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Petitioner: RABINDRA NATH DASS AND OTHERS VS Respondent: NARAYAN CHANDRA DAS AND OTHERS
P L D 1967 Dacca 745
P L D 1967 Dacca 745
Before A. K. M. Baquer, J
RABINDRA NATH DASS AND OTHERS‑Appellants
Versus
NARAYAN CHANDRA DAS AND OTHERS ‑Respondents
Appeal from Appellate Decree No. 535 of 1961, decided on 29th June 1966.
Hindu Law‑Succession‑Inheritance to males according to Dayabhaga (Bengal School)‑Doctrine of spiritual efficacy‑Not always sole governing principle‑Propinquity or proximity of birth, as in Mitakshara, may also be taken into consideration in cases not contemplated by Dayabhaga‑Principle of spiritual benefit, i.e. capacity to offer funeral cakes (pindas), important only in determining question of succession and not of inheritance‑All relations who are Bandhus under Mitakshara are Bandhus and heirs in Bengal as well‑Sister's sort's sons, in absence of other preferential heirs, entitled to inherit property of deceased male Hindu.
Satish Chandra Sarkar v. Haridas Mitra 38 C W N 98 and Nepaldas Mukherjee v. Probhas Chandra Mukherjee and others 30 C W N 357 not approved.
Nalinaksha Majhi v. Rajanikanta Das Mohanta I L R 58 Cal. 1392; Akshay Chandra Bhattacharya v. Haridas Goswami I L R 35 Cal. 721; Golap Chandra Sarkar Sastri's Treatise on Hindu Law, 5th Edn., 1924 ; Toolsee Dass Seal v. Luckymoney Dassee (1900) 4 C W N 743 and Mulla's Principle of Hindu Law, 10th Edn., p. 46 ref.
Ranadhir Sen for Appellants.
Abul Quasem Bhuiya for M. A. Mutallib for Respondents.
JUDGMENT
This was a suit for khas possession of the suit land by the defendants therefrom.
Plaintiffs' case briefly was that the property in suit belonged to Sribash Das who died leaving his widow Khiroda Sundari some 14/15 years back. Khiroda Sundari got a life estate by inheritance and lived in this house. Khiroda died on 11th ejecting Falgoon 1364 B.S.
Sribash had left no other preferential heir besides the plaintiffs who were the four sons of Rasaraj who was son of Rai Sundari Dasi, sister of Sribash. Rasaraj predeceased Rai Sundari. Thus the plaintiffs were the sole heirs to the properties left by Sribash after the death of Khiroda and they were in possession of the premises in suit. Plaintiffs had been living in this house.
Defendants were sons, daughter and wife of Debidas, a deceased brother of Khiroda Sundari. They were not heirs of Sribash under the Hindu Law and they had no interest in the property by inheritance.
Khiroda Sundari had inducted the defendants into this house and on her death they continued to be in possession with plaintiffs' permission.
Defendant No. 1 alone contested the suit. His defence inter alia was that the suit was barred by limitation and adverse possession and that Rai Sundari Dasi was not the sister of Sribash.
Further that the plaintiffs were not heirs to Sribash Das and had no right, title or interest in the property and the plaintiffs had no possession in this property.
Defendants were in possession since 1347 B.S. and they never took permission from the plaintiffs nor did they possess any portion of but No. 1.
Sribash Das had conveyed an absolute interest in the entire property to Khiroda by oral gift and Khiroda by her will dated 8‑2‑57 gave away the entire property to the defendants.
On those facts the learned Munsif decreed the plaintiffs' suit declaring plaintiffs' title to the suit land and directing that the plaintiffs do get khas possession of the same by ejecting the defendants therefrom.
The learned Munsif disbelieved the plea of Will and gift as pleaded by the defendant and found that the defendants were mere trespassers because wife's brother's sons were not heirs under the Hindu Law.
The basis of the learned Munsif's decision was that as there was no evidence that Sribash Das left any other preferential heirs and that as there was none nearer to Sribash Das in propinquity and bond of natural love and affection, plaintiffs were heirs to Sribash Das under the Hindu Law.
On appeal by the defendants, the learned Subordinate Judge allowed the same and set aside the judgment and decree passed by the learned Munsif.
