P.N. Mookerjee, J.
1. A simple but interesting question of succession under the Daya-Bhaga School of Hindu Law arises for decision in this appeal.
2. The relevant facts He within a short compass. They have either been admitted or proved and they stand as follows :
3. The plaintiff claiming to be the father's sister's son of one Jagannath Bera brought this suit for declaration of his title to and recovery of possession of the disputed property, comprising some lands in khatians Nos. 93 and 94 of Mouza Ghatugram in the Diamond Harbour sub-division of district 24-Parganas. These lands formed part of certain joint properties, belonging to five brothers Rakhal, Dharmadas, Gurudas, Nandalal and Maniklal Bera. Dharmadas had, accordingly, l/5th share in these lands along with a similar share in the ether lands, comprised in the said joint pro-perties. Dharmadas died, leaving a wife Khudubala, who was his second wife, and a son Pancha, non and a daughter Murari Dassi by his first wife who had predeceased him. Panchanon died, leaving his widow Lakshmi and son Jagannath. Panchanon also left two minor daughters, Urmila arid Jhumurbala. Lakshmi and Jagannath are dead. Plaintiff is the son of Murari Dassi who was as stated above, the sister of Panchanon. The plaintiff, accordingly, claims to be entitled to the disputed property (which had come to Jagannath by succession from Dharmadas through Panchanon) as Jagannath's father's sister's son. Defendant No. 1 claims title to the said property under and by virtue of an alleged Kobala purchase from Khudubala, Urmila and Jhumurbala who are respectively defendants Nos. 2, 3 and 4.
4. There were various disputes between the parties, but, eventually, the matter fell to be decided upon the right of the plaintiff as the father's sister's son of Jaganath and the right of Defendant No. 1 under the kobala from Khudubala, defendant No. 2, who was the second wife and the surviving widow of Dharmadas. Defendant No. 1, although he alleged to have taken the kobala from Urmila and Jhumurbala also, did not set up any title through them, presumably because they could not claim and did not actually claim any title to the disputed property. Defendant No. 1 claimed title through Khudubala upon the footing that Khudubala, being the paternal grandmother, though the paternal step grandmother, of Jaganath was entitled to succeed to his properties in preference to the plaintiff who was his (Jagannath's) father's sister's son.
5. The dispute between the parties, arising upon the rival claims of succession, as set out) above, was decided against the plaintiff by both the courts below upon the view that the paternal step grandmother was a preferential heir under the Daya-Bhaga or the Bengal School of Hindu Law, by which the parties to the suit were admittedly governed. The propriety of this concurrent decision is challenged before us by the plaintiff who has filed this second appeal against the dismissal of his suit by the two courts below.
8. It is clear upon the findings of the two courts below that, if the plaintiff succeeds in establishing that his claim of inheritance from Jagannath must prevail over Khudubala's right, he is entitled to succeed in this suit and to a reversal of the decrees of dismissal of the two courts below. The only point, therefore, that calls for decisions in this appeal is as to who was the rightful heir of Jagannath.
7. The point for decision appears to us to be quite a simple one although some complications have been introduced into its consideration by reference to certain cases and by a line of argument which has succeeded in the two courts below.
8. The parties, as we have said above, are governed by the Bengal or Daya-Bhaga school of Hindu Law. Under that school the stepmother is no heir. That is an admitted position. The stepmother's exclusion from inheritance is founded on the test of verse 3, Section 6, Chap. XI, of the Daya-Bhaga which runs as follows :
'Nor can it be pretended that the step-mother liRuhekrq% (step) grand-mother liRuhfirkek% and (step) great-grand-mother liRuhizfrrkek% take their places at the funeral repast, in consequence of (ancestors being deified) with their wives; for theterms 'mother' (grandmother and great-grandmother) &c.; (in such texts as the following) bear their original sense of 'his own natural mother', 'father's natural mother', and 'grandfather's natural mother', and it is by those terms that they are described as taking their places at the funeral repast. Thus it is said, 'A mother tastes with her husband the funeral repast consisting of oblations to the manes: and the paternal grandmother with her husband; and the paternal great-grandmother with hers.' But the introduction of stepmothers and the rest to a place at the periodical obsequies, is expressly forbidden. Thus the sage declares, 'whosoever die, whether man or woman, without male Issue, for such person shall be performed funeral rites peculiar to the individual, but no periodical obsequies.'
If, on the above verse, which is in similar terms as regards inter alia the step-mother and the paternal step-grand mother, as the step-mother has been excluded from inheritance, the paternal step-grand-mother would also be excluded. The paternal step-grand-mother can, on no conceivable principle, claim to be entitled to a different and better treatment in the matter of inheritance. We would, therefore, hold that the paternal step-grand-mother is no heir under the Dayabhaga or Bengal School of Hindu Law.
9. The Courts below, in holding the contrary, relied principally upon the renumeration of Dayabhaga heirs in Sastri Golap Chandra Sarkar's well-known treatise on Hindu Law and what impressed them most and moulded their ultimate decision in favour of the paternal step-grandmother's right of inheritance under the Dayabhaga School of Hindu Law was the fact that, although, while mentioning the mother as an heir the learned Author expressly excepts the step-mother and refers to her exclusion from inheritance, no such exception is made or mentioned in, the case of the paternal grand-mother. The Courts below, however, entirely overlooked that, according to the learned Author himself, the step-mother's exclusion from inheritance is based directly on the text, quoted above, and, if that be so, the paternal step-grand-mother's exclusion would follow almost as a matter of course and such exclusion cannot be resisted. We do not, therefore, think that Sastri Golap Chandra's book is of any real assistance to the respondent whose claim through the paternal step-grand-mother succeeded in the two Courts below.
10. Before the lower appellate Courts and also before the trial Court, reference was made to certain decisions, expressly holding that the step-mother or the step-grand-mother was not entitled to succeed. These cases were distinguished by the Courts below upon the view that they related to cases of succession under the Mitakshara School of Hindu Law or under Schools other than the Dayabhaga School. It is true that those were cases, arising under the other Schools, but, as we have shown above, the position Is in no way different in the Dayabhaga. It is, however, unnecessary for our present purpose to prolong this discussion as, in our view, the express text, referred to above, is enough to exclude the paternal step-grand-mother from succession under the Dayabhaga School of Hindu Law.
11. We hold, therefore, that the Courts below were in error in accepting the defence case that Khudubala as the paternal step-grand-mother of Jagannath had a preferential claim of inheritance over the plaintiff's claim as Jagannath's father's sister's son. There is no dispute that, if the paternal step-grand-mother Khudubala is excluded from succession, the plaintiff would be the nearest heir to Jagannath as he is his (Jagannath's) father's sister's son. The plaintiff's title, therefore, must prevail.
12. In the above view, we allow this appeal, set aside the decisions of the two Courts below and decree the plaintiff's suit.
13. In the circumstances of this case, we would direct the parties to bear their own costs in this Court and also in the Court of appeal below. The plaintiff, however, will be entitled to his costs from the contesting defendant No. 1 in the trial Court.
P.K. Sarkar, J.
14. I agree.