Ram Khelawan and Others vs Lakshmi Prasad Singh and Others

Narayan, J.—This is an appeal by the defendants arising out of a suit in which a declaratory decree was sought. A lady named Mt. Chandrajote Kuer, who was impleaded as defendant third-party in this action, succeeded to the estate of her son Harish Chandra as a limited owner after his death, and on 24-5-1941 she executed a mokarrari patta in favour of defendants second party, who are the appellants before us, with regard to certain bakasht lands described in Schedule 1 of the plaint. The plaintiffs as the reversionary heirs of Harish Chandra instituted this present suit for a declaration that the patta had been executed without any legal necessity and was not binding on the reversion.

The defendants second-party resisted the plaintiffs'' claim on the ground that the patta had been executed for legal necessity, and they further pleaded that the plaintiffs had no right to question the patta as they were not the next reversioners. According to the allegation of these defendants the last male owner was Urvija Singh, the husband of Chandrajote Kuer, and be has left a sister''s son named Ram Padarath, who would be entitled to inherit his properties after the death of the lady. The defendants further contended that according to the Mithila School of law, which governs the parties, even if Urvija had a son Harish Chandra, Chandrajote Kuer would succeed to the estate not as the mother of Harish Chandra but as the widow of Urvija, and, as such, the estate will go to the heir of Urvija after the death of the lady.

Both the Courts below have negatived the contention of the appellants that the last male owner was Urvija Singh, and they have accepted the case of the plaintiffs that Harish Chandra, the son of Urvija, who died in 1919 while he was still a minor, was the last male owner. The Courts below were of the opinion that the Mithila school of law does not differ from the Mitakshara School of law, which lays down that when a woman succeeds to the estate of her son as a limited owner the estate passes on her death to her son''s heirs. The Court of first instance, however, held that the alienation was for legal necessity and hence binding on the reversion. The lower appellate Court disagreed with this finding of the Court of first instance and held that the settlement by virtue of the patta was not for legal necessity and that "the transaction was not fair and had not been entered into by the Musammat, who is a pardanashin lady, under any independent advice." The lower appellate Court, therefore, decreed the plaintiffs'' claim.

The learned Advocate-General, who appeared for the appellants before us, did not question the finding of the lower appellate Court that the patta was a document binding on the reversion. But he bas strenuously argued that according to the Mithila School of law if a woman gets her husband''s estate by inheritance after the death of her son, such estate passes on her death to her husband''s heirs and not to those of her son. The authority, which the learned Advocate-General cites, is a text of Katyayana as interpreted in the Vivada Chintamani of Vachaspati Mishra, The learned Advocate-General is himself a Maithil Brahmin and a distinguished Sanskrit scholar, and his opinion on questions of Hindu law is entitled to great respect and weight. But, in this case, he has rested his entire contention on a single sentence in Vivada Chintamani, and therefore, the only question, which we have to decide, is whether that sentence carries the meaning which is being given to it by the appellants. Their Lordships of the Judicial Committee observed in AIR 1925 280 (Privy Council) that the law of the Mithila School is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila School has departed from the law of the Mitakshara, and the question, therefore, arises whether in the Mithila School there is any departure from the law of the Mitakshara as to the right of a woman to remain in possession of her husband''s estate or her son''s estate as a limited owner. A somewhat startling proposition has been propounded in this case and it is this that in Mithila whenever a woman inherits her husband''s immovable property not directly from him but mediately through her son, who had inherited it from hia father, the property would go to her husband''s heir and not to her son''s heir after her death. This, in the opinion of the learned Advocate-General, is the view of Vachaspati Mishra as expressed in Vivada-Chintamani. Of course, Vivada Chintamani has always been regarded as paramount authority in the Mithila School of Hindu law, and if this sort of interpretation has been put by Vachaspati Mishra or the text of Katyayana we cannot go beyond it, and it would be conclusive of the point raised before us. The whole question, therefore, is whether Katyayana''s text has been so interpreted by Vachaspati Mishra in Vivada-Chintamani. The sentence in Vivada-Chintamani on the basis of which it is contended that the text of Katyayana has been so interpreted by Vachaspati Mishra runs as follows:

,oa iq=}kjk �hla�kUrs�fi LFkkojs A v=kR;kdka{kkl�okRlk{kk}puL;pkJqrs%AA

In some copies of the original Sanskrit Vivada-Chintamani there is the word ^^iR;q%** before the word ^^LFkkojs**] but the meaning will be the same whether there be this word or that, because the other words suggest this word by implication. Mr. Golapchandra Sarkar, Sastri, is right when he says that

"The meaning is the same whether there be that word or not; since the other words suggest the word by necessary implication even it that word be omitted."

