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1959 DIGILAW 106 (PAT)

Sudarshan Singh v. Suresh Singh

1959-09-02

KANHAIYA SINGH, V.RAMASWAMI

body1959
Judgment V.Ramaswami, J. 1. In the suit out of which this appeal arises the plaintiffs alleged that the properties mentioned in Schedules A. B. C. of the plaint belonged to one Ramdhari Singh of village Mohammadpur. Ram-dhari Singh had no legally married wife, but he had a concubine Dulari Kuer, through whom he had a son Kishori Singh and a daughter Ram Peyari Kuer. It is alleged that on the 16th of December, 1935, Ramdhari executed a registered deed of gift with respect to all the properties in favour of Dulari Kuer and Kishori Singh and placed them in possession of the properties comprised in the document. Ramdhari Singh died in September 1942, and Dulari Kuer died in February, 1943. The properties of Dulari Kuer devolved upon her daughter Ram Peyari Kuer, and after Kishori died on the 3rd of December, 1944, his share also devolved upon Ram Peyari Kuer. Ram Peyari Kuer accordingly came in possession of all the properties, and on the 29th December, 1944, she executed a registered sale deed in favour of the plaintiffs and pro-forma defendants 31 to 35. The case of the contesting defendants was that Ram Peyari Kuer was not the daughter of Dulari Kuer, nor was she born of Ramdhari Singh through Dulari Kuer, that the deed of gift alleged to have been executed by Ramdhari Singh was not acted upon and that Ramdhari Singh continued in possession of the properties and after his death the properties devolved upon Kishori Singh as his heir. It is also said that Kishori Singh was married to Shanti Devi, daughter of Bigan Mistry of Gaya, and that Shanti Devi succeeded to the properties and later on she sold these properties by a registered sale deed to defendants 1st and 2nd parties. The defendants accordingly denied the title of the plaintiffs to any portion of the disputed properties involved in this case. 2. The trial court decreed the suit in its entirety, but on appeal the lower appellate court has held that the plaintiffs are entitled to only a half share of the disputed properties and are entitled to joint possession of the half share along with the defendants first and second parties. 2. The trial court decreed the suit in its entirety, but on appeal the lower appellate court has held that the plaintiffs are entitled to only a half share of the disputed properties and are entitled to joint possession of the half share along with the defendants first and second parties. The lower appellate court also gave a decree for mesne profits to the plaintiffs with respect to their half share with effect from the 27th April, 1946 up to the date of delivery of possession. 3. The lower appellate court based its decision upon the following findings of fact. It found, firstly, that Ram Feyari was the daughter of Ram-dhari Singh through Dnlari Kuer and there was a valid gift made by Ramdhari Singh to Duhtri Kner and to Kishori Singh on the 16th of December, 1935. with respect to all the properties. The lower appellate court further found that Shanti Devi was married to Kishori Singh and was his lawfully wedded wife. Upon these findings the lower appellate court held that the plaintiffs had title to eight annas interest in the disputed properties which appertained to Dulari Kuer. 4. The main question of law involved in this case is whether Ram Pcyari is entitled to succeed in preference to her brother Kishnri Singh to the share of Dulari Kuer in the disputed properties. The lower appellate court has found that Dulari died on the 29th July, 1941, leaving both Kishori Singh and Ram Feyari, It was submitted on behalf of the appellants that in the absence of a rule of Hindu law on the point the case should he decided on the principle of "equity, justice and good conscience," and the doctrine ot propinquity or relationship of blood should he applied to the case. It was contended, therefore, that both Kishori Singh and Ram Peyari must be taken to have succeeded in equal shares to the properties of their mother Dulari. The contrary view point was presented by learned Counsel on behalf of the respondents. It was argued that the property given by Ramdhari Singh by a registered deed of gift to Mussammat Dulari became the Stridhan Property ot Musammat Dulari, and the rule of succession to striclhan, according to the Mitakshara school is that the daughter and daughters son succeed in preference to the son or sons son. It was argued that the property given by Ramdhari Singh by a registered deed of gift to Mussammat Dulari became the Stridhan Property ot Musammat Dulari, and the rule of succession to striclhan, according to the Mitakshara school is that the daughter and daughters son succeed in preference to the son or sons son. It was, therefore, submitted that the share of Dulari Kuer in the disputed properties devolved solely upon the daughter Ram Feyari and Kishori Singh was not entitled to any portion of that inheritance. In support of this submission reference was made on behalf of the respondents to a Single Judge decision of the Madras High Court in Nam-buri Subbayya V/s. C. Chandrayya, 1941-2 Mad LJ 442 : ( AIR 1941 Mad 811 ), in which it was held that the rule of Hindu law permitting a legitimate daughter to take her