Coxe and Doss, JJ.
1. This appeal raises the somewhat difficult question as to the rule of succession relating to property left by a degraded Hindu woman.
2. One Budhia Kurmini, a degraded woman, died on the 17th April 1907. On the 9th May following, Rajaram Tewary, the respondent, applied for grant of probate of a will, dated the 15th April, 1907, said to have been executed by Budhia Kurmini, appointing him executor and bequeathing all her properties to his son.
3. The application was opposed by the appellant, Chhatoo Kurmi, son of the sister of the testatrix's deceased husband, on the ground that the will was a forgery, and he prayed for grant of Letters of Administration to himself on the ground that under the Hindu Law he was the heir of the deceased and entitled to succeed to the properties left by her, which were her stridhan.
4. The application was also opposed by the Collector of Hooghly on behalf of the Secretary of State for India.
5. In course of the trial the learned District Judge did not allow the appellant's pleader to cross-examine the witnesses called by the applicant to prove the execution of the will, being of opinion that he had no locus standi to appear in the proceedings. The witnesses were, however, cross-examined on behalf of the Collector.
6. The learned District Judge, in his judgment, dated the 24th July, 1907, held that the will had been proved and, accordingly, made an order for grant of probata of the will to the applicant, Rajaram.
7. On the 1st August 1907 the appellant applied to the District Judge for revocation of the order for probate.
8. Following the decision in the case of Bhutnath Mondol v. Secretary of State for India in Council 10 C.W.N. 1085 the learned District Judge has dismissed the application, holding that the next-of-kin of a degraded woman is not entitled to succeed to her properties, and that such properties go to the State. We, however, feel unable to follow that case, as we entertain some doubt as to the correctness of the decision. The reported cases bearing on the subject and arranged in their chronological order are as follows:
9. In Taramunnee Dossea v. Motee Bunneanee (1846) 7 Sel. R. 273 (Old Ed,) 325 (New Ed.) the competition was between the un-degraded daughters and the degraded daughters of the deceased woman. The Sudder Court held that the degraded daughters inherited their mother's property. The Pundit of the Sudder Court, in the opinion which he delivered to the Court, stated that by reason of the degradation of the woman the relation of the undegraded daughter to her outcaste mother ceased, but he cited no original texts, either from-the Smritis or from the commentaries in support of his Opinion. Nor is any such text cited in any of the subsequent cases, apparently because, as pointed out by the learned Judges of the Madras High Court in Subbaraya Pillai v. Ramasami Pillai 23 M. 171 and by Sale, J. in Kaminey Money Bewah's Case 21 C. 697 there is no such text on the subject.
10. In Sivasangu v. Minal 12 M. 277 the competition was between the undegraded brother and the degraded sister of the deceased woman. The Madras High Court (Muttuswani Ayyar and Parker JJ.) held following the case of Taramuunee Dossea v. Motee Bunneanee (1846) 7 Sel R. 273 (Old Ed,) 325 (New Ed.) that the degraded sister was entitled to inherit in preference to the undegraded brother.
11. In Narasanna v. Gangu 13 M. 133 the competition was between the undegraded brother and the degraded niece of the deceased woman. The Madras High Court following the case of Sivasangu v. Minal 12 M. 277 (Parker and Wilkinson JJ ) held that the degraded niece was entitled to inherit.
