HEGDE, - (1.) THE Judgment of the court was delivered by -
(2.) THE question of law that arises for decision in these appeals by certificate is whether the daughters of a predeceased' 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 entitled to succeed to the estate in question. 34 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 : JUDGEMENT_33_1_1970Image1.jpg 35 The finding of the trial court that the suit properties are the stridhana properties of Barji was not contested before the High court. In this 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 who had predeceased Patu Ram leaving behind him his widow Bindri who 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 five children including defendant 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. Tuisi 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 Hiralal had died but some of them had children and grandchildren, 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 1st 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. In the High court as well as in the trial court there was a triangular contest. The plaintiff claimed that he was exclusively entitled to 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 cotenants 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. That is how the afore-mentioned two appeals came to be filed.
(3.) IN arriving at its finding the High court relied on the rules of succession found in Paragraph 147 of Mulla's Principles of Hindu 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 naearest 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 : 36 "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., Paragraph 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 son's 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.;