mothers stridhan in preference to the legitimate son of the mother applies with equal force to illegitimate daughters when they compete with illegitimate sons. Reliance was also placed upon a subsequent decision of the Madras High Court in Yeditha Venkanna V/s. N. Narayanamma, 1953-2 Mad LJ 652 : ( AIR 1954 Mad 136 ), where it was held by Mack and Krishnaswami Nayudu, JJ. that the ancient Hindu law texts nowhere differentiate between legitimate and illegitimate issue of a woman in connection with succession to her stridhan or between children born in lawful or unlawful wedlock, It was, therefore, decided in that case that an illegitimate daughter of a Hindu woman is entitled to succeed to the stridhan property of the mother and her right was not postponed till after the other heirs of the stridhan were exhausted. I feel doubtful, however, about the correctness of these authorities. The question at issue depends upon the interpretation of the expression "daughter" in Chapter II, Section XI, of Mitakshara, where Vignancswara treats succession to "the separate property of a woman". In this section "son" and "daughter" must have the same meaning as they have in the various other sections of Mitak-shara, namely, Chapters I and II dealing with inheritance. In Section XI of Chapter I of Mitakshara the definition of a legitimate son is given. Then follows the special Section XII dealing with the rights of illegitimate sons of Sudras. In this section "son" and "daughter" must have the same meaning as they have in the various other sections of Mitak-shara, namely, Chapters I and II dealing with inheritance. In Section XI of Chapter I of Mitakshara the definition of a legitimate son is given. Then follows the special Section XII dealing with the rights of illegitimate sons of Sudras. Placiturn 2 of sec-tion XI refers to the sons of the wedded wife and to the son of a female slave. It is, therefore, clear that in all the sections of Chapter I Vignaneswara uses the worn "son" in its natural and ordinary signification of a "legitimate son". There is no reason why the words "son" and "daughter" should have different meanings in Chap-ter II, Section XI, where Vignaneswara deals with sucecssion to "the separate property of a woman". The rule of interpretation has been stated in Adhi-karanakaumudi, page 50 (reproduced in Sarkurs Mimamsa Rules of Interpretation, page 276). The rule is that multiplicity of sense to the same word must not be attributed : (LOCAL LANGUAGE) If the words "son" and "daughter" arc used in Chapter II, Section XI, in their ordinary natural sense, it is manifest that there is no room for argument that an illegitimate daughter comes within the ambit of the rule. Tins view is supported by the decision of Oldfielcl and Seshagiri Ayyar, JJ. of the Malras High Court in Meenakshi Ammal V/s. Muniandi Panikhan, ILR 38 Mad 1144 : (AIR 1915 Mad 63). A similar view has been taken by Varada-chariar J. in Meenakshj Ammal v. Ramaswami Josier, 1937-1 Mad LJ 28 : ( AIR 1937 Mad 640 ). In the course of his decision Varadachariar, J. observed that "the general principle of the Hindu law is undoubtedly to limit heirship to legitimate issue but in the case of illegitimate sons amongst Sudras a special exception has been made by the texts." The decision of Varadachariar, J. was followed by a Division Bench of the Madras High Court in Meenakshi V/s. Murugayya, ILR 1940 Mad 739 ( AIR 1940 Mad 463 ). A similar view has been expressed by Chandavarkar, J in Jagannath Raghu-nath V/s. Narayan L. Shethe, ILR 34 Bom 553, in which the husband was preferred to the illegitimate son as being entitled to the womans stridhan. A similar view has been expressed by Chandavarkar, J in Jagannath Raghu-nath V/s. Narayan L. Shethe, ILR 34 Bom 553, in which the husband was preferred to the illegitimate son as being entitled to the womans stridhan. In the course of his judgment Chandavarkar, J. observed as follows : "It is contended before us that the son inherited, because the law as to stridhan is that a womans son is heir to it before her husband. But that law applies to a married woman, that is one whose marriage was celebrated according to one of the recognised forms. When the text-writers say that the stridhan of a married woman, who has died "without issue", goes to her husband, if she was married in one of the approved forms, the words woman,, issue and husband were intended to be used as correlative, or, as Vijnaneshwara in another part of the Mitakshara terms it, in the prati yougika sense, to show that the issue contemplated was issue of the woman by her husband and none else. Therefore, where a woman was married according to the approved form, the term "dies without any issue means issue of that marriage. There is no authority whatever in the Hindu Law for the proposition which is contended for by Mr, Pradnan, that, when the competition is between the husband and a son born of the woman by adulterous intercourse, that son supersedes the husband as heir to the stridhan." In my opinion, the decisions in ILR 38 Mad 1144 : (AIR 1915 Mad 63), 1937-1 Mad LJ 28 : ( AIR 1937 Mad 640 ) and ILR 1940 Mad 739 ; ( AIR 1940 Mad 463 ), lay down the correct law on the point, and the texts of Mitakshara with regard to the devolution of stridhan property of a married woman must be construed as