Appeals Nos 1954 and 1955 of 1966
Appeals from the judgment and decree dated May 30 1963 the Punjab High Court in Regular First Appeal No
105 of 1957
AK Sen and RK Aggarwal for the appellant in CA No 1954 of 1966
and respondents Nos 5 6 8 and 9 in CA No 1955 of 1966
Bishan Narain BP Maheshwari and RK Gupta for the appellants in CA No 1955 of 1966 and respondents Nos 2 to 6 in CA No 1954 of 1966
Sarjoo Prasad Rameshwar Prasad and AD Mathur for respondent No 1 in both the appeals
SM Jain for respondents Nos
13i to 13iv in CA No 1954 of 1966 and respondents Nos
12i to 12iv in CA No 1955 of 1966
Hegde J
The question of law that arises for decision in these appeals by certificate is whether the daughters of a pre deceased son of a Hindu Woman are entitled to succeed to her stridhana  The trial court answered the question in the affirmative but the High Court in appeal came to the conclusion that they are not fentitled to succeed to the estate in question
The material facts of this case are few
For a proper understanding of the facts of the case it will be convenient to have before us the admitted pedigree of the family
It is as follows 492 The finding of the trial court that the suit properties are the stridhana properties of Barji was not contestect before the High Court
In tins Court at one stage a feeble attempt was made on behalf of the appellants to contest that finding
We did not permit that finding to be challenged as the same had not been challenged before the High Court
Therefore we proceed on the basis of that finding
Barji died in September 1950
Her husband Patu Ram had predeceased her
It appears that he died sometime in 1904
Patu Ram s father Bool Chand as well as Patu Ram s brothers Tulsi Ram Behari Lal and Hira Lal had predeceased Barji
Patu Ram and Barji had a son by name Jugal Kishore wno had predeceased Patu Ram leaving behind him his widow Bindri wno died in 1931
They had no children
Radha Kishan the adopted son of Patu Ram and Barji died about 20 years before the death of Barji leaving behind him his widow defendant No 6
Radha Kishan had live children including defendants Nos 1 to 3 through another wife
His son Roshanlal had died a few months before the death of Barji
His daughter Balwanti had predeceased Barji leaving behind her children defendants 4 and 5
Tulsi Ram s son Prahlad Rai had also predeceased Barji leaving behind his widow defendant No 8 and son defendant No 7
By the time succession to the estate of Barji opened all the children of Behari Lal and Hizalal had died but some of them had children and grand children as seen from the pedigree
After the death of Barji her properties came to the possession of defendant No 6
Defendant No 1 sued for the possession of those properties on the ground that she and her sisters are preferential heirs to the deceased Barji
To that suit she did not make Amar Nath the plaintiff in the present suit a party
Amar Nath s application for being impleaded as a party in that suit was opposed by the 1 st defendant and the said application was ultimately rejected by the court
The dispute in that suit was referred to arbitration
The arbitrators upheld the claim of defendants Nos 1 to 3
Thereafter the present suit was brought
the High Court as well as in the trial court there was a triangular contest
The plaintiff claimed that he was exclusively entitled the suit properties defendants Nos 1 to 3 claimed that they are the nearest heirs to Barji some of the other defendants contended that they succeeded to the suit properties as co tenants with the plaintiff
In this Court all the contesting defendants sail together
As mentioned earlier the trial court accepted the claim of defendants Nos
1 to 3 but the High Court held that the plaintiff was exclusively entitled to the suit properties he being the nearest heir to the deceased
That finding is contested both by defendants Nos
1 to 3 as well as by the other contesting defendants
is how the aforementioned two appeals came to be filed
In arriving at its finding the High Court relied on the rules of succession found in paragraph 147 of Mulla s Principles of Hindu 493 Law 13th Edn
It came to the conclusion that those rules are exhaustive
On the basis of those rules it ruled that defendants Nos 1 to 3 were not entitled to succeed to the estate of Barji
So far as the other defendants are concerned it rejected their claim on the ground that as between the plaintiff and themselves the former is a preferential heir as he is the nearest in degree to Barji
It is the admitted case of the parties that the properties in question are not shulka and that Barji was married in one of the approved forms
Therefore while pronouncing
on the competing claims made in this case we must be guided by the order of succession prescribed in paragraph 147 if the same is correct and exhaustive
Paragraph 147 says Stridhana other than shulka passes in the following order 1 unmarried daughter 2 married daughter who is unprovided for 3 married daughter who is provided for 4 daughter s daughter 5 daughter s son 6 son 7 son s son
