Judgment 1. Succession to Stridhana other than a gratuity for which a girl is given in marriage goes to unmarried daughter in preference to a married daughter and a married daughter who is unprovided for is preferred to a married daughter who is provided for; in case there is no daughter to inherit, daughters daughter succeeds and in absence of a daughters daughter, daughters son succeeds. Son comes to inherit only when no daughter or daughters daughter or son is available followed by the sons son succeeding to Stridhana. If there be none of these, in other words if the woman dies without leaving any issue, her Stridhana goes to her husband and after him to the husbands heirs in order of their succession to him and on failure of husbands heirs it goes to her blood relations in preference to the State. This precisely is the line of succession to stridhana which has got textual approval. The Hindu Succession Act, 1956, however, has intervened to make some provisions therefor. The question herein, however, is who amongst the blood relations is preferred and in what order. 2. I shall advert to the question in some depth but before I do so here are some facts : The plaintiff-respondent has claimed declaration of title and confirmation of possession in the alternative recovery of possession. According to him, Plot No. 1819 having an area of 1 Katha 11/2 Dhurs in Mohalla Dangalpara, Ward No. 6, Dumka Dangalpara, having Jamabandi No. 29/12 belonged to Grant Estate. In the year 1920 it was settled with one Tetari Domin wife of Mukhlal Mirdha and a registered deed was executed on 9-9-1926. Mukhlal Mirdha constructed a house on some portion of the said land and lived with his wife. Tetari Domin and her husband however, died issueless. Tetaris four brothers namely Giro Mirdha, Kaila Mirdha, Kulho Mirdha and Pancho Mirdha took the land and house and partitioned equally and came in separate possession accordingly. Giro Mirdha died after two years of the death of Tetari leaving behind his two daughters namely Bachiya and Jagani as his only legal heirs. Kolho Mirdha also died about four years after Tetaris death leaving behind his son Butka Mirdha. Giros share was divided in two equal shares between his two daughters Bachiya and Jagani and they came in separate possession. Butka got Kolhos interest. Kolho Mirdha also died about four years after Tetaris death leaving behind his son Butka Mirdha. Giros share was divided in two equal shares between his two daughters Bachiya and Jagani and they came in separate possession. Butka got Kolhos interest. The plaintiff purchased 10 Dhurs of Plot No. 1819 from Butka, Jagani and Bachiya through a registered sale deed dated 22-10-1971. He has constructed a house thereon. Janki Mirdha, Manik Mirdha and Kunkun Mirdha sons of Kaila Mirdha and Panchu Mirdha who happen to be nephew and brothers of Tetari Domin, however, wanted to take forcible possession of the suit land which is adjacent south of the residential house of the plaintiff, giving rise to a proceeding under S.144 of the Criminal P.C. and having failed in their attempt to dispossess the plaintiff and in the proceeding under S.144 of the Criminal P.C. Janki and others sold the entire area of Plot No. 1819 including the suit land to the defendants 1st party through a registered sale deed dated 31-3-1972, according to plaintiff, without any consideration. Defendants 1st party thereafter started creating trouble. A proceeding under S.107 of the Criminal P.C. was started followed by a proceeding under S.145 of the Cr. P.C. in which proceeding the learned Sub-divisional Magistrate, Dumka, declared possession of the defendants-1st party. 3. The contest by the defendants in the main is that the settlement was made in the name of Tetari Domin but she died in the year 1949 without leaving behind any issue. She was survived by her two brothers namely Kaila Mirdha and Pancho Mirdha. Her other two brothers Giro and Kolho had predeceased her. Mukhlal Tetaris husband and Kalkatia her father had also predeceased her. Her two surviving brothers, thus, came in exclusive possession and continued in joint possession until they transferred the suit land to the contesting defendants. They have given a separate version about possession and a portion in occupation of a tenant and said that under the terms of original Patta and Kabuliyat a portion of Plot No. 1819 could not he transferred without the permission of the landlord. They have also said that the plaintiffs sale deed does not relate to the suit land. 4. They have given a separate version about possession and a portion in occupation of a tenant and said that under the terms of original Patta and Kabuliyat a portion of Plot No. 1819 could not he transferred without the permission of the landlord. They have also said that the plaintiffs sale deed does not relate to the suit land. 4. The 2nd Additional Subordinate Judge, Dumka, dismissed the plaintiffs suit on contest but the learned 2nd Additional District Judge, Santhal Parganas at Dumka, has allowed the appeal and decreed the suit of the plaintiff-respondent. His conclusions are based on his answer to the question whether the plaintiff has acquired title to the suit land by virtue of sale deed dated 22-10-71 and is he entitled to recovery of possession over the suit land or not, which question he has answered by concluding that his vendors had inherited the suit land. 5. It is relevant to notice that the learned Additional District Judge has concurred with the finding of the learned Subordinate Judge that Giro and Kolho (two brothers of Tetari) died prior to Tetaris death. According to him, however, in absence of any specific provision the principle that the higher in degree would exclude the lower in degree or the doctrine of religious efficacy would not apply to stridhana succession. He had land : "As it is admitted fact that the vendors of the plaintiff are daughters and son of the predeceased brothers of Tetari Domin and so they are blood relations of Tetari Domin. according to Sec.147 as referred above these blood relations of Tetari Domin are entitled to inherit stridhan property left by Tetari Domin and they have rightly inherited the same. In that capacity Bachiya and Jagni daughters of Giro and Bhutaka the son of Kolho have got their title to the suit land and therefore they are competent to transfer their share to the plaintiff". Sec.147 mentioned in the judgement of the learned 2nd Additional District Judge is Article 147 of Mullas Hindu Law which deals with succession to stridhana according to the Mitakshara. 