1. The question in controversy in this case relates to the inheritance of the ayautuka stridhan of one Radharani Dasi, a widow governed by the Dayabhaga school of Hindu law. The plaintiff is the son of Radharani's step-daughter. The defendant sets up jus tertii, and contends that on Radharani's death the property descended to one Gosto Behari, a son of Radharani's brother.
2. has dismissed the suit, holding that Gosto Behari was the preferential heir. At p. 158 of Mulla's Hindu Law, Edn. 7, are to he found two tables enumerating the two sets of heirs, the first set consisting of 5 groups of heirs, in their order in respect of ayautuka stridhan according to the Bengal school; and it is with reference to these tables that the matter will be discussed here. As regards the first three groups of the first table, no question arises in this case. Mr. Hazra's first contention on behalf of the appellant is that in Group 4 of the first table 'daughter's sons' should be read as including stepdaughter's sons.' If this contention succeeds it is obvious that the plaintiff should be held to be the preferential heir, because the defendant comes in only under Group 9 of the second table. In support of the contention that no distinction should be drawn between 'daughter's sons' and 'step-daughter's sons' reliance has been placed upon certain decisions which we shall now notice. In Dasarathi Kundu v. Bepin Bihari Kundu (1905) 82 Cal 261 the contest was between a step-sister's son and the elder brother of the husband. Several reasons were given by the learned Judge for holding that a step-sister's son is practically in the position of one's own sister's son and in a better position than the elder brother of the husband even from the point of view of spiritual benefit. While overruling a contention that the mention of 'whole brother' in para. 29 of Dayabhaga, Ch. 4, Section 3, which was considered by the learned Judges as applying to succession to a woman's sulka only, suggested that whole-blood was also meant in para. 31 et seq, the learned Judges observed:
This rather supports the contention of the plaintiff than that of the defendants in this case; for the verse indicates that where a person connected by half-blood is meant to be excluded the author says so,
3. The case of Sashi Bhusan Lahiri v. Rajendra Nath Joardar (1913) 40 Cal 82 merely purported to follow the decision in the case of Dasarathi Kundu v. Bepin Behari Kundu (1905) 82 Cal 261 in so far as that case gave the step-sister's son a place in Group 7 of the second table, and also proceeded upon the decision in the case of Bholanath Roy v. Rakhal Das Mukerji (1813) 11 Cal 69 in which it had been held that under the Bengal school of Hindu law sons of sisters of the half-blood are entitled to succeed equally with sons of sisters of the whole blood to the property of a deceased brother. The case of Jatindra Nath Roy v. Nagendra Nath Roy : AIR1928Cal289 was a Mitakshara case, the contest being between the father's half-sister's son and the mother's sister's son as to the right to succeed to a male owner; and while dealing with atmabandhus, the learned Judges observed that where the text-writers meant that there should be a difference between the relations of full-blood and half-blood that was especially enumerated, but where no such distinction is made in the text the words should be read as including both full-blood and half-blood. These decisions, in our judgment cannot be regarded as having laid down any general proposition that wherever in any list of heirs a particular heir is named, it should be taken, in the absence of any express words to the contrary, to include both whole-blood and half-blood. And on the authority of these decisions we are not prepared to hold that Group 4 of the first table should be read as including step-daughter's sons. The next attempt made on behalf of the appellant was to support the group of heirs whom Srikrishna in his Dayakarma Sangraha interposes between Group 4 and Group 5 of the first table. Jimutabahana, in namingthe heirs up to Group 5, allowed the doctrine of spiritual benefit to be subordinated to other considerations to a certain extent. From the texts of Manu Brihaspati and Devala, he deduces the rule (Dayabhaga, Ch. 4, S ii, 9) that the son and maiden daughter have a like right to succession, and on failure of either of them, the goods belong to the other, and on failure of both of them the succession devolves with equal rights on the married daughter who has a son, and on her who may have a male issue, for by means of their sons they may present oblations at solemn obsequies. He then turns to the text of Manu (ix, 139) which says:
