P.B. Mukharji, J.@mdashThis is the Plaintiff''s suit for possession of two rooms on the second floor of premises No. 5, Brindaban Mallik First Lane, Calcutta, said to be in the occupation of the first five Defendants. The first five Defendants are all relations of the Plaintiff. The first Defendant, Sm. Nandarani Debi, is the widow of the Plaintiff''s deceased brother Sudhir and the second, third, fourth and fifth Defendants are the sons of the said deceased brother by Defendant Nandarani. The fourth and fifth Defendants are minors represented by their mother as guardian-ad-litem. The sixth Defendant is the last Defendant, who is a brother of the Plaintiff.
2. The Plaintiff''s case is that, by a deed of gift, dated May 20, 1902, one Trailokya Nath Banerji, deceased, made an absolute gift of premises No. 5, Brindaban Mallik First Lane, Calcutta, to his daughter Sm. Sushila Debi. Sm. Sushila Debi is the mother of the Plaintiff. It is a small property standing on one cottd and eight chhataks of land. It is a two-storied building. Sm. Sushila Debi, during her life time, was in possession of the said premises. She died intestate on January 14, 1945, leaving her surviving the Plaintiff and Defendant Nandalal Mukherji, her two sons. Sm. Sushila Debi had two other sons, Nirmal and Sudhir, but Nirmal died in 1927 and Sudhir died in 1943.
3. Plaintiff and Defendant Nandalal now claim, as the heirs and legal representatives of the said Sm. Sushila Debi and in that capacity they claim to be absolutely entitled to the said premises in equal shares. Plaintiff now says that the occupation of two rooms on the second floor of the said premises by the first five Defendants is wrongful and he gave them notice to quit on April 5, 1948. As the first five Defendants have not complied with such notice, the Plaintiff filed this suit for possession.
4. It is also pleaded on behalf of the Plaintiff that by decree, dated August 14, 1947, passed in suit No. 1528 of 1947, between Prakash Chandra Mukherji and Nandalal Mukherji this Court made a partition decree declaring that Plaintiff and Defendant Nandalal are each entitled to a half share in the said premises. Such partition decree appointed Mr. P.K. Bose as a Commissioner of Partition, but the partition could not be completed, because the first five Defendants did not give vacant possession.
5. It is said in the plaint that Defendant Nandalal refused to join as Plaintiff and therefore he was made a party Defendant and no relief is claimed against him. A plea is made in the plaint to reserve the right of the Plaintiff to claim contribution of the costs of this suit from Defendant Nandalal.
6. In the plaint, not only possession is claimed, as I have said, but also mesne profits at the rate of Rs. 3 per day from May 8, 1948, until possession.
7. The written statement of Defendant Sm. Nandarani Debi resists this claim under the Hindu Women''s Right to Property Act. Defendant Nandarani Debi claims a share in the said premises under the statute along with Sm. Usha Debi, who is the widow of the Plaintiff''s another deceased brother Nirmal. On that ground it is denied that the Plaintiff and the Defendant Nandalal are the only heirs and legal representatives and their exclusive claim to the said premises is disputed. It is also pleaded in the written statement that this Defendant was not made a party to the partition suit and she is not bound by the partition decree.
8. Two issues have been raised by Mr. S. Das with Mr. Ajay K. Basu, learned Counsel appearing for Defendant Sm. Nandarani and the minor Defendants. The other Defendants have not entered appearance. These issues are as follows:
(1)(a) Is Sm. Nandarani Debi entitled to a share in the property in suit under the Hindu Women''s Right to Property Act?
(b) Can the Defendants 2 to 5, as sons of the predeceased son Sudhir, claim any share in the said stridhan property of Sm. Sushila Devi
(2) Is the suit maintainable?
9. Plaintiff has given evidence in this suit and has also called Defendant Nanda Lal Mukherji, who did not enter appearance as a witness on his behalf. No evidence has been given on behalf of the appearing Defendants.
10. Issue NO. 1. This is the main issue in this suit.
11. Mr. S. Das''s argument on behalf of the Defendant Sm. Nandarani can be briefly summarised as follows:
According to him, the Hindu Women''s Right to Property Act is a statute intended to give better rights to women in respect of property as stated in the preamble of that statute. Therefore, it is argued that women of every class or description, so long as they come within the statute, are entitled to take benefit of this Act. According to him this Act makes no difference whether the property in question is stridhan or not, it is said first that the preamble indicates no such limitation. Then, it is argued that Section 2 of the Act provides that, notwithstanding any rule of Hindu law or custom to the contrary, the proviso of Section 3 of the statute shall apply, where a Hindu dies intestate. Here again the expression "a Hindu" does not limit the operation of the statute to a male Hindu. The following provision contained in Section 3 of the Act opens with the words "a Hindu" without limiting it to the case of a female Hindu.
