Madras High Court
Uddi Rajamma vs Poornappagari Padmavatamma And Ors. on 13 July, 1951
Equivalent citations: AIR1951MAD1047, (1951)2MLJ487, AIR 1951 MADRAS 1047
JUDGMENT
1. These two Letters Patent Appeals arise out of a judgment of Panchapakesa Ayyar J. in S. A. No. 866 of 1946, leave to appeal having been granted by the learned Judge.
2. One Narasamma died in 1902 possessed of considerable property leaving her surviving two daughters Padmavatamma and Rajamma. Padmavatamma brought a suit O. S. No. 245 of 1942 in the Court of the District Munsif of Penukonda for recovery of the property of Narasamma after ejecting her step-brother and his alienee who were in possession of the property and who were made defendants 1 and 2. The other daughter Rajamma was the third defendant. Padmavatamma claimed exclusive title to the property on the ground that her sister was married into a rich family, while her husband's family was poor and under the law her sister (the third defendant) was excluded from inheriting her mother's stridhanam as the plaintiff was, as between the two sisters, unprovided. We are not concerned with the several defences raised by the defendants in view of the findings of fact which are binding on us. The learned District Munsif found that the plaintiff was not exclusively entitled to inherit her mother's property and as the plaintiff did not want in the alternative a decree declaring her title to the property along with the third defendant, he dismissed the suit. There was an appeal by the plaintiff to the District Judge who also held that neither the plaintiff nor the third defendant was exclusively entitled to inherit the property of their mother, but refrained from deciding whether the sisters would be entitled to take the property equally, because the plaintiff's suit was for the recovery of the entire property. The plaintiffi's remedy was to file a suit for half a share in the property. The plaintiff filed a second appeal to this Court. The learned Judge held agreeing with the Courts below that the plaintiff was not entitled to the property exclusively, but was entitled to share it equally with the third defendant. Though he thought that a decree for partition could not properly be passed in favour of the plaintiff, he, however, thought that the suit should not have been dismissed and so he passed a decree declaring the title of the plaintiff and the third defendant each to a half share in the property and for joint possession of the property after ejecting defendants 1 and 2. The right, if any, of defendants 1 and 2 to compensation for improvements was reserved for a future suit Against this judgment the third defendant has filed L. P. Appeal No. 19 of 1949 and the second defendant L. P. Appeal No. 40 of 1949.
3. On the findings of fact, which must be accepted by us, the main question of law which arises in these appeals is whether there is any rule of Hindu law governing the succession of daughters to the stridhanam of their mother under which a childless married daughter is entitled to preference over a married daughter with children when both the daughters are equally poor. The plaintiff and the third defendant have been found to be equally indigent. They are both married. The third defendant is childless while the plaintiff has children. There is no decided case directly on this point and the case is therefore one of first impression and the decision must depend upon a construction of the original texts and commentaries and observations in decided cases which are likely to throw light on the question.
4. It is common ground that the rule of succession applicable to daughters prefers the unmarried daughter to the married daughter. The further rule of preference the scope of which has to be determined in this case is founded on the text of Gautama which runs thus :
"A woman's separate property goes to her daughters unmarried or unprovided."
The following passages in the Mitakshara deal with this text :
"So, if the competition be between an unprovided and a rich daughter, the unprovided one inherits; bat on failure of such, the rich one succeeds; for the text of Gautama is equally applicable to the paternal, as to the maternal estate. 'A woman's separate property goes to her daughters, unmarried or unprovided," (Chap. II. Section 2. Pl. 4).