referring to a legitimate son and a legitimate daughter. I do not, however, wish to express a concluded opinion on this point because there is no evidence in this case and there is no finding of the lower court that Musammat Dulari Kuer was married in an approved or an unapproved form. We must, therefore, decide this case on the footing that Dulari Kuer died in a maiden state and the rule of suscession with regard to the stridhan of a married woman will not apply to this case. We must, therefore, decide this case on the footing that Dulari Kuer died in a maiden state and the rule of suscession with regard to the stridhan of a married woman will not apply to this case. With regard to a maidens property succession is in the following order according to all the schools of Mitakshara : "(1) Uterine brother; (2) mother; (3) father; (4) fathers heirs in order of propinquity; e.g., the full sisters of maidens father were preferred to the half sisters; (5) Kinsmen of the deceased herself, that is her mothers heirs in order of propinquity." (See Mullas Hindu Law 11th edition page 139) It is, therefore, manifest that with regard to the stridhan property of a maiden, illegimate sons or daughters do not find place in the order of succes sion. 5. As there is no express rule of Hindu law on the point the case must be decided on the principle of equity, justice and good conscience. This view is supported by a decision of the Supreme Court in Saraswathi Ammal V/s. Jagadambal, AIR 1953 SC 201 , where the question arose as to the right of succession of dasi daughters to the property of their dasi mother in preference to the married daughters. It was held by the Supreme Court in that case that in the absence of proof ot existence of a custom, the rule of propinquity will apply as a rule of justice, equity and good conscience, and accordingly, the married and dasi daughters would take the mothers property in equal shares. In a later case, Gurunath V/s. Kamalabai, 1955-1 SCR 1135 at p. 1147 : ((S) AIR 1955 SC 206 at p. 212), it was held by the Supreme Court that the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson ot the sons widow competent to adopt" has become a part of the Hindu law, though the reasons for limiting the power may not be traceable to any Shastric text. It was further observed that in the absence of any clear Shastric text on the point the courts have authority to decide cases on principles of justice, equity and good conscience, Applying this principle to the present case I hold that the illegitimate daughter Ram Peyari Kuer and the illegitimate son Kishori Singh will take stridhan property of Dulari Kuer in ecjual shares. In this connection reference should be made to the equitable maxim of English law that "equality is equity". In Salusbury V/s. Denton, (1857) 3 K and J 529, a testator bequathed to his widow a fund, to be disposed of by her will, to apply a part to the foundation of a charity school, or such other charitable endowment as she might prefer, and to divide the rest between the testators relatives as she might direct, and she died without making any apportionment. It was held that, though the shares were, not precisely demarcated, the court would divide the fund equally between the charities and the relatives, in accordance with the principle "equality is equity." In the present case, therefore, I hold that the stridhan property of Dulari Kuer devolved upon her daughter Rain Peyari Kuer and upon her son Kishori Singh in equal shares and the decree given by the lower appellate court must be accordingly modified. The result is that the plaintiffs are entitled not to half but to one fourth share of all the properties comprised in the registered deed of gift dated the 16th December, 1935, and the decree of the lower appellate court must be accordingly modified in favour of the plaintiffs. 6. As regards mesne profits, it was contended on behalf of the appellants that the lower appellate court was not justified in giving mesne profits with effect from the 27th of April, 1946. It was submitted on behalf of the appellants that there was no denial of title by the appellants and there was no ouster of the plaintiffs from their share of the disputed properties. Reference was made in this connection to a decision of the Nagpur High Court in Kalusmgh V/s. Gulabchand, AIR 1957 Nag 12. It was submitted on behalf of the appellants that there was no denial of title by the appellants and there was no ouster of the plaintiffs from their share of the disputed properties. Reference was made in this connection to a decision of the Nagpur High Court in Kalusmgh V/s. Gulabchand, AIR 1957 Nag 12. Having hoard learned Counsel for both parties and having perused the judgment of the lower appellate court I think that it will be equitable in the circumstances of the case that the plaintiffs should be given mesne profits with effect from the date of the decree of the trial court, namely, the 7th of April, 1951, till the date of delivery of possession. 7. I would accordingly allow this appeal and modify the decree of the lower appellate court. The parties will bear their own costs throughout. 8. There is no merit in the cross objection preferred on behalf of the respondents, and I would accordingly dismiss the cross-objection. Kanhaiya Singh, J. 9 I entirely agree.