Rights of Hindu Women in Different Aspects

Rights of Hindu Women in Marriage

I.Introduction

The objective of this research is to study the civil rights of Hindu women in Bangladesh relating to family and property. These include rights of Hindu women in adoption or rights of maintenance. A woman has many important rights before and after her marriage. A girl has different rights in her father’s family which are different from her husband’s family. A right of a woman differs with the position of her marital status. She is entitled to get her father’s share she also entitled to get her maintenance and other properties which she gets from her husband.

We know about different types of rights of a Hindu woman which are described in many texts and shastras of Hindu law. Excluding the shastric law there are many judge made law. This research includes some precedents relating to the rights of Hindu women which establish the rights of Hindu woman over their properties and personal life.

Shastric Hindu laws are used by the Hindu community. But from ancient times we see some violation of rights of Hindu women. Some other rights are depending on her husband’s consent. But in some cases and upon the decisions delivered by judges of Supreme Court of Bangladesh established and developed the rights of Hindu women.

The establishing rights which are come out from such decisions are included in this research. The purpose of this research is to describe about the judge made law and analysis of those cases relating to Hindu women’s rights, establishing the rights which were violated from ancient times. There are different types of texts and shastras of Hindu law. Excluding that there are various types of books by different writers. But no books and no texts have not described the judge made law along with the analysis of the cases of Supreme Court. This one is the main exceptional point of my research from the other books.

II.Rights of Hindu women in marriage

Hindu marriage is necessarily the basis of social organization and foundation of important legal rights and obligations. In shastric tradition Hindu marriage is treated as sacrament. Hindu marriage is holy union for the performance of religious duties.

According to Hindu shastriya law it is more a religious than a secular institution. It is the last of the ten sacraments or purifying ceremonies. The shastras enjoin the followers to marry for purpose of procreating sons necessary for the continuation of line of paternal ancestors and for the spiritual benefit of their and his souls.

In ancient times, the daughter was regarded as an item of property and the marriage involved the idea of transfer of dominion over the damsel from the father to the husband. It appears to have owed its origin to the partia potestas of the Roman law.1

III.Legal consequences of marriage

GuardianshipAfter marriage the wife is placed under the control of the husband, who is entitled to custody of her husband, when she is minor even in reference to her father. But when the husband is a minor he can not be

1 S. K. Routh, Elements of Hindu Law (Comilla: Ideal Library, 1974), p. 19.

the guardian of his minor wife. The deceased husband’s relations are entitled to be her guardian in preference to her preference to her paternal relations.

Maintenance and residence

The wife is bound to reside with the husband wherever he choose to live. A wife’s first duty to her husband is to submit her obediently to his authority and to remain under his protection. Therefore, she is not entitled to separate residence and maintenance. The husband is bound to maintain his wife and to live with her. The wife is entitled to the right of maintenance against the husband personally so long he is alive and against the estate after his death. But if the wife resides in her father’s house against the will of the husband, she can not claim maintenance while living apart.

A wife living apart from her husband for no improper purpose may at any time return and claim to be maintained by him. He can not under the provisions of the Succession Act, 1925 execute a will to defeat such a right. The amount of maintenance depends on various circumstances such as social standard, husband’s property etc. A wife is entitled to maintenance though her husband abandons Hinduism.Restitution of conjugal rights

In case of breach of marital duties, the either party may institute a suit for restitution of conjugal rights. The health or inability to afford her husband the marital rights is no ground for husband’s refusal to give her protection.

The court may refuse to pass decree for restitution of conjugal rights against the wife, if the husband is suffering from a loath some disease, such as leprosy or syphilis or if he keeps a concubine in the house, or is guilty of cruelty in a degree, rendering it unsafe for the wife to return to her husband dominion or if he adopts another religion. But the mere fact of the husband marrying a secured wife or mere infidelity on the part of the husband or the fact that the wife is a minor is not by itself sufficient to disentitle the husband from claming restitution of conjugal rights. Marriage in Hindu law is regarded as an indissoluble union of husband and wife extending to the next world. Divorce is not recognized by Hindu law unless allowed by custom. Change of religion or loss of caste does not operate as dissolution of marriage, nor does the adultery of either party, none even the fact that the wife has deserted her husband and has become a prostitute.2

IV.Remarriage of widow

Formerly remarriage of widow’s was in vogue only in some localities and among some classes only. But since the middle of the 19th century it has been legalized as to all classes of Hindus and as to all localities by the Hindu Widow’s Remarriage Act (Act XV of 1856).

With respect of ceremonies, S. 6 of the Act provides that “whatever words spoken, ceremonies performed or engagements made on the marriage of a Hindu female who has not been previously married, are sufficient to constitute a valid marriage, shall have the same effect if spoken, performed or made in the marriage of a Hindu widow and no marriage shall be declared invalid on the ground that such words, ceremonies or engagements are inapplicable to the case of a widow.”

As regards guardianship in marriage, S. 7 provides that, “if the widow remarrying is a minor whose marriage has not been consummated, she shall not remarry without the consent of her father, or if she has no father, of her paternal grandfather, or if she has no such grandfather, of her mother, or failing all these of her elder brother, or failing also brothers, of her next male relatives. And all remarriages contrary to the provisions of this section may be declared void by a court of law provided that no such remarriage shall be declared void after it has been consummated”. In the case of a widow who is of full age, or whose marriage has been consummated, her own consent shall be sufficient consent to constitute her remarriage lawful and valid.3

2 Ibid., p. 27.

Under the general principle of Hindu law, a widow entering into a lawful wedlock for the second time can not retain the property of her previous husband.

Marriage Case No. 1.Nurun Nabi Mondal and others v. Joynal Abedin Khondkar and ors.4

Hindu widows in general without exception are deprived of the right to inherit and retain the property of the previous husbands when they remarry after their husbands’ death.

All the High courts of the Indian sub-continent except that of Allahabad have taken the view that under the general principle of Hindu law, a widow entering into a lawful wedlock for the second time can not retain the property of her previous husband. It is also the view of the said High courts that the provision of S. 2 of Act XV of 1856 which is not inconsistent with the general principle of Hindu law is comprehensive enough to cover the case of a widow whose remarriage is sanctioned by the custom of her caste and that she also forfeits her right to her previous husband’s property on her remarriage by virtue of the said provision.

We have seen that the right of which was conceded by the said Act to the Hindu widows was not something new in Hindu law. We have also noticed that the disentitlement of a Hindu widow on her remarriage, to retain the property of her previous husband, as has been prescribed by S. 2 of the Act is consistent with the general principles of Hindu law and also with the social practices of Hindus when such marriages were in vague.

Provision of S. 2 is not inconsistent with the general principle of Hindu law of inheritance and has not introduced any new kind of disability, as supposed in the Allahabad view.

From the above text it appears that a widow shall have a right of enjoyment of her husband’s property, during her life time but shall have no right to transfer the property in any way and after her death, the property shall go to her own heirs.

This appeal by special leave at the instance of one of the plaintiffs of a suit for a declaration of title and recovery of possession of a certain property is against a judgment of the Chief Justice of Dhaka High Court, sitting singly, allowing a second appeal and dismissing the plaintiff’s suit. It raises the question as to whether under the Hindu Widow’s Remarriage Act (Act XV of 1856) a Hindu widow forfeits her right to her deceased husband’s property on her remarriage.

A disputed property belonged to one Ram Chandra Malla, who died several years ago leaving behind a widow named Jagadaya Mallani, who inherited her husband’s property as his sole heiress. A few months after the death of her husband the said widow having remarried one Bokhan Malla, the property she inherited from her previous husband, according to the plaintiff’s case, stood forfeited and devolves on one Akaluram, the reversionary heir of the said property. Akaluram there after settled a part of the property with respondent no.13 and sold the rest property to the predecessor of the appellants. The said lessee and the purchaser, having been resisted in their attempt to take possession of the disputed property by the defendants on the plea of title alleged to have been acquired by the said defendant from Jagadaya Mallani, instituted the suit for recovery of possession.

The defendant sought to make out a case in their written statement firstly, that there was no remarriage of Jagadaya Mallani with Bokhan Malla but she lived with him as his concubine and secondly, that there having been a custom of remarriage in the community to which the Mallas belonged, there was no forfeiture of the property she inherited from her husband.

3 Ibid., p. 35.4 29 DLR 138 SC 1977.

On a consideration of the evidence as record and relying upon the decision referred to above the trial court came to the finding that there was no such evidence as showed that the custom of remarriage had been in vogue among the Mallas before the enactment of the Hindu Widow’s Remarriage Act, 1856 and as such held that the provision of S. 2 of the Act was unavailable in her case.

On appeal, the learned Additional district judge who heard the appeal affirmed the finding of the trial court that there was no evidence to show that the custom of remarriage was prevalent among the Mallas before the promulgation of the Act and taking which of a Division bench decisions of the Dhaka High Court in the case of Saudamini Roy Malakar v. Narendra Chandra Barman, dismissed the appeal holding that both under the Act as well as under the principle of Hindu law, a Hindu widow by her remarriage forfeited her right to her husband’s property even if remarriage is allowed under the custom of her caste. A second appeal against the said judgment being heard by the learned Chief Justice of the Dhaka High Court was allowed and the suit was dismissed. There having been no such evidence on record in the said case, it was ultimately remanded to the trial court for findings on two issues under order 41, rule 25 of the Code of Civil Procedure, 1908 namely, whether there had been any such ancient custom of widow remarriage and whether, if there had been a corresponding custom of forfeiture of widow’s right to her previous husband’s property.

On the analysis of the principles laid down in all these decisions referred to above, it appears that the question, whether a widow losses her right to her husband’s property on her remarriage which is sanctioned by the custom of her caste has been approached mainly from two different stand points, namely, the one relating to the principle of Hindu law and the other being solely a question of interpretation of the positive provision of S. 2 of Act XV of 1856.5

On a review of the important judicial authorities having a bearing on the point in the light of the principle of Hindu law relating to a Hindu widow’s right to the property of her deceased husband and the effect of her remarriage on such right and on an examination of the provision of Hindu Widow’s Remarriage Act, 1856, we were of opinion that a Hindu widow’s right to her deceased husband ceases on her remarriage even though such remarriage is sanctioned under the custom of her caste, both under the general principle of Hindu law as well as under S. 2 of Act XV of 1856.

The result therefore, is that this appeal is allowed, the judgment and decree of the High Court are set aside and the decrees of the court below are restored, but there shall not be any order as to cost is this appeal.

V.Position of daughter after marriage

A daughter on marriage ceases to be a member of her father’s family. So she is entitled to be maintained by her husband and after husband’s death out of the husband’s estate then her father-in-law. If he has got a sufficient property of his own is morally though not legally bound to maintain her, but after his death she acquires a legal right to be maintained out of his estate.6

If the daughter is unable to obtain maintenance from his family- his father, if he has got a separate property of his own, under a moral obligation to maintain her.

But it is not settled whether, after the father’s death she acquires a legal right to be maintained by his heirs out of the estate.

Marriage Case No. 2.Matilal Sarcar and others v. Brajabashi Biswas and others.7

5 4 DLR (1952) 492 cited in 29 DLR (1977) 152.6 Mridul Kanti Rakshit, Principles of Hindu Law, 5th Edition (Dhaka: Kamrul

Book House, 2005), p. 113.7 12 DLR 142 (1960).

An heir under the Hindu law is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance.

This appeal is by the defendants in a suit filed by the plaintiff Brajabashi Biswas and another for declaration of title and recovery of khas possession of the suit land on the ground that Rajeswari, a life estate holder, transferred the property to the defendant Matilal Sarcar without any legal necessity and the sale is not binding on the reversioners the plaintiffs, after the death of Rajeswari.

Admittedly, the suit land belonged to one Budharam exclusively by partition with his co-sharers. Budharam died leaving a widow Rajeswari Dasya, two widowed daughters (sonless), namely, Phulamala Dasya and Kalabati Dasya, and the plaintiff, his sister’s son. Rajeswari inherited a life estate only in the properly in suit. She sold the land of item no. 1 of the schedule to the plaint to defendants nos. 5-8 and items nos. 2-13 of the plaint schedule to defendant no. 1 on the 15 Falgoon 1360 B.S. corresponding to 27.02.54. The plaintiff’s case is that the sale of item no. 1 properly to defendants nos. 5-8 was without any legal necessities, that Rajeswari brought defendants nos. 1 to 3 in her house and began to maintain them, that in collusion with the defendants she sold the land mentioned in items 2-13 of the plaint schedule to defendant no.1, that this sale also was without legal necessities and collusive and without any consideration, that Rajeswari died on 20.10.54, that the plaintiffs being the sister’s sons of Budharam, are the reversionary heirs of Budharam and they ask the defendant to give up possession of the land in suit on 21.10.54, but the defendants in collusion with each other did not give up possession of the land in the suit in favour of the plaintiffs, and dispossessed them from the same.

Therefore, the plaintiffs filed the suit for declaration that they have got right, title and interest in the suit land and the defendants have got no right to dispossessed the plaintiffs from the land in suit and that the defendants are merely trespassers in the land in suit.

The plaintiff also allege that Budharam was a well-to-do man, that he had no debt that he left movable property also, that the usufructs of the property left by Budharam was sufficient for the maintenance of Rajeswari, that there was no legal necessity for selling the land in suit to defendant no. 1 as well as to defendant no. 5.

The suit was contested by defendant no. 1 denying the material allegations made in the plaint and he asserted that Budharam’s two daughters, defendants nos. 3 and 4, who became widows after some time were compelled to take shelter in their father’s house, as their husbands had no property. That Budharam had some debts and Rajeswari also incurred debts for the maintenance of herself and her widowed daughters and for repaying the debts of Budharam and for the sraddha of Budharam, as the usufruct of the property left by Budharam was not sufficient for her maintenance, that Rajeswari had to maintain herself and her daughters by borrowing money from defendant no.1 and from others and from usufruct mortgage, that as Rajeswari found no means of maintenance as most of her lands were in mortgage, and for paying off the debts, she offered to sell the land of item no.1 was for legal necessities and for valuable consideration and defendant no. 1 has acquired right, title and interest in the land in suit by purchase. The defendant also denied that the plaintiffs are the sisters sons of Budharam of or are the next reversionary to be competent to maintain the suit.

The trial court dismissed the suit, holding that the sale to defendant no. 1 by Rajeswari was for legal necessities, for paying of debts incurred by Rajeswari, for the maintenance of herself, her widowed daughters and her grand daughters, who are entitled to get maintenance under the Hindu law and for the sraddha of her husband Budharam. The trial court also found that the solehnama field by defendants nos. 5-8 was collusive and fraudulent and as such refused to record the comprise.

On appeal, the learned additional district judge decreed the suit so far it related to the properties nos. 2-13 sold to defendant no. 1, holding that the evidence of legal necessity adduced by the defendant was contradictory and as such, not satisfactory to prove the legal necessity and affirmed the judgment and decree of the trial court in respect of properly no. 1 sold to defendants nos. 5-8. He also found that the evidence

adduced by the defendants to prove that the widowed daughters of Budharam were really destitute to be entitled to get maintenance from the property life by Budharam also not satisfactory.

It is necessary to ascertain whether the widowed daughters of the deceased are entitled to get maintenance from the properties of their father. The evidence of defendant no. 1 is that Phulamala became a widow during the life time of Budharam and came with her little daughters to stay with him. The evidence of defendant no. 3 is that Sanatan, the husband of Phulamala, died before the death of his father. There is no evidence that Sanatan had any property of his own and as such, Phulamala is not legally entitled to get maintenance from her father-in-law’s property, if any. It is a moral obligation for her father-in-law to maintain her. Further there may be circumstances in which it is not possible for a Hindu widow to stay at her father in laws house after the death of her husband. If there are such circumstances, certainly she can be treated as destitute to be maintained by her father’s property under the Hindu law. Apart from this consideration the fact remains that during the life time of Budharam his daughter Phulamala came with her daughters to stay with her father and, on his death, they were dependent on the family of Budharam and were entitled to be maintained out of the property left by the deceased.