The learned Subordinate Judge proceeded on the basis that admittedly neither the plaintiffs nor the defendants were the next reversioners of Sribash under Dayabhaga Hindu Law. He was of the view that under the Mitakshara Hindu Law plaintiffs might inherit the property of Sribash as his next reversioners but they could not so inherit under the Dayabhaga Hindu Law.
He was further of the view that the plaintiffs could inherit the disputed property only by following the principles of Mitakshara Hindu Law, if otherwise at all applicable.
The learned Subordinate Judge further held that as the scheme of the Dayabhaga was radically different from and to some extent incompatible with the scheme of the Mitakshara Hindu Law, it was not possible to apply Mitakshara principle in favour of the plaintiffs.
The learned Subordinate Judge also apparently disbelieved the story of Will and gift in favour of the defendants.
In the result, he ordered that the property will escheat to the State,
Mr. Ranadhir Sen, learned Advocate appearing for the plaintiffs‑appellants has urged that when Dayabhaga School is silent as in the present case, with regard to the heir-ship of the appellants, the principle of the Mitakshara School would apply.
He has relied upon the decision in the case of Nalinaksha Majhi v. Rajanikanta Das Mohanta (I L R 58 Cal. 1392) and on the case of Akshay Chandra Bhattacharya v. Haridas Goswami (I L R 35 Cal. 721).
He has also referred extensively to Golap Chandra Sarkar Sastri's Treatise on Hindu Law 5th Edn. 1924.
The substance of his contention is that the learned Subordinate Judge was wrong in observing that the scheme of the Dayabhaga was radically different and to some extent incompatible with the scheme of the Mitakshara and that the capacity to render spiritual benefit was not the sole criterion of inheritance even under the Dayabhaga School.
Mr. Abul Kashem Bhuiya, learned Advocate appearing for the respondents has urged that under the Dayabhaga plaintiffs are not heirs.
He has relied on the decision in Salish Chandra Sarkar v. Haridas Mitra (38 C W N 98) and also on the decision in the case of Nepaldas Mukherjee v. Probhash Chandra Mukherjee and others (30 C W N 357).
He has also urged that even under the Mitakshara School sister's son was made an heir only by an Amending Act of 1929 and sister's son's son has not been made heir.
He has also urged that law of succession and inheritance is to be strictly construed and that as the capacity to confer spiritual benefit was the strict standard in fixing heir-ship under the Daya?bhaga School, the present appellants who could not confer any spiritual benefit were ruled out of the inheritance.
At this stage the sum and substance of the decisions cited may be set out here.
In the decision reported in I L R 58 Cal. 1392 it was held inter alia that propinquity or proximity of birth is the principle underlying the order of succession, but the capacity for conferring spiritual benefit is also taken into consideration along with it in determining the claims of rival competitors ; the right to inheritance is based not on offering pinda but on the capacity to offer it.
The doctrine of spiritual benefit cannot be applied consis?tently in all cases, e.g. in cases of females succeeding to males, chela succeeding to guru and samanodakas. It is, on the failure of nearest heirs, that the question of spiritual benefit really arises.
Suhrawardy, J. while dealing with the Bengal School of Hindu Law in this case observed:‑
"It has been authoritatively laid down that the doctrine of spiritual benefit or offering of funeral obligations is not the only test of heirship. Propinquity or proximity of birth is the principle underlying the order of succession, but the capacity for conferring spiritual benefit is also taken into consideration along with it according to the Bengal School. The question of the capacity to offer funeral cakes becomes important when it has to be considered in connection with the claims of rival competitors to heirship and in determining the order of succession; In other words it is a key to the order of succession, but not to inheritance. On this ground, even among those who are entitled to offer pindas, preference is given to such heirs as are entitled to offer a large number of pindas or to a greater number of ancestors than others.
Golap Chandra Sastri's Hindu Law 5th Edition 451. Even according to the Dayabhaga School of Hindu Law under which the right of inheritance is based on the doctrine of spiritual benefit, it cannot be applied consistently in all cases, e.g. in cases of females succeeding to males, chela succeeding to guru and samandokas. It is, on the failure of nearest heirs, that the question of spiritual benefit really arises."
It appears that in this case reliance was placed not only on Golap Sastri's Hindu Law but also on the decision of Akshay Chandra Bhattacharya v. Hari Das Goswami.
Reliance was also placed by Suhrawardy, J. in this case on the decision in Toolsee Dass Seal v. Luckymoney Dassee ((1900) 4 C W N 743).