12. In In the goods of Kaminey Money Bewah 21 C. 697, the executor having obtained probate' of the will of the deceased woman, her husband's sister's son applied for revocation of that probate. This Court on its original side (Sale, J.) following the case of Taramunnee Dossea v. Motee Bunneanee (1846) 7 Sel, R. 273 (Old Ed,) 325 (New Ed.) and relying upon the dicta in Sivasangn v. Minal 12 M. 277 and Narasanna v. Gangu 13 M. 133' which have been disapproved and expressly dissented from since by the Madras High. Court in Subbaraya Pillai v. Ramasami Pillai 23 M. 171 to be noticed later more fully,' held that he had no right to apply for revocation of the probate because degradation in their opinion had the effect of severing the tie of kindred between the degraded woman and her natural family and a fortiori between her and the members of her husband's family. The learned Judge in his judgment remarked that to his knowledge 'in certain cases this Court has granted Letters of Administration in the case of prostitutes who died intestate to members of their own natural family,'
13. In Sarnamoyee Bewah v. Secretary of State for India in Council 25 C. 254 a degraded sister of the deceased woman who had died in. testate applied for Letters of Administration to her estate. The application was opposed. by the Secretary of State for India on the ground that the estate of the deceased had escheated to the Crown. This Court (Maclean, C. J. and Banerjee, J.) held that this case was governed by the Hindu Law of the Bengal School and that according to that law the sister was not an heir, and the fact that she was degraded could not create any new right in her. The ruling in this case may be said to imply the position that degradation does not dissolve the tie of kindred between the degraded woman and the members of her natural family, for if degradation has that effect, it necessarily casts her outside the pale of the Hindu Law of Succession, and it is perhaps needless to enquire whether according to the Hindu Law of the Bengal School or of any other school, the claimant is an heir or not.
14. In Subbaraya Pillai v. Ramasami Pillai 23 M. 171 the undegraded and legitimate step-son of the deceased woman claimed her property as her heir. The High Court of Madras (Subrahmania Ayyar and Boddam, JJ.) held that he was entitled to succeed to her property. The learned Judges expressly dissented from the proposition that degradation on account of unchastity entails in the eye of the law cessation of the tie of kindred between her and the members of her natural family or between her and the members of her husband's family, observing that in their opinion the circumstance, that in general it is open to an out caste on his undergoing expiation, to resume his former position, strongly pointed to the view that degradation had the effect of rendering the tie of kindred but dormant. They further held that when there is a competition between a degraded person and an undegraded person (as there was in Tararnunee Dossea v. Motee Bunneanee (1846) 7 Sel, R. 273 (Old Ed,) 325 (New Ed.); Sivasangu v. Minal 12 M. 277 and Narasanna v. Gangu 13 M. 133 the decision that the former has the preferential right may be supported an Equitable principles' as explained in their judgment.
15. In Narain Das v. Tirlok Tiwari 29 A. 4 : 3 A.L.J. 537 : A.W.N. 1906; 243 the property of the deceased degraded woman (in that case a decree for property which had been obtained by her before her death ) was claimed by her husband whom she deserted. She had since led a life of prostitution. The Allahabad High Court (Banerjee and Aikman JJ.) held, following and fully approving the decision in Subbaraya Pillai v. Ramasami Pillai 23 M. 171 decided by the Madras High Court that the husband was entitled to inherit.
16. In Sundari Dossee v. Nemye Charan Daw 6 C.L.J. 372 the daughter of the deceased sister of the degraded woman applied for Letters of Administration to her estate. It was found that the claimant and the deceased were both degraded and lived together. The application was opposed by the son of a brother of the husband of the deceased, Fletcher, J., following the case of Sarnamoyee v. Secretary of State, for India in Council 25 C. 254 held that she was not entitled to Letters of Administration, because according to Hindu Law of the Bengal School she was not an heir of the deceased. With reference to the case of In the goods of Kamineymoney Bewdh 21 C. 697, that learned Judge remarked as follows: ' That decision is not consistent with the decision in Sarnamoyee Bewah v. The secretary of State 25 C. 254 and the latter has been followed in Narain Das v. Tirlok Tiwari 29 A. 4 : 3 A.L.J. 537 : A.W.N. 1906; 243 which also dissented from the view in In the goods of Kamini Money Bewah 21 C. 697 cited above'.
17. The last reported case on the point is that of Bhulnath Mondal v. Secretary of State for India 10 C.W.N. 1085 cited above; the sons of the brother of the husband of the deceased woman applied for Letters of Administration to her estate. The application was opposed by the Collector on behalf of the Secretary of State for India. Rampini and Woodroffe, JJ., held that the petitioners were not entitled to inherit. Woodroffe, J. remarked that were the matter res integra he was not prepared to say he should decide the point of law adversely to the petitioners, but he thought that the course of decision ever since 1846 was to the contrary.
