1. We are of opinion that, on the death of a daughter, who had succeeded before her marriage to her father's estate to the exclusion of her married sister, the estate so inherited by her devolves upon her married sister, who has, or is likely to have, male issue, and not upon her own son.
2. According to the Hindu law in Bengal, the succession of females who have generally no heritable rights, takes place in certain exceptional cases specified in the Shasters. Jimutavahana, after citing the text of Baudhayana to the effect that 'a woman is entitled not to the heritage; for females and persons deficient in an organ of sense or member are deemed incompetent to inherit,' says, that 'the succession of the widow and certain others takes effect under express texts without any contradiction to this maxim'--see Dayabhaga, chap. xi, Section 6, para. 11.
3. There are also certain special rules applicable to the succession of a female. For example, on her death the succession devolves not upon her heirs, but upon the heirs of the last owner who had absolute estate in the property.
4. Of the exceptional female heirs, the widow ranks first. Jimutavahana, after laying it down that the widow is entitled to succeed on default of a son, grandson, or great-grandson, says in chap. xi, Section 1, para. 56: 'But the wife must only enjoy her husband's estate after his demise. She is not entitled to make a gift, mortgage, or sale of it.' Thus Katyayana says: 'Let the childless widow, preserving unsullied the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. After her, 'let the heirs take it.' In commenting upon this passage, Jimutavahana says: 'But when she (the widow) dies, the daughters or others who would regularly be heirs in default of the wife, take the estate.'
5. Then in para. 65, Section 1, chap. xi, Dayabhaga, its author says: 'In like manner if the succession have devolved on a daughter, those persons who would have been heirs of her father's property in her default take the succession on her death, not the heirs of her daughter's property.'
6. Then the above rule is laid down in chap. xi, Section 2, paras. 30 and 31, as applicable to all cases of woman's succession. Referring to the text of Katyayana (chap. ii, Section 1, para. 56), Jimutavahana says in Section 30 cited above: 'Since it has been shown by a text before cited that, on the decease of the widow in whom the succession had vested, the legal heirs of the former owner who would regularly inherit the property if there were no widow in whom the succession vested, viz., the daughters and the rest succeed to the wealth; therefore, the same rule is inferred a fortiori in the case of the daughter and grandson whose pretensions are inferior to the wife's (31), or the word 'wife' is employed with a general import; and it implies that the rule must be understood as applicable generally to the case of a woman's succession by inheritance.'
7. There is no authority to be found in any portion of the Dayabhaga or any other Hindu law-book recognized in Bengal, which shows that this rule, which is so clearly laid down as applicable to all cases of a woman's succession by inheritance, does not apply to the case of a maiden daughter's succession.
8. It is said that, in the opinion of Srikishen Tarkalankar (a commentator of the Dayabhaga, and also the author of a treatise on inheritance current in Bengal, viz., Dayakrama Sangraha), this rule is not applicable to the case of a maiden daughter succeeding to the property of her father, and then dying after marriage, leaving a son. But neither in his commentary, nor in his treatise, is to be found any passage clearly expressing this opinion. On the other hand, in the Dayakrama Sangraha, he says in chap. 1, Section 4, which treats of the right of succession of the daughter's son, that 'in default of all daughters, the daughter's son takes the inheritance,' &c.;, &c.;
9. There is, therefore, no express authority in Srikishen's Dayakrama Sangraha, or in his commentary on the Dayabhaga, for the contention that the general rule applicable to the succession of a woman is not applicable to the case of a succession of a maiden daughter dying after marriage and leaving a son. But it has been contended, that this is the opinion of Srikishen, may be inferred, because in para. 30, chap. xi, Section 2 of the Dayabhaga, he suggests that, after the word 'die,' the words 'without bearing issue' are understood. He does not assign any reason for this suggestion. We are left entirely to conjecture only, as to the ground for his holding that these words are understood. The passage with the words suggested by Srikishen placed within brackets runs thus: But if a maiden daughter in whom the succession has vested, and who has been afterwards married (die without bearing issue), the estate which was hers, becomes the property of those persons, a married daughter or others who would regularly succeed if there were no such (unmarried daughter) in whom the inheritance vested, and in like manner succeed on her demise after it has so vested in her. It does not become the property of her husband or other heirs; for that text (which is declaratory of the right of the husband and the rest) is relative to a woman's peculiar property.'
10. It is clear that this is an illustration of the general rule laid down in the latter end of this and in the next paragraph, viz., that, in the case of woman's succession, the property on her death devolves not upon her heirs, but upon the heirs of the last owner. It is exceedingly probable that the annotator suggested the addition of the words 'without leaving issue,' thinking that the language of the author without these words would be open to the objection of want of precision. Because, on the death of a maiden daughter (in whom the succession had vested, and who had been afterwards married) leaving issue, the estate would 'not become the property of her husband or other heirs' even if the law regulating the succession to a woman's peculiar property were applicable, because the husband would succeed only in default of issue.
11. In our opinion, therefore, Srikishen Tarkalankar suggested the addition of these words by way of mere verbal criticism upon the language of the paragraph (30) cited above, and that he did not intend thereby to lay down an exception to the general rule enunciated by Jimutavahana relating to the case of a woman's succession by inheritance.
12. In Macnaghten's Hindu Law, Vol. I, page 25, and Elberling on Inheritance, it is laid down that, in a case like the present, the son of the deceased sister is entitled to succeed to the exclusion of the married sister. No authority is cited in support of this doctrine, which is clearly contrary to the opinion of Jimutavahana. Futhermore, Mr. Macnaghten was mistaken in supposing that the case of Mussamut Bijia Debia v. Mussamut Unnopoorna Debia 3 Sel. Rep. 26 was decided in accordance with the doctrine laid down by him. That case does not in any way support his view.
13. The case of Radha Kishen Manjhee v. Rajah Ram Mundul 6 W.R. 147 referred to in the order of reference, seems to have been mainly decided on the authority of Macnaghten and Elberling. But the opinion of these two European text-writers on Hindu law being opposed to the Dayabhaga cannot be followed. The learned Judges who decided that case also referred to the Dayabhaga, chap. xi, Section 2, para. 30, as supporting their view. But in our opinion the text cited shows just the contrary.
14. The decisions of the lower Courts are, therefore, erroneous. We accordingly reverse them. The case will be remanded for the trial of the other questions raised by the parties. Costs will abide the result.