Mitter, (Offg.) C.J.
1. This suit relates to the estate left by one Sheo Prosad Roy, who died in Assar 1270 (June 1863). It is admitted by the contending parties that on Sheo Prosad's death his estate devolved upon his widow, Sunder Kali Kooer, under the Mitakshara law of inheritance which governs the family. Sunder Kali died in 1271, (1864) and the estate then devolved upon Komla Kooer, the mother of Sheo Prosad Roy. The dispute which led to the institution of this suit arose on the death of Komla Kooer, which took place on the 26th Assin 1286 (11th October 1879). The plaintiffs are the male gotraja sapindas of Sheo Prosad, descended from his great-grandfather, and the t defendant, who is in possession of the estate in question, is his sister. The plaintiff's contention is, that under the Mitakshara law the sister is not in the line of heirs at all. If this contention be correct then there cannot be any question that the decree of the lower Court in favour of the plaintiffs is correct.
2. It has been urged before us that a sister is a sapinda; and that as all sapindas inherit in order of propinquity, the defendant's claim is superior to that of the plaintiffs'. As to the question of propinquity it is unquestionable that the defendant is nearer of kin than the plaintiffs. Therefore the question for decision is whether under the Mitakshara law all sapindas (including females) are entitled to inherit. This question arose in the case of Ananda Bibee v. Nownit Lall (ante, p. 315).
3. For the reasons given at some length there, the conclusion to which. I came was, that of the female sapindas only those that are specified by name are heirs according to the Inheritance Law as administered in Behar. It is unnecessary to repeat those reasons again here. I shall consider here the arguments which are peculiarly applicable to the case of a sister.
4. Then let us see how the question stands upon the Mitakshara itself. The heirship of the sister was sought to be established on the authority of that treatise of Hindu law in two ways: 1stly, it was contended upon an annotation of Balambhatta and Nanda Pundit that in para. 1, Section 4, chap. II, the word 'brethren' includes brothers and sisters in the same manner in which 'parents' have been explained to include father and mother in para. 2, Section 3, chap. II. With reference to this interpretation all the other commentators and writers of Nibandhus, who are followers of the Mitakshara, differ from this opinion. For example even Nilkantha, the author of Vyavaharmayakha, who upholds the sister's heirship upon another ground, controverts this opinion. Moreover, if we are to adopt this interpretation as correct, we must give effect to it to its full logical consequences; we must then hold that the sisters and brothers would succeed simultaneously as joint heirs to the estate of a deceased brother; but such a conclusion as this would be contrary to a well established rule of Hindu law that has obtained in the province of Behar for a long series of years. The observations of the Judicial Committee of the Privy Council made with reference to an argument based upon this contention may well be cited here: 'Again,' their Lordships observe, 'were the arguments in favour of the construction which Mr. Piffard would put upon the Mitakshara far stronger than they really are, their Lordships would nevertheless have an insuperable objection, by a decision founded on a new construction of the words of that treatise, to run counter to that which appears to them to be the current of modern authority. To alter the law of succession as established by a uniform course of decisions, or even by the dicta of received treatises, by some novel interpretation of the vague and often conflicting texts of Hindu commentators would be most dangerous, inasmuch as it would unsettle existing titles' Thakoorani Sahiba v. Mohun Lall 11 Moore's I.A. 386 at p. 403. The same contention was pressed in Mussamut Guman Kumari v. Srikant Neogi 2 Sev. 460 and the Court overruled it in the following words: 'That recognition' (viz., the recognition of the sister as heir) 'is due to the commentators (i.e., Balambhatta and, Nanda Pundit),' and it is clear from the notes that all 'other commentators were not of this opinion.'
