Provashini Debi vs Joggeswar Banerjee (22/11/1950)

HINDU LAW-Whether under the Hindu law current in the Bengal School, a Brahmin rival wife’s daughter is entitled to succeed to the streedhan of a deceased Hindu in preference to her husband’s brother.


Smt. Provashini Debi vs Joggeswar Banerjee

DATE:  22 November, 1950

Equivalent citations: AIR 1951 Cal 375, 55 CWN 61

BENCH: Harries, Banerjee


Banerjee, J.

1 The question which we are required to determine in this appeal, is whether under the Hindu law current in the Bengal School, a Brahmin rival wife’s daughter is entitled to succeed to the streedhan of a deceased Hindu in preference to her husband’s brother. The property is the pitridatta streedhan property of the deceased, that is to say, it is gift and a bequest from her father after marriage. The decision of the question depends on the meaning of para. 16 in Ch. IV Section ii of Dayabhaga of Jimutavahana, who is the paramount authority in the Bengal School. That paragraph has been translated by Colebrooke as follows:

“16. As for a passage of Manu, ‘The wealth of a woman, which has been in any manner given to her by her father, let the Brahmani damsel take; or let it belong to her offspring;’ since the text specifies ‘given by her father,’ the meaning must be, that property, Which was given to her by her father, even at any other time besides that of the nuptials, shall belong exclusively to her daughter and the term Brahmani is merely illustrative (indicating, that a daughter of the same tribe with the giver inherits). Or, lest the term should be impertient, the text may signify that the Brahmani damsel, being daughter of a contemporary wife, shall take the property of the Kshatriya and of other wives dying childless, which had been given to them by their fathers. The precept, which directs, that ‘the property of a childless woman shall go to her surviving husband’; does not here take effect. Such is the meaning of the passage; for else according to the preceding interpretation) all the texts (which declare the equal right to the son and daughter, to inherit their mother’s property in certain cases) would be incongruous.”

2. The correctness of the translation is not challenged. The word ‘damsel’ in the translation by Colebrooke represents the word ‘Kanya’ in the original text of Manu.

3. Learned counsel for the appellant lays Stress on the word ‘Brahmani’ in the words ‘Brahmani Kanya’ and says that the paragraph has reference to a Brahmin rival wife’s daughter. He contended that in early days a Brahmin male could take for a wife a Brahmin or a Kshatriya or a Sudra wife and the use of the word ‘Brahmani’ suggested that it was the daughter of the Brahmin rival wife who would succeed in preference to the offspring of a rival wife belonging to other caste. We are unable to accept that contention because it overlooks the succeeding words ‘or let it belong to her offspring.’

4. This paragraph was interpreted by a Bench of this Court in Prosonno Kumar Bose v. Sarat Shoshi Ghose, 36 Cal. 86: (1 I. C. 766). In that case it has been held that the word ‘Kanya’ in Dayabhaga Ch. IV, Section ii para. 16 means an unmarried daughter. The case was heard first by a Bench presided over by Brett and Coxe JJ. Brett J. after a review of the relevant authorities said at p. 91 as follows :

“Then follows para. 16 in which the passage occurs, on which the decision of this case mainly depends. It deals with property given to a woman by her father ‘in any manner’ even at any time besides that of the nuptials.’ and provides that it shall be taken Brahmini damsel, or let it belong to her offspring. ‘Her offspring’ is generally accepted as meaning the offspring of the deceased. The next two passages in the paragraph offer a possible explanation of the use of the word ‘Brahmini.’ The concluding passage runs ‘such is the meaning of the passage, or else according to the preceding interpretation all the texts, which declare the equal right of the son and the daughter to the mother’s property in certain cases would be incongruous.’ The texts here referred to are those dealt with in the preceding paragraphs of the section, and which lay down the general rule that the sons and unmarried daughters equally divide the property of the mother, and the passage seems to lay down that the paragraph provides in respect of ayautuke stridhan received from a father an exception to the rule, and nothing more.”

5. The learned Judge also refers to such authorities as Macnaghten and Strange and to other writers and then concludes by saying that the word ‘kanya’ in that paragraph means an unmarried daughter.