rFkk izfrf"Brkizfrf"Brkuka leok;s vifr"BrSo rnHkkos izfrf"BrkA&&& ^L=h/kua nqfgr`.kkeizkkukeizfrf"Brkuka p* bfr xkSreopuL; fir`/kusfi lekuRokr~A "Hence, if the mother be dead, daughters take her property in the first instance: and here, where both married and unmarried daughters exist, the unmarried take the succession; but, on failure of them, the married daughters; and here again, where there exist both daughters who are provided for and those who are unendowed, the unendowed take the succession first; but, on failure of them, those who are endowed. Thus, Gautama says 'A woman's property goes to her daughters, unmarried, or unprovided' or 'provided,' as is implied by the conjunctive particle in the text. 'Unprovided' are such as are destitute of wealth or without issue' (Chap. II, Section 11, pl. 13)."
vr ekr`/kua ekrfj o`kk;ka izFkea nqfgrjks x`.gfUrA r= pks<kuw<kleok;suw<So x`.gkfrA rnHkkos p ifj.khrkA r=kfi izfr"Brkizfrf"Brkleok;sizfrf"Brk x`.gkfrA rnHkkos izfrf"BrkA ;Fkkg xkSre% L=h/kua nqfgr`.kkeizkkukeizf"Brkuka p* bfrA r= p 'k}kRizfrf"Brkuka pA vizf"Brk vuiR;k fu/kZuk okA Other Commentators have also dealt with this subject, Mitramisra in his Viramitrodaya expounds the rule thus :
'Amongst the daughters also, first let the unmarried daughters take the paternal property; in their default the married daughters; amongst them also, first the unprovided ones, and on failure of them the provided ones; all in the same predicament, however, take the property dividing it equally. This rule is settled. Accordingly, Katyayana says,--'The wife who is not unchaste, gets the wealth of the husband; in her default, the daughter, if she be then unmarried."
Gautama ordains--Women's property goes to daughters unmarried and unprovided." 'Unprovided' means the indigent. Although 'woman's property' is here mentioned, still the reason being the same, the text is applicable to paternal property also. But it is not reasonable to say that the term "unprovided" means, destitute of offspring by reason of barrenness and the like; for her succession (in that order,) is not proper, inasmuch as she cannot confer spiritual benefit by means of sons" (Chap. III, Pt.II, pl. 4.)......
The property of the mother excepting these three kinds, (viz., gift subsequent, affectionate gift of the husband and yautaka), devolves on her daughters (in the first instance and not on her sons). Amongst them also first on the unmarried daughters; in their default, on those that are unprovided, and whose husbands are living; failing them, on the widowed ones. Accordingly, Gautama declares--'A woman's property goes to her daughters, unmarried and unprovided." It is explained by Apararka and the author of the Kalpataru that 'unprovided' means childless, indigent, neglected by the husband or widowed'. Vijnaneswara and others attach to the term the first two of the above meanings" (Chap. V, Pt. II, pl. 3)."
nqfgr`"ofi izFkeeizkk% fir`/kua x`.gh;qLrnHkkos izkk%AA rklkefi e/;s izkxizfrf"BrkLrnHkkos izfrf"Brk% lokZ% leku:ikLrq lea foHkT;x`.gh;qfjR;FkZr% fle~A rFkk p dkR;k;u% iRuh iR;qZugjh ;k L;knO;fHkpkfj.khA rnHkkos rq nqfgrk ;|uw<k Hkosr~ rnkAA bfrA xkSre% L=h/kua nqfgr`.kkeizrkukeizfr"Brkuka psfrA vizfrf"Brk fu/kZuk%A ;|fi L=h /kufeR;qa rFkkfi rqY;U;k;r;k fir`/kufo"k;eI;srr~A cU/kRok fnuk lUrkujfgrk izfrf"Brsfr rq u ;qe~A rL;k% lUrkueq[ksuk"Vks&idkjkHkkosu /ugkfjRok;ksxkr~A ,rfR=fo/k fHkUua ekr`/kua nqfgr`.kke~ r=kfi izFke eizkkuka] rnHkkos izkkuke~ r=kfi izFkeeizfrf"Brkuka] rnHkkos izfrf"Brkuka] l/kokuka rnHkkos fo/kokuke~A rFkk p xkSre%& L=h/kua nqfgr`.kkeizkkukeizfrf"Brkuka psfrA vizfrf"Brk vuiR;k fu/kZuk nqHkZxk fo/kosR;ijkdsa.k dYir:dkjs.k p O;k[;kre~A izksaua };esosfr foKkusjkfnfHk%A
5. In the Smrithi Chandrika, the relevant passages are as follows :
"The meaning is, that such kinds of stridhanam as are denominated 'Adhyagni' and the like belong to daughters unmarried and married but unprovided, The wealth is to be divided among such daughters alone. The term 'unprovided' used in the above text of Gautama, is to be interpreted, according to Apararka, as implying an issue-leas, unendowed (that is destitute of wealth), unfortunate (durbhanga), or a widowed daughter. The construction which Vijnaneswara has put upon the passage is to be rejected as unfounded on assumptions unwarranted"... ...(Chap. IX, Section 3, pl. 17).