If there be none of these in other words if the woman dies without leaving any issue her stridhana if she was married in an approved form goes to her husband and after him to the husband s heirs in order of their succession to him on failure of the husband s heirs it goes to her blood relations in preference to the Government
But if she was married in an unapproved form it goes to her mother then to her father and then to the father s heirs and then to
the husband s heirs in preference to the Government
The legal position is stated in identical terms in Mayne s treatise on Hindu Law Eleventh Edn
Paragrah 623 pages 744 to 746 as well as in the other text books on Hindu Law referred to at the time of the hearing
At this stage it may be mentioned that the correctness of the order of succession mentioned in paragraph 147 till we come to item No 7 son s son was not challenged
The same is well settled bY decided cases
It is not necessary to refer to those cases
The only contention advanced on behalf of some of the defendants is that after son s sons come sons  daughters
Alternatively it was contended that the expression son s son includes son S daughter
We have to see whether these contentions are well founded
The rules relating to succession to stridhana enunciated in the text books are based on Yajnyawalcya s text her kinsmen take it if she die without issue
This statement is elaborated by Vijnyaneswara in Mitakshara
The relevant portions thereof as transtated by HT Colebrooke are found in placita 8 9 10 and 11 in Section XI of his book Mitacshara
They read as follows 494 8
A woman s property has been thus described
The author next propounds the distribution of it Her kinsmen take it if she die without issue 
If a woman die without issue  that is leaving no progeny in other Words having no daughter nor daughter s daughter nor daughter s son nor son nor son s son the woman s property as above described shall be taken by her kinsmen namely her husband and the rest as will be forthwith explained
The kinsmen have been declared generally to be competent to succeed to a woman s property
The author now distinguishes differec at heirs according to the diversity of the marriage ceremonies
The property of a childless woman married in the form denominated Brahma or in any of the four unblamed modes of marriage goes to her husband but if she leave progeny it will go to her daughter s daughters and in other forms of marriage as the Asura  c it goes to her father and mother on failure of her own issue
Of a woman dying without issue as before stated and who had become a wife by any of the four modes of marriage denominated Brahma Daiva Arsha and Prajapatya the whole property as before described belongs in the first place to her husband
On failure of him it goes to his nearest kinsmen sapindas allied by funeral oblations
But in the other forms of marriage called Asura Gandharba Racshasa and Paisacha the property of a childless woman goes to her parents that is to her father and mother
The succession devolves first and the reason has been before explained on the mother who is virtually exhibited first in the elliptical pitrigami implying goes gachhati to both parents pitarau that is to the mo ther and to the father 
On failure of them their next of kin take the succession
 These passages have received interpretation at the hands of the Judicial Committee as well as the High Courts in India and the law is now settled as to the mode of succession to stridhana under Mitakshara until we reach son s son
The controversy now is as to who should succeed to such an estate if none of the heirs mentioned in items Nos 1 to
7 in paragraph 147 of Mullas Hindu Law is in existence at the time of the death of the woman concerned
495 Mr AK Sen learned Counsel for some of the defendants contested the correctness of Colebrooke s translation in certain respects
He wanted us to examine the original text to find out whether the translation found in placita 9 is correct  The parties did not place before us either an admitted translation of the original text or even an official translation
Colebrooke is a distinguished oriental scholar
The Judicial Committee as well as the various High Courts in this country have relied on his translation of Mitakshara in dealing with the question of inheritance
Jogendra Nath Bhattacharya in his commentary on Hindu Law 2nd Edn  deals with the order of succession under Mitakshara to stridhana property in Chapter VI of that book
His translation of the relevant commentaries accords with those made by Colebrooke
To the same effect is the opinion expressed by Justice Chandavarkar in Bhimacharya Bin Venkappacharya vs Ramcharya Bin Bhimacharya1
Hence we are unable to agree with Mr Sen that Colebrooke s translation does not bring out accurately the meaning of the relevant passages in Mitakshara
