta Vahana, is correct or not, is not a matter of enquiry for us asit is well known and well established by the decision of the Judicial Committee in the Collector of Madura's case, (1867) 12 Moo Ind App 397 (PC), that 'the duty of a Judge at the present day 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 there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law. Following the above, Jimuta Vahana's interpretation, as given hereinbefore, must be accepted in the instant case and, upon that interpretation, in the light of the other authorities and commentaries, referred to above by us, we must hold that the defendant respondent was a sapinda--to wit, the nearest sapinda, -- of the husband of the deceased lady, who was the admitted owner of the disputed property. That being so, she will be the preferable heir and, accordingly, the plaintiff's claim must be held to have been rightly dismissed by the learned Subordinate Judge.
6. The appeal, accordingly, fails and it is dismissed.
7. Parties will bear their own costs in all Courts.
Amiya Kumar Mookerji, J.