Katyayna, however, draws a distinction in the succession of daughters to their father's wealth as enjoined by the above passages. 'Let the widow succeed to her husband's wealth, provided she be chaste, and in default of her, the daughter inherits if unmarried or unprovided,' By this, it is inferrible that the above passages have reference to daughters either unmarried or unprovided. 'Unprovided' here means unprovided with wealth and not unprovided with offspring, such as barren daughters and the like; for daughters of the latter description are not at all entitled to inherit their deceased father's estate, they being incapable to confer on him benefits spiritual through the medium of their offspring." (Chap. XI, Section 2, pls. 20, 21)."
From the above quotations, one thing emerges clearly, namely, that there are only two rules of preference which can be traced to the original texts, namely, the rule which prefers unmarried daughters to married daughters and the rule which prefers unprovided daughters to provided daughters. There is no third rule which lays down a preference among equally provided or unprovided daughters, namely, that among them the issueless should be preferred to those with issue. The actual word used in the text of Gautama is aprathishtithanam. It is only Vijnaneswara'a suggestion that it may mean, besides meaning unendowed with riches, also "without issue". Actually there is nothing in the word aprathishtitha which necessarily implies the lack of issue. We have seen how according to Apararka the word may mean "unfortunate"; a widowed daughter may be described as aprathishtitha. Metaphorically we speak of children as wealth; santhana is one form of dhana. It may also be that a woman with children may be presumed to be endowed with the prospect of being maintained by them. The significant thing to note is that there is no warrant in the original texts for the sub-category of "issueless" and "with issue". The obvious literal interpretation of the words of Gautama's text would only justify the preferring of unprovided or unendowed daughters to provided or endowed daughters, i.e., provided or endowed with wealth, understanding wealth in its ordinary connotation and not metaphorically.
6. We shall now refer to some of the decisions, which, though they do not deal directly with the point before us, do contain observations relating to the general rules of preference. The earliest of these cases to which reference need be made is Wooma Dave v. Gokoolanund Dass, 3 Cal. 587. The actual decision of the Privy Council in that case was that there is no preference awarded by the authorities to a daughter who has or is likely to have male issue over a daughter who is barren or a childless widow. They adopt as a correct exposition of the law prevailing according to the Bengal School the rule laid down by Sir William MacNaughten, namely that a maiden is in the first instance entitled to the property; failing her, the succession devolves on the married daughters who are indigent, to the exclusion of the wealthy daughters; that in default of indigent daughters, the wealthy daughters are competent to inherit. The following sentence in the judgment of the Privy Council delivered by Sir James Colville is not without interest:
"that the plaintiff, as compared with her sister, is an indigent, or in the words of the Mitakshara, an 'unprovided' daughter seems to be clear."