6. Coxe J., however, took a different view. Referring to Jagannatha’s or Colebrooke’s Digest, he said:

“It is difficult to base any conclusion on this work as it quotes both the text of Devala, to the effect that the son and maiden daughter together, and that of Katyana, to the effect that the daughters succeed, and draws no clear distinction between Yautuka and ayautuka property. But in quoting the text of Manu the author construes it as laying down that the property of a childless wife shall go to the daughter of a Brahman co-wife, or to the issue of that daughter. So that it is clear that the author did not regard the term ‘kanya’ as necessarily confined to an unmarried girl.”

7. Coxe J. considers other authorities and concludes by saying that he found it impossible to hold on the authorities that the term ‘kanya’ could not have been intended to include married daughters and differed from Brett J. In those circumstances the case was referred to Mitra J. The learned Judge considered the primary meaning of the word ‘kanya’ and also the commentaries on Dayabhaga, in particular, those of Raghunandana and Srikrishna and said (pp. 113-14):

“Srikrishna is abundantly clear in his commentary as has been pointed out by Brett and Coxe JJ. Srikrishna and Raghunandana subsequently laid down in their respective treatises a different rule of succession, as if the word kanya might mean daughters generally. In a conflict of authorities, however, Jimutavahana must be preferred. The later opinions of Srikrishna and Raghunandana, which are not based on the text of the Dayabhaga, ought not to be followed by the Courts in Bengal.”

The learned Judge further observed :

“I am of opinion that we should follow the Dayabhaga and not Srikrishna and Raghunandana, when it is evident that the latter have not followed their master in giving preference to daughters generally. I am confirmed in my view by what Rampini and Mookerjee JJ. have said in Ram Gopal v. Narain Chandra, 33 Cal. 315 : (3 C. L. J. 15). I agree, therefore, with Brett J.”

8. Mitra J. had the two judgments, namely of Brett J. and Coxe J. before him and considering the two judgments, his Lordship agreed with the view expressed by Brett J. In other words, he held that the word ‘Kanya’ in the original Sanskrit text meant an unmarried daughter.

9. The majority judgment is binding on us, and we are glad to note that our own views accord with the majority judgment in Prosanno Kumar v. Sarat Shoshi Ghose, 36 cal. 86 : (1 I. C. 766). If, therefore, the word ‘kanya’ is taken to mean an unmarried daughter, the contention of the appellant’s counsel must fail, for the words “or let it belong to her offspring” must mean the offspring of the deceased. If that is so, it would be absurd to suggest that a rival wife’s daughter would have preference to the offspring of the deceased. The paragraph contemplates the death of a female who has left offspring and the plain meaning of the paragraph is that if there is a maiden daughter she will take in preference to the other offspring. To say that the words “Brahmani damsel” mean the daughter of a Brahmani rival wife is to give preference to the daughter of a rival wife to the offspring of the deceased which could not possibly be the meaning of the paragraph. That para. therefore has no reference to a rival wife’s daughter.

10. Counsel for the appellant relies on the word ‘Brahmani.’ But if we take the meaning of the word ‘Brahmani’ in the sense learned counsel suggests, the meaning of the para would be absurd as I have suggested above. Therefore we cannot lay too much stress on that word. We are glad that the view we take accords with the view taken by modern text writers of authority. See Macnaghten (Principles of Hindu Law, pp. 39 to 40), Strange (Vol. I, p. 251 and Vol. II, p. 403), Shyama Gharan Vyavastha Darpana, p. 806, Edn. l, pp. 717-8 Edn. 2). Mayne also took the same view. Elberling has followed Srikrishna’s commentary on the Dayabhaga and not the individual opinion of Srikrishna as given in the Dayakrama Sangraha. Sir Gooroo Dass Banerjee in his work on the Hindu Law of Marriage and Stridhan seems to be of opinion that Srikrishna did not follow Jimutavahana as regards succession to pitridatta stridhan. There is only one author Shastri Golap Chandra who has taken a different view. But having regard to the authority of Prosonno Kumar Bose v. Sarat Shoshi Ghosh, 36 Cal. 86 : (1 I. C. 766) and the view taken by other learned authors we are unable to take the view expressed by Shastri Golap Chandra. The trial Judge held that the brother is the preferential heir and we think he was right in the view be took.

11. In the result we dismiss the appeal with costs.

12. I agree.

Harries, C.J.

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