Now coming to the other widowed daughter Kalabati, the evidence of defendant no. 1 is that she was married after the death of Budharam and soon after she became a widow and came to stay with her mother Rajeswari and the expenses of this marriage had been met by Rajeswari out of the income of the property of Budharam as well as by borrowing. Even if it is accepted that Kalabati became a widow after the death of Budharam the evidence of defense side is that her husband left no property to maintain her. On the other hand the plaintiffs could not prove that she had sufficient means to be maintained out of the property of her husband. In this view of the matter, she was also entitled to get maintenance from her father’s property when she came to stay as destitute daughter of the deceased Budharam.

The opinion expressed by the Calcutta High Court is that she does acquire such a right, provided she is unable to obtain maintenance from the husband’s family. In view of the fact that Kalabati’s husband left no means for her maintenance and in the absence of any evidence that there are means or properties out of which Kalabati could be maintained, she is entitled to be maintained out of the property of her father in the hands of her mother. So if Rajeswari borrowed money for her own maintenance as well as for the maintenance of the widowed daughters and their daughters, these expenses come within legal necessity and if she transferred the property on account of this loan, the transfer is for legal necessity.

In view of this evidence the findings arrived at by the learned additional district judge, that the widowed daughters come to live with Rajeswari not because they were destitute but because the mother wanted them to live with her in absolutely without any foundation and are liable to be set aside. Further, if the widowed daughters are destitute, their daughters also came within the meaning of destitute relations to be maintained out of the income of the property left by Budharam, and, if Rajeswari borrowed money and incurred loans for the maintenance of herself and her daughters, they are legal expenses and if, for the loans incurred by her, she transferred the property in satisfaction of the loan taken from defendant no. 1 it is for the legal necessity.

The result, therefore, is that this appeal allowed with costs and the judgment and decree of lower appellate court are set aside and those of the trial court restored. In view of the decision in the appeal the connected rule has become infractions and it is discharged without any order as to costs.

VI.Distinction between different forms of marriage

The chief distinction between approved and disapproved forms of marriage is that wife married in an approved form becomes a patni; but one espoused in a form does not become a patni; but one espoused in a form does not become a patni. It is to be remembered that according to mitakshara law a patni or a lawful wedded wife is sapinda of the husband with natural rights of successions; whereas a wife, who is married in a disapproved form, does not become her husband’s sapinda and can not inherit from her husband nor can be inherit from her.

In modern times, however this distinction has no practical importance, because wives exposed in the asura form of marriage enjoy the rights of patni. Modern tendency is to regard every marriage, brahma or asura is the approved form of marriage.

In short, where a question arises as to whether a marriage was in approved or in a disapproved form, the presumption is that it was an approved form unless the country is proved.8

Marriage Case No. 3Utpal Kanti Das v. Monju Rani Das.9

Once the celebration of a marriage in fact is established there shall be a presumption of there being a marriage in law and observance of the essential ceremonies.

As marriage in fact has been proved in this case, marriage in law must be presumed. In the absence of any evidence to the contrary it is therefore, proved that the plaintiff and the defendant were married according to the Hindu shastra. Having denied the marriage altogether and, in fact, having not raised the plea of invalidity of the marriage because of non performance of an essential rite, it is futile for the defendant now to come to this court and pleaded that the marriage was bad in law for want of performance of any of the essential ceremonies, such as saptapadi.10

In this appeal by leave the defendant Utpal Kanti Das calls in question the property of the judgment and order dated 6 February 1994 passed by the High Court Division in civil order no. 653 of 1994 summarily rejecting his revisional application against the judgment and decree dated 10 November 1993 passed by the learned additional district judge, Manikganj in family appeal no.1 of 1992 reversing those dated 18 January 1992 passed by the family court, Saturia dismissing family court case no. 8 of 1991 brought by the plaintiff and respondent Monju Rani Das for her maintenance.

The parties to the both belong to the shudra caste of Hindu community. The plaintiff claim maintenance @ Taka 1000/- per month with effect from 1 Aswin, 1396 B.S. from the defendant alleging that the defendant who was in love with her had married her on 6 October 1988, 19 Aswin 1395 B.S.

According to the Hindu shastra at Tarasree Kalimandir in presence of several people. Subsequently on 8 October 1988 the plaintiff and the defendant together swore an affidavit before a Magistrate of first class, Faridpur confirming the marriage. After the plaintiff and defendant had lived as man and wife at the place of service of the defendant they came to the house of the plaintiff’s father.

The defendant demanded TK. 30,000/- as dowry from the plaintiff’s father. As the plaintiff’s father was unable to pay the dowry the defendant left her behind at her father’s place never to take any further news of her or pay any maintenance for her. The defendant subsequently married one Rani Das of the district of Mymensingh.

The defendant resisted the claim pleading that there was no marriage between the plaintiff and the defendant although the plaintiff made pressure to marry him at the house of the plaintiff’s maternal uncle where he lodged as a student. The defendant also disclaimed the affidavit which he said was take. The defendant did not take any plea that the marriage was invalid for want of any shastric ceremony.

The Trial Court disbelieved that there was any marriage between the plaintiff and the defendant and doubted the affidavit. In consequence the trial court dismissed the suit.

8 Ibid., p. 105.

9 50 DLR (AD) 47 (1998).

10 AIR 1963 Cal. 18.

The Appellate court discussed the evidence of each of the witnesses and the circumstances refuting the findings of the trial court and reversed the judgment clearly finding that there was due marriage between the plaintiff and the defendant, that the affidavit was genuine and true and that the spouse had lived together as man and wife. Accordingly, the appellate court reversed the decision of dismissal and decreed the suit in part allowing maintenance of the plaintiff @ Taka 500/- per month.

A learned single judge of the high court division summarily rejected the revisional application of the defendant himself the scrutinizing the evidence on record and observing that the appellate court being the final court of fact had appropriately reversed the Judgment of the trial court.

Leave was obtained to consider whether the High Court Division failed to determine what the requisites of a valid Hindu marriage are and whether the essential requisites for a valid marriage were omitted in the instant case rendering the marriage invalid.

There are two ceremonies essential to the validity of a Hindu marriage, namely, (1) invocation before the sacred fire, and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. There is no evidence in the instant case that these two essential ceremonies were performed and therefore, the marriage even if performed was not completed.

As already noticed the plaintiff specifically claimed that her marriage with the defendant was performed in accordance with the Hindu shastra and the defendant denied the marriage totally. He did not take any plea that any essential ceremonies attending celebration of marriage were omitted making the marriage invalid. The final court of fact, the appellate court and the High Court Division in revision have settled the fact hat there was a marriage ceremony between the parties in the temple of the deity Kali in presence of many persons. Both the courts, however, laid stress upon exchange of garlands between the plaintiff and the defendant in proof of marriage omitting to mention the other ceremonies attending the marriage.

It is obvious that nuptial rites in Hindu shastra are so complicated that an exact observance of their details is not easy and is beyond the comprehension of the ordinary participants or the attendants of the ceremony. But once the ceremony of a marriage in fact is established there shall be a presumption of there being a marriage in law and observance of the essential ceremonies.

In the instant case, there is evidence enough on record to show that the marriage between the parties had taken place and they lived together as married spouse. The witnesses have all borne out that there was marriage in accordance with the Hindu Shastra. The affidavit, which the defendant could not disprove by examining an expert, is also to the same effect. Even the defendant and all his witnesses could not deny that the plaintiff wore vermilion and couch bangles which a married Hindu woman wears in this country. They could not disclose whom else she was married to. Those apart, it is in the evidence of almost all the witnesses that the plaintiff and the defendant lived as husband and wife for about a year. From the circumstances revealed the appellate court and the High Court Division arrived at the correct conclusion that there was in fact a marriage between the plaintiff and the defendant. As marriage in fact has been proved in this case marriage in law must be presumed. In the absence of any evidence to the contrary it is, therefore, amply proved that the plaintiff and the defendant were married according to the Hindu shastra.

RIGHTS OF HINDU WOMEN IN ADOPTION

I.IntroductionA son is required for offering funeral cakes (pinda) and libation of water not only to him but to his ancestors also. A man who is not blessed with a son, may adopt one for the above purpose sometimes it is done out of natural love and affection.

The method of affiliation by adoption was very common in ancient societies, the reason being, that sons were such a necessity in those days. At first it was wholly secular, but gradually the religious element came to be introduced. Now the existence of sons is held to be more conducive to the spiritual purpose of the father than to his material welfare, and therefore adoption has become so much mixed up with religious

ceremonies. At present there are only two forms of adoption- a. the dattaka, and b. the kritrima. The dattaka, is prevalent throughout India, whereas the kritrima or the wholly secular one, is found only in Mithila.

It is former recognition of person as the son of another; adopted son is creature of law. He is spoken as secondary, subsidiary or a substituted son. His affiliation is stated to be an imitation of nature. His necessity arose from secular motive. His continuance has been assured by a assumed spiritual benefit, he is supposed to confer upon his adoptive father and his ancestors. It is to be noted that the genius of the Aryan race is such that it is prove to give a religious significance to all secular events. That is why adoption, originally a secular affair, came to acquire a religious significance. Thus, adoption considered necessary to continue the ancestral work ship and confer spiritual benefit upon the departed souls by offering pindas.11

II.Nature of women’s right to adoption

According to modern view a woman has got no right to adopt and she acts merely as an agent of her husband. A man can not authorize any other person except his wife to adopt a son for him. A joint power to the widow and other person or persons is invalid. A man having a son may give a conditional authority to his wife to adopt a son in case the son dies without any male issue.

A woman can not adopt to herself, the adoption can only be made to her husband and for his benefit. The theory that a woman can not adopt in the dattaka form except as the agent of her husband and for his benefit has been much controverted by some eminent jurists, who maintain that an adoption by a woman is primarily for her own benefit. The consent of the husband, required by Vasistah’s text, is to be referred to the presumed general incapacity of females independently to enter into any legal transaction, rather than to any special disability regarding the capacity to adopt.12

III.Authority to adopt to widow

The authority is to be given to the widow alone.

Joint authority given to widow and another is void.

Authorizing to widow to adopt with consent of specified person, the consent is to be taken before adoption.From the above it appears that the widow’s right to adopt entirely depends on the power and it must be strictly followed. The power must be exercised subject to the restrictions imposed by the husband. A widow has no larger power to adopt than her husband. A minor widow may adopt, provided, shall has attained the age of discretion. An unchaste widow cannot adopt. A widow cannot adopt a son to her first husband after remarriage. A widow is not legally bound to adopt though enjoyed by her husband to do so. Her right to her husband’s property is not affected by her omission or refusal to adopt. But an agreement by the widow in which she undertakes that she would not exercise her right of adoption is void as against the public policy.13

“Where a widow is empowered to adopt, inheritance to the property is not suspended for her non exercise of the power to adopt, if not exercised, ordinarily law of succession will follow”.14

Adoption case no. 1.Ram Dasi Pal v. Surabala Dasya & others.15

11 H. L. Chakravarty, Elements of Hindu Law (Calcutta: Eastern Law Company, 1954), p. 59.

12 S. K. Routh, Elements of Hindu Law (Comilla: Ideal Library, 1974), p. 35.13 Sundarlal T. Desai, Mullah’s Principles of Hindu Law, 15th Edition,

(Bombay: N. M. Tripathi Private Limited, 1998), p. 573.14 14 DLR 819 (1962).15 14 DLR 810 (1962).

When a widow is empowered to adopt a son, she cannot be compelled to act upon it unless she likes. Consequently vesting of inheritance cannot be suspended until she exercises her right to adoption. Furthermore, this right she may exercise or may not exercise.

In case of adoption by the widow or widow’s mother it will divest them when the properties are already vested in them subject to valid transfer; in other circumstances will an adoption made to one person divest the estate as heir of another persons.

There can be no divesting of the properties already vested in the deities.

Under the terms of the document the adopted son was to inherit shebaitship upon the death of this adoptive mother. Where the adopted son pre decreased the adoptive mother. It was contended that under Hindu law, more than one life interest cannot be created. Under Hindu law, creation of successive life-estate is valid.

Respondent no. 1 Surabala Dasya instituted a suit out of which the present appeal has arisen for a declaration for her right of shebaitship to the properties described in scheduled of the point with a consequential relief for injunction.

The properties in dispute originally belonged to one Paju Pal. He adopted a son namely Brindaban and gave him in marriage to one Jamini Sundari. The adopted son Brindaban predeceased Paju Pal leaving behind Jamini Sundari and a daughter Surabala who is the plaintiff in the present suit. His death took place on the 20 of May, 1912.

Therefore, on the 14 of July 1912 corresponding to 30 Ashar, 1319 B.S. Paju executed and registered a will which has been marked as Ext. 1 in this case. On the same date he executed an arphannama (Ext.2) dedicating some of his properties to the deities Laxmi Narayan and Gopalji. Shortly after Paju Pal died on the 20 of July 1912. On 8 of July, 1920 corresponding to 30 Ashar, 1327, B.S. Jamini Sundari the widow of Brindaban adopted Brajaraj on the basis of a power delegated to her by her husband Brindaban.

Thereafter, in March/April, 1925 corresponding to chaitra, 1331 B.S. Hara Sundari the widow of Paju Pal died. In May 1943 corresponding to Jaistha, 1350 B.S. the adopted son of Brindaban dies childless leaving behind a widow Ramdasi who is the defendant no. 1 in the present case. In 1955 Ram Dasi the widow of Brajaraj instituted title suit no. 13 of 1945 for her maintenance against Jamini Sundari the widow of Brindaban and mother-in-law of Ram Dasi, but the suit was dismissed with an observation amongst others that Ram Dasi was the owner of the property. In 1950, Ram Dasi the defendant no. 1 instituted title suit no. 14 of 1950 against Jamini and the deities and obtained an ex-parte decree.

Thereafter, Jamini died on 17 of December, 1950 corresponding to 12 pous, 1357 B.S. The plaintiff in the present suit field and application under order 9. rule 13 in title suit no. 14 of 1950 but the same was dismissed. It appears that Ram Dasi, the plaintiff of the title suit no. 14 of 1950 and defendant no. 1 in this suit took delivery through court on 19 of January, 1951. But it has found by the courts below that she could not get possession through the peon’s report was to that effect. It appears that she filed an application after the delivery of 19 of January, 1951 for second execution and delivery alleging inter alia that the decree holder, namely the defendant no. 1 was not put in and could not get possession but her application was dismissed.

Thereafter, on the 2 December 1953, Surabala, the plaintiff of the suit instituted the suit for declaration shebaitship and injunction. The suit was contested by the defendant no. 1 Ram Dasi alleging inter alia that the plaintiff was not the shebait of the properties of the deities but Ram Dasi was the shebait, that the plaintiff’s suit in respect to schedule 1 property which was gifted to her husband Brajaraj by her father-in-law Paju Pal devolves on her on the death of Brajaraj and such the said properties were neither debuttar properties nor the plaintiff had any right in those properties, that he claim that the properties were debuttar were barred by the principle of res judicata in view of the decision in title suit no. 14 of 1950, that the

plaintiff was not the shebait of the deities but it was Ram Dasi and that the suit were barred by limitation and bad for defect of parties.

On this present appeal there main questions are involved one is the applicability of the principle of res-judicata and two others in respect of interpretation of the will which has been marked.

Now the question is whether Brajaraj could have inherited shebaitship though Brajaraj predeceased the third executrix. According to the arphannama the right of shebait did and could not have vested in Brajaraj before the death of Jamini as the legacy did not become payable before the death of Jamini. Consequently, the defendant Ram Dasi could not have inherited anything from her husband Brajaraj.

Where the estate of a Hindu has vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was conceived at the time of his death, or by adoption in certain case of a son to the deceased.

Generally a widow’s power to adopt continues all her life time.

In all cases where her husband has died without leaving any son.

In cases where her husband has left a son if the son dies leaving her as his nearest heir.

In the first ease, the widow succeeds to the estate as her husband’s heir in the second case she succeeds to the estate as the heir of her son. In either case, the estate vests in her, in the one case immediately on the death of her son. By adoption she divests no estate except her own. But vesting or divesting is no longer of importance.