Their Lordships apparently take the word 'unprovided' to mean 'indigent'. In Simmani Ammal v. Muttammal, 3 Mad, 265, it was held by a Division Bench, the judgment of which was delivered by Muttuswami Aiyar J. that sonless or barren daughters were not excluded from inheritance by their sisters who had male issue. The learned Judge commences the discussion of the main question with the following preface:
"The Smritis or the original texts recognise but two rules of preference as regulating the rights of daughters inter se and the text of Katyayana prefers the unmarried to the married, and that of Gautama prefers also the unprovided or unendowed to the provided or endowed."
He alludes to the gloss of Mitakshara on the term 'unprovided', in Gautama's text. It might mean either 'unprovided with issue' according to the vedic text that offspring is a provision, or, in its literal sense 'unprovided with wealth'. He relies on this to repel the argument that a sonless daughter is excluded and observes:
"Thus the Mitakshara far from being an authority for the exclusion of a sonless daughter, regards her unfortunate position as a ground of preference.
The learned Judge then discusses opinions ex-pressed by the author of the Smritichandrika. He points out how the word "unprovided" can have a literal and a secondary interpretation. The theory that the right of succession of the daughters depends upon their capacity to confer spiritual benefit through the medium of their offspring which was the foundation for the rule as propounded by the author of the Smritichandrika was not accepted by the learned Judge nor has it ever been since accepted in this part of the country. In Totwa v. Basava, 23 Bom. 229, the learned Judges did not have to decide what "appratish-thita" meant. In the case before them there were four daughters and all of them were married It was found by the Courts below that one of them was the poorest of the four and that she was entitled to succeed in preference to the others. The contention before the Court in second appeal was that it was only the absolutely indigent married daughter who had a preferential claim over her well-to-do sisters and that when all the daughters were more or less provided for, there was no preference and all shared equally. It was ruled that though the Courts ought not to go minutely into the question of comparative poverty, yet, where the difference in wealth was marked, the law required that the whole property should pass to the poorest of the sisters. The learned Judges in that case followed the earlier ruling of the Bombay High Court in Poli v. Narotam, 6 Bom. H. R. C. 183 the comparative poverty was the sole criterion for settling the claims of the daughters amongst themselves. In Mahalakshmi V. Suryakanta Manikyamba, 1940.1 Mad. Law Jour 119, the only question was whether a daughter's daughter is to be preferred to a widowed daughter to succeed to stridharam property. It was held that the daughter was entitled to succeed and the fact that she was a widow made no difference. Horwill J. observed:
"All the text books agree that daughter in this text of the Mitakshara include a widowed daughter and one of the reasons is that the order of preference among the daughters depends largely upon their indigence. Just as an unprovided married daughter is preferred to a married provided daughter who had lost the support of her husband is preferred to a married daughter who has not."
We are not aware of the particular text or commentary which lays down the last rule of preference. Apparently the learned Judge was only applying the test of being unprovided to a concrete case. The expression "unprovided for" waft construed in Manki Kunwar v. Kundan Kunwar, 47 ALL. 403 as meaning 'indigent' as opposed to 'possessed of means' or 'enriched'. The contention which was not accepted in that case was that "provided" meant "provided by either a document" or provided by being invested with property by some method known to law". The rule is stated by the learned Judge thus:
"If you find a marked difference in the financial position of the sisters, and one of those sisters in straightened circumstances that is sufficient to bring into operation the authority of the Mitakshara."