Even the son of a daughter delivers him in the next world like the son of a son;
and then as between a son's son and a daughter's son he gives preference to the former, observing that since the married daughter is debarred from inheritance by the son it is reasonable that the son of the debarred daughter shall also be excluded by the person who bars her claim (Dayabhaga Ch. 4 S, 2, 11). So far, that is to say as regards Groups 1 to 4, it may perhaps be said that spiritual benefit was a primary consideration with him. But in naming Group 5, that is to say, after the daughter's son, he admits barren and widowed daughters. But these are unable to confer any spiritual benefit, and his reason for letting them in here is that they are also her offsprings (Dayabhaga Ch. 4 ii, 12), which is nothing else than the ground of natural love and affection, Srikrishna, on the other hand, being more zealous in following out the doctrine of spiritual benefit, has placed between Group 4 and Group 5 the following heirs in their order: (1) son's sen's son, (2) step-son, (3) step son's son and (4) step-son's son. (Srikrishna's commentary on Dayabhaga, Ch. 4 Section 3, Dayakarma Sangraha Ch: 2, S. iv, 9). Sir Gooroo Das Banerji in his Hindu Law of Marriage and Stridhan, Edn. 5, p. 477, has observed that though Jimutabahan's rule is more authoritative and also more equitable, Srikrishna's list has been generally accepted. It is clear, however, that this list as it stands gives the appellant no place, unless ''step-son's son' is taken to include 'step-daughter's son.'
4. To establish that the step-daughter's son should come in under the category of step-son's son in the list of Srikrishna's heirs, or should, in any event, come in after the husband, i.e., Group 4 of the second table, Mr. Hazra relies upon paras. 31 to 34 of Dayabhaga, Ch. iv. Section 3. He has also argued that the decision of this Court in the case of Purna Chandra Bysack v. Gopal Lal Sett (1908) 8 CLJ 369, in which it was held that the words 'of the rival wife' in para. 31 and paras. 32 and 33 are interpolations and spurious was not right and that on a proper interpretation of these as well as of the paragraphs that follow it should be held that the step-daughter's son should have a place at one or other of the aforesaid places. After providing for the 5 groups of the first table, Jimutabahana proceeds to deal with the next group of heirs consisting of the woman's parents, her brother and her husband. So far as these are concerned it is not necessary to deal with them in detail. It is now wall-settled that para 28 of Dayabhaga, Ch. 4, Section 3, which contains a rule of succession, and para. 29 thereof, which contains a resume of some of the preceding paragraphs, formulate a rule which is applicable to all kinds of Stridhan: see Judoonath Sircar v. Basanta Kumar (1873)19 WR 264. This rule is that in the first place it goes to the brothers of the whole-blood; and if there be none, to the mother; if she be dead, to the father; and on failure of all these, it devolves on the husband. The order given in the Dayabhaga has been accepted by the Courts as applicable to all kinds of Stridhan: see Sir Gooroo Das Banerjee's Marriage and Stridhan, Edn. 5, p. 473. Mr. Hazra has seen the difficulty that Jimutabahana up to para. 29 of the section has never thought of the step-daughter's son. He therefore relies upon paras. 31 to 34 and wants to get out of them a meaning which will enable his client to come in either in the group of Srikrishna's heirs or at any rate, after the husband, for either would suit him equally well. These paragraphs have therefore to be carefully considered.
5. In para. 31, Jimutabahana begins by saying 'on failure of heirs down to the husband this rule is again provided' and then says: 'Brihaspati thus delivers,' and then cites a text of Brihaspati which runs thus: (Here the judgment stated the text and proceeded). This text has been translated in the fragments of Brihaspati, Sacred Books of the East Series, thus:
88. The mother's sister, the wife of a maternal uncle, a paternal uncle's wife, a father's sister, a mother-in-law and an elder brother's wife are declared to be equal to a mother.
89. If they have no legitimate son of the body, nor (other sow) nor daughter's son, not their son their sister's son etc.; shall inherit their property.'