12. The argument is developed further by reference to the proviso to Section 3(1) of the Act which says:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son and shall inherit in like manner as a son''s son if there is surviving a son or son''s son of such predeceased son.
13. According to Mr. Das, Sm. Nandarani is the widow of a predeceased son and therefore, under this proviso, she is entitled to inherit in like manner as a son. In aid of his argument the learned Counsel for the Defendant, Sm. Nandarani, relies on the decision of Das J. in Kamalabala Basu v. Jiban Krishna Basu ILR (1946) 2 Cal. 32, where the learned Judge at p. 36 holds:
This Act, so far as a widow of a predeceased son and a widow of a predeceased son of a predeceased son are concerned, expressly provides that they inherit "in like manner" as a son or son''s son. In other words, they are put in the category of heirs along with a son or son''s son. I see no reason for limiting the operation of the Act to the point of time when the owner died. In my judgment, they are made heirs for all purposes of inheritance, subject, of course, to the limitations prescribed by Sub-section (3).
14. The point raised in the argument is one of first impression. In the first place, the question here is whether the Act applies at all to stridhan property of a Hindu woman. In the second place, even if it does, whether the widow of a predeceased son can inherit if sons of the predeceased son are living, having regard to the express language used in the first proviso to Section 3(2) of the Act.
15. There is a fundamental difference in the course of devolution between the property of a Hindu male and the stridhan property of a Hindu female. The first principle of difference is that women are given prior rights of succession in stridhan. The class of stridhan, with which the present case is concerned, is "anwadheyaka," which is a gift from the father to his daughter after the daughter''s marriage. In this class of stridhan, unbetrothed and betrothed daughters have a prior claim over the sons, but the sons have a prior claim over married daughters. So that the stridhan heirs of Sushila in this case would ordinarily be her sons. Therefore, Defendant Nanda Lal and Plaintiff Prakash would be the heirs. The question, however, is what about the other two sons Nirmal and Sudhir, who predeceased Sushila.
16. The second, third, fourth and fifth Defendants are son''s sons, viz., sons of the predeceased son Sudhir. In the order of succession to anwadheyaka stridhan, the son''s sons came after the sons. Immediately after the sons come, the daughter''s sons in order of succession and thereafter son''s sons. The argument for the Plaintiff, therefore, is that when sons are there, viz., the Plaintiff and Defendant Nandalal they should inherit in preference to the son''s sons, viz., the second, third, fourth and fifth Defendants.
17. The problem in this case has to be decided on both the grounds. First, does the Hindu Women''s Right to Property Act apply at all to the case of stridhan property left by a Hindu woman? Secondly, even, apart from this statute, do the widow of a predeceased son of a Hindu woman and/or the sons of the predeceased son acquire any interest in such stridhan property along with the sons of the Hindu woman living at the time of her death?
18. I will first deal with the question whether the Hindu Women''s Right to Property Act at all applies to the case of stridhan property left by a Hindu woman. The preamble to the statute says that it was intended "to give better rights to woman in "respect of property". Section 2 of the Act refers only to "a "Hindu" who dies intestate. These provisions in the statute do not prima facie limit the operation of the Act to the case of a Hindu male. The main section of the statute is Section 3. Section 3(7) of the Act, in my opinion, indicates that the Act contemplates the case of a Hindu male. If the opening words of Section 3(7) of the Act "when a Hindu" were intended to cover the case of a Hindu female, then it is impossible, in my view, to reconstruct that sub-section and replace the words "his widow, "or if there are more than one widow his widows". Having regard to the special reference to the widow or widows in Section 3(7) of the Act, I have come to the conclusion that the Act was intended only to affect the property in respect of which a Hindu male died intestate. The first proviso to Section 3(7) of the Act must be taken in reference to what precedes it. In other words, the widow of a predeceased son gets certain rights described in the proviso, to the property in respect of which the father of the predeceased son died intestate. On a proper construction of Section 3(2), read along with the first proviso, the law is that the widow or widows of a Hindu male will be entitled to the same share as a son of such Hindu male and where any son of such Hindu male has predeceased him, the widow of such predeceased son will also inherit in like manner as a son, if there is no son surviving of such predeceased son (i.e., grandson of the said Hindu male) and shall inherit in like manner as a son''s son if there is surviving a son or son''s son of such predeceased son. The first proviso to Section 3(7) of the Act does not, in my view, create any right in the widow of a predeceased son to any estate other than that described in Sub-section (1) of Section 3 and which estate must be held to be the estate or property of a Hindu male who had died intestate, for the reasons which I have already indicated. A statute must be read as a whole and the different sections, sub-sections and the provisos should be so construed so that they can all be reconciled to make a consistent picture. Section 3(3) of the Act makes it clear, in my opinion, that any interest devolving on a Hindu widow under the provisions of Section 3 shall be the limited interest known as the Hindu woman''s estate. Therefore, it seems to me also that the interest that is contemplated in Section 3 of the Act is the interest that could be claimed in the property of a Hindu male who dies intestate.'' Because otherwise the widow being entitled to the same share as a son might have claimed absolute interest as a son and with a view to prevent that, Sub-section (3) of Section 3 of the statute limits the interest of such widow to a Hindu woman''s estate. For these reasons, I hold that, on a proper construction, Hindu Women''s Eight to Property Act does not affect the devolution or succession of "anwadheyaka" stridhan property left by a Hindu female governed by the Dayabhaga school of Hindu law.
