TMI Blog1950 (4) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iately 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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