In the case Srivivas Krishaarao Kango v. Narayan Devjit Kango and others,16 we find the report, which was quoted with approval.

As regards collateral succession opening before adoption, it has been held that an adoption can not relate back to the death of the adoptive father so as to entitle the adopted son to claim the estate of a collateral relation, succession to which opened before his adoption.

From the authorities on Hindu law it appears that when a widow is empowered to adopt a son, she can not be compelled to act upon it unless she likes. Consequently vesting of inheritance can not be suspended until she exercise her right in adoption. It further appears that authorities did not extend the theory of birth by fiction of law to inheritance and divesting of property already vested in another person. From the authorities quoted above, it is clear that the fiction of law on the question of birth or adoption should not be extended equally on the question of devolution and divest of properties and spiritual benefit by continuing the life, as the claim of the adopted son to divest a vested estate rest on a legal fictions be extended.

In the present case after the death of Paju Pal, the properties described in (ka) schedule vested absolutely in the deities as there was no adoption during the life time of the testator, namely, when the succession opened but the adoption was 8 years thereafter. The deities had the right, properties being vested in them to deal with the properties in any way without deterrence of any person outside. Then again the adoption was not to the last male holder, namely, Paju Pal but it was to his predecessor son Brindaban. So in any way according to the authorities cited there can be no divesting of the properties already vested in the deities. Furthermore, by adoption by Jamini in the present case, she was not divesting herself of her property as it did not vest in her. But she was trying to divest the deity, third party, which is against natural justice and furthermore power to adopt not given by Paju Pal to her but it was given by Brindaban, the husband of Jamini who died on the 20 May, 1912 whereas adoption took place in 1920.

16 Cited in 14 DLR (1962) 810.

For the aforesaid reason, on the death of Paju Pal the property described in schedule I vested in the deities and on adoption by Brajaraj by Jamini’s 81 years after the death of Paju pal did not divest the deities of the properties already vested in it. Similarly shebaitship also vested in Surabala Dasya, the plaintiff.

IV.The rights of widow to make an adoption

This rule occurs in the case law, where a widow whose husband was entitled to as jivai grant which could descent only to his male issue adopted a son to her husband and the adoption was held valid showing here by that the widow’s right to adopt is not dependent on her inheriting her husband’s estate as a female heir.17 The said principle is not to be found in the case of law, where a widow whose husband held an impartible zamindariny which could descent only to his male issue adopts a son it his pursuant to an express authority from. Again in case law, a widow whose husband was joint at his death adopts a son to her husband in each of these cases, the adoption was held valid, though the estate was not vested in the widow, at the time of adoption.18

V.Divesting of estate on adoption

The question of divesting on adoption arises only when a Hindu dies without a male issue and authorizes his widow to adopt or when he dies leaving behind a son and authorizes his widow to adopt in the event of death of that son without a male issue. As soon as a Hindu dies, his estate must vest either in his widow or any nearest heir. Hence, arises the question of divesting on subsequent adoption. The ordinary principles of Hindu law being that an estate once vested cannot be divested by reason of any subsequent disqualification of the heir, or by reason of nearer heir coming into existence after wards, divesting by adoption is an exceptional rule and is entirely based on judicial decisions which do not seem quite consistent.19

The adopting widow becomes divested by adoption which in an act of her own choice. If there are more widows and one of them adopts a son in exercise of the power granted by the husband all the widows become divested. When on the existing son’s death the estate vested in his widow or in another heir, it was held that his mother in the former case and his step mother in the latter could not adopt and cause the estate to be divested.20

Adoption of a son to her husband by a Hindu widow under the Dayabhaga School of law, relates back to the time of her husband’s death. But the adopted son is not entitled to inherit the property of collateral which vested to the other collaterals before the date of adoption.

On an adoption made to a coparcener in an undivided family, the adopted son takes the place of a legitimate son and he divests the estate of any one, who in his absence takes his father’s interest.Adoption Case No. 2.

Joy Kumar Dutta and others v. Sitanath Dutta, adopted son of Late Jyotish Chandra Dutta.21

Under the dayabhaga system if two or more sons succeeding to ancestral properties live jointly and acquire properties in the name of any member of the family, the presumption will be that all the properties acquired during the estate of jointness are joint family properties, but such a presumption is rebutable and may be displaced by the person alleging the property to be his self acquired properly.

The rule of construction generally is that a will must be read as what to ascertain therefrom the intention of the testator and having so ascertained, that intention must be given effect to so far as legally possible.

177 40 Bom 778.188 1 Mad 69.199 S.T. Desai, ibid., p.463.2010 10 MIA 179.21 4 DLR (1952) 400.

Chhatranarayan’s properties were inherited by his sons Trahiram and Debidas in equal shares. Debidas’s 8 as. share was inherited by Golak. Trahiram executed a will in 1882 by which he bequeathed his 8 as. share to the four sons of his nephew Golak as follows.

Jagat 6 as., Rajchandra 4 as., Jyotish 3 as., Satish 3 as. It was also provided in the will that if any of these four grandsons children, his share would devolve upon the other grandsons.

Now the plaintiff’s case is that Golak died intestate leaving four sons Jagat, Rajchandra, Jyotish and Satish who formed a joint family under dayabhaga school of Hindu law. Jagat being the eldest acted as the karta of he family. Jagat died leaving his sons Kali Mohan defendant no. 1, Daksina Ranjan, defendant no. 4, Monmohan and Sasanka and his heirs. On Monmohan’s death, his sons Narendra defendant no. 3 and Amarendra, defendant no. 4 inherited his shares. Sasanka died childless. On Jagat’s death, Rajchandra became the karta of the family. In 1926 Rajchandra died leaving his sons Manindra defendant no. 5, Fanindra, Dhirendra defendant no. 6, and Sudhindra, defendant no. 7 as his hairs. Fanindra died leaving a widow Manibala, defendant no. 8. On Rajchandra’s death, Kali Mohan managed the joint family as Karta.

On the 12 December 1906 Jyotish died childless survived by his widow Jogmaya Dassi. Two days before his death, he executed a will giving his widow Jogmaya power to adopt three sons in succession with the limitation that her choice must fall upon the sons of his brothers, Jagat, Rajchandra and Satish. On the 25 February 1937, Sitanath the youngest son of Jyotish was taken in adoption by Jogmaya Dassi. Sitanath as adopted son of Jyotish is asking for declaration of title to one fourth share of the suit properties and for joint possession. He also asked for the declaration that the documents and khatians which were prepared by the defendants in collusion with one another may be declared void and inoperative.

Thirteen written statements were filed. They all challenged the validity of the adoption. In this appeal, however we are concerned only with defendants’ appellants’ nos. 1 ka, 1 kha, 2, 4, 12, 13 and 16. Defendant no. 1 having died, his heirs 1 ka and 1 kha have been substituted in his place. Defendants nos. 1, 2 and 4 filed a joint written statement challenging the validity of the adoption. They contended that on Jyotish’s death, the properties which he had got under Trahiram’s will passed to his brothers and as such plaintiff had no title to the said properties. It was further contended that Golak left a will in 1888 by which he gave 6 as. to Jagat, 3 as. 6 ps. to Rajchandra, 3 as. 3 ps. to Satish and Jyotish each. So, according to them, the plaintiff’s share can not be more than one anna and 7.5 pies. It was also contended that all the properties mentioned in the schedule were not joint properties and that Jagat who was a sheristadar of the judge’s court at Chittagong had acquired some of those properties with his own money and possessed them separately. According to them, there was separation of the joint family in 1910 for the purpose of better management, they held some of the properties jointly which were ultimately partitioned in 1918. They also took the plea of limitation and adverse possession.

Defendant no. 12, Sukhoda, wife of defendant no. 1 Kali Mohan, defendant no. 13 Promila Bala Dutta and defendant no. 16 Amir Hossain filed separate written statements claiming certain properties as bonafide purchasers for value. The learned subordinate judge held that the adoption of the plaintiff was invalid in law and hence he dismissed without dealing with the other issues.

On appeal, the High Court held that the adoption of the plaintiff was valid in law and remanded the ease for decision on other material issues.

Now the privy council has frequently pointed out that adoption of a son by widow to her deceased husband deemed to relate back to the husband’s death.

The next and most important question for consideration is whether the plaintiff is entitled to inherit the property which his adoptive father got under Trahiram’s will. The adoptive father got a life interest in as. 1-6 of Trahiram’s 8 as. and on his death, the said as. 1-6 vested in his brothers, Jagat, Rajchandra and Satish

and hence the plaintiff by his subsequent adoption could not succeed and divest them of the shares which had already vested in them. Jyotish has got an absolute interest is as 1-6 pies under Trahiram’s will and hence the plaintiff is entitled to inherit the said share also.

Next take up the question whether the plaintiff is entitled to get any share in the property of Trahiram which has vested in the brothers of Jyotish on Jyotish’s death. Jyotish died in 1906. The properties that Jyotish got under Trahiram’s will vested in his brothers. In 1937 Jyotish’s widow adopted the plaintiff. No doubt if the plaintiff was alive at the time of Jyotish’s death, he should have inherited as. 1-6 in which his adoptive father Jyotish got a life estate under Trahiram’s will. But it should be determine in this case whether he having not been adopted before Jyotish’s death, his subsequent adoption after 30 years of the death of Jyotish would confer upon him any right to claim the said share from the persons in whom it had vested under Trahiram’s will.

The plaintiff cannot succeed in this case unless he can establish that on his adoption, the ownership of the said property was divested from the persons who had succeeded to them upon the death of Jyotish and vested in himself.

There is no limitation of time within which a Hindu widow is bound to exercise the right of adoption, and there might be cases not of infrequent occurrence in which person rightfully succeeding to properties as heirs might, after a long lapse of time be suddenly called upon to relinquish their possession in favor of a person adopted into the family of the last owner many years after the death of the later.

The case of a widow adopting a son after her husband’s death, and thereby divesting the estate which she took upon the death of her husband without issue, is one in which only her own estate is divested. There is no case in which an estate vested in a male heir by inheritance can be divested by the adoption of a son by a widow after her husband’s death, and the case of a widow divesting her own estate by the adoption of a son is not one from which inferences can be drown by analogy as to divesting of an estate once vested in a male heir by inheritance.

Sir Barnes Peacock delivered the judgment in the case of Bhubaneswari Debi v. Nilkomul Lahiri, as follows.“The widow never could, by adoption, if there have been no fraud, have made the present plaintiff a reversionary heir of half the estate of Ram Mohan, because he was not in existence of the time of Chandmoni’s death. According to the law as laid down in the decided cases an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral.”22

Therefore considering the question about the plaintiff’s claim to the property of his adoptive father which was bequeathed to him by the will of Trahiram from the point of view of the texts of Hindu law as prevalent in Bengal and the decided cases. The plaintiff cannot succeed and therefore the decision of trial court in plaintiff’s favor as regards that share must be set aside. The result, therefore, is that the plaintiff is entitled to only two annas share.

VI.Rights of adopted son

Where a son is born to the adoptive father after the adoption.

Where he has been adopted by a disqualified heir.

Adoption once made cannot be cancelled by a subsequent deed and the status of the adoptive son as such cannot be altered. 23

Barren married daughter by adoption with consent of her husband can stop the inheritance of her father’s estate to pass to reversioners.

22 Cited in 4 DLR (1952) 401.23 13 Noshivan H. Jabvala, Principles of Hindu Law (Mumbai: Educational and

Law Publishers, no date), p. 310.

Adoption case no. 3.Abdul Gani Khan v. Tamejuddin Howlader and others.24

An adopted son to a barren married daughter under a dayabhaga Hindu law would have the same position as that of a legitimate son or like any of the first six grades of sons as enumerated in the Hindu texts and he would succeed to the estate of adoptive maternal grandfather’s properties. In an appropriate case a barren married daughter of a Hindu governed by the dayabhaga school can stop inheritance of her father’s property to go to her father’s reversionary heir by creating a son by adoption with the consent of her husband. The text of Hindu law bears it not that under the Bengal school all daughters cannot succeed to the property of their fathers but some of them may and can; and it enumerates that the first to inherit is the unmarried daughter and then a married daughter having a male child and she excludes a married daughter and having daughters only and also married but barren daughters and married widowed daughters.

It appears from record that by a kabala dated the 6 May 1930. Basanta son of Kashinath purported to sell 2 annas share inherited from his father and 2 annas share of Rashmoni, acquired by him as a reversionary heir of Jagat, in all 4 annas share of the tenure to the defendant no. 2 Abdul Gani. It further appears that by another kabala dated the 9 October 1939, defendant no. 2 Abdul Gani in the benami of Nagen Biswas purported to purchase the remaining 12 annas share of the said tenure from defendant no. 4 Alok, defendant no. 5 Mahadeb, Srinath and Sibehandra though their shares amounted to only 9 as. 6 gs. 2 ks, 2 krantis share.

The plaintiff in his plaint after setting out the shares of the defendant tenure holders as appear from the record of rights alleges that one Khosal Chakravorty was mortgage of the 4 annas share of Srinath and Kasinath and for realization of the mortgage dues Khosal instituted mortgage suit no. 33 of 1939 against Srinath, Basanta son of Kasinath and defendant no. 2 Abdul Gani, and obtaining a decree in that suit put that decree in execution in title execution case no. 605 of 1934 and purchased the mortgaged properties on the 24 April, 1935 and after confirmation of the sale on the 12 June 1935 took delivery of possession through court on the 14 March 1936; and thereafter Khosal Chakravorty sold his purchased interest in the tenure to the extent of 4 annas to the plaintiff by a kabala on the 31 May 1941.

It is further alleged by the plaintiff that by kabala dated the 23 December 1940, he purchased two annas share of Rashmoni and 1 as. 6 gs. 2 ks. share each of Aswini and Anath Haldar. Thus the plaintiff claims title to and possession in his purchased 8 as. 13 gs. 1 k. 1 kranti share of the suit and prays for possession of the same on partition by metes and bounds. It is alleged in the plaint that defendant no. 1 Nagen, defendant no. 2 Abdul Gani and defendant no. 6 Jogneswar claim title to the lands of the tenure in the remaining 7 as. 6 gs. 2 ks. 2 krantis share.

The defendant no. 2 disputed the share claimed by the plaintiff and his possession of the suit land and also pleaded limitation. He states that Anath and Aswini each had 1a. 6 gs. 2 ks. 2 krantis share. He further asserts that though Rashmoni was recorded to have 2 as. Share but in title suit no. 542 of 1926 brought by her mother Dhanalaksmi against Rashmoni and her husband Agni there was a compromise decree whereby Rashmoni relinquished her interest in favour of Dhanalaksmi and the suit was dismissed against Agni. It is not in dispute that the land in suit no. 542 of 1926 is identical with the present suit land and so Rashmoni had no interest to be transferred to the plaintiff by the kabala dated the 23 December 1940. It was further asserted by the defendant no. 2 that the plaintiff did not derive any title by purchase from Anath and Aswini because Anath died long before the kabala and Aswini became a sannyashi renouncing the world.

The defendant no. 2 asserted that by his purchases from Basanta on the 6 May 1930 and the shares of Srinath and others on the 9 October 1939 he held acquired title to 16 annas share of the tenure.

Defendant no. 6 claimed title to 2as. 13gs. 1k. 1 kranti share by purchase from one Ganesh in June 1943 and both defendant 2 and 6 stated that plaintiff was not entitled to any relief in a suit for partition without praying for declaration of his title to and possession on payment of advalorem court fees.

24 5 DLR 440.

At the trial plaintiff alone examined himself and stated that Dhanalaksmi died 15/16 years ago and Agni died 6/7 years ago and that he purchased from Rashmoni when Dhanalaksmi was already dead and that Anath was uncle of Aswini and he died leaving Aswini as his sole heir.

The trial court found that the plaintiff had possession, that defendant no. 6 had no share and that the plaintiff had acquired title to 8 as. 13 gs. 1k. 1 kranti share and that the defendant No. 2 had title to 7 as. 6 gs. 2 ks. 2 krantis share and decreed the suit in the preliminary from but there was no order for costs.