Colebrooke in his book Mitakshara  published in 1869 sets out the order of succession to a woman s stridhana properties at page 15 8 thus Maiden daughter  1 Unendowed married daughter  2 Endowed married daughter  3 Daughter s daughter  4 Daughter s son  5 Son  6 Grandson  7 Husband  8 If the contention of defendants is correct then son s daughter and not husband should have come after the grandson
But that is not the case
Mr Bishan Narain learned Counsel for defendants Nos 1 to 3 contended that the list given in Mitakshra is only illustrative and not exhaustive
He urged that Yajnyawalcya had stated that a woman s property would devolve on her kinsmen if she died without issue which means that it would devolve on her progeny which expression includes son s daughter as well
In this connection he also relied on Vijnyaneswara s commentary stating that the expression without issue  found in Yajnyawalcya text means leaving no progeny
On the basis of these statements he contended that even according to Vijnyaneswara the deceased woman s progeny would take her stridhana in preference to her kinsmen including her husband
On the basis of this premise he proceeded to argue that the other words used in placita 9 viz 1ILR 33 Born
452 496 having no daughter nor daughter s daughter nor daughter s son nor son nor son s son should be understood as merely being illustrations of the word progeny
This contention is opposed to the commentaries by Narada Gautama and the later commentators
More than that it runs counter to the decisions rendered by the Judicial Committee and the various High Courts during the last over a century
It is now well settled that stridhana of a Hindu woman governed by Mitakshra passes in the order mentioned in Mitakshra and the children of the deceased woman do not take the same as a body either jointly or as tenants in common
Only the heirs belonging to a class take the properties as tenants in common
Mr Bishan Narain next contended that under Mitakshra propinquity is the test of inheritance
Therefore there is no reason why the deceased woman s husband s brother s son should take the properties in preference to her son s daughters
We do not think that in the matter of succession to stridhana propinquity was considered by the law givers as the sole or even the principal test otherwise there is no justification for a daughter s daughter or a daughter s son to succeed to the estate of a woman in preference to her son
It is true that it is not easy to find out the reason behind the rules relating to succession to stridhana
But that is equally true of many other branches of our family laws
These contradictions are inevitable in society religious matters particularly when our social laws were controlled by our religious beliefs and our law givers were our religious preceptorS
It is for the legislature to step in and bring about harmony between the society and the laws governing it
That is why our Parliament enacted several statutes in 1955 to amend the Hindu Law in various respects
We are unable to accept the contention of Mr Bishan Narain that the expression son s son includes son s daughter as according to the rules of interpretation the masculine includes the feminine
That rule of interpretation is inapplicable in the present case as daughter s daughter succeeds to the stridhana in preference to daughter s son
The order of succession prescribed clearly rules out the application of that rule of interpretation
Mr Sen in support of his contention that on a true interpretation of the relevant passages in Mitakshra  defendants Nos 1 to 3 are preferential heirs to deceased Barji relied on certain passages in some of the decided cases
First he referred to the decision of the Patna High Court in Kumar Raghava Surendra Sahi vs Babui Lachmi Kuer1
Therein the dispute related to the succession
to the properties left by a maiden and not by a married 1 Pat
Sqo 2 LR 33 IA 176
497 woman
The rules relating to the succession to the stridhana of a deceased maiden are wholly different from those relating to succession to the stridhana of a married woman
Therefore the observations made in regard to those rules have no relevance for our present purpose
He next invited our attention to certain passages in the decision of the Judicial Committee in Bali Kesserbai vs Hunsraj Morarji and anr1
Therein the dispute was between Bai Kesserbai the surviving co widow of the deceased Bachubai s husband Koreji Haridass Hunsraj Morarji the separated nephew of Koreji being the son of his eldest brother who predeceased Bachubai and Bai Monghibai the widow of a younger brother of Koreji named Ranchordass Haridass
The question for consideration by the Judicial Committee was as to the true scope of the latter part of the placing 9 in Colebrooke s Mitakshara which says if a woman die without issue that is leaving no progeny  the woman s property   shall be taken by her kinsmen namely her husband and the rest as will be forthwith explained