In the decision in Akshay Chandra Bhattacharya v. Hari Das Goswami it was held by Justice Mitra, inter alia, that that "mere spiritual benefit is not always the guiding principle of inheritance under the Bengal School of Hindu Law.
Propinquity has also been accepted in the Bengal School as a principle of succession.
In cases not contemplated by Jimutavahana or his followers, the law should be interpreted on rational lines consistently with the principles followed in similar cases, and the decisions of our Court should not be based on a blind adherence to the principle of spiritual efficacy, as it may lead to the violation of other recognised principles consistent with natural justice.
In all cases of absence of any express text or predecents under the Dayabhaga law, Courts should have recourse to the theory of propinquity and natural love and affection, as adopted by Vijnaneswara and the commentators of the more ancient and orthodox schools of Hindu Law."
In this case also the learned Judge placed some reliance on the decision in Toolsee Dass Seal v. Luckymoney Dassee. Justice Mitra went to observe that in most propinquity, spiritual efficacy and natural love and affection run in the same lines and no difficulty arises, but whenever they run in different lines Jimutavahana was compelled to ignore spiritual efficacy and have recourse to other principles or express text. The two cases as above the main planks of the appellants, in addition to references made to Mulla and Golap Shastri's Hindu Law which we will discuss hereafter.
Of the two decisions placed on the side of the respondents in Satish Chandra Sarkar v. Haridas Mitra it was held that under the Dayabhaga School sister's son's son, is no heir to Stridhan property of women and has no locus standi to contest an application for Letters of Administration with her will annexed.
Further that it was not the law that even when there is no heir a blood relation is entitled to get the property before the Crown. In the other decision cited by the respondents, namely, that of Nepaldas Mukherjee v. Probash Chandra Mukherjee and others it was held inter alia.
"The power to confer spiritual benefit is the foundation of the theory of inheritance propounded in the Dayabhaga and a guther's son's (sic.) who is unable to confer any spiritual benefit is no heir."
It would be noted that the decision as reported in 38 C W N 98, is a decision of 1932 and was a case of succession as an heir to the stridhan property of a woman and it was held that sister's son's son was no heir.
There is no reference in this decision to the earlier decision as reported in I L R 58 Cal. 1392 which is a decision of 1931 nor is thereby reference to I L R 35 Cal. 721 which is a decision of 1908.
So far as the decision is 30 C W N 357 goes, this is a decision of 1926 and there is no reference therein to the decision of 1908 as reported in I L R 35 Cal. 721.
Suffice to state at this stage that the aforesaid two decisions reported in 38 C W N 98 and 30 C W N 357 do not seem to be well founded and have little reference or reliance upon the Hindu text.
It appears from section 43 at page 46 of Mulla's Principle of Hindu Law, 10th Edition that under the Mitakshara School, sister's son was introduced as heir in 1929 by the Hindu Law of Inheritance (Amendment) Act 2 of 1929 and before that Act he ranked as a Bandhu only.
Mr. Abul Quasem Bhuiya has argued that even sister's son having been included only by statute there was no room for inclusion of sister's son's son in the category of heirs even under the Mitakshara.
But it appears that under section 46 at page 49 Mulla gives a list of Bandhus wherein sister's son's son has been included.
Mr. Sen's argument is that the appellants will come in as Bandhus, there being no conflict between the two schools on the point of heirship. His argument is based on the principle that spiritual benefit is not always the guiding principle of inheritance.
Section 79 of Mulla's Hindu Law is as under:
"Spiritual benefit the governing doctrine‑succession according to the Bengal School is governed by the capacity for conferring spiritual benefit (a). Spiritual benefit, however, is not always the guiding principle of inheritance and in cases not contemplated by the Dayabhaga, the doctrine of propinquity as propounded in the Mitakshara may be applied."
This shows that even according to Mulla, spiritual benefit is not the sole text.