On appeal by the defendant no. 2 the learned subordinate judge affirmed that decision. Hence this second appeal by the defendant no. 2 and Mr. Obaidul Huq the learned advocate for the appellant argues firstly, that plaintiff is not entitled to the share of Rashmoni, secondly, that the plaintiff is not entitled to the share of Anath and, thirdly, that the lower appellate court had been wrong in not coming to a finding as to possession.

One consequence of the above principle has been the improvement in the daughter’s position in the Bengali school that reserves to her right of inheriting from her father. For, according to the dayabhaga, a daughter who is a widow, or is barren, or fails to bring forth male issue or daughters or for some other case is excluded from the inheritance of her father.

But according to the law as it now stands a daughter who is capable of having an adopted son can not be excluded, and that she may be disqualified in the manner set forth in the dayabhaga. This is the law as has recently been laid down in a case in the Calcutta High Court, where an adopted son was taken by a Hindu woman of 62 years, and the question arose before the Calcutta High Court Division bench whether by such an adoption properties of the adopted son’s mother’s father could be inherited or not by the adopted son, and if was ruled in the case of Umakanta Bhattacherjee v. Bedbati Debi,25 that an adopted son to a barren married daughter under the dayabhaga Hindu law would have the same position as that of a legitimate son or like any of the first six grades of sons as enumerated in the Hindu texts and he would succeed to the estate of adoptive maternal grand father’s properties. By citing texts and authorities has shown clearly and has laid down that in an appropriate case a barren married daughter of a Hindu governed by the dayabhaga school can stop inheritance of her father’s property to go to her father’s reversionary heir by creating a son by adoption with the consent of her husband. It is not possible to convert that position in law in any way. Therefore when succession to Jagat’s property opened there was only a barren married daughter and that daughter not having exercised her right of preserving the line age of her father by adopting a son with her husband’s consent, the position was that the property would go either to the brothers of Jagat if they or any of them were living or to Jagat’s brother’s sons surviving when succession opened.

That being so, it would defeat the claim of the plaintiff to the share of Rashmoni because Rashmoni could not succeed to the property of Jagat, which is the admitted case here and it is nobody’s case that two annas share recorded in the record of rights in her self acquired property but it is the admitted case that she is entitled to 2 annas share of her father Jagat. It is admitted on all hands and by both the parties that the properties belonged to Jagat and she might have been regarded as such at the date of its final publication because she was found in possession, but that did not give any title to her properties as an entry in the record of rights could not create title. That being the position the plaintiff’s suit must stand dismissed so far as his claim to 2 annas share alleged to have been acquired by purchase from Rashmoni.

The result, therefore, will be that the plaintiff’s share as decreed by the two courts below must be reduced by 2 annas, the plaintiff would be entitled to claim partition in this suit will be 6 annas 13 gandas 1 kara 1 kranti only.

Rights of Hindu Women In SuccessionI.Introduction

25 Cited in 5 DLR (1953) 449.

Succession is wider term than the term “inheritance”. Succession means the taking of property which comes to one on the death of another. In Hindu law, succession and survivorship are two different things and the former does not include the latter. So succession means the passing of inheritance of property from the dead person to living person which is regulated by the provisions of personal law of Hindus. Strictly speaking, succession should be confined only to the latter modes of devolution, since the right of survivorship arises on birth and not upon death of any coparceners.

In Indian sub continent, intestacy is the general rule unless and until the property is effectively disposed of by “wills” to others, the heir will take the property by inheritance. Intestate succession among the Hindus is governed by the personal law of Hindus. The devolution of property of Hindu, dying intestate may be by inheritance or survivorship, according to the nature of the property. If the property was his separate property or self acquired property, then it passes to his heir by inheritance.

So the expressions succession and devolution mean the passing of the interest in property from the dead person to the living person which is regulated by various principles of the personal law of Hindus.26

II.Following female has succeeded as heir to a male

The widow. Daughter. Mother. Father’s mother. Father’s father’s mother. The son’s daughter. Daughter’s daughter. Sister. The widow of a predeceased son. Widow of a predeceased son of a predeceased son.27

III.Widow

Under the dayabhaga law, the widow inherits both ancestral and self acquired co-properties of her husband. Her interest in the property is of course a limited interest.

After the passing of the Hindu Women’s Right to Property Act (Act XVII of 1937), the widow is entitled to inherit in her husband’s property with the sons and she will inherit to the same share as a son. The interest she inherits is known as the widow’s estate. Under the Hindu Women’s Right to Property Act 1937 all co-widows together get a share equal to that of a son. It is to be noted that widow is not entitled to get agricultural land under Act XVIII of 1937. She has got the right to inherit in Homestead land but she will get maintenance from Agricultural land.28

Succession Case No. 1Sheik Md. Siddique v. Hari Lal Nath and others.29

Hindu widow acquires no right, title or interest in agricultural lands by inheritance fact that suit property consists of takes and dwelling house does not make it non-agricultural property.30

26 1 H. L. Chakravarty, Elements of Hindu Law (Calcutta: Eastern Law Company, 1954), p. 85.

272 Ibid., p. 92.283 22 DLR (1970) 262.29 22 DLR 359 Dha. (1970).30 S. 3 of Hindu Women’s Right to Property Act (Act XVIII of 1937).

Unilateral lease document void for offending against provisions of S. 107 of Transfer of Property Act 1882, lessor and lessee respectively executed unilateral patta and kabuliyat on the same day, the two documents can not be treated as one for complying with the provisions of S. 107, held as each of the documents has not been executed by both the lessor and the lessee, the lease is void.

The case for the plaintiff appellant is as follows.

The house, tank, pathway and khai situated in R.S. plot nos. 10717, 10718, 10720, 10722 and 10723 in R.S. khatian no. 38 of mouza chandgaon, P.S. Panslaish, district Chittagong originally belonged to late Akhil Chandra Nath who died in 1943 leaving behind his son defendant no. 2 Hari Lal Nath and widow defendant no. 1 Jashoda Bala Nath as his only heirs. The said two defendants inherited the said properties in equal shares and possessed them jointly.

At the time of the death of his father the defendant no. 2 was aged about 4 years. When Pakistan come into being as an independent state the relations of the defendants and other members of their community sold away their properties and left for India. When the defendants proposed to dispose of the suit properties, plaintiff’s father Md. Yahia agreed to purchase the said properties for Rs. 1, 200/-.

On receipt of Rs. 700/- defendant no. 1 Jashodsa Bala Nath executed a bainanama in favor of plaintiff’s father. When defendant no. 1 refused to accept the balance amount of Rs. 500/- and execute the kobala, the plaintiff’s father field other suit no. 28 of 1952 against defendant no. 1 agreed to refund Rs. 700/- with costs of plaintiff’s father, the suit was allowed to be dismissed for non prosecution on 10.11.1952. As Jashoda Bala Nath had no means to pay Rs. 700/- with costs of Rs. 200/- of that suit and as she needed money for the maintenance of herself and her minor son Hari Lal Nath and also for the educational expenses of the latter, Jashoda Bala Nath on her own behalf and on behalf of her minor son accepted a further consideration of Rs. 600/- and after adjustment of Rs. 900/- executed the path on 26.08.1952 granting lease of the suit properties to the plaintiff for 99 years for use in any manner, the plaintiff on the same day executed kabuliyat, in favor of the defendants.

On 29.08.1952 Jashoda executed kabala, in favor of the plaintiff’s mother Mainuna Khatun transferring the rent receiving interest in the suit properties. The defendants are not vacating the suit lands in spite of repeated requests by the plaintiff. The plaintiff asked the defendants to vacate the suit lands last on 01.01.1955. As the defendants are not vacating the same, the plaintiff prays for recovery of khas possession of the suit properties on a declaration of his Dar-raiyati interest therein.

Hari Lal Nath contested the suit by filling written statement. He denied the plaintiff’s allegations that his mother ever contracted to sale the suit properties to the plaintiff’s father on receipt of Rs. 700/- or that Jashoda promised to repay Rs. 700/- with costs of Rs. 200/- to the plaintiff’s father when the other suit no. 28 of 1952 was dismissed for non prosecution or that Jashoda granted the lease by patta, on receipt of any money on her own behalf and on behalf of Hari Lal Nath for legal necessity. Hari Lal Nath received no education after his father’s death. He tailoring and earned his own livelihood since his boyhood. No amount was required to be spent by Jashoda Bala Nath for the maintenance and education of Hari Lal Nath. The defendants are all along in possession of the suit properties. The plaintiff never got possession therein. The plaintiff secured the patta, fraudulently from Jashoda Bala Nath who is all illiterate widow. The plaintiff has no right, title and interest in the suit properties and therefore, he is not entitled to get any decree as prayed for.

In view of the fact that the courts below have concurrently found that there was no legal necessity for the transfer, the learned advocate for the plaintiff appellant admits that the transfer made by the Jashoda Bala even if it was valid would not bind the interest of Hari Lal Nath in the suit properties.

The learned advocate for the plaintiff appellant however argued that the court of appeal below referred in law in holding that the lease was invalid even if it was for non agricultural purpose as the unilateral patta and kabuliyat, offend against the provision of S. 107 of the Transfer of Property Act. The learned advocate argued that as the patta was executed by Jashoda Bala and the kabuliyat was executed by the plaintiff

appellant on the same day these two documents should be treated as one and accordingly it should be held that the provisions of S. 107 of the Transfer of Property Act 1882 have been complied with.

S. 117 of the Transfer of Property Act 1882 provides that provisions of the said act will not apply to leases for agricultural purposes. Therefore, if it is held that it was not a lease for agricultural purpose, as each of the documents, has been executed by both the lessor and lessee the lease is void.This view finds support in the case of Budhan Mathon v. Ramanugrah Singh and another. In this case a division bench of the Patna High Court held.

“Where a lessor alone executes a patta and the lessee alone executes a kabuliyat, no valid lease is created as the patta which creates the lease in not executed by both the lessor and the lessee as required by S. 107. The two instruments can not be regarded as one so as to create a valid lease satisfying the requirements of the section. Even assuming that the kabuliyat creates a lease, as there are two instruments, according to S. 107 both the instruments should be signed by the lessor and the lessee”.31

But a widow must not alienate her husband’s property according to her pleasure, like her stridhan. So transfer by a widow of the property of her husband without legal necessarily is not valid and reversioners get the restoration of the said reversioners can get the restoration of the said property. So a Hindu widow enjoys life interest in the estate of her deceased husband she can transfer such property on the ground of legal necessity.32

Before the passing of Act XVIII of 1937, when there is no grand son and great grand son women are entitled to inherit their husbands’ property and they take a limited estate called the widow’s estate. On her death the estate goes not to her heirs but to the next of her husband called reversions. She is entitled to the income of the property. But she has no power to transfer both before and after the passing of Hindu Women’s Right Property Act (Act XVIII of 1937), except for legal necessity. Under the statutory provisions of Act XVIII of 1937 the widow has got power to partition the property. The interest which the widow gets under the said Act is a specified interest created by the state for the benefit of the widow which is limited interest known as women’s estate.33

Succession Case No. 2.Maharaja Kumar Sitangsu Kanta Acharjee and others v. Moyna Sundari and others.34

Though the law of succession is to be determined according to the personal law of the individual where succession is in dispute and also when Hindu migrates from one part of India to another, the law applicable to succession to agricultural in Assam which is left by a Hindu governed by a dayabhaga school of Hindu law who is a resident of Bengal is not The Hindu women’s Rights to Property Act (Act XVIII of 1937) as amended by Act XI of 1938, which is in force in Bengal but is the law in force in Assam, where the property namely the Assam consequently the widow of such a Hindu is entitled to succeed to agricultural land in Assam and as such she is a necessary party in the rent suit brought by the other male heirs of the deceased Hindu.

The interest which the widow gets under the Act is neither an estate of inheritance nor an estate of survivorship but it is a special interest created by the statute for her benefit which is a limited interest known as the Hindu women’s estate.

The five appeals by the three sons of late Maharaja Sasikanta Acharjee Bahadur of Muktagacha in the district of Mymensingh, now in East Bengal, arise out of as may suits for arrears of rent in respect of lands then lying within the province of Assam, instituted on 13 April 1944, in the court of munsif of Shunamgonj,

31 Cited in 22 DLR (1970) 362.327 1998 BLD 69A.33 8 Prafilla C. Pant, Sanjiva Row’s The Indian Succession Act 1925, 7th

Edition (New Delhi: Butterworths, 2000), p. 253.34 6 DLR 66 (1954).

but the said suits have been dismissed by the learned munsif as well as an appeals by the learned subordinate judge second court, Sylhet.

The facts of the case are not in dispute and are simple. The Maharaja is a Hindu governed by the dayabhaga school and a resident in the province of Bengal, owned considerable landed properties both in joint Bengal and in the province of Assam, as it was in 1944. He instituted rent suit no. 410 of 1944 for arrears of rent in respect of his 16 annas share for the years 1347 to 1349 B.S. and rent suit no. 411, 419 and 426 of 1944 in respect of his 8 annas shares of rents for the years 1346 to 1349 B.S. and in the latter four suits the remaining co-share landlords of the Maharaja where impleaded as defendants. The tenant defendants in several suits are different and the contest in the 5 suits has been by defendant no. 4 in suit no. 410 by defendant no.8 in suit no. 411, by defendant no. 1 in 3 in suit no. 426.

After institution of the suit, the Maharaja died intested the 27 May 1944, leaving behind him surviving his widow (hereinafter described as maharani) and 3 sons were substituted in place of the Maharaja in all these suits, and it is an admitted fact that though the Maharani was alive, she was not substituted and brought on the records of any of these suits.

The defendants raised various contentions but at the trial only one contention was pressed, namely, that as the Maharani had not been substituted in place of the original plaintiff and as she was not on the record either as a plaintiff or defendant the suit for rent must fail in view of the provisions in the Sylhet Tenancy Act.

The court is, therefore, of opinion that the answers to the questions comprised in the special reference are as follows.

The Hindu Women’s Rights to Property Act, 1937, and the Hindu Women’s Rights to Property (Amendment) Act, 1938-

Do not operate to regulate succession to agricultural land in the Governor’s provinces and Do operate to regulate devolution by survivorship of property other than the agricultural land. The subject of the devolution by survivorship of property other than agricultural land. Subject to the provisions of S. 162 where two or more persons are co-sharer landlords, anything

which the landlord is under this act required or authorized to do must be done either by both or all those persons acting together, and the proviso enacts that one or more co share landlords if all other co-share landlords are made parties defendants in the manner provided in clause (1) and (3) of S. 162.

The result, therefore, is that all those appeals are dismissed, but in the circumstances, he makes no order as to costs in any of the appeals.

It is noteworthy to mention that the widow will inherit in homestead land, not in agricultural land but she will get maintenance from the agricultural land. So the restriction in agricultural land is with respect to widow and widowed daughter-in-law but not regarding daughter.

An unchaste widow is not entitled to inherit to the property of her husband. But once the husband’s estate has vested in her it will not be divested by unchastity subsequently to her husband’s death. The unchaste widow can not inherit her husband but she is not divested of the estate if she becomes unchaste after she has inherited her husband. So she must be chaste in order to inherit her husband’s property.

IV.Daughter

In default of the widow, the daughter succeeds as an heir. So, daughter can not inherit until all the widows dead. Her right was put upon the ground that she produced sons who could present oblations. Daughter’s succession is based upon express texts. She herself can not confer any spiritual benefit but her son may do so. So the daughters, who are sonless and not likely to have sons, are excluded. According to the Bengal school, the unmarried daughters are first entitled to succession.