6 There is no contention before me that parties to the suit are not governed by Mitakshara and so I shall proceed on the presumption that the law applicable to the parties is the law of succession to stridhana as adopted in Banaras School. 6 There is no contention before me that parties to the suit are not governed by Mitakshara and so I shall proceed on the presumption that the law applicable to the parties is the law of succession to stridhana as adopted in Banaras School. Article 147 in Mullas Hindu Law is the law as expounded in the Mitakshara and fully accepted in the Banares School. This case has got nothing to do with gratuity or Shulka which a girl is given in marriage. Since parties have concurred to the fact that Tetari got a settlement from the Grant Estate and the courts below have accepted this position, the property in dispute in her hands was her stridhana. On her death, the succession, therefore, has to follow the rule applied to the stridhana other than gratuity or Shulka. In Shamlal V/s. Amar Nath, AIR 1970 SC 1643 , the law in paragraph or Article 147 of Mullas Principles of Hindu Law (13th Edn.) has been extracted stating : "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) daughters daughter; (5) daughters son; (6) son; (7) Sons 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 husbands heirs, in order of their succession to him; on failure of the husbands 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 fathers heirs and then to the husbands heirs in preference to the Government". The legal position is stated in identical terms in Maynes Treatise on Hindu Law (11th Edn. paragraph 623, pp. But if she was married in an unapproved form, it goes to her mother, then to her father, and then to the fathers heirs and then to the husbands heirs in preference to the Government". The legal position is stated in identical terms in Maynes Treatise on Hindu Law (11th Edn. paragraph 623, pp. 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 (sons 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 sons sons come sons daughters. Alternatively it was contended that the expression "sons son" includes "sons daughter." We have to see whether these contentions are well founded." 7. I have referred to the authority in Shamlal (Supra) because the Supreme Court has said in no ambiguous words that the correctness of the order of succession mentioned in para 147 till it comes to item No. 7 sons son is beyond challenge as the same is well settled by decided cases. As I have indicated at the out set the question herein is not even related to the inheritance, in the absence of the seven categories until sons son going to the husband and after him to the husbands heirs in order of their succession to him. There is none in either of the seven categories or husband or heirs of the husband in order of their succession in this case. Brothers, daughters of a predeceased brother and son of a predeceased brother are the competitors in the case as the validity or otherwise of the sale deed executed by the daughters of one of the predeceased brothers of Tetari and son of another predeceased brother inheriting along with the other two brothers of Tetari who survived her is in question. Brothers, daughters of a predeceased brother and son of a predeceased brother are the competitors in the case as the validity or otherwise of the sale deed executed by the daughters of one of the predeceased brothers of Tetari and son of another predeceased brother inheriting along with the other two brothers of Tetari who survived her is in question. Although there is a catena of decisions which decided various questions relating to inheritance and succession to Stridhana and the view invariably expressed is that it is only when the stridhana line of succession is unavailable that it is permissible to go to the other line of succession, I am tempted to refer to a Full Bench judgement of the Madras High Court in Narayani Ammal V/s. Govindaswami, AIR 1975 Mad 275 , which no doubt, is a case besides the point in issue, but indicates the approach which a Court of law would take when the textual Hindu Law as well as decided cases do not provide any knowledge or insight. In Narayanis case (Supra) the Full Bench was faced with the problem whether the widows of a legitimate son are entitled to succeed to his mothers stridhana property in preference to her illegitimate daughter ? The Full Bench has said : "On the question which we are called upon to answer where there is no inhibition expressly or impliedly to be found in the original text, Courts cannot lose sight of the progressively changing views of social outlook and insist upon only applying the old notions. We are with great respect, unable to concur with Seshagiri Aiyar, J., that an illegitimate daughter has no place at all under the Hindu Law except in limited cases which he pointed out. The change in the social outlook in respect of succession is reflected in the recent legislations, particularly the Hindu Succession Act, 1956, which has done away with the distinction between legitimacy and illegitimacy within certain limits in the matter of succession either to property of a male or a female dying intestate. We also note that Sec.3(i) which defines the word related has a proviso according to which illegitimate children shall be deemed to be related to their mother and to one another. We also note that Sec.3(i) which defines the word related has a proviso according to which illegitimate children shall be deemed to be related to their mother and to one another. In fact it goes further and says that their legitimate descendants shall be deemed to be related to them and to one another