19. The next question is whether, apart from this particular statute, the sons of such predeceased son can claim under the ordinary Hindu law of succession to the stridhan property, any interest along with the sons of the Hindu female who are living on her death.
20. The order of succession under the Dayabhaga school of Hindu law in respect of "anwadheyaka" stridhan property is that sons come prior to grandsons. But the question here is what is the position if, at the time of death of the Hindu female, not only there are sons living, but there is a grandson or grandsons by a predeceased son? In respect of ''anwadheyaka'' stridhan, the Hindu female owner has absolute right of disposal by deed or by will and she is to be regarded as the absolute owner of such property. The succession, therefore, only opens on her death and no part of her stridhan can vest in a son who predeceased her. So long, of course, as the sons remain the grandsons by such living sons certainly cannot claim. The point for decision in this case is whether the grandsons by the predeceased son can claim along with the other living sons. Sir Gooroodass Banerjee in his Tagore Lectures on the "Hindu Law of Marriage and Stridhan", 5th Ed., p. 483 states that the order of succession relating to property given by the father to his daughter is not clearly settled. The order of succession to this class of stridhan as laid down by Srikrishna in the Dayakrama Sangraha is different from that given in the commentary on Dayabhaga by Srikrishna himself. The order given in the Dayakrama Sangraha is the same as that for yautaka and it seems to be in accordance with the opinion of both Jimutvahana and Raghunandan. Both Macnaghten in his Principles of Hindu Law and this Court in Prosanno Kumar Bose v. Sarat Shoshi Ghosh (1908) ILR 36 Cal. 86 appear to accept the order given by Srikrishna in his commentary as correct. But even then this particular question, which arises in this case before me, remains unsettled. The point is res integra.
21. The only two authorities are from Bombay and Madras, hut they are not concerned with Dayabhaga school of Hindu law. In Raman v. Jagjivandas Kashidas (1917) ILR 41 Bom. 618, Scott C.J. and Heaton J. held that the non-technical stridhan of a Hindu female governed by the Vyavahara Mayukha school descends to her son in priority to her son''s son. There also was a competing claim between the son and a grandson by a predeceased son. A Full Bench decision of the Madras High Court in Karuppai Nachiar v. Sankaranarayanan Chetty (1903) ILR 27 Mad. 300, 308, makes the following observations:
Another argument used by the Respondent''s pleader is that, as in the case of the grandsons inheriting to the paternal grandfather, so in the case of grandchildren inheriting to the stridhan are of the maternal or paternal grandmother, they take per stirpes and not per capita. No doubt there may be this similarity, but, as pointed out by the learned pleader of the Appellant, there is a dissimilarity in another respect, viz., that where the deceased dies leaving children and grandchildren, the grandchildren do not by representing their deceased mother or father, as the case may be, step into their shoes and inherit along with the children of the deceased.