Unmarried daughter succeeding to the father’s estate to the exclusion of married daughter and on her death property would fall on married daughter. If there is no maiden daughter, then the daughter who has and the daughter who is likely to have male issue are together entitled to succession and on failure of either of them, the other take the heritage.35

In no circumstances can the daughters who are either barren or widow without male issue or mother of a daughter inherit the property. But a barren married daughter can stop inheritance of her father’s property to reversionary by creating son by adoption with the consent of her husband.36

It was held that a widowed sonless may remarry unless the Widow’s Remarries Act 1856 and hence there is likelihood of son being born to her, consequently, she was held to inherit her father’s property. But an unchaste daughter is excluded from inheritance. But once the estate has vested in her, it can not be divested by subsequent unchastity. According to dayabhaga law, the condition chastity applies not only to the widow, but to other female heirs. It is to be noted that unchastity excludes a female from inheriting to male but not to a female. It is therefore, not a bar to inherit stridhan, even according to dayabhaga law. Under the Hindu law, daughter is preferential heir to a paternal cousin but if she is a childless widow, the paternal cousin takes the estate.37

The daughter takes a limited interest in the estate of her father. On her death the estate passes not to her heirs but to the heirs of her father. So the daughter takes a widow’s estate or women’s property. According to all schools of Hindu law, the unmarried daughter inherits to the exclusion of other daughters.Where there are several daughters they take jointly with right of survivorship and the rights are exactly the same as in the mitakshara. It is to be noted that two or more daughters take estate jointly with the right of survivorship and their rights are exactly the same as in the mitakshara law. So a childless widow is excluded by a daughter having a son or even a daughter’s son.38

On the death of a daughter, who had succeeded before her marriage to her father’s estate to the exclusion of her married sister? The estate so inherited by her, devolves upon her married sister who has or is likely to have male issue and upon her own son. Where two daughters succeed jointly to their father’s estate and on the death of one of them, the survivor is a childless widow, she will take the whole estate by survivorship for that which would have been an original disqualification to her taking, will not operate after she has once taken.39

V.Mother

After the father, next comes mother. But an unchaste mother is excluded from succeeding to her son. But once the estate has vested in her, it cannot be divested by subsequent unchastity. Remarriage also does not deprive her of the of inheritance from the son. So mother is heir under Hindu law and mother takes a limited estate the reversion comes on her death.

According to dayabhaga law, a step mother does not succeed to her step-son, it is to be noted that the reason for preferring her to a brother are, gratitude in return for secular benefits received a new factor and her capacity to confer spiritual benefits by giving birth to sons. She can inherit when a widow and if she has no male issue then she cannot even indirectly confer any spiritual benefit in the said manner.40

35 10 Mridul Kanti Rakshit, Principles of Hindu Law, 5th Edition (Dhaka: Kamrul Book House, 2005), p. 230.

36 11 5 DLR 440.37 Prafulla C. Pant, ibid., p. 261.3813 1921 Cal 295.3914 H. L. Chakravarty, ibid., p. 98.40 Sundarlal T. Desai, Mullah’s Principles of Hindu Law, 15th Edition

(Bombay: N. M. Tripathi Private Limited, 1998), p. 598.

VI.Sister’s son

The half sister’s son is entitled to take together with the full sister’s son, the capacity for spiritual benefit being assumed as the sole texts. He presents three oblations. It is to be noted that sister is not an heir at all either under Bengal school of Hindu law. She is excluded for the simple reason that she is not expressly named as an heir in the text.

So in the failure of the brother’s grand son the succession goes to sister’s son as he presents three funeral oblations to the paternal ancestors of the deceased who are his own maternal ancestors and a half sister’s son is also entitled to inherit equally with the full sister’s son. There is no distinction between half sister’s son and full sister’s son as regards inheritance under the dayabhaga law.41

Succession Case No. 3.Satish Chandra Das and others v. Diliph Chandra Misra and others.42

There is no distinction between full sister’s son and half sister’s son as regards inheritance under dayabhaga law.

Facts, in short, that the lands in suit originally belonged to Bangshibadhan who had two wives named Hara Sundari and Marani Sundari; that Akshoya and Satyabati were the son and daughter respectively of Bangshibadhan by his wife Hara Sundari; Raj Kumar, Sukhoda, Kanada and Promoted were the son and daughter respectively of Bangshibadhan by his another wife Marani Sundari; that the Akshoya and Raj Kumar inherited the properties left by Bangshibadhan; that Akshoya died childless leaving step-brother Raj Kumar to inherit his share in the properties; that thereafter Raj Kumar died leaving the plaintiff nos. 1 and 2 as sons of his sister Sukhoda and plaintiff no.3 as son of his sister Manada and his other sister Promoda died childless; that the defendant no.2 is the son of Satyabati step-sister of the said Raj Kumar; as such the defendant no.2 did not inherit any interest in the properties as sons of the full sisters of said Raj Kumar inherited his properties and they have title and possession of the same including suit land; that the defendant no.2 who had no title and possession in the suit land collusively and fraudulently created on 25.06.1977, four sale deeds in favour of the defendant no.1 and others without any consideration; that no title created in favour of the defendant no.1 by the said kabalas and he had no possession in the suit land; that the said kabalas are fraudulent, void and without consideration. Hence these suits were instituted by the plaintiff.The defendants contested the suit by filling written statement denying the material allegations and stating inter alia that the suit is not maintainable, that Raj Kumar did into inherit any interest in the properties of Bangshibadhan as he was insane and as such Akshoya inherited the entire properties of Bangshibadhan that after the death of Akshoya his sisters son Jagabandhu inherited the same and after the death of Jagabandhu the defendant no. 2 as his son inherited the said properties that the plaintiffs as sons of Raj Kumar’s sisters did not get any interest in the said properties including the suit properties.

The trial court after hearing all the suits analogously decreed them; the trial court held that the plaintiffs as full sister’s sons of Raj Kumar inherited the properties in preference to Jagabandhu, the father of defendant no. 2 on appeal the learned subordinate judge reserved the decision of the trial court and dismissed the suits. Hence the plaintiffs obtained these rules. The principle question in these rules is whether under dayabhaga law of inheritance full sister’s son preferable to half sister’s son or whether step sister’s son will inherit equally with full sister’s son.

The learned advocate on behalf of the plaintiff has submitted that Jagabandhu, the father of the defendant no. 2, was the step sister’s son of Raj Kumar and as such on the death of Raj Kumar his interest shall entirely devolve upon Raj Kumar’s full sister’s sons under dayabhaga law of inheritance and hence the court of appeal below committed an apparent error of law in reversing the decree of the trial court. The learned advocate has further submitted that full sister’s son being more nearer by blood they will exclude the half

4116 H. L. Chakravarty, ibid., p. 115.42 37 DLR (1985)134.

sister’s son, and that full blood will exclude half blood which has been recognized in mitakshara law, shall also in the case of dayabhaga law of inheritance. Half sister’s son being unable to offer ‘pinda’ to maternal line of the half brother of the mother, full sister’s son who are competent to offer ‘pinda’ to the maternal line of the full brother of the mother. The latter is a preferential heir of his maternal uncle.

The learned advocate on behalf of the defendant has submitted that in dayabhaga school of Hindu law there is no distinction between full sister’s son and half sister’s son regarding inheritance, both of them shall equally inherit from Raj Kumar. In support of the proposition the learned advocate referred to the decision reported the learned judge held as follows.

“An unbroken series of authority from the time of Srikrishna to the year 1860, show that the law prevailing in Bengal makes no distinction between the sons of sisters’. None does it appear even discussing the question on the ground of spiritual benefit, which the appellant should succeed. In the reference to Shrikrishna’s opinion, it is stated that as for as spiritual benefit is concerned, there is no difference, and there can be no difference, between that which derived from the sons offering oblation to a maternal grand father, because in those oblations the maternal grand father obtain no part. Whether the law prevailing in Bengal, on the doctrine of spiritual benefit, the result is the same, and the conclusion arrived at is, that no distinction is made between the sister’s sons of the whole and half blood”.43

This view has been approved later by a decision of a division bench of the Calcutta High Court reported, that there is no distinction between full sister’s son and half sister’s son as regards inheritance under dayabhaga law.44

In the result, no substance in these rules and these rules are according discharged without any order as to Costs.

Rights of Hindu Women In Maintenance

I.Introduction

“The support of the group of persons who should be maintained, is the approved means of attaining heaven, but hell is the man’s portion of the suffer; therefore, he should carefully maintain them”.

-Manu

The law of Manu, maintenance is not based on any contract, but is evolved out of the right improperly to which a person was entitled, but which he became disqualified from sharing, by reason of the nature of estate or his own disqualification. Being thus excluded from partition in the estate law afforded him the solarium of maintenance. The right of maintenance is thus not dependent on near relationship but on the existence, in the hands of the heir, of properly upon which all dependent members of a joint family la claim. Even where there is no joint family, the law of necessity enjoins on a certain person by reason of his jural relationship to another, the duty of maintaining him, such is the duty of the husband and father. It is also the duty of state to protect its infant population and that the duty it costs upon those who are primarily responsible for bringing them in to existence.45

43 ILR II (Cal) 69.44 ILR 40 (Cal) 83.45 Mridul Kanti Rakshit, The Principles of Hindu Law, 5th Edition (Dhaka:

Kamrul Book House, 2005), p. 347.

It is to be pointed out that the liability of a Hindu to maintain the members of his family may be divided into classes, moral and legal. So some persons can claim to be maintained on moral grounds, other have legal right to be maintained.46

II.Nature of maintenance

The right of maintenance is a personal right and can not be transferred nor can be attached, though arrears of maintenance may be so attached or transferred.

The right of maintenance can not be defeated by gift. The right to maintenance was at one time spoken of as a charge on estate but after the passing of Transfer of Property Act 1882, which has defined a charge, that it is not so unless it is fixed and charged on a specific portion of the estate by contract or decree. But prior to passing of the Transfer of Property Act. 1882, it was held that maintenance merely created a personal right and did not anure against a bonafide transfer without notice, though it could be enforced against who took notice, though it could view and which accords with the statutory law, must be that maintenance as such, merely creates a personal right, which might be secured by a change, but till it is so secured, it is no more than a claim enforceable in any of the ways open to an unsecured creditor and as such, subject to all the provisions of the Transfer of Property Act 1882 regarding a claim against a transferee with notice of the made to defeat a person of his right but not otherwise.47

III.Daughter

Every Hindu father is during his life time bound to maintain his minor daughter. An unmarried daughter is however entitled to be maintained by her father even after she has attained majority, the obligation of the father to maintain her extending only in so far as she is unable to maintain herself. So a father is bound to maintain his unmarried daughters and on the father’s death, the daughter is entitled to be maintained out of his estate.48

On the marriage she is entitled to be maintained by the husband, after the death of her husband out of his estate. If the husband left no estate, the father in law is bound to maintain her morally. On the death of the father-in-law she acquires a right under the Hindu women’s Right to Property Act 1937. The obligation of the father-in-law to maintain his widowed daughter-in-law is only moral; but this moral obligation ripens into a legal obligation in hands of those who inherit his property. But her right to claim maintenance ceases on her remarriage. If a daughter is unable to obtain maintenance from her husband after his death from his family, her father is under moral obligation to maintain her.49

Maintenance Case No. 1.Sudhindra Chandra Singha Sarma and others v. Debesh Kumar Singha and other.50

Unmarried daughter’s marriage expenses are to be borne by the joint family property before actual separation of the property on partition and provisions is to be made in decree of partition suit to the effect. The contention was that the marriage expenses of an unmarried daughter would come out from the entire joint family property but not from the share of her father in that property and a decree apportioning the amount for marriage of expenses of unmarried daughter out of the joint family property in a partition suit is illegal.

46 32 Mad 422.

473 Ibid., p. 348.48 4 H. L. Chakravarty, Elements of Hindu Law (Calcutta: Eastern Law

Company, 1954), p. 128.495 31 DLR (1961) 186.50 13 DLR 232 (1961).

Until the property is separated and possession delivered the property continues to be joint family property under the dayabhaga school of Hindu law and marriage expenses of an unmarried daughter before must come out of the joint family property.

This appeal by defendants no. 1 to 4 is against the judgment and decree in partition suit no. 59 of 1930, 31 of 1947 in the forth court of the subordinate judge, Mymensingh.

The facts relevant for the purpose of this appeal are as follows.

The four brothers Maharaja Raj Krishna Singha Sarma, Raja Kamal Krishna Singha Sarma, Raja Jagat Krishna Singha Sarma and Shib Krishna Singha Sarma constituted a joint Hindu family. They along with Lahiri Babu of Shankarpur and Majumder of Narayandaha were the proprietors of zamindary no. 136 of pargana Sunsang. By a deed of partition the four brothers divided their properties and separated themselves both in mess and property. The share of the first brother was known as bara tahbil and that of the second brother Raja Kamal Krishna Sarma was known as madhyam tahbil. Raja Kamal Krishna Sarma died leaving two sons, Promode Chandra Singha Sarma commonly known as Promode Bahadur and Girindra Chandra Singha Sarma commonly known as Girindra Bahadur. Promode Bahadur had three sons, Sudhir Chandra Singha Sarma and Sudhindra Chandra Singha Sarma, defendant no. 1 and Suhrid Chandra Singha Sarma, defendant no. 2. Sudhir Chandra died on 21.07.1928 during the life time of his father Promode Bahadur, leaving plaintiff no. 1 Debesh Kumar and plaintiff no. 2 Sumesh Kumar, three daughters Lalita, Binita and Namita and a widow Shibani Devi plaintiff no. 3 who died during the pendency of the suit leaving the plaintiffs nos. l and 2 as her heirs and the three daughters.

Girindra Bahadur died on 16.03.1934 leaving two sons, defendant no. 3 Surat and defendant No. 4 Subesh as his heirs. Promode Bahadur died on 01.02.1939. The two brothers Promode Bahadur and Girindra Bahadur after the death of their father Kamal Krishna, continued to live in joint mess and properties and acquired more properties with their joint fund which they amalgamated to form part of the madhyam tahbil and they possessed it as ejmali and both the brothers lived in joint mess and properties as members of a joint Hindu family. Now the plaintiffs filed the present suit for partition of the joint Hindu family property of Promode Bahadur and Girindra Bahadur against the other heirs’ of Promode Bahadur. The sons of the Girindra Bahadur claiming 1/6th share in the property as well as Rs. 10, 000/- as the marriage expenses of the unmarried daughter Namita, out of the joint family property. The learned subordinate judge decreed that the suit of the plaintiffs holding that the marriage expenses of the unmarried daughter would come out of the joint property and the expenses was fixed at Rs. 10, 000/- with reference to the issues of agement before the deed of partition where there was a provision for payment of Rs. 10, 000/- to Promode Chandra Singha to defray the marriage expenses of Lalita Devi, another daughter of Late Sudhir and the gross annual income of the madhyam tahbil to the extent of two lacs of rupees and he decreed the claim of the plaintiffs declaring their share to the extent of 1/6 th of the property of madhyam tahbil after deduction of Rs. 10, 000/- as marriage expenses of the unmarried daughter Namita.

In S. 304 of Hindu law provided that in order to determine what property is available for partition, provision amongst other is to be made for marriage expenses of the unmarried daughters. As to the marriage expenses of male members of the family, the section provides that it has been held by the Judicial committee in the case of Narayan Innavi and others vs. K. Ramalinga Innavi and others, that since the institution of the suit for partition by a member of joint family effects a severance of the joint family status of the family, a male member of the family, who is then unmarried is not entitled to have a provision made on partition of his marriage expenses, although he marries before the decree in the suit is made.51

In this very section it is provided further that the case of an unmarried daughter, however, stands on a different footing. Her right to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition; provision should accordingly be made for her marriage expenses in the decree.

51 Cited in 13 DLR 236 (1961).

The principle of law is that the marriage expenses of an unmarried daughter is in lieu of her share in the joint family property degenerated to a right of maintenance and marriage expenses. Both under the mitakshara and dayabhaga schools of Hindu law, inheritance of the ancestral property by the members of the family is trough their respective father, that is per stripe on the death of the grand father or great grand father of her grand father came out of her father’s share.

This is the position of the joint Hindu family under mitakshara school of Hindu law where the demand of partition of a joint family property affects a severance of the joint family status of the family. But a different consideration arises in case of a joint Hindu family under the dayabhaga school of Hindu law where joint ness of the family continues till actual separation of possession of the property on partition.

