Madras High Court
Kanakammal vs Ananthamathi Ammal And Ors. on 13 November, 1912
Equivalent citations: 25IND. CAS.901, AIR 1915 MADRAS 18
JUDGMENT
1. The suit out of which this second appeal arises was brought by the mother and brother of one Manikkammal (deceased) to recover, with mesne profits, certain lands belonging to her, which are now in the possession of first defendant, who is the widow of Manikkammal's husband's bother.
2. It may be premised that both Manikkammal's husband and his brother (first defendant's husband) predeceased Manikkammal: and that the findings of the lower Courts, (a) that the property was of the nature of stridhanam and (6) that Manikkammal's marriage was in an approved form, are not now contested.
3. The District Munsif dismissed the suit on the ground that first defendant was the proper heir to the suit property: but the District Judge found (I) that first defendant was not an heir at all, (2) that second plaintiff was in the line of succession and (3) that in the absence of any allegation in defendants' written statement of the existence of a nearer heir, second plaintiff was entitled to succeed. He accordingly gave a decree for possession of the suit lands, though without mesne profits which were not proved.
4. All the above points (and no others) have been argued before us.
5. As regards the first point, the principles governing succession to the stridhanam of a Hindu female, married according to an orthodox form and dying without issue, have been considered in a very recent judgment of this Court to which one of us was a party. Marya Pillai v. Sivabagyathachi 12 Ind. Cas. 128 : (1911) 2 M.W.N. 168 : 21 M.L.J. 850 : 10 M.L.T. 494 : 36 M. 116. It was held that such property devolved on her husband and, failing her husband, on his Sapindas in the order laid down in the Mitakshara with reference to the succession to the property of a male. No authority has been quoted for the suggestions of the learned Vakil for appellant that the term sapinda in Mitahshara, Chapter IT, Section 11, plac. 11, should be understood in a different sense to that in which it would be used in reference to inheritance from a male; and applying this test to the case before us, we must hold that first defendant cannot be recognised as an heir.
6. A brother's widow is, no doubt, a gotraja sapinda: but it does not follow that she is entitled to succeed as an heir, and as a fact under the Madras system of inheritance she is not.
7. This is clearly laid down in Balamma v. Pullayya 18 M. 168 at pp. 169, 170 : 5 M.L.J. 22: "The law as settled in this Presidency is that a widow can only succeed to her husband's property which was actually vested in him either in title or in possession at the time of his death. As observed by Mr. Mayne, she must take at once at her husband's death, or not at all. No such right can accrue to her as widow in consequence of the subsequent death of any one to whom her husband would have been heir if he had lived."
8. Neither of the cases quoted by appellant's Vakil, Mari v. Chinnammal 8 M. 107 (F.B.) and Venkatasubramaniam Chetti v. Thayarammah 21 M. 263, are in any way opposed to this. The former indeed contains a specific expression of the same opinion (vide page 129, Muttuswami Ayyar, J.). The latter recognises the claims of a husband's brother's daughter (not wife) to succeed as a bandhu to a woman's striihanam,--a totally different case.
9. Passing to the second point, it is argued on behalf of the appellant that on failure, of husband's sapindas qualified to succeed the line of successon is exhausted, and the property escheats to the State.
10. This is a doctrine contrary to the general spirit of Hindu Law of inheritance, and one to which we should be 10th to give effect. It is unsupported by any text to which our attention has been drawn. No ruling has been quoted on either side, but Dr. Bannerjee in his Hindu Law of Marriage and Stridhanam discusses the point,' and comes to the conclusion that the widow's blood gelations would, at any rate, succeed to the exclusion of the Crown (see page 378). The same view is deducible from West and Buhler, page 544: and we concur in it.
11. It may be remarked here that although there is no contest between the two plaintiffs, the learned District Judge is in error in giving the decree in favour of second plaintiff. As remarked by Dr. Bannerjee in the passage quoted above, the mother (first plaintiff), and not the brother, is the preferential heir, and respondents' Vakil agrees that the decree must be modified in this respect.
12. There remains only the third point, regarding which the District Judge appears to us to be in error. On the findings indicated above first defendant is in the position of a mere trespasser : but it is nonetheless necessary for plaintiffs, who seek to oust her, to prove their own title. Her failure to plead a jus tertii does not absolve them of this duty. We must, therefore, call for a finding on the following issue:
13. At the time of the death of Manikkam-mal, were plaintiffs the nearest heirs to her?
14. Fresh evidence may be adduced by either side : the finding should be submitted in six weeks and seven days will be allowed for filing objections.
15. In compliance with the above order the District Judge of North Arcot submitted the following ORDER
16. I have been directed to return a finding on the following issue, viz.: "Whether at the time of the death of Manikkam-mal, plaintiffs were the nearest heirs to her."
17. The Vakils who appeared for the appellants and respondents in the High Court stated that they had no instructions and did not propose to call any evidence. I am unable from the records to record any finding on the issue sent down.
18. This second appeal coming on for hearing after receipt of the report from the lower Appellate Court in pursuance of an order of the High Court, dated 27th September 1911, calling for a finding the Court (the Chief Justice and Ayling, J.) made the following
19. The Vakils on both sides now say their clients are in a position to adduce evidence. The case will go back to the District Court for a finding on the issue framed on the 27th September 1911 in the above second appeal.
20. The finding will be submitted within one month after the re-opening of the District Court and the parties will be at liberty to file memorandum of objections to the said finding within seven days after notice of return of the same shall have been posted up in this Court.
21. In compliance with the above order, the District Judge of North Arcot submitted the following FINDING
22. I have been directed to return a finding on the following issue: Whether at the time of the death of Manikkammal, plaintiffs were the nearest heirs to her? "
23. Three witnesses were examined on behalf of the first defendant (appellant in the High Court ). The plaintiffs (respondents in the High Court) did not appear in person and were not represented by a Vakil. It appears from the evidence of the witnesses examined before me that one Yesotha Nainar, the father-in-law of first defendant and the deceased Manikkammal, had an elder brother named Santhinatha Nainar who is dead. The latter had a son Appasami Nainar who died leaving him surviving two sons, Yesotha Nainar and Santhinatha Nainar, who are alive. The father of Yesotha Nainar (first defendant's father-in-law) had a younger brother named Santhinatha Nainar who is dead. It is stated that he had four sons who are now living. Their names are Appachi Nainar, Ananthanatha Nainar, Lokapala Nainar and Jenathos Nainar. Plaintiffs in the suit are respectively the mother and brother of the deceased Manikkammal. The evidence of the witnesses examined before me appears to be trustworthy and is not contradicted. I would, therefore return a finding' that the plaintiffs were not the nearest heirs to the deceased Manikkammal at the time of her death and her nearest heirs were her husband's dayadis, Yesoda Nainar, Santhinatha Nainar, Appachi Nainar, Ananthanatha Nainar, Lokapala Nainar and Jenathos Nainar. The two former appear to be the nearest heirs being the grandsons of Manikkammal's husband's father's brother.
24. This second appeal coming on for final hearing after the receipt of the finding from the lower Appellate Court, the Court delivered the following JUDGMENT
25. The respondents do not appear and there is no memorandum of objections.
26. On the finding which we accept, the decree of the District Judge is set aside and that of the Munsif restored with costs here and in the lower Appellate Court.
27. The Vakil for respondents appeared later and said he did not contest the findings.