Coming to Golap Shastri's Treatise on Hindu Law reference may be made to pages 37 and 38 thereof in which it has been expressed as under:‑
"Mitakshara and Dayabhaga. The Mitakshara which is undoubtedly anterior to? the Dayabhaga is a running commentary on the Institutes of Vajnavalkaya, by Vijna?nesvara called also Vijnan‑Yogin who cites texts of other sages, and reconciles them where they seem to be inconsistent with the institutes of Yajnavalkya. This concise commentary is universally respected through out the length and breadth of India, except in Bengal where it yields to the Dayabhaga, on those points only in which they differ, but it may be consulted as an authority even in Bengal, regarding matters on which the Dayabhaga is silent. The Dayabhaga, however, is not a commen?tary on any particular Code, but professes, to be a digest of all Codes, while it maintains that the first place ought to be given to the Code of Mann. This commentary, or that portion of it which is now extent, is confined to the subject of partition or inheritance alone, whereas the Mitakshara is a commentary on all branches of law in its widest sense, professing as it does to elucidate the Institutes of Yajnavalkya.
Hence the Dayabhaga is deemed as an enactment amending the Mitakshara Law in Bengal. This view follows from what is stated in the case of Collector of Madura v. Mootoo and also in Bhugwandeen Boobey's case. And in the well‑known case of Kerry Kolitan, Justice Dwarkanath Mitter after referring to a passage of the Mitakshara in a Bengal case, explains the same view, in these words,‑"It is true that there is no special discussion on this point in the Dayabhaga, but the reason of this omission is obvious. The authority of the Mitakshara, it should be remembered was at one time supreme even in Bengal, and as the author of the Dayabhaga did not intend to dispute the correctness of all the propositions laid down in that treaties, we need not be at all surprised at his silence in regard to some of them. It is for this reason that the Mitakshara is still regarded as a very high authority on all questions in respect of which there is no express conflict between it and the works prevalent in that school, as may be seen from the remarks made by the Privy Council in the case already referred to. ??????????? The Dayabhaga may also be referred to in a Mitakshara case. on points in which the latter treatise is silent; and; in fact, all the commentaries of the different schools may be consulted on points in which the treatises regarded by any school as of special authority are silent, in the absence of conflict with any doctrine maintained by that school."
Reference may also be made to page 473 thereof: -
Heirs under Mitakshara and Dayabhaga.‑There is no difference between the two schools as to the persons that are heirs. To the question who are heirs ? The answer A is the same in both the schools, namely, relations, agnate and cognate are heirs. But there is some difference as to the order of succession.
The term gotraja in Yajnavalkaya's text. (i) according to the Mitakshara, equivalent to sagotra or a member of the same gotra with the propositus. But the Dayabhaga explains the word to include cognates desended from a member of the gotra, such as the daughter's son, the sister's son, the father's sister's son, and so forth. And the word Bandhu which, according to the Mitakshara, signifies all cognates, is restricted by the Dayabhaga to cognate relations connected through the mother, the father's mother, and so forth. Thus Jimutavahana controverts the interpretation put on the texts of Yajnavalkya (j) by the Mitakshara which postpones all cognates save and except the daughter's son to agnates comprised by the terms sapinda and samanodaka.
The author of the Dayabhaga follows the analogy of the succession of the descendants of the propositus himself in working out of the order of succession among the three paternal ancestor's descendants, and introduces their great grandson in the male line and their daughter's son, just after their son's son respectively. Thus, in addition to the daughter's son of the propositus three other cognates are introduced, namely, the son of the daughter of the father, of the grandfather and of the great grandfather. And then reciprocally to these four cognate descendants of the family, four maternal relations are intended to be introduced by the author of the Dayabhaga, namely, maternal grandfather reciprocally to daughter's son, maternal uncle reciprocally to sister's son, maternal uncle's son reciprocally to father's sister's son, and said uncle's son's son reciprocally to grandfather's sister's son.
It should be observed that the maternal uncle and his son, and his son's son are the maternal relations who confer the greatest amount of spiritual benefit on the three maternal ancestors of the deceased, to whom he is said to be bound to offer pindas. But nevertheless the maternal grandfather must be placed before them; for, it is through him that they are related to the deceased, and they cannot confer any spiritual benefit so long as he is alive. The mother's sister's son may also be placed here by reason of his conferring special spiritual benefit on the maternal grandfather.
Subject to this modification, the author of the Dayabhaga intended to leave the order of succession such as it is according to the Mitakshara which also is respected by the Bengal School as of high authority.
From a perusal of the sixth section of the XI, Chapter of the Dayabhaga it would appear that it was not the intention of the author to deal so much with the distant succession as with the changes introduced by him. He simply touches upon the distant succession in a few paragraphs 2 and 27 parenthetically, and then returns to the changes which he introduced and which appears to engross his mind. This accounts for the incompleteness of the distant succession, his deficiency being supplied by his follower Ranghunandana who is, next to him, the highest authority in Bengal.