The right of marriage expenses of unmarried daughter will follow joint family property even after partition as contemplated by dayabhaga school of Hindu law. But this much is clear that until the property is separated and possession delivered the property continues to be joint family property under this dayabhaga school of Hindu law and marriage expenses of an unmarried daughter before actual partition of possession of the property must come out of the joint family property, and if the marriage takes place after the separation of possession it will come out of the share of her father.

In the result, the appeal is dismissed and the judgment and decree of the lower court with this modification that the marriage expenses of Namita Debi amounting to Rs. 10, 000/- will come out of the joint family property; if the marriage has already taken or it takes place at any time before actual separation of possession of the joint family properly on partition in pursuance of the decree in this partition suit.

IV.Wife

Statutory right of maintenance

The wife’s right to separate maintenance and residence was regulated by the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946. That act has now been separated by S. 29 of the Hindu Adoption and Maintenance Act, 1956. S. 18 of that Act lays down that the wife, whether married before or after commencement of the Act, is entitled to be maintained by her husband during her life time unless she is unchaste or has cased to be Hindu by conversion to another religion. Wife’s Right to maintenance

A wife is entitled to be maintained by her husband, whether he possesses property or not. The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession by the husband of any property, ancestral or self acquired. The maintenance being a matter of personal obligation, she has no claim for maintenance against her husband’s property in the hands of a transferee from him. Nor has she any claim against the Government, if his property has been attached under S. 41 and S. 88 of the Criminal Produce Code 1898.

Separate residence and maintenance

A wife’s first duty to her husband is to submit her obediently to his authority and to remain under his roof and protection. She is not, therefore, entitled to separate residence or maintenance, unless she proves that by reason of his misconduct or by his refusal to maintain her in his own place of residence or for other justifying cause, she is compelled to live apart. A wife living apart from her husband for no improper purpose may at any time return and claim to be maintained by him. Her right is not forfeited, but is only suspended so long as she commits a breach of duty by living apart from him; so where she subsequently comes back and offers to live with him, his refusal to take her back entitles her to demand maintenance.

Unchastity of wife

A wife, who leaves her home for purpose of adultery, and persists in following a vicious course of title forfeits her right to maintenance, even though it is secured by a decree,. but it would seem that if she

completely renounces her immoral course of conduct, her husband is liable to furnish her with a “bare” maintenance, that is, food and raiment just sufficient to support her life. S. 18 (3) of the Hindu Adoptions and Maintenance Act 1956, lays down that a Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste.

Change of religion by husband

A wife is entitled to maintenance though her husband may abandon Hinduism. S. 18 (2) (1) of the Hindu Adoptions and Maintenance Act 1956, lays down that a wife is entitled to live separately from her husband without forfeiting her claim to maintenance if the husband has ceased to be a Hindu by conversion another religion.52

V.Widow

Before the passing of the Hindu Women’s Right Property Act 1937, a Hindu widow does not succeed to the estate of her husband as his heir, she is entitled to maintain out of property in which he was a coparcener at the time of death. So a widow whose husband did before the passing of the Hindu Women’s Right to Property Act 1937, was not entitled to succeed as heir or did her husband’s separate property in the presence of a son and nor did her husband’s undivided coparcenaries interest devolve on her even in the absence of her male issue and she is still entitled only to maintenance. Since the passing of the Hindu Women’s Right to Property Act 1937, however a widow was entitled to succeed as heir to her husband’s separate and self acquired property, sharing equally with her sons, as also to the coparcenaries interest to which her husband was entitled at the time of his death, but taking only a life estate there in. So, the question of her right to maintenance out of her husband’s estate will not arise after this act came into force.53

Hence a widow does not lose her right to maintenance of the estate of her husband, even though she may be live apart from him in his life time without any justifying cause and was living separate from him at the time of his death.

It is to be borne in mind that continued chastity is a condition precedent to the right of his widow to maintenance. If he does so, the done or devise must hold the property subject to the widow’s right of maintenance and widow may enforce her right of maintenance against it. But the debts contracted by a Hindu take precedent over the right of maintenance of his wife after his death. Widow does not forfeit her right of maintenance by residence elsewhere.

If is always to be borne in mind that the rights of widow to be borne in mind that the right of widow to maintenance is conditional upon her leading a life of chastity. If she becomes unchaste the right is forfeited, but she returns to a moral life; she is entitled to staring maintenance. It has been held that where maintenance is given by will, it is not forfeited by unchaste, unless it is expressly provided that if would be forfeited. A widow by remarriage forfeits her right of maintenance out of the estate of her husband.

Maintenance Case No. 2.Rabia Khatoon v. Mohendra Chandra Mondal.54

A Hindu widow remarrying a member of other religion forfeits her right to the estate of her husband.

S. 2 of Hindu Remarriage Act, 1856, does not permit a Hindu widow to retain any right in her husband’s estate on her voluntarily leaving the husband’s family and as such when a Hindu widow ceases to be a Hindu by conversion to Islam and remarries she forfeits her right to her husband’s property.

52 8 Sundarlal T. Desai, Mullah’s Principles of Hindu Law, 15th Edition (Bombay: N. M. Tripathi Private Limited, 1998), p. 615.

539 Raksit ibid., p. 354.54 12 DLR 634 (1960).

This appeal is on behalf of the plaintiff, and raises questions of Hindu law. It arises out of a suit for declaration of the plaintiff’s title to, and recovery of khas possession of the land described in the plaint.

The lands in suit originally belonged to one Fatik, who died leaving his wife, the plaintiff, as his sole heiress and legal representative. Six or seven years after the death of her husband the plaintiff become a common prostitute and leaved such life for some years. Eventually she embraced Islam and took her present name Rabia Khatoon. She subsequently married a Muslim man. The lands in suit are the lands she inherited from her former husband Fatik, and she used to posses them through bargadars. Defendant no. 1 took barga of the lands from her in 1356 B.S. One the refusal of the defendants to deliver to her the barga crops in 1358; she brought a suit in the small causes court for recovery of the price of the same. The defendants resisted the plaintiff’s claim alleging that defendant no. 2 had purchased the lands from one Akin Ali with whom the landlords had settled the same. The question of the plaintiff’s title to the lands having thus been raised. The small causes court returned the plaint for presentation to the proper court.

The trial court found that the plaintiff becomes a common prostitute even during the life time of her first husband, and she did not therefore, inherit the suit lands. It was also found that the lands were in the khas possession of the landlords, who settled the same with Akin Ali from whom defendant no. 2 purchased the same. The trial court accordingly dismissed the suit.

On appeal by the plaintiff the learned subordinate judge, fifth court at Dhaka, agreed with the trial court in dismissing the plaintiff’s suit, but not with the reasons of the learned munsif.

The learned subordinate judge found that the plaintiff became unchaste after the death of Fatik, and the properties of Fatik having vested in her on Fatik’s death, her subsequent unchastity did not divest her of the same. But the learned judge held that the plaintiff having remarriage, she forfeited her right of inherence from her husband by operation the Hindu Widow’s Remarriage Act, 1856. He accordingly dismissed the plaintiff’s appeal.The second appeal of the plaintiff contends that the court of appeal below error in holding that the plaintiff’s claim to her former husband’s property was affected by the provision of the Act. The learned advocate contends in the first place that the provisions of the act are not attracted to the fact of the present case inasmuch as the plaintiff was not a Hindu widow at the time of her remarriage, but a Muslim woman. In second place, he contends that independently of the Act, which according to him does not apply to the factor of the present case, there is no principle of Hindu law by which the plaintiff can be divested of the properly she had validly inherited from Fatik.

The Allahabad High Court is the only High Court which takes the view that a Hindu widow by re-marriage after her conversion to another religion does not lose the case. The Allahabad High Court held that the word widow in S. 2 of the Act could only means a Hindu widow, so that if the Hindu widow changed her religion, she is applicable to her case.

In Matungini vs. Ram Rutton, a Hindu widow inherited the property of her husband and she afterwards married a second husband, not a Hindu in the provided by Act II of 1872 having first made a declaration that she was not a Hindu. The question that was referred to the full bench of the Calcutta High Court was whether under the circumstances she forfeited the interest in her first husband’s property. The answer returned by the majority of the full bench was in the affirmative.55

No custom of remarriage has either been pleaded or sought to be proved in the present case, and have the above full bench decision of the Allahabad High Court in not all in point. It may, however, be mentioned here that the identical question about the rights of a remarried Hindu widow to her deceased husband’s property. Their lordship held that under the Hindu Widow’s Remarriage Act 1856; as well under the Hindu law a Hindu widow by remarriage forfeits her right to her deceased husband’s property even if the remarriage is allowed by the custom of her caste.

55 Cited in 12 DLR (1960) 645.

It must accordingly be held that the plaintiff by her remarriage forfeited that properly she inherited from Fatik, and her suit must consequently fail.

The result, therefore, is that this appeal is dismissed with cost to the contesting respondent.

VI.When a widow has not entitled to maintenance

The widow has no right to maintenance. If she has sufficient stridhan or other means of support. If she is remarried. If she has once receive sufficient allotment for the maintenance which she has dissipated. If she is living apart from her husband’s family of immoral or improper reasons or without just

cause.56

But a widow does not lose her right of maintenance out of her husband, even though she may have lived apart from him in his life time, without any justifying cause and was living separate from him of the time of his death. Remarriage disentitle from maintenance.57

Maintenance Case No. 3.Akram Hossain and others v. Abdul Karim Mondal and ors.58

Suit by the reversioners for possession of property will lie if brought within 12 years of the widow’s death will not be barred if a third party dispossesses the widow in her life time.59

Where a widow has entered into possession as a Hindu widow and has voluntarily parted with possession or been dispossessed against her consent, a suit by the reversioners brought for possession after her death is governed by article 141 and not by article 144 and if brought within 12 years of the widow’s death will not be barred by limitation.

This appeal by special leave arises out of a suit for declaration of title and recovery of possession by evicting the defendants from the property in suit, being title suit no. 1 of 1963 of the second court of the munsif of Bogra which was instituted on 01.01.1963.

The suit, lands originally belonged to one Fakira Nayak Alias Fakira Malo who had three wives, Jeoni, Kanu Bala and Priya Bala. Of the three wives Priya Bala alone was alive at the time of Fakira Malo’s death, Jeoni and Kanu Bala Predeceased Fakira Malo. Jeoni had left a daughter, Situmani and Kanu Bala left another named Maheswari. Maheswari died leaving a son, Nagendra Nath Malo.

After the death of Fakira, his wife Priya Bala inherited the suit property for her life time. On her death in Kartick 1963 B.S. Nagendra Nath Malo inherited the suit property as a reversionary heir of Fakira Malo and possessed the property. The plaintiff purchased the suit property from Nagendra Nath Malo by a registered kabala dated the 18 Sraban 1364 B.S. corresponding to 03.08.1957.

Defendant no.7 contested the suit denying title of the plaintiff. He claimed adverse possession and pleaded the bar of limitation. His case was that Kanu Bala and Priya Bala were not Fakira Malo’s wives that Jeoni was his only wife and Kanu Bala had no daughter named Maheswari and that Nagendra Nath Malo is not Maheswari’s son. His case further was that on the death of Fakira, his property developed on his sole heir, namely his daughter Situmani and that on the death of Situmani if developed on her daughters Niroda Bala and Sarala and that on the 16 Baisakh 1368 B.S. defendant no. 7 purchased the suit property along with

5612 16 CWN 9645713 27 DLR 134 AD58 27 DLR 125 (AD) (1975).59 Limitation Act, 1908 (Act IX of 1908), Article 141

others from Niroda Bala by two kabalas. He denied the genealogy given by the plaintiff and described by plaintiffs purchase as false fraudulent and collusive.

He contended that Niroda Bala and Sarala possessed the suit property after the death of Fakira and continued to do so till his purchase. He further contended that the plaintiff claims of title and possession through Nagendra Malo was also barred by limitation and adverse possession since Niroda Bala, Sarala and thereafter he himself had been in possession of the suit property for more than 12 years from the time of the death of Fakira till the filling of the suit.

The trial court dismissed the suit holding that Kanu Bala was not Fakira Malo’s wife and that Maheswari was not his daughter and as such Nagendra Nath Malo whom the plaintiff purchased the property was not Fakira Malo’s grandson. On appeal by the plaintiff learned subordinate judge reserve the decision of the trial court and decreed the suit, holding that Fakira Malo had two other wives, namely Kanu Bala and Priya Bala, besides Jeoni, Jeoni and Kanu predeceased Fakira and that Maheswari was the daughter of Kanu Bala and Nagendra Nath Malo, Nagendra Nath Malo is the son of the said Maheswari, that after the death of the Fakira, Priya Bala the surviving wife of Fakira inherited a life interest of the property left by Fakira and possessed the same and died in 1363 B.S. and that the suit was instituted within 12 years of her death and as such the suit was well within time and not barred by limitation. The plaintiff thereupon, preferred an appeal and the learned single judge of the High Court dismissed the appeal, affirming the judgment and decree of the learned subordinate judge.

The concluded finding of the feet is that after the death of Fakira, his wife Priya Bala inherited the suit property and died in Kartick, 1363 B.S. and on her death Nagendra Nath Malo inherited the property of Fakira as reversionary heir of Fakira Malo; that on the 18 Sraban, 1364 B.S. corresponding to 03.08.1957 Nagendra Nath sold the properties to the plaintiff who filed the suit for relief on 01.01.1963.

The question therefore is, as to when the cause of action, arises for the reversioners to file a suit. It is well settled that a widow is not a tenant for life, but is owner of the property inherited by her, subject to certain restrictions on alienation, and that so long as she is alive no one has any vested interest in the succession.It cannot be disputed that Nagendra Nath Malo could exercise his reversionary right only on the death of Priya Bala, the limited heir of Fakira Malo and this reversioners cannot trace his title throw the widow as his right could not be exercised until the limited interest of the widow comes to an end upon her death; and it is only on her death that the property would devolve on the next heir of last fool owner.

Like suit by a Hindu or Mohammedan entitle to the possession of immovable property on the death of a Hindu or Mohammedan female.60 Twelve years, when the female dies.

From this article it is abundantly clear that the reversioners could only claim possession of the suit property on the death of Priya Bala.

This question as to which article would apply in a suit filed by reversioners was considered in the case of Ram Kristo Maudal and another v. Dhankisto Maudal, reported that, wherein on similar facts that applicability of article 141 of the Limitation act, 1908, came up in consideration.

“A person who has been in adverse possession for twelve years or more of property inherited by a widow from her part is not entitled on that ground to hold it adversely as against the next reversioners on the death of such a widow. The next reversioners are entitled to recover possession of the property, if it is immovable, within twelve years from the widow’s death under article 141. This rule does not rest entirely on article 141 but is in accord with the principles of Hindu law and the general principle that as the right of a reversionary is in the nature of spes successionis and he does not trace that title through or from the widow, it would be manifestly unjust if he is to lose his right by the negligence or sufferance of the widow”.61

60 Article 14 of the Limitation Act, 1908

61 AIR 1969 S.C. 204 cited in 27 DLR 137 (AD) (1975).

But all doubts on this point were set at rest by the decision of the privy council itself in Jaggo Bai v. Utsava Lal, and the law can now be taken to be perfectly well settled that except where a decree has been obtained fairly and property and without fraud and collusion against the Hindu female heir in respect to a property held by her as a limited owner, the cause of action for a suit to be instituted by a reversioners to recover such property either against an alliance from the female heir or a trespasser who held adversely to her accrues only on the death of the female heir. This principle, which has been recognized in the provisions of The Limitation Act 1908, in this country even since 1871 seems to us to be quite in accordance with the acknowledged principles of Hindu law. The right of reversionary heirs is in the nature of spes successionis, and as the reversioners doing not trace their title though or from the widow; it would be manifestly unjust if they are to lose their rights simply because the widow has suffered the property to be destroyed by the adverse possession of a stranger.62

Being in respectful agreement with the above view which is based on weight pronouncement of the judicial committee of the privy council, that in this case limitation began to run against Nagendra Nath Malo, the plaintiff’s vendor only upon the death of Fakira Malo’s widow Priya Bala, in 1363 B.S. and the suit having been instituted within 12 years of her death, the suit was not barred by limitation.In the result, this appeal is dismissed but without any order as to costs.