Their Lordships observed that there can be no reasonable doubt that according to Mitakshara definition of sapinda husband and wife are sapindas to each other and the co widow of the husband of the deceased was the nearest sapinda of the deceased woman s husband and hence entitled to succeed to the estate in question
This decision again does not bear on the point under consideration
Lastly Mr Sen contended that in view of the Hindu Woman s Rights to Property Act XVIII of 1937 it must be held that defendants 1 to 3 are nearer heirs to the deceased than the plaintiff
This contention was negatived by the High Court on the basis of the rule laid down by this Court in Annagouda Nathgouda Patil vs Court of Wards and anr
2 wherein this Court dealing with Act 11 of 1929 observed The question is whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property
The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate and section 1 2 expressly lays down that the Act applies only to persons who but for the passing of this Act would have been subject to the Law of Mitakshara in respect of the provisions herein enacted and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will  Thus the scope of the Act is limited
It governs succession only to the separate property of a Hindu male who dies intestate
It does not alter the law as regards the 2  498 devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all
It is to be noted that the Act  does not make these four relations statutory heirs under the Mitakshara Law under all circumstances and for all purposes it makes them heirs only when the proportion is a male and the property in respect to which it is sought to be applied is his separate property
 Similar would be the position under the Hindu Woman s Right to Property Act 1937
Section 31 of that Act which provides for the devolution of the property reads thus When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property his widow or if there is more than one widow all his widows together shall subject to the provisions of sub section 3 be entitled in respect of property in respect of which he dies intestate to the same share as a son   From this provision it is clear that Hindu Women s Right to Property Act 1937 applies only to the separate property left by a Hindu male
It does not apply either to the coparcenary property or to the property of a Hindu female
For the reasons mentioned above these appeals fail and they are dismissed with costs advocates  fee one set
VPS Appeals dismissed


Summary:
The rules relating to succession to Stridhana other than shulka of a Hindu woman who was married in an approved form of marriage are stated in Yajnyawalkya s text as her kinsmen take it if she die without issue 
The order of succession was elaborated in the
Mitakshara which was translated by Colebrooke as i unmarried daughter ii married daughter who is unprovided for iii married daughter who is provided for iv daughter s daughter v daughter s son vi son vii son s son and viii if there be none of these the srridhana then goes to her hugband and if he is dead to the husband s heirs
In the present case a Hindu widow who was married in an approved form of marriage died leaving stridhana which was not shulka
She did not leave behind any of the heirs mentioned in items i to vii but there was a pre deceased son s daughters
On the question of preference between the son s daughters and her husband s brothers son who was the husband s nearest heir
HELD i Colebrooke s translation has been accepted by the Judicial Committee and Hindu scholars as bringing out correctly the meaning of the relevant passages in the Mitakshara and it is now well settled that the  stridhana of a Hindu woman governed by Mitakshara passes in the order mentioned in the Mitakshara
496 H 497 A C Bhirnacharya Bin Venkappacharya vs Ramcharya Bin ILR  referred to
2 The contention that the expression without issue  in Yajnywalkya was elaborated as leaving no progeny  by the Mitakshara and that therefore the heirs i to vii should be understood as only illustrations of the expression progeny  and hence son s daughters are not excluded from the expression progeny  is opposed to the commentaries of Narada Gautama and other commentators and to the decisions of the Judicial Committee and the High Courts rendered for over a century
497 E H 3 In the matter of succession to stridhana propinquity is neither the sole nor a principal test as shown by the fact that daughter s daughter and daughter s son succeed in preference to the son
498 B C 490 4 The rule of interpretation that the masculine includes the feminine and therefore softs son  includes softs daughter  is inapplicable because daughter s daughter  is shown taking precedence over daughter s son 
489 E 5 The Hindu Women s Rights tO Property Act 1937 applies to the separate property left by a Hindu male and not to the property of a Hindu letoale
500 C D Kumar Raghava Surendra Sahi vs Babui Lachmi Kuer 1939 1
LR 18 Pat
590 and Baj Kesserbai vs Huns Raj Morarji  Anr
LR 33 IA 176 distinguished
Annagouda Nathgouda Patil vs Court of Wards   followed