What is important for our purpose is that Golapchandra Sarkar, Sastri, is definite in his opinion that the legal consequence which follows from the interpretation

"put by the Mithila commentators on the above text of Katyayana, is that, when a woman gets her husband''s estate by inheritance from her son, such an estate passes on her death to her husband''s heirs and not to those of her son".

The translation, which he has made of the text of Katyayana, runs as follows.

"The husband''s daya (heritage or gift) the wife may use according to her pleasure, when the husband ia dead : but when he is living, she shall preserve it; otherwise, shall pass her time in his family,"

"A sonless (wife) preserving unsullied the bed of her lord, and abiding by her venerable protector, shall enjoy (the husband''s property) until her death, being moderate : afterwards the heirs shall take."

While this is his translation of the original text of Katyayana, his translation of the commentary of Vachaspathi Mishra on this text runs as follows:

"The husband''s daya is husband''s property : that again is (two fold) either subject of the wife''s proprietary right, by reason of the default of any other taker, on his death ; or subject of the wife''s proprietary right, by his permission, during his life.

As regards the first, it is said (by Katyayana),

''The husband''s daya, the wife may use according to her pleasure, when the husband is dead :''

This however refers to property other than immovable.

But as regards Immovable property it is said (by Katyayana), ''Shall enjoy until her death, being moderate : afterwars, the heirs shall take.'' ''Being moderate'', means, not expending too much : the word ''sonless'' is an adjective indicative of the circumstances under which her right (of inheritance to her husband''s estate) accrues.

As regards the second, however, it is said (by Katyayana),--''But when he is living, she shall preserve it'', the meaning of which is, when the husband is alive, she shall preserve his property.

The meaning of ''otherwise &c.'' is, that in case there be no property left by the husband, the widow shall pass her time in her husband''s family only.

Thus even when the deceased husband''s property devolves on the wife, she has no independence in making gift and like alienations by reason of the similarity of expectancy (to know the nature of the wife''s right in property inherited by her from her husband); otherwise the expectancy (to know) what kind of interest she has therein would but remain unsatisfied. Hence also the inconsistency of the recital of this text in the Chapter on Saudayika Stridhana, with its application (to property inherited from the husband) is removed. Because the force of expectancy is stronger than that of the context. Just as in immovable property given by the husband, a woman has no right to make gift and the like, by reason of this text, so also in husband''s immovable property inherited by the wife. The same is the opinion of the Prakasa and the Ratnakara. So also in (husband''s) immovable property, inherited by the wife through the son, for herein also there is expectancy, and there is no direct text (to the contrary). (The words within parenthesis are not in the original).

I can say with respect to the learned author that nobody can find fault with this translation of his, and that the literal translation of ,oa iq=}kjk �hla�kUrs�fi LFkkojs will be "so also in husband''s immovable property inherited by the wife through the son." But what I am not able to understand is how the learned author interpreted this clause to mean that when the wife inherits not directly from the husband but immediately through her son, who after inheriting his father''s property bad died leaving his mother as his heir, the property would on the death of the wife go to her husband''s heir and not to her son''s heir. In Edn. 8 of Golapchandra Sarkar Sastri''s Hindu Law edited by Mr. Rishindra Nath Satkar, an advocate of the Calcutta High Court, there is an observation that according to the correct doctrine of the Mithila School, if the immovable property was the son''s self-acquired property the same was to descend to the mother''s heirs, and if the same was inherited from the father, then it was to descend to the son''s heirs. This is hardly consistent with the interpretation which Mr. Golapchandra Sarkar, Sastri, has placed on the Sanskrit text ,oa iq=}kjk �hla�kUrs�fi LFkkojs When the attention of the learned Advocate General was drawn to this passage in Mr. Golapchandra Sarkar Sastri''s Hindu Law as edited by Mr. Sarkar, the learned Advocate-General observed that for this interpretation, Mr. Golapchandra Sarkar Sastri, who died long ago, could not be responsible. Apart from the inconsistency pointed oat above, the sentence, ,oa iq=}kjk �hla�kUrs�fi LFkkojs does not at all seem to carry the meaning which has been given to it by Mr. Golapchandra Sarkar Sastri. We cannot overlook the circumstance that the original text of Katyayana only restricts the wife''s rights of disposing of the property, which she has got from her husband either by gift or inheritance. The word "daya," as used in the first Sloka means only "gift," but even if it was intended to mean "heritage," the intention of the text appears to be only to restrict the widow''s right to dispose of the property, which she has got from her husband. The commentary of Vachaspati Mishra is certainly binding on us, but for interpreting this commentary and for understanding its real sense, we would be justified in looking to the original text of Katyayana. The highly learned commentator could not introduce irrelevant matters in his commentary, and if the first sloka refers to movable property and the second sloka refers to immovable property, as Mr. Golapchandra Sarkar Sastri, seems to think, the only proper interpretation of the second sloka would be that it restricts the right of the wife to enjoy the husband''s property and does not go further. Not only the slokas of Katyayana but also the commentary of Vachaspati Mishra on these slokas deal only with the right of the wife to dispose of her husband''s property, and the particular sentence in the commentary relied upon by the learned Advocate-General has been translated by Mr. Golapchandra Sarkar Sastri, as follows:

"So also in (husband''s) Immovable property, inherited by the wife through the son, for herein also there is expectancy, and there is no direct text (to the contrary)."

This sentence comes after the following two sentences :

"(1) Just as in Immovable property given by the husband, a woman has no right to make gift and the like, by reason of this text, so also in husband''s Immovable property inherited by the wife.

(2) The same is the opinion of the Prakasa and the Ratnakara."

Can it be urged with any show of reason that while the first sentence says that "just as a woman has no right to make gift out of the immovable property given to her by her husband or inherited by her from him," and the second sentence says that "this is the opinion of Prakasa and Ratnakara," the third sentence would refer to the question of succession and would lay down with regard to property inherited by the wife through the son the succession will be traced from the husband and not from the son. It is important to note that the word ^^,oa** which means "so" is the connecting link and the use of this word to my mind unmistakably goes to indicate that what the commentator meant was this that the same restriction will apply in the case of immovable property inherited by the wife through the son, or, in other words, that the position of the wife so far as the power to alienate property is concerned would be no better with regard to the property inherited by her through her son. If we bring in matters of devolution in this text that in view of the contest would be wholly irrelevant and we would not be justified in reading more into the text or the commentary of Vachaspati Mishra than what it actually contains. The principle of "expectancy" is very much stressed in this text of the commentator and this principle would stand violated if we interpret the last sentence in the commentary in the manner in which Mr. Golapchandra Sarkar Sastri, has interpreted it. We cannot presume that the great commentator digressed and became irrelevant and we would be doing violence to the principle of "expectancy" if we adopt the interpretation which has been placed by Mr. Golapchandra Sarkar Sastri on the last sentence of the commentary. Anybody who is acquainted with the history of the fortunes of Hindu law would at once agree that the duty of interpreting the Hindu law was always in the hands of Brahmins who were fully conversant with that law and those learned Brahmins in order that their decisions might carry weight were bound to follow fixed principles of interpretation deriving those principles from the highest authority on the subject, the Mimansa Sutras. The Mimansa always looks to the words and the words alone for their meaning and the Mimansa system is identical with the judicial principles of interpretation. The fundamental rule of interpretation which we apply in the case of Statutes is to be applied even in interpreting these Sutras, and just as a Statute is to be expounded "according to the intent of them that made it" the Sutras have also to be expounded in a like manner. If the words are precise and unambiguous and declare the intention of the writer, nothing further is necessary to expound those words in their natural and ordinary sense. It is also a cardinal principle of interpretation that construction is to be made of all the parts together and not of one part only by itself, and the true meaning of a passage is to be found not merely in the words of that passage but in comparing it with the passage preceding it and the passage following it asserting at the same time what were the circumstances with reference to which the words were used and what was the object appearing from those circumstances. Judged by this standard, there is no room for the view that while the commentator was writing about the power of alienation of a Hindu widow, he all of a sudden came to discuss the question of succession and laid down that when a widow inherits property through a son, succession in the male line will be traced from the husband and not from the son who was the last male owner. Except Mr. Golapchandra Sarkar, Sastri, all others, who have written treatises on Hindu law including that distinguished jurist Sir Dinshaw Mulla, have been of the view that there is no difference between the Mithila School of Hindu law and the Mitakshara School of Hindu law so far as succession of reversioners after the death of a limited owner is concerned. Sir Comer Patheram, one of the distinguished Chief Justices of Bengal, after his retirement from India wrote a series of articles in the Law Quarterly Review, and in his very first article he says that out of the four writers who attempted to define Hindu law, namely, Gurudas Banerji J. of the Calcutta High Court, the late Dr. Trailakya Nath Mitra, Pandit Jogendra Nath Bhattacharji and Mr. Golapchandra Sarkar, Gurudas Banerji J''s. authority is perhaps the highest, and he quoted Sir Gurudas Banerji''s observation that the peculiar construction of the machinery for the administration of justice in former times also helped to make the Hindu law a law of conscience and right feeling, free from the interference of temporal power, and that the Hindu law is a body of rule intimately mixed up with religion. The commentators were certainly all men of conscience and right feeling, and they could not be arbitrary or whimsical in matters of interpretation. A distinguished scholar of the recent times, Dr. Sir Ganganath Jha, Kt. M. A. D. Litt; LL. D. Vidyasagara, Mabamahopadhyaya, has translated the Vivada Chintamani of Vachaspati Mishra, and his translation does not at all support the view which Mr. Golapchandra Sarkar, Sastri, has taken. The translation made by Dr. Sir Ganganath Jha runs as follows:

"Thus, then, in regard to the Immovable property of her husband, even when it has become transferred to the wife, she does not have the right to give away or otherwise dispose of that property; that this is also meant by the texts follows from the fact that information on this point is wanted just as much as on those expressly stated. If this were not meant then the need of information in regard to the laws on this point would remain unfulfilled.

This same argument also disposes of the objection that has been raised regarding the incompatibility of these texts being introduced in the context dealing with the Saudayika property: because the ''need of information'' is always more potent than mete ''Context.'' The fact of the matter is that-just as, in accordance with these texts, women have no right to give away or otherwise dispose of the Immovable property given to them by their husbands, so also they have no right to sell or give away the husband''s Immovable property that has come into her possession (on his death).

Such is the opinion of the Prakasha and the Ratnakara also.

This same law applies also to the case where her husband''s property devolved upon the woman, through the son and other heirs of her husband; because here also the said information is needed and it has no where been asserted that the said law applies only in those cases where the property has come to the woman directly from her husband."

I have noted all the titles which had been conferred on Dr. Ganganath Jha with a view to show his position in life and the recognition which he had received as a scholar. He was a Maithil Brahmin, who died only recently, and there is no reason for thinking that the translation which he has made is incorrect or not fit to be acted upon. He also attributes the same meaning to the passage

,oa iq=}kjk �hla�kUrs�fi LFkkojs A v=kR;kdka{kkl�okRlk{kk}puL;pkJqrs%AA which with reference to the context will be the only proper meaning. His translation is clear enough to indicate that what Vachaspati Mishra meant was that the same law which applies in the case of a woman so far as her right to sell or give away her husband''s immovable property is concerned, will apply to the case where her husband''s property has devolved upon the woman through the son or other heirs of her husband.

The question which has arisen before us arose in a case Tortan Bai v. Ballabhji Ojha 48 I. C. 956 : A. I. R. 1918 Nag. 226 of the Nagpur Judicial Commissioner''s Court, and in that case it was held that Mr. Golapchandra Sarkar, Sastri''s reasoning was fallacious and that all that appears from Vivada Chintamani is that just as in respect of property inherited from the husband the widow has no power of alienation, so also in respect of property which she has inherited from the son, the son having inherited it from the father she has no power of alienation. Their Lordships further observed as follows:

"In our opinion, the Vivada Chintamani was not referring to the devolution of the property after the woman''s death, but to the restriction of the woman''s power of alienation, and the learned author appears to us to read more into the Vivada Chintamani than is to be found there. He is himself adopting the principle of ''expectancy'' so learnedly expounded by him."