Rights of Hindu Women on Women’s PropertyI IntroductionIn primitive stage, Hindu law regards “woman is inherently in competent to hold property”. The recognition of women’s right of inheritance is of recent origin divided that the widow had any right to inherit as the daughter to her parents. So it was the rule of ancient Hindu law that on the husband dying issueless, the wife had merely the usufruct of her husband’s property, till she could beget a son. If she did, the son became the heir, if she could not, the estate passed to the husband’s younger brother or failing him, his nearest sapinda who was her guardian. So the wife was practically entitled to the usufruct of her husband’s estate.The general quality of women’s property is its limited character, her restricted power of alienation and on her death; it reverts to the line of the last male owner.

Women’s generally acquired a limited estate in as much as she is not entitled to alienate the same except for some legal necessity. It is immaterial, ancestral or self acquired, or whether it is acquired by partition or inheritance.63

Women’s property may be classified into two categories.

Stridhan, and Widow’s estate.

II.Stridhan Generally women’s property means stridhan. It means that property over which the woman has control. The word “Stridhan” derived from the term “stri” means woman and the term “dhan” means property. So stridhan literally means women’s property confirm in its import with its etymology and is not technical. It is absolute property called peculiar i.e. private property.

Stridhan according to the mitakshara school includes everything given to woman to woman before the nuptial fire at the time of her marriage by the parents, husband, or brother, and presented by maternal uncle and the rest: gift made on marriage and on succession seizure and finding, all these are stridhan.

Stridhan unless otherwise expressed or necessity implied, means the women’s property acquired by her otherwise than by inheritance or partition, over which she possesses full power of disposal and which on her death devolves upon her own heirs.

62 56 Ind. APP. 267.63 1 Mridul Kanti Rakshit, Principles of Hindu Law, 5th Edition (Dhaka: Kamrul

Book House, 2005), p. 431.

Whatever may be acquired by a woman is not her stridhan. It depends on the source of acquisition, status of the woman, the school by which the woman is governed.64

III Different kinds of stridhan

Gift and bequest from relations. Gift and bequest from stranger. Property obtained on partition. Property given in lien of maintenance. Property acquired by inheritance. But according to dayabhaga law, property acquired by widow by

inheritance from a female relation is not her stridhan. Property obtained by compromise. Property purchased with stridhan or with savings of income of stridhan. Property acquired from sources other than those mentioned above. Property acquired by mechanical arts. Property acquired by a Hindu widow by adverse possession of which she took and retained

possession absolutely in her own right for twelve years is her stridhan according to dayabhaga school of Hindu law.

Maiden property, except the property inherited by her, all property of a maiden, however acquired whether by gift or bequest from relations or stranger or by mechanical arts or otherwise by her own exertions. Constitutes her stridhan.

Property acquired during widowhood, all property of a widow acquired by her during her widowhood by gift, bequest etc, constitutes her stridhan.

Where an insurance policy has been assigned by husband in favour of his wife, the policy must be treated as her stridhan.65

IV.Right of a woman on her stridhani. Hindu female can dispose of her stridhan of every description at her pleasure during her maidenhood. There is no limitation to her power.ii.She can dispose of only that kind of stridhan which is called Saudayika, a gift from relations except those made by the husband during covertures.iii.She can dispose of her stridhan of every description of her pleasure including moveable given by her husband but not immovable given by him during widowhood.66

V.Law of succession to stridhan Doctrine of spiritual benefit does not apply in the succession of stridhan. Unchastely is no bar to inherit stridhan. Nearest kinsman succeed, if no heirs specified in the texts are found. Stridhan inherited by a female does descend as stridhan. Stridhan is descendible to the heirs of female and not to heirs of her husband. A widowed daughter having a son is entitled to succeed to her mother’s stridhan in preference to

daughter’s son. To pitridhatta stridhan, sons are preferred to married daughters. But sister’s son’s son is not heirs to

stridhan. Unmarried daughters are preferred to married daughters but no preference is given to a daughter’s

unmarried daughter over a daughter’s married daughters. A step sister’s son is preferred to the husband’s elder brother.

64 Dr. U. D. P. Kesari, Modern Hindu Law, 5th Edition (Allahabad: Central Law Publications, 2006), p. 330.

65 Mridul Kanti Rakshit, ibid., 435.66 4 H. L. Chakravarty, Elements of Hindu Law (Calcutta: Eastern Law

Company, 1954), p. 358.

Brother of half blood of the husband of a deceased woman must be postponed to the sons of the brother of the deceased.

A brother’s son is preferred to ajoutaka stridhan over a step-sister’s son. Illegitimate daughter succeeds in preference to illegitimate son. A woman by prostitution does not cease to be a Hindu and her brother’s son may inherit her.67

VI.Succession to property of prostitutes

Property of prostitute devolves as if it were her stridhan so that her, Brother. Sister. Brother’s son. Other relations by blood. Her husband. Step son. Husband’s other sapindas.68

When a woman becomes prostitute after her husband’s death and dies leaving a son born in lawful wedlock and a daughter born in prostitution, the son exclude the said daughter.69

Women’s property Case No. 1.Geeta Rani Alias Shamima Khatoon v. Bangladesh.70

A prostitute does not sever tie which connects a woman to her kindred. The onus is on the Government to prove that the last owner died intested.

In this case the defendant Government of Bangladesh claim the property by way of escheat since Gouri Dasi died intestate without leaving any heir according to it. When the claim is founded on escheat the onus lies on the Government to show that the owner of the estate died without heir.

Issue of inheritance under the Hindu law, when the property belongs to a Hindu woman who was a prostitute, the claimant being a daughter of the prostitute, any question as regards legitimacy or illegitimacy of the claimant daughter is irrelevant.

This is well established that the people who have been born in India and who are of the Hindu faith, and whose customs and manner are those of Hindus governed by the Hindu law.

The plaintiff’s case that she was daughter of Gouri Dasi is well established and if it is so. Provision of S. 92 (1) (a) of State Acquisition and Tenancy Act 1951, have no manner of application and therefore the Government cannot claim this property in pursuance of such provision.

The plaintiff filed the suit seeking declaration of her title in suit land and the basis of her inheritance from her mother Gouri Dasi. The additional deputy commissioner took the view that Gouri Dasi had dead intestate and issued a notice under S. 92 of the State Acquisition and Tenancy Act to recover possession of the property.

A Hindu woman (Gouri Dasi) was a prostitute, plaintiff claim that she is the daughter of late Gouri Dasi and as such she has inherited the property left by her mother. Maternity of the plaintiff, not her paternity is the issue before the court. It being proved that the plaintiff is the daughter of late Gouri Dasi she is, under the Hindu law, rightfully claimed the property left by Gouri Dasi.

675 H. L. Chakravarty, ibid., p. 391.

686 Raksit ibid., p. 449.697 36 DLR (AD) 228 (1984).70 36 DLR (AD) 225 (1984).

When the Government claims that Gouri Dasi died issueless and by virtue of the provision of S. 92 of State Acquisition and Tenancy Act, the property left by Gouri Dasi escheats to the Government is not sustainable in law as the Govt. has not discharged the onus to prove that Gouri Dasi died issueless.This appeal by special leave is directed against the judgment and order of the High Court Division in civil revision no. 1324 of 1979.

Plaintiff appellant brought a suit being suit no. 50 of 1977 for declaration of right, title and interest in the suit land in the court of subordinate judge, Rangpur. Her case was that the land in question was owned and possessed by one Gouri Dasi, her mother who was once a prostitute by profession and subsequently gave up and led a married life. She purchased a land in question out of her own income in 1953. She had been in actual physical possession of this land till her death on 26.05.1976 by paying rent and other taxes to the pourashava in her name and after her death the plaintiff appellant has been residing there by paying rent and taxes. Plaintiff appellant Geeta Rani Dasi received a notice under S. 92 of the State Acquisition and Tenancy Act from the deputy commissioner, Rangpur as to why the land in question should not be treated as abandoned property and the Government of Bangladesh would not enter into the khas possession on the death of Gouri Dasi who died intestate. A miscellaneous case was started being case no. 14 of 1975-76 and the plaintiff appellant filed objection and the same was heard by the deputy commissioner who by his order expressed view that the plaintiff was required to established her claim by filing a suit in the civil court.

The suit was contested and the plaintiff led evidence to prove that the properties belonged to Gouri Dasi is not disputed and documentary evidence is in R.S. khatian had been adduced to show that the property belong to Gouri Dasi. The next question whether the plaintiff was the daughter of Gouri Dasi. The trial court presumed that Gouri Dasi was not married at all and she carried on business of prostitution till her death.

The learned subordinate judge discarded the evidence of Pari Rani Dasi who is also a prostitute on the ground that she had not seen Gouri Dasi give birth to the plaintiff. Rajab Ali was disbelieved on the ground of his evidence being her that the plaintiff was a daughter of Gouri Dasi. On the other hand Abdur Rouf said that Gouri Dasi was a prostitute and died without any heir. In this view of the matter the suit was dismissed. On appeal the appellate court considering the evidence of Rajab Ali and Pari Rani Dasi dismissed the appeal.

On revision the High Court Division followed the same reasoning of the appellate court expressing doubt that Gouri Dasi and Kalipada Das ever lived as husband and wife and that plaintiff Geeta Rani was daughter of Gouri Dasi. It was contended that the plaintiff was not required to prove the valid marriage between Kalipada and Gouri Dasi but she was required to prove that she was born of Gouri Dasi.

It is an admitted fact that Gouri Dasi was a prostitute. She may have a child but birth of the child though not the parentage must be proved by cogent evidence. There is no evidence to show that Gouri Dasi gave birth to a child daughter. The High Court Division also discarded the evidence of Pari Rani Dasi as she has no direct knowledge of Gouri Dasi giving birth to the plaintiff. The learned judges went on that an interference may from her statement, be made that the plaintiff was treated as a child by Gouri Dasi but this is not enough to claim title by inheritance. In this view of the matter the rule was discharged.

The trial court in its judgment mentioned that the defendant Government in its written statement took the plea that since Gouri left no heir, the suit property is escheated to the Government. The question is whether Gouri Dasi died intestate. If so whether she has left any heir who is entitled to inherit under the law of inheritance to which she is subject.

In this case the defendant Government of Bangladesh claim the property by way of escheat since Gouri Dasi died intestate without leaving any heir according to it. The Privy Council laid down that the onus is on the Government to show that the last proprietor of the land died without heir. When the plaintiff adduced evidence that she is a daughter of Gouri Dasi and the corroborative evidence that she was treated as daughter by Gouri Dasi throughout, the High Court Division rightly considered that this point could not be assailed but unfortunately the learned judges failed to draw the necessary inference for drawing conclusion from such facts.

As against this fact that Gouri Dasi treated the plaintiff as daughter although there is no rebuttal evidence that she is not a daughter of Gouri Dasi would be of no use since the onus is on the Government that Gouri Dasi died without heir. This onus was not discharged and the courts below failed to take notice of such annas.

The courts below have unnecessarily considered the question of parentage of the plaintiff. Admitted fact is that Gouri Dasi was a prostitute and she was a Hindu. It is irrelevant to consider whether Geeta Rani is a legitimate or illegitimate issue or whether she was off spring of the marriage between Gouri Dasi and Kalipada. Question is which law is to be applicable in this case. Obviously the Hindu law.

In the case of Visvanath Mudali and another v. Duraisari Mudali and another, a division bench surveyed the entire law on the subject and observed that even in case of sons of prostitute or dancing woman the paternity is unknown and it is only euphemism to call them illegitimate sons. The court observed.

“People who have been in India and who are of the Hindu faith, and whose customs and manners are those of Hindus, are governed by Hindu law. In the case of a dancing woman or a Hindu prostitute her relation is Hindu and her customs, manners and observance are Hindu and her sons are Hindus, and the Hindu law therefore, is applicable to them. It is consonant with reason and principle that when a particular system of law is made applicable to a set of persons, the whole of that system should be applied and not portion of it, unless any customs, valid and binding is proved to the customs, valid and binding is proved to the contrary or else the application of the system is modified either by statutes or by anything contained in the rules of that system. It is not necessary that in order to have heritable blood inheritance should be traced though the father. If logically follows that the sons of a dancing woman or a prostitute have heritable blood between them. Hence, there is heritable blood between the lines of their legitimate descendants”.71

In the present case as noticed before, the Government could not claim the property by escheat since the onus had not been discharged that Gouri Dasi died intestate without leaving any heirs. Chanakaya laid down in Arthasastra that the estate of woman of the class taken by the king of escheat in the absence of heirs should be given away by him in charity; but the estate should not reach the hands of the kind till there was a complete failure of heirs.

Here is the point; the plaintiff did not disown her fallen mother. Nor in the case that the plaintiff had lived apart although her life has now turned up to claim her property. The position is rather just the reverse. The plaintiff was brought up by the mother as her daughter to the knowledge of the whole world and no one else has come forward to contest the plaintiff’s claim save and except a feeble attempt by the respondent for bringing the operation of S. 92 of the Act. Further that the plaintiff was born in the womb of Gouri Dasi could only be denied by Gouri Dasi herself. This is not the case, Gouri Dasi treated Geeta Rani as her daughter during her life time and now it is too late for anybody else to challenge this fact.

The plaintiff succeeded in proving her case that she was the daughter of Gouri Dasi and even and event the concession that was made in this regard was noticed by the High Court Division. As such the plaintiff’s case that she was the daughter of Gouri Dasi is well established and if it is so, as it is provision of S. 92 (a) have no manner of application and therefore the Government cannot claim this property in pursuance of such provision.

In the result, this appeal is allowed and the judgment and order of the courts below are all set aside and the plaintiff’s suit is decreed. There will be no order as to costs.

VII.Widow’s estate

It has been pointed out that shastriya Hindu law regards woman as inherently incompetent to hold property. So the rule is that on the husbands dying issueless the wife has merely the usufruct of her husband’s property till she could beget a son. If she did, the son becomes the heir.

71 AIR 1926 Madras 289

Now woman generally takes a limited estate. It is immaterial whether, she takes as widow, daughter, mother or grandmother it being immaterial whether the property is inherited from male or female or it is acquired by partition or inheritance. It was held that woman took only a restricted interest and that on her death the property devolves on the line of the last male owner. A Hindu widow takes only a limited estate in the property of her deceased husband, inherited by her. The estate taken by her in such property is called “Widow’s estate”. The estate taken by every other limited heir is similar is its incidents to a widow’s estate, it being not her stridhan or absolute estate.72

So widow’s estate is the limited estate, inherited by a Hindu widow and distinguished from Stridhan73

VIII Incidents of widow’s estate The general quality of a widow’s estate is its limited character, her restricted power of alienation and on her death, is reverted to the line of the last male owner. So in the absence of an express grant woman are presumed to acquire only a limited estate in property acquired by partition and inheritance.

It is to be pointed out that a woman generally takes limited estate. But subject to the restriction on alienation, she holds the property absolutely and she completely represents it. So the widow has absolute power of disposal of the income to the property she is not bond to save it.

She is entitled to its beneficial enjoyment, its rent and profits and income which is her own and not liable for her husband’s debt.

As a general rule, a widow is not entitled to alienate the immovable property inherited by her. She may transfer all or any portion of estate for her life or until her estate is determined earlier as for example by surrender or by her remarriage. So in the following cases alienation by her is upheld.

She can alienate the whole or part of immovable property for legal necessity.

She can also alienate with the consent of the next reversioners. But the consent must be of such a nature as to raise presumption that the transaction in a fair one and justified by Hindu law.74

Surrender by a widow is also case of alienation and such surrender in valid when it is made in favour of next reversionary or reversioners at the time of the alienation and it is of the whole estate.

If she alienates the immovable property it should be proved,

That the alienation was for legal necessity, or

That the alienation after reasonable inquiry as to the necessity acted honestly on the behalf that the necessity exerted, or

That there such consent of the next reversioners to the alienation as would raise a presumption that the transaction was a proper one, or

That it was surrender by her whole interest in the whole estate in favour of the nearest reversioners at the time of alienation.75

7210 Raksit, ibid., p. 4577311 23 CLJ 777 PC7412 29 DLR 3757513 34 DLR 178

A widow has not the right to dispose of by will, property inherited by her whether the property is movable or immovable.