It appears to us that there is a mixing up of two things in the argument of Mr. P. Somasundaram namely, the meaning of the word Aprathishtitha and the application of that description to particular cases. When of two daughters the question is: who can be said to be unprovided, it must be decided having regard to circumstances peculiar to each case. In one case, a daughter of poor father may be married into a very rich family. In such a case, it would not be correct to describe her as unprovided or unendowed. Or she might have been the recepient of a gift from a near relation of a large extent of property. In that case also it would not be correct to describe her as an unprovided. She may be the wife of a man occupying a high office in Government drawing, a good salary. She would not be then unprovided. Likewise she may have children with whom she is living and who are in a position to maintain her and keep her in comfort. In than case also, it may not be accurate to describe her as unprovided. But the several instances of the application of the rule should not be understood as the enunciation of different rules. We are of opinion that as pointed out by that eminent Judge Muttuswami Aiyar J. there are only two rules of preference for which there is the authority of the original texts. The gloss of the Mitakshara or of the other commentators can only help us to interpret the language used in the texts. The word 'aprathishtitha" must be understood only in the literal sense of being "unendowed with wealth". There is no warrant for adding another rule of preference for which there is no basis in the texts. We may also remark that the introduction of a third rule based upon childlessness would lead to anomalous results and problems difficult to solve. Take, for instance, the case where there are two daughters of whom ore is rich in the sense of having wealth but is childless and the other has several children but is poor. Of them who is entitled to preference? In deciding on the comparative unprovidedness should the number of children be also taken into account ?
7. The following passages in Gooroodass Banerjee's treatise on the Hindu Law of Marriage and Stridhana express a similar view:
"In the case of competition between married and maiden daughters, the latter succeed in the first instance, and it is only on failure of them that the married daughters take the inheritance. Among these last, again, in the case of competition between daughters who are provided and those who are unprovided, the latter take the estate first; and it is only in their default that the daughters who are provided succeed. This rule is deduced from the following text of Gautama, 'A woman's property goes to her daughters unmarried or unprovided; And the word 'unprovided' is interpreted by Vijnaneswara to mean 'indigent' or 'childless'." (Edn. 5 pp. 402-3).
In the second place, though the rule that unprovided daughters have precedence over those that are provided may be a very reasonable and equitable one, yet its practical application is not always easy. The word 'unprovided' as you have seen, means either poor or childless. Now as regards the relative claims of rich daughters having children and childless poor daughters there is little difficulty, the former not being 'unprovided' in any sense of the word, and the latter being 'unprovided' in every sense. But as regards the relative claims of childless rich daughters and poor daughters having children the law is not equally clear. I think Vijnaneswara's meaning is, that the rich daughters, whether they have children or not, should all be excluded by the indigent daughters, whether they are childless indigent daughters, whether they have children or not should all be excluded by the indigent daughters, whether they are childless or have children. And I presume that the childless daughters would be preferred to those having issue only when the competitors are not poor and their means and circumstances are equal. In the case of daughters who are poor in different degrees no hard and fast rule can be laid down; but a Court of justice should look to the circumstances of each case and order distribution accordingly" (Edn. 5 pages 403-4).
8. We agree with the learned Judge, Panchapakesa Aiyar J. that where as in this case, the daughters are all equally indigent, there is no occasion for applying the rule of preference and the daughters should share equally. The plaintiff and the third defendant who have been found both to be indigent will therefore be entitled to the stridhana of their mother in equal shares notwithstanding the fact that the plaintiff has children and the third defendant is issueless.
9. We also agree with the learned Judge that the suit need not be dismissed altogether, because the plaintiff prayed for a relief much larger than what she was entitled to. To convert a suit for possession into a suit for partition is probably not feasible in this case. But we think it equally not proper that there should be a decree in ejectment in favour of both the plaintiff and the third defendant jointly. The third defendant never prayed for the ejectment of defendants 1 and 2 from any portion of the property. We think that the only relief which can be granted to the plaintiff in this case is a declaration that she is entitled to a half share in the suit property, while the third defendant is entitled to the other half share. The plaintiff must work out her rights, in a separate suit in which the rights of defendants 1 and 2, if any, can also be adequately dealt with.
10. The appeal by the third defendant, namely L. P. Appeal No. 19 of l949 is dismissed, but L. P. Appeal No. 40 of 1949 is allowed to the extent indicated above, that is to say, instead of a decree in ejectment, there will be a decree granting a declaration in the terms above set out. There will be no order as to costs in either of the appeals.