With this view I find myself in respectful agreement. In Panchanund Ojhab v. Lalshan Misser 3 W. R. 140, the question raised was whether landed estate which in default of other intervening heirs, has been inherited by a mother from her son, descends on the mother''s death to her heirs or whether it descends to the heir of the son from whom the mother inherited it. In other words, the question raised was whether the property would become the Stridhan of the lady and would descend to her heirs on her death or whether it would go to the heirs of her son who was the last male owner. It was never argued and never contemplated that after the death of the lady the property would go not to the heirs of the son but to the heirs of the husband. The Vivada-Chintamani was referred to and nobody thought of placing, the interpretation which Mr. Golapchandra Sarkar, Sastri, has placed on the text of Vivada-Chintamani. In the case of Sureshwar Misser v. Mt. Maheshrani Misrain 48 Cal. 100 : A. I. R. 1921 P. C. 107 also it was taken for granted that after the death of the mother the person entitled to inherit the property would be the heir of the son. Mr. De Gruyther, K. C. who argued the case for plaintiffs-appellants, who had claimed to be the nearest reversionary heirs, contended that the appellants were the nearest reversionary heirs of the last male holder of the estate who was son of the limited owner. No question was raised in this case as to right of any other person inheriting the property, except one, who was the nearest reversionary heir of the son of the limited owner. This case also is indirectly an authority in support of the view that the Mithila School of law as laid down in the Vivada-Chintamani does not differ in any way from the Mitakshara School of law, according to which if a mother possesses for her life the property of her deceased son, the property will go to the son''s heir after her death. In the circumstance, I am not able to uphold the contention of the learned Advocate-General that the plaintiffs of this suit are not the reversionary heirs and that the person entitled to hold the property after the death of the limited owner would be Ram Padarath who is Urvija''s sister''s son.

Mr. B.N. Rai for the respondents argued that according to the Hindu law of Inheritance (Amendment) Act, is Harish Chandra''s sister''s son, and not Urvija''s sister''s son, who would be entitled to inherit the property after the death of the lady. But if the text of Vivada-Chintamani could be interpreted in the manner suggested by the learned Advocate-General then certainly the property would have gone to Ram Padarath, the sister''s son of Urvija.

In the result, this appeal fails and is dismissed with costs.

Reuben J.

I agree.

Even if we take the final portion of the passage cited by my learned brother to include a reference to succession, I do not think it will bear the interpretation sought to be put upon it. In the earlier portion Vachaspati Misra deals with property coming to a woman from her husband. He concludes from two slokas of Katyayana that, so far as movable property is concern, ed, she is free to do with it as she pleases after his death, but as regards immovable property she ''shall enjoy until her death, being moderate: afterwards the heirs shall take." It is this rule, which, in the later portion of the passage, he applies to "(husband''s) immovable property inherited by the wife through the son". When the widow who has inherited such property dies, it will pass to "the heirs"--I emphasise the words "the heirs". The words are not "the husband''s heirs"; why should they be interpreted as if they were? The first portion concludes that the widow''s interest in the property is a limited one, and when it speaks of "the heirs'''' taking it evidently refers to some one who is not her heir. Who is it then? It seems to me it is the heir who would take if she were not there, that is, the heir of the last owner of the property, who in this instance is her husband. Applying this rule when the property comes to her through her son, it would go on her death to the heirs of her son.

The learned Advocate-General has laid some stress on the words which have been translated "(husband''s) immovable property inherited through the son". They indicate, he urges, that Vachaspati Misra regarded the property as the property of the husband, and thought of the son only as the channel by which it reached the widow. In my opinion, these words are merely descriptive of the property. Property which comes to a Hindu widow from her son is divisible into two categories, property which be got from his father and property which is his self-acquisition. The latter category, according to the Mithila law as Vachaspati Misra understood it, became her stridhan and descended to her heirs, vide Golap Chandra Sarkar, Sastri''s Hindu law, 4th edition p. 412, corresponding to 7th edition, p. 726, (I refer to the 4th edition as it is the last edition prepared by G.C. Sarkar, Sastri, and the 7th edition contains an amendment which is inconsistent with the rest of the text). A different rule applied to property of the first category. Hence it was necessary to distinguish it from other property coming to the mother from her son, and this was done by means of the descriptive phraseology in question. It is beyond doubt that, when the property comes to the son, it is the son who is the owner of it, and on his death it passes to his heirs. Therefore, it is difficult to hold that the learned commentator would still regard the property as the property of the father when, on the son''s death, it goes to the mother. Such an interpretation should not be accepted unless it is unavoidable and, as I have shown, a reasonable interpretation is possible which avoids this anomaly.