and any word expressing relationship or denoting a relative shall be construed accordingly. It seems to us that having regard to this trend of legislation reflecting the changing social approach to succession, we will be justified in interpreting the word daughter in the original text as including an illegitimate daughter as well." In Shamlal (Supra) also the Supreme Court has said; and I am referring to the said passage particularly because learned counsel for the respondents has given great stress on some expressions in the said passage :- "Mr. Bishan Narain next contended that under Mitakshara propinquity is the text of inheritance. Therefore, there is no reason why the deceased womans husbands brothers son should take the properties in preference to her sons 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 daughters daughter or a daughters 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. The contradictions are inevitable in socio-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 legislatures 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 a mend the Hindu Law in various respects." 8. It is for the legislatures 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 a mend the Hindu Law in various respects." 8. There is some guidance in the texts and the authorities to appreciate the line of succession designed in particular for stridhana and preference to the unmarried daughter over the married daughter and to a married daughter who is unprovided for over the married daughter who is provided for and in the same way up to the sons son and even though there is no particular social or religious philosophy available for the rule of succession to stridhana, to stridhana rules of propinquity and religious efficacy are not applied until the line of succession reaches the husband and if the husband is not available to inherit, the husbands heirs are made successors in order of their succession to him. In other words the rules that are applied to inheritance and succession to the estate of a male Hindu are applied to them at that stage and the order of succession is accordingly determined. Blood relations come thereafter. How shall they take the properties amongst themselves is not stated. 9. Ambiguities exist in the laws due to inapt legislations. But the texts of personal laws can suffer no such defect. One can only feel helpless due to deficiency in knowledge. It is that sort of helplessness in which, it appears, learned Additional District Judge has accepted the contention that the daughters of the predeceased brother and the son of the predeceased brother shall inherit along with the brothers as blood relations without pausing to ponder and consider whether in a given case the blood relations may be numerous making inheritance impossible. Perhaps, the learned Additional District Judge would have saved the situation by keeping in mind the law that it is not the property or its character alone that determines who would inherit or succeed because one who inherits has also to show how, in what capacity in what order, and in accordance with which law he has inherited. Under the Mitakshara the right to inherit arises from propinquity, i.e. proximity of relationship. Spiritual efficacy which is the guiding factor in the Dayabhag is also not altogether ignored. Under the Mitakshara the right to inherit arises from propinquity, i.e. proximity of relationship. Spiritual efficacy which is the guiding factor in the Dayabhag is also not altogether ignored. But wherever the texts have chosen to provide a different line, they have spelt out the departure and made specific provisions. In relation to stridhana too as has been noticed by the Supreme Court in Shamlal (Supra) in the matter of succession, propinquity was not considered as the sole or even the primary test, but beyond sons son the texts have said, husband and the husbands heirs in order of their succession to him and in their absence blood relations. It is only reasonable and logical to give to the blood relations the order of propinquity because no special order has been indicated therein. My conclusion in this behalf is not in conflict with the observation of the Supreme Court in the case of Shamlal (Supra) that in the matter of succession to stridhana propinquity was not considered by the law-givers as the sole or even the principal test. It appears to me inherent in the provisions introduced by the law-givers in the texts that they wanted to depart from the rule of propinquity as also religious efficacy to extend to some specified categories succession to Stridhana. Departure so stated ended with the husband and his heirs when the inheritance again returned to blood relations. The blood relations inherit in the order of propinquity and in no other manner. 10. I have ventured to advance my own reasons knowing fully that contradictions are inevitable in socio-religious matters, particularly when our social laws were controlled by or religious beliefs and our lawgivers were our religious preceptors. 11. In view of my conclusions above in my considered judgement, brothers stand a position above the deceased brothers daughters or son to inherit the stridhana. The learned 2nd Additional District Judge has, in my view committed error of law in holding that the vendors of the plaintiff inherited Tetars interests in the suit property. Consequently, the appeal has to be allowed. 12. In the result, the appeal is allowed, the judgement and decree of the learned 2nd Additional District Judge, Santhal Pargana, Dumka, passed in Title Appeal No. 26/88, of 1976-79 are set aside and those of the learned 2nd Additional Subordinate Judge, Dumka, Santhal Parganas, passed in Title Suit No. are affirmed. Consequently, the appeal has to be allowed. 12. In the result, the appeal is allowed, the judgement and decree of the learned 2nd Additional District Judge, Santhal Pargana, Dumka, passed in Title Appeal No. 26/88, of 1976-79 are set aside and those of the learned 2nd Additional Subordinate Judge, Dumka, Santhal Parganas, passed in Title Suit No. are affirmed. There shall, however, be no order as to costs.