5. This contention must therefore fail.
6. The other argument in favour of the sister's succession is based upon the following passage of the Mitakshara: 'If there be not even brother's sons, gotrajas share the estate,' para. 1, Section 5, chap. II. Then in para. 3 it is laid down: 'On failure of the paternal grand-mother, saman-gotraja sapindas, viz., the paternal grand-father and the rest inherit the estate.' It has been contended that a sister is a gotraja-sapinda, and is therefore entitled to inherit under the text set forth above; but it is clear from these two texts that the author of the Mitakshara intended to designate the same class of persons by the two expressions, viz., 'gotraja-sapindas' and 'saman gotraja-sapindas' used in paras. 1 and 3 respectively. Therefore the author of the Mitakshara used the word 'gotraja-sapindas' not in the sense 'of born in the same gotra,' but in that of 'belonging to the same gotra.' A sister after marriage leaves the gotra of her father and consequently of her brother, and acquires that of her husband. Therefore a married sister does not come within the class designated by the, expression 'gotraja-sapindas' as used in the Mitakshara. This view of these passages of the Mitakshara is also taken by West and Buhler in their treatise on the Hindu law of inheritance and partition at page 180. They say: 'The substitution of 'saman-gotraja' for 'gotraja' as well as the employment of 'bhinna-gotra' to designate the opposite of the term, both show that Vijnanesvara took 'gotraja' in the sense of 'belonging to the same family'. If the term has this meaning it would follow that no married daughters of ascendants, descendants or collaterals, can inherit under the text which prescribes the succession of the gotrajas. For the daughters by their marriage pass into another family or, as the Hindu lawyers say in their expressive language, are born again in the family of their husbands. But it seems improbable that even unmarried daughters of gotraja-sapindas can inherit under the text mentioned (a). For, though they belong to their father's gotra up to the time of marriage, they must leave it, under the Hindu law, before, the age of puberty, and consequently by the succeeding to the estate of sapindas belonging to their fathers' families, the object of the law, in placing sagotra-sapindas before the bhinna-gotra-sapindas, viz., the protection of the family property, would be defeated, since such property, through them, would pass into their husbands' families. It seems therefore more in harmony with the principles on which the doctrines of the Mitakshara are based to exclude even unmarried daughters of gotrajas.
7. For these reasons it seems to me clear that the sister is not in the line of heirs according to the Mitakshara law.
8. The learned pleader for the appellant further relied upon a passage to be found in the Virmitrodaya at p. 216; but it has nothing to do with the general question of the right of inheritance of the sister. The passage in question relates only to the subject of succession to reunited property. The author of Virmitrodaya, as already shown in the case referred to before, is of opinion that of the female sapindas only those that are specified by name are heirs. I am, therefore, of opinion that both these contentions are unsound.
9. It has been urged in the next place that, supposing the defendant is not entitled to succeed as the heiress of her brother, still there is not the slightest doubt that she is entitled to inherit to the stridhan left by her mother; that according to the Mitakshara law the estate of Sheo Prosad became the stridhan of his mother, because she acquired it by right of inheritance. It has been further urged that according to the Mitakshara law an estate acquired by a female, through the right of inheritance, becomes her stridhan. It is true that there is some foundation for this contention, but the question has been set at rest by the Privy Council decision in Chotay Lall v. Chunnoo Lall I.L.R. 4 Cal. 744 : 3 C.L.R. 465. This decision is based upon a uniform current of decided cases, some of which are noted below: Keerut Singh v. Koolahul Singh 2 Moore's I.A. 331; Collector of Masulipatam v. Cavaly Venkata Narain Apah 8 Moore's I.A. 529; Mussamut Thakoor Deyhee v. Rai Baluk Ram 11 Moore's I.A. 139; Bhugwandeen Doobey v. Myna Baee 11 Moores I.A. 487; Mussamut Bijya Dibeh v. Mussamut Unnopoorna Dibeh 1 Sel. Rep. 162; Rughobur Suhaee v. Tulashee Kowur S.D.A. 1847 p. 87; Punchanund Ojhah v. Lalshan Misser 3 W.R. 140; Narsappa Lingappa v. Sakharam Krishna 6 Bom. H.C. A.C. 215; P. Bachiraju v. Venkatappadu 2 Mad. H.C. 402; Sengalamathammal v. Valayuda Mudali 3 Mad. H.C. 312; and Kattama Nachiar v. Dora Singa Tevar 6 Mad. H.C. 310.
10. According to these cases an estate inherited by a female does not become her stridhan, and on her death goes to the heir of the last male heir and not to the heirs of her separate property. This appeal therefore fails on all points. We accordingly dismiss it with costs.