22. There is no decision bearing on the law under Dayabhaga school regarding the point under consideration. Dayabhaga has very distinctive and special features. Broadly speaking the principle enunciated in the Mitakshard is that succession is determined by propinquity, whereas Jimutvahana, the author of Dayabhaga, maintains that propinquity is not alone the criterion of succession, but, in addition to it, the capacity for conferring a comparatively greater amount of spiritual benefit is to be taken into consideration and the order of succession laid down by him, which is at variance with Mitakshara in many points, especially in the preference given to certain cognates, is justified by him on the principle of spiritual benefit. Both by the test of propinquity, as well as by the test of spiritual benefit, I have come to the conclusion, after a most anxious consideration, that the sons must be preferred to the grandsons and by both these tests, the claim of the Plaintiff and the sixth Defendant must come prior to and must be upheld against that of the Defendants 2 to 5. I regret to have to come to this conclusion. In the order of succession laid down by Jimutvahana and discussed in Srikrishna Tarakalankar in his Dayakrama Sangraha and Raghunandan in his Dayatettwa, I find no support for the proposition that a grandson by a predeceased son can share simultaneously with sons in the stridhan property of the mother of the sons, i.e., the grandmother of the grandson. When it is realised that in the order of succession to anwadheyaka stridhan under the Dayabhaga, the son''s sons do not come immediately after the sons but are postponed to daughter''s sons who intervene, it can, in my judgment, be fairly said that son''s sons cannot share simultaneously with the sons. I will refer to the text of Raghunandan in Dayatattwa, Chap. X, Verse 1 provides Translated into English this verse means "Devala says a woman''s "stridhan is common to her sons and maiden daughters when she "is dead". The next part of the same verse is, which means--
if she leaves no issue, her husband shall take it, her mother her "brother or her father". Then, after describing other persons in the order of succession, come verses 16 and 17 in Ch. X which are material for the present purpose:
The free and not verbatim, English rendering of these verses yields the following result:
16. Manu says--the wealth of a woman which has been in any manner given to her by her father let the Brahmani daughter take it or let it belong to her offspring.... 17. In the absence of daughter or her offspring the son succeeds because Manu says ''On failure of daughters the inheritance goes to the sons.
23. Having regard to these texts and the principles, they appear to follow in determining the order of succession, I hold that the claim of a son to the anadweyaka stridhan of his mother under the Dayabhaga school of Hindu law comes prior to that of her grandson by a son who predeceased her and the latter cannot share such stridhan with his uncles. I, therefore, answer both issues 1(a) and 1(b) in the negative.
24. IsSUE NO. 2. Mr. Das at the beginning raised this issue, because his argument was that the sixth Defendant was not in fact supporting the Plaintiff. But subsequent events have shown that is not so. The sixth Defendant, although not willing when the case started, has ultimately given evidence in support of the Plaintiff. In fact the Plaintiff obtained an adjournment for that purpose with a view to call the sixth Defendant as a witness on his behalf. After that evidence, Mr. Das did not press the issue and abandoned it. The evidence of the sixth Defendant makes it clear that he refused to join the Plaintiff in this suit because of the costs of the litigation.
25. It is a hard case. The Plaintiff''s brother''s widow (i.e., Sudhir''s widow) with her four children, the youngest of whom is only 9 years (Plaintiff, Q. 41) will have to leave the house.
Sudhir was the brother who was responsible in getting the Plaintiff into railway service (Plaintiff, Q. 50). I regret, on the facts of this case, to have to come to the conclusion. I am compelled to come to this conclusion, as I feel that a proper interpretation of the Hindu law of inheritance to stridhan under the Dayabhaga school produces that result. The law gives the Plaintiff the right he has claimed in the property and he will have that.
26. Regarding the costs of this suit I propose to make no order against the first five Defendants. The point raised on their behalf was one of law and res Integra and there was no decided authority for guidance. The first five Defendants also did not call any evidence. Besides, I have formed the opinion that neither the Plaintiff nor the sixth Defendant was candid to the Court in giving their evidence. Plaintiff said he had issued a subpoena to the sixth Defendant (Plaintiff, Qs. 139-140). But that was false evidence. His brother, the sixth Defendant, came and gave evidence to say that there was no subpoena issued at all, but a solicitor''s letter (Nandalal, Qs. 73-81). There are other features in the evidence of both the Plaintiff and the sixth Defendant, which at one stage inclined me to issue sanction for the prosecution of both of them u/s 476, Code of Criminal Procedure. Taking everything into consideration, the best course will be, in the circumstances, not to make any order for costs in this suit.
27. There will, therefore, be judgment for the Plaintiff in terms of prayer (a) of the plaint, with this variation that the decree for possession will be jointly in favour of the Plaintiff and the sixth Defendant as against Defendants 1 to 5. As no issue about mesne profits has been raised by the Plaintiff and as there is no evidence on the question, there will be no order in respect of prayer (c) of the plaint. There will be no order for costs of this suit. Defendants 1 to 5, having regard to acute shortage of accommodation in Calcutta, will have time till the February 7, 1951 to vacate No. 5, Brindaban Mallik First Lane, under this judgment.