18. From the foregoing resume of the cases, it is apparent that the course of decisions on the point since 1846 has not been uniform. It seems to us, therefore, that the point is not res decisa. As we are unable to agree-with the view taken in the last mentioned case, we refer the following question for determination by a Full Bench: Whether a person who would have been entitled to inherit the property of a Hindu woman, if she had not been degraded, is disentitled, to do so, by reason of her degradation; or in other words, whether such property escheats to the Crown, in the absence of degraded heirs?
19. The question referred to the Full Bench is whether a person who would have been entitled to inherit the property of a Hindu woman, if she had not been degraded, is disentitled to do so, by reason of her degradation; or, in other words, whether such property escheats to the Crown, in the absence of the degraded heirs. In our opinion, this question cannot be referred to us at this stage, as the facts on which the reference purports to have been made have not been finally determined. This will appear from a statement of the circumstances out of which this reference has arisen.
19. Budhia Kurmini, said to have been a degraded woman, an expression, which I understand, is intended to be the equivalent of a woman who had been out casted, died on the 17th of April 1907. On the 9th of May following, Rajaram Tewari, the respondent in the High Court, applied for the grant of probate in respect of a document which he put forward as the deceased's will, and whereby as he alleged he had been appointed Executor. In his petition he mentions the appellant Chhatoo Kurmi as a person who might bring forward a claim as an heir, but at the same time he denied Chhatoo Kurmi's right. We are told Chhatoo Kurmi was cited as a person claiming to have an interest in the estate of the deceased to come and see proceedings before the grant of probate, as provided by Section 69 of the Probate and Administration Act, Chhatoo in response to the citation appeared and opposed, alleging himself to be the heir, and contending that the alleged will was not a genuine document. The matters having reached that point, Section 83 of the Probate and Administration Act came into play, whereby it is provided that in any case before the District Judge where there is contention, the proceeding shall take as nearly as may be the form of a suit according to the provisions of the Code of Civil Procedure in which the petitioner for probate shall be the plaintiff and the person who may have appeared as aforesaid to oppose the grant shall be the defendant, This provision was at first followed, but on the 31st of July 1907 the District Judge came to a decision which is thus expressed in a note on the record, ,' the pleader has not yet shown that he has any locus standi to cross-examine on the factum of the will. Further cross-examination on behalf of Chhatoo Kurmi is disallowed.' Probate was in the end granted. Then Chhatoo Kurmi applied for revocation of the grant: That failed. The result was two original appeals to this High Court, the first being from the decree granting probate, and the second from the refusal to revoke. The ground of appeal urged in the first of these two appeals was, among other things, that the Court below erred in law in holding that Chhatoo Kurmi had no locus standi in the case. It is unnecessary for me to deal with the appeal from the order refusing revocation, because in the circumstances the application for revocation loses its importance. The whole question between the parties will be determined now on this application for probate which has been granted, and the propriety of which grant is questioned on appeal to this Court. I particularly wish to say nothing that could, in any way, be regarded as prejudging a question which still has to be determined by the Division Bench from whom this reference comes, but at the same time I must state my view on certain matters for the purpose of explaining how it is that, in my opinion, no reference can now be made. I take it to be clear that it is the right of every litigant in a suit, unless he waives it, to have an opportunity of cross-examining witnesses whose testimony is to be used against him. This would appear to be a very obvious proposition, and is one which has the sanction if it be needed, of Mr. Justice Phear's approval, as appears from his judgment in Gorachand Sircar v. Ram Narain Chowdhry 9 W.R. 587 at p. 588. Therefore, we are brought face to face with this fact that, in view of Section 83 of the Probate and Administration Act, and of the clear right of a litigant to cross-examine the witnesses called by his opponent, the Division Bench must take into consideration and decide, whether or not the procedure of the District Judge has been so manifestly in disregard of the first principles of procedure as to make it incumbent upon them to remand the case for further hearing, when no opportunity was given the present appellant of exercising his right to cross-examine. I do not wish in any way to hamper the action of the Division Bench. I have at the outset stated that I merely desired to make clear what our difficulties are.
20. The result, therefore, is that, in my opinion, the reference is premature and the case should be returned to the referring Division Bench in order that the appeal may be dealt with there. It will await the return of Mr. Justice Doss and will, in the meantime, be treated as a part-heard-case.
21. I concur.
22. I also agree.
23. I agree.
24. I agree.