6. In paras. 32 and 33,. the word auras is explained as meaning both son and daughter and a reason is given for this meaning; and the word 'son' in verse 89, quoted above, is also explained as not being confined in its meaning to an issue of the body but as including the son of a contemporary wife. For such a meaning of the word 'son,' reliance is placed upon a text of Manu with reference to which it is said:
If among all the wives of the said husband, one brings forth a male child,
7. Manu has declared them all, by means of that son, to be mothers of the male issue; and a further reason is also given that if a limited meaning be given to the word son, the word would be superfluous and the sister's son or other remote heir would have the right of succession though the son of a contemporary wife be living. In this way the conclusion is reached that if there, be no legitimate son or daughter, nor a grandson in the male line, nor a son of a rival wife, the right of succession devolves, on the daughter's son. The question as regards the authenticity of paras. 32 and 33 arose in the case of Purna Chandra Bysack v. Gopal Lall Sett (1908) 8 CLJ 369 in which the contest was between the daughter's son and the rival wife's son. Paras 32 and 33 directly bear upon this question. For reasons that are elaborately set out in the decision of Mookerjee, J., it was held in that case that the verdict of such commentators as Srikrishna, Achyuta, Moheswara and others censuring the paragraphs as spurious or questionable was well founded and that there were substantial grounds for holding that they are interpolations. The case went up before the Judicial Committee, but their Lordships observed that they would make no pronouncement on this question as it was not necessary. For us also it is not necessary to go into the question of authenticity of these paragraphs in the present case, because we cannot see how, even if they are genuine and regarded as correctly laying down the law, the son of a step-daughter can avail of them in any way for his benefit. The paragraphs make no mention of the son of a step-daughter. We may observe in passing that in a later decision in the case of Debi Prasanna Roy Choudhury v. Harendra Nath Ghose (1910) 37 Cal 863 Mookerjee, J., has referred to paras. 32 to 36, but has not said anything as regards the genuineness or otherwise of paras 32 and 33. We therefore pass on to para. 34 which is the most important paragraph to be considered in this connexion. This paragraph deals with the word tatsutah (their son) in Brihaspati's text quoted above. This paragraph has been thus translated in Colebrook's Dayabhaga:
By the pronoun in the phrase 'sons of those persons' (31) the woman's own issue and the child of a rival wife are signified. Therefore their sons have a right to inherit; nor the son of a daughter's son also, for he is excluded from the oblation of food or obsequies.
8. It is clear however that the word in the text which has been translated as child is the word 'puttra,' the paragraph running thus (After stating the paragraph the judgment proceeded). The translation only follows the commentators Srikrishna and others in what they have said of the word tatsutah in Brihaspati's text and not as to what Jimutabahana means by it. These commentators in order to give the utmost latitude to the doctrine of spiritual benefit and in order to see that its application is logically sound and consistent, have read the word tatsutah in Brihaspati's text as meaning not only son of the rival wife but his sister as well. They do not mean to translate Jimutabahana's rendering of the word as given in para. 34. And Srikrishna himself, in his summary of the rules at the end of the section of the Dayabhaga on which he was commenting, was content with introducing his groups of heirs between Groups (4) and (5) of the first table and giving no place to a stepdaughter's son in that group or anywhere else. As for Jimutabahana himself, immediately after the husband he gives places to Brihaspati's secondary sons, and he has expressly given the order of succession in para. 37 and also taken the precaution of saying in para. 38 that the mention of the secondary sons in para. 31 was intended merely for an indication of the heirs, without specifying the order in which they succeed. In para. 39 come others, including the husband's sapindas.
9. It may be pointed out here that the order of inheritance of the six secondary sons amongst whom the respondent comes under Group 9 of the second table, is agreed in by Raghunandan and Srikrishna and they refer to the same doctrine of spiritual benefit as the basis of their conclusion. (See Sir Gooroodas Banerjee's Marriage and Stridhan Edn. 5, p. 498). In these circumstances, we are unable to hold that either in the text of Dayabhaga or in the authorities there is anything on which it may be held that in the law as prevailing in Bengal the appellant can come in preference to the respondent. The appeal is dismissed. We make no order for costs in it.