O'Kinealy and Ameer Ali, JJ.
1. This is an appeal from the decision of the District Judge of Tirhut, refusing to grant letters of administration to the appellants.
2. The appellants state that Punit Koer, who died on the 3rd of December 1890, at Mozufferpore, had left moveable and immoveable property in the nature of stridhan, and applied to be allowed to administer the estate.
3. In answer, it was stated that the lady left no property as stridhan, that the property was really her husband's, who was the last full owner; and even if she had any property, still the applicants, not being the next heirs, ought not to get administration.
4. On the case coming on before the Judge in the Court below, two points of the nature already stated were raised for decision--(1) Was the property stridhan? (2) If so, who are the heirs
5. The Judge came to the conclusion that the lady had no stridhan, and as she had no estate, no administration could be given. He did not decide the second point. The facts of the case are as follows: One Ram Gobind Singh held property jointly with others. In 1863, he applied for the partition of the property. The partition proceedings commenced in 1864, and were completed in August 1866. Somewhere about November 1864, he gave 19 gundas of Rajkhund and of Sarkhand Bhitto to Punit Koer. That lady and Ram Gobind both applied for partition, and in the application Ram Gobind stated that he was all along in possession. The partition was made in March 1866, the usual papers showing the definite shares allotted to each were made out, and the parties were placed in possession of their shares in the usual way. Sometime after Ram Gobind died. We do not know the exact date, that is to say, whether it was in 1868 or 1869. In 1877 the lady, who up to that time had been only entered in the batwara register, and in the register in existence before 1876 in the Collectorate, applied and had the estate of Sarkhand, etc., which formed the 19 gundas, registered in her name, she being described as the owner. In the same year she also applied and succeeded in having her name entered as owner of the property 1 anna 1 gunda, not by gift, as the 19 gundas, but by inheritance. Therefore, we find that, so far as the 19 gundas are concerned, we have it stated, so far back as 1864, that she was in possession. It also appears that she was given possession under the batwara; and in the subsequent proceedings and dealings with the property she is described as in possession; so that up to 1890, that is, for a period of nearly 26 years, the ostensible title is in the lady, so far as the 19 gundas are concerned.
6. It has been argued on behalf of the respondent in this Court, that, although it is impossible to contest the fact that the lady was the ostensible owner of the property, still she was never in possession, and no gift was ever made to her; and in support of that contention the evidence of a person who was at one time dewan is relied upon. He states that although the jamabandi accounts were separate, the collections were joint;and the property was in Ram Gobind's name. Again, there is an entry in her petition, tiled in 1877, to get the registration of her name, that she obtained possession of the property on a certain date; and that date is undoubtedly the date of her husband's death. But if we read it in conjunction with the remarks under the 11th head of that petition, it seems quite clear that she contended that she had been in possession on the date of the partition. On the other hand, there is the evidence of another individual who also was undoubtedly an officer under her husband, and of a ryot and a patwari. Their evidence goes to show that the lady had all along held these properties as separate and has dealt with them as her own. It thus appears that for a long period the ostensible title is in the lady. We think the respondent has not shown to us that the estate comprising 19 gundas which she claimed to have received from her husband, so far back as 1864, did not really belong to her as owner, but formed part of her husband's estate. Moreover, it appears from the schedule of the properties filed with the application, that some of the moveables and ornaments must belong to the lady. Ram Gobind died so far back as 1868; and the only reasonable conclusion we can come to is, that these ornaments and garments really did belong to the lady.
7. Now, although we have come to the conclusion, for the purposes of the present suit, that the lady has an estate to administer, we wish carefully to guard ourselves from being understood to attempt finally to determine either the nature or the extent of her estate.
8. The next point raised is in regard to the right of being heir or successor to the lady's stridhan. She belongs to a family governed by the Hindu law of the Mithila school. So far back as the year 1812, in the case Sree Narain Rai v. Bhya Jha 2 Sel. Rep. (O) 23, (N) 29, the Pundits of the Sudder Dewany Adawlut gave their vyavasthas as follows: 'Supposing that the Rani did not appoint Bhya Jha her adopted son, he would not inherit her stridhan; the son of the mother's brother not being one of the legal heirs to her peculiar property. If the Rani left a brother, sister, sister's son, husband's sister's son, husband's brother's son, brother's son or son-in-law, any such person is entitled to succeed to the stridhan. If she left none of these, Sri Narain and Lullut Narain, the nearest sapindas of her husband, are entitled to her peculiar property as well as the Rajah's estate' In dealing with the subject of 'peculiar property' under the Mithila school of Hindu law in 1878, Mr. Justice Banerjee stated that, after the husband or the parents, the heirs would be those mentioned by Vrihaspati. After them the order of succession would be the same as that according to the Dravida school.' According to Vrihaspati, on failure of heirs down to her husband, a woman's property goes as provided in the following text: 'The mother's sister, the maternal uncle's wife, the paternal uncle's wife, the father's sister, the mother-in-law, and the wife of an elder brother, are pronounced similar to mothers. If they leave no issue of their body, nor daughter's son, nor his son, then the sister's son and the rest shall take their property.' By 'sister's son and the rest' is meant those persons who are in the same category as the sister's son, that is to say, husband's brother's son, husband's sister's son and others. 'That seems also to have been the view taken by the Pundits in the case of Sree Narain Rai v. Bhya Jha 2 Sel. Rep. (O) 23, (N.) 29 (34), and by Mr. Justice Banerjee in his Tagore Lectures of 1878, where he says that 'the group of heirs given in Vrihaspati's text, i.e., 'the sister's son', 'the husband's sister's son', etc., are entitled to inherit.' Then it is argued that whatever may have been the opinion up to 1878, still there is no direct decision upon the point. The question is still open, and it is further asserted that the case of Bachha Jha v. Jugmon Jha I.L.R. 12 Cal. 348 is entirely opposed to that opinion. According to that decision, the respondents argued that the sapindas are not postponed to the sister's son and the husband's sister's son. But it seems to us that that case is in no way antagonistic to the opinion we have expressed. In that case it is admitted that the husband's brother's son and the husband's sister's son were the heirs. It was even pointed out at page 354 of the report that, according to a book which is of some importance in the Mithila school, the sister's son took the peculiar property; what was decided in that case was not whether the class of sister's sons came before or after them, but whether the husband's brother's son took prior to the sister's son, both being of the same class. We can find nothing in that judgment which could support the present contention. Indeed, the case proceeded upon the assumption that the sister's son took before the husband's sapindas. During the discussion of the case it was asked whether the husband's brother's son or the sapindas took first. It was not controverted that in that case the husband's brother's son would succeed.
9. Looking, therefore, to the circumstances of the case, we think we ought to allow this appeal. The decision of the lower Court must accordingly beset aside; and we direct that letters of administration do issue to the applicant, upon his putting in the usual security to the satisfaction of the lower Court.
10. The appellants are entitled to costs.