Dayabhaga order of succession misunderstood. A question arose for the consideration of the Full Bench of the Calcutta High Court, whether a brother's daughter's son or the father's brother's daughter's son is an heir at all according to the Bengal School.
There was another question in that case, namely, if he is heir, what is his position in the order of succession? As regards this latter question, an erroneous admission was made before the Division Bench by the learned pleader of the opposite‑party, namely, that if they were recognised as heirs their position would be before the Sakulya relations. The Dayattattava of Ranghunandhana was not noticed that the same position is assigned by that treatise to all cognates other than the eight mentioned above, as they hold under the Mitakshara, and that therefore the position of these cognates in the order of succession is exactly the same as under the Mitakshara.
Doctrine of spiritual benefit no test of heirship. At one time it was supposed that the doctrine of spiritual benefit is the key to the Hindu Law of inheritance. It is, however, now admitted on all hands that the doctrine in not recognised by the Mitakshara School also the doctrine was for the first time introduced and relied on by Jimutavahana as a corroborative argument in support of his expositions of the texts of law relating to the order of succession. It is in fact a pretext by which he fortifies his s argument in support of the changes made by him in the order of succession, by the introduction of some near and dear cognates in preference to more distant agnates; it has nothing whatever to do with the question as to who are heirs; for as to that, both the schools are at one, and give the same answer, namely, the relations are heirs. The very definition of heritage clearly implies the same thing.
Propinquity, or proximity of birth, is the principle of the order of succession, according to the Mitaksbara. This is admitted also by the Bengal School, but the capacity for spiritual benefit is also taken into consideration along with it.
Object of Dayabhaga and the doctrine misunderstood. According to its traditional interpretation, the Dayabhaga was all along understood to lay down a particular well‑known order of succession. And this is clear not only from the order expounded by the Dayabhaga but also from the author's express statement its object was not to lay down the so‑called principle of spiritual benefit, and to leave the order of succession uncertain and unsettled. But Justice D. N. Mitter who was ignorant of Sanskrit, and therefore, had no access to the original works on Hindu Law, put a novel construction on the Dayabhaga, which is different from and opposed to, its traditional interpretation. That eminent Judge imagined that the object of the Dayabhaga was not to lay down an order of succession, but to lay down the principle of spiritual benefit, from which the order of succession of spiritual benefit, from which the order of succession is to be worked out. That this view is inconsistent with the Dayabhaga, and therefore unworthy of acceptance, is established by the following passage in the concluding portion of the judgment delivered by him in Guru Gobind Shaha Mudal's case.
"Lastly it has been urged that the precise position which the son of a paternal uncle's daughter would be entitled to hold according to the principle of spiritual benefit, would interfere with that which has been assigned by the author of the Dayabhaga to some of the heirs specified in the earlier part (sections i‑5) of Chapter XI . . . . But this circumstance, even if true, cannot be accepted as a sufficient reason to justify the total exclusion or' one single heir who is competent to satisfy all the requirements of that principle. If in any case which may arise hereafter, it should become necessary for us to determine the precise position which the son of a paternal uncle's daughter is entitled to hold in the order of succession, the question would fairly arise, namely, whether the details of a work like the Dayabhaga ought to be permitted to override the principle upon which it is admittedly based.
This passage shows that the principle of spiritual benefit as explained in the above judgment, is inconsistent with and opposed to the details of the order of succession among certain heirs, worked out and expressed in the clearest possible language, by the author of the Dayabhaga himself." ??????????? The author proceeds (pp. 513 to 515).
"It has, however, been asserted that the whole of Chapter XI of the Dayabhaga is nothing but a mere elaboration of the doctrine of spiritual benefit. But with the greatest deference to those that take this view, it cannot be seen how such a conclusion can be come to, on a perusal of that Chapter. The object of the author appears, beyond the shadow of a doubt, to have been to lay down a particular order of succession, and to invoke the aid of that doctrine merely to fortify his positions. That doctrine itself has nowhere been fully and completely explained nor independently dealt with; but it has only been, in a subordinate manner referred to in the course of the arguments put forward in support of his propositions.
And it may very fairly be doubted whether the induction of the doctrine of…
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