The entire estate being vested in her, she is entitled to manage same. But she must manage it as a prudent owner would do. She must not commit waste or do any injurious to the reversioners.She has the power to alienate the estate.

For religious purposes and

b. Other purposes amounting to legal necessity.

She can sell her life interest in the property or mortgage it or make a gift to it to any one she likes.

If she is dispossessed from any portion of the property by a third person, she can sue to recover it, but if she fails to sue and allows the possession of such person to become adverse to her, the reversioners are not affected by such adverse possession for they succeed not as her heirs, but as her husband’s heirs and they may, therefore, sue for possession within 12 years from the date of her death.76

A widow may, in the exercise of her powers of management, grant lessees of properties belonging to the estate. But she has no power to grant permanent lease or a lease for a long time, so as to bind the reversioners, unless it is justified by legal necessities or is for the benefit of the estate or made with the consent of next reversioners.77

IX.Alienation for legal necessity by one widow

If there are two widows, they succeed as joint tenants with a right of survivorship. They can partition the property so that each may separately enjoy an equal share of the incomes. If they act together, they can alienate the corpus of the estate for debt contracted for legal necessity. One of them cannot prejudice the right of survivorship of other by alienation even though for a legal

necessity, save by the consent of the other. The partition between them does not prejudice the claim of the survivor. The arrangement between two widows by relinquishing one’s right of survivorship as to the portion

of the estate held by the other. In case of such alienation it will not bind the reversionary.78

Widow’s estate Case No. 2.Promode Kumar Roy and others v. Benodi Haldar and others.79

Hindu widows succeeding the property of their husband, their limited interest in the same including their rights to partition of the property as well as to alienate the same to what extent valid in law and if such alienation can effect the right of the survivor or the reversioners.

If a Hindu dies leaving two widows, they succeed as joint tenants with a right of survivorship. They were entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income acquiring there from. Each can deal as she pleases with her own life interest, but she can not alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or future reversioners.

One Chandra Kumar, the predecessor-in-interest of defendants’ nos. 10 to 14, and Mangal, father of the plaintiff had equal shares in the kaimi karsha recorded in khatian no. 69. The 8 annas share of Mangal in

76 H. L. Chakravarty ibid., p. 164.7715 27 DLR 125.78 Kesari ibid., p. 310.79 21 DLR 673 (1969).

this Kaimi Karsha is the subject matter of the suit. Mangal died in Agrahyan 1326 B.S leaving behind three widows namely, Indra Bala, Dwitia and Elokeshi. Indra Bala died in 1344 B.S. leaving behind two co-widows of Mangal. Thereafter Dwitia died in 1345 B.S., Elokeshi died in 1352 B.S on 25 of Aswin 1330 B.S. Elokeshi executed a mirash ijara patta Ext. F in favour of defendant no. 9. On 20 of Shraban 1331 B.S. she executed a kabala Ext. G in favour of defendant no. 9. By these documents she claimed to have transferred her share in the suit property.

On the 21 of Baisakh 1342 B.S. Dwitia executed a mirash ijara patta Ext. J in favour of Joytara and Beloka. Joytara and Beloka thereafter transferred their interests on 5 of Kartick 1344 B.S. in favour of Rajani the predecessor in interest of defendants’ nos. 1 to 6. The plaintiff who is the daughter of Dwitia claimed that these transfer were not for legal necessity and were not valid and binding on her and after the death of Elokeshi, the properties of her father devoted on her as him reversioners. Defendants nos. 22 and 23 are the sons of the plaintiff. The plaintiff wanted to take possession of this property, was resisted by defendants nos. 1 to 6 and defendant no. 9 and hence she brought this suit for declaration of her title and for possession after rejecting the defendants therefore, and also for partition.

The suit was contested by defendants nos. 1 to 6 and 9. The defendant no. 1 filed a written statement which was adopted by defendants nos. 2 to 6. It was contended that Dwitia granted a mirash ijara to Joytara and Beloka on 21 Baisakh 1342 B.S. corresponding to 14.05.1935 vide Ext. J, for legal necessity. Joytara and Beloka subsequently sold the property to Rajani, father of defendants nos. 1 to 6 claimed that they are in possession of this property by virtue of their purchase and as such the plaintiff claims for khas possession is not maintainable.

The defendant no. 9 filed a separate written statement to contest the suit. His claim is that, he was given a mirash ijara patta. His case is that on 25 of Aswin 1330 B.S. Elokeshi executed a mirash ijara patta Ext. F in his favour in respect of her entire interest in the property. It is contended that since this purchase, the defendant no. 9 has possessed the lands for the last 30 years by constructing a homestead thereon. It was further contended by him that the plaintiff’s suit was barred by limitation as the same was brought more than 12 years after the death of the last widow.

The Trial court after considering the materials on record, decreed the suit in part and held that the transfer made by Dwitia in favour of Joytara and Beloka, vide Ext. J was for legal necessity and the transfer of Elokeshi in favour of defendant no. 9 by Ext. F was not valid as there was no legal necessity for effecting the transfer. Accordingly the plaintiff was given a decree declaring their title to the extent of 8 annas share in the disputed lands subject to the mirash ijara patta granted in favour of Beloka and Joytara.

As against this judgment and decree of the trial court, the defendant no. 9 filed an appeal being title appeal no. 24 of 1953 and the plaintiff and defendant no. 21 filed another title appeal no. 27 of 1953. The lower appellate court allowed the appeal of the defendants and dismissed the appeal of the plaintiff. The result was that the suit of the plaintiff as a whole was dismissed by the lower appellate court.

As against this judgment and decree of the lower appellate court, the plaintiff and defendant no. 21 filed two appeals in this court. This court by a judgment dated 20 of May 1958 allowed both the appeals and sent back the cases on remand to the lower appellate court for disposal. After the remand from this court the appeals were heard by additional district judge Bakherganj, who by his judgment and decree, granted full relief to the plaintiff. The learned additional district judge further decreed that the improvement of the property by defendant no. 9 was conceded by the plaintiff and as such the defendant No. 9 was entitled to be paid for the same.

As against the judgment and decree of the additional district judge, the defendants nos. 1 to 6 and 9 have filed this present appeal.

On a consideration of these materials both the courts below arrived at a finding of fact to the effect that there was no legal necessity or any pressure on the estate for executing the document Ext. F in favour of defendant

no. 9. The lower appellate court also finds that there was no debt which was left by Mangal at the time of his death and he left sufficient properties movable and immovable. The court of appeal below further found on evidence on record that there is no satisfactory evidence to show that defendant no. 9 satisfied him by making independent enquiries about the existence of a legal necessity nor in fact there was any such necessity.

Exhibit I which is dated 31 of Baisakh 1342 B.S. corresponding to 14.05.1935 was executed by Dwitia in favour of Joytara and Beloka. The trial court held that Ext. J was executed for legal necessity but the lower appellate court after considering the entire materials on record arrived at a conclusion that in fact there was no legal necessity for affecting this transfer.

It is necessary that evidence has to be given as to the existence of such facts establishing the existence of the legal necessity. At any rate a transferee from such a limited owner can only succeed if he can prove that such recitals about the legal necessity was in fact existing or that reasonable effort was made by him for ascertaining the facts and was satisfied honestly and bonafide from enquires and representations received by him in this regard. If neither of this is established then a transferee cannot claim that the transfer affected in his favour was for legal necessities.

The result, therefore, is that this appeal is dismissed with costs, and the Judgment and decree of the lower appellate court are affirmed.

X.Widow has interest on agricultural land

Under S. 3 of Hindu Women’s Right to Property Act, 1937 (Act XVIII of 1937) a Hindu widow acquires no right, title and interest in agricultural land by inheritance before the emergence of Bangladesh. In view of the decision by the Federal Court, a Hindu woman acquired no right, title or interest by inheritance in the agricultural land under the provisions of Hindu Women’s Right to Property Act, 1937, as the Act XVIII of 1937 did not operate to regulate the succession to agricultural land in provinces of British India. All questions about the validity of Act XVIII of 1937 were set at rest by the decision of the federal court as mentioned above.80

It is to be pointed out that the aforesaid act as promulgated by the then Government of India Act 1935, the agricultural land was the provincial subject and the Government of India has no power to enact any statute on agricultural land. Hence the Hindu widows were excluded from succession to agricultural land in absence of provincial legislature on parallel line in respect of such land.

It will not be out of place to point out that before the independence of India and Pakistan by grant, there has been parallel legislation in some of the provinces such as, Assam, U.P, Bombay, Bihar and Madras. But there was no parallel legislation in United Bengal in respect to the women’s succession to agricultural land.In Sylhet, this is one of the districts of the East Pakistan (now Bangladesh) the widows get share in agricultural land by virtue of Assam’s Hindu Women’s Right to Property Act. But in other districts of the then East Pakistan the women do not get any right, title or interest in agricultural land on inheritance due the absence of provincial legislation on parallel line in respect of agricultural land.81

But after the emergence of new international personality in the shape of Bangladesh in accordance with proclamation of independence issued on 10.4.1971, the Bangladesh become the unitary form of state and by The Bangladesh (Adaptation of Existing Bangladesh laws) order 1972, have been adapted. So, after the emergence of Bangladesh, the agricultural land is no longer the provincial subject and central subject. The Government of Bangladesh has the power to enact any law on agricultural land.

80 48 CWN 7598119 1944 Cal. 421.

So, Hindu women of Bangladesh, has now, got the right to inherit in agricultural land in the absence of legislation as the agricultural land is the subject of the People’s Republic of Bangladesh which is the unitary form of state.

From the S. 3 (1) and (2) of the Hindu Women’s Right to Property Act 1937, it is apparent that during the period of life time, a Hindu widow is the owner and co-sharer of any property.82

Widow’s estate Case No. 3.Kalikesh Biswas and others v. Gheasuddin Ahmed and others.83

As widows do not require any interest in agricultural lands under the Hindu Women’s Right to Property Act, 1937, it is not necessary to serve any notice upon them under S. 167 of the Bengal Tenancy Act, 1885, concerning annulment of encumbrances on agricultural lands.

Service of notice of annulment of encumbrance under S. 167 of Bengal Tenancy Act, 1885, in the manner prescribed by Order 5, Rule 14 of Civil Procedure Code 1908, on the manager of the property in good service for person owning the property.

No mode of service of notice under S. 167 of the Bengal Tenancy Act, 1885, having been prescribed by the Act or by the rules framed there under, service is to be effected in the manner provided for service of summons on a defendant under the civil procedure code, subsequently under order 5, rule 14 of the code, service of notice under S. 167 of the Bengal Tenancy Act, 1885, upon a person in charge of management of and under raiyati for and on behalf of others will be treated as good service upon those others.

Notice under S. 167 served in respect of some plots of land omitting some others though all constitute a single jama will not affect the land not served with notice.

Different plots of land were situated in three different villages and all of them were covered by a single jama. Notice under S. 167 of the Bengal Tenancy Act, 1885, in respect of this jama was served in respect of lands situated in one village and none was served in respect of lands situated in other villages.

The presumption of service arising out of the order sheet and the peon’s return attaches not merely to the factum of service but also to the manner in which the process is reported by the process server to have been served.84

A plaintiff suing in ejectment can only succeed on the strength of his own title. There is no obligation upon the defendant to plead possible defects in plaintiff’s title. It is sufficient that in the written statement the plaintiff’s title is denied.

What is required to be annulled by a purchaser of a patni at a rent sale under S. 167 of Bengal Tenancy Act is only the sub tenancy created by the patnidar and the purchaser is not called upon to find out the chain of subordinate interests but a sub-tenant of an inferior grade is entitled to the protection under clause (c) of S. 160 of the of the Bengal Tenancy Act, 1885.

The mere facts that a dwelling hut or a garden once existed on a piece of land can not make it protected. When are of permanent character that can attract the operation of clause (C) of S. 160 of the Bengal Tenancy Act, 1885.

The subject matter of the suit comprises the lands recorded in khatian no. 420 of mouza bara gangni no. 98 of mouza chota gangni no. 221 of mouza Shibpur in raiyati rights at a consolidated rental of Rs. 22/- per annum. The plaintiffs claimed the same on the basis of an auction purchase made on 23.10.1952 in

8220 Raksit ibid., p. 476.83 15 DLR (1963) 330.84 S. 114 (C) of Evidence Act (Act I of 1872).

execution of a decree for arrears of its rents obtained by one of the landlords in presence of the remaining co-sharers landlords as well as all the recorded tenants.

They took delivery of possession through court on 12.06.1953 and when it transpired that all those lands were recorded in under raiyati rights in favour of Surendra Biswas and Mohendra Biswas, they also annulled those encumbrances by service of notices under S. 167 of Bengal Tenancy Act upon the defendants petitioners nos. 1-6 on 12.11.1953. The latter did not however, give up possession and, on the other hand, transferred the same in favour of the defendants petitioners nos. 7 and 8 on 04.11.1954.

The defendants contested the suit contending that there interest was not annullable and that the plaintiffs in any case, were not entitled to invoke the aid of S. 167 of the of the Bengal Tenancy Act, 1885 in that the decree and a money decree sale. They also challenged the alleged service of notice under S. 167 and further pleaded that no such notices were even issued to either of the two heirs of the recorded tenants’ Promoda widow of Surendra and Hemalata daughter of Mohendra. Ultimately, the learned munsif decreed the suit and his decision have been affirmed on appeal.

Both the courts below have found that the interest of defendants No. 1-6 was und raiyati and that the decree in question was obtained by and the sale in execution thereof held at the instance of one of the landlords in presence of all the remaining landlords as well as the entire body of tenants and were, as much, legally effective as a money decree and a money sale. The purchaser at the court sale, therefore, acquired the right of annulling the encumbrances attaching to the lands involved under S. 167 of the said Act. All these are no longer in dispute. It has been found that notice upon heirs of the recorded tenants were served by hanging on the refusal of defendant no. 3 to received the same for himself as well as the other defendants whose authorized agent he was in that behalf and this was valid service under the law.85

As to non service upon Promoda and Hemalata, the learned munsif held on the authority of Federal Court in the matter of Hindu Women’s Right to Property Act, 1937, that as widows they did not acquire and interests in these lands which are agricultural under the Hindu women’s rights to property Act, accordingly it was not necessary to serve any notice upon either of them. It appears that this finding was not challenged before the learned appellate court.86

It has, however, been already found above that the plaintiffs can not maintain their claim for khas possession in respect of the lands appertaining to the under raiyatis in question in mouzas chota gangni and Shibpur and as such, the decree complained of needs modification to the effect. The judgments and decrees of the learned courts below are accordingly modified to the effect that the plaintiff’s claim for khas possession in respect of the lands appertaining to khatian no. 99 of mouza chota gangni and khatian no. 222 mouza Shibpur shall stand dismissed.

Subject to the modification as indicated above, this revision is dismissed, without any order as to costs.

Conclusion

Throughout British India, question regarding succession, inheritance, adoption, religious usages and institutions are decided according to Hindu law except in so far as such law has been altered by legislative enactments. So Hindu law based on dharmashastras or smrities applies only in matters relating to succession, inheritance, marriage, adoption, joint family, will, gift, partition, religious usages and institutions. As to these matters also the Hindu law is to be applied subject to such alteration as have been made by legislative enactments.

The Hindu law of property has been modified and supplement in certain respect superseded by the following acts of legislature,

85 chapter, XIV of the Bengal Tenancy Act, 1885.86 45 CWN 81.

Religious Endowment Act (Act XX of 1863).Contract Act (Act IX of 1872).Transfer of Property Act (Act IV of 1882).Partition Act, 1893 (Act IV of 1893).The Hindu Disposition of Property, Act 1916 (Act V of 1916).Succession Act, 1925 (Act XXXIX of 1925).Hindu Inheritance (Removal of Disability) Act, 1928 (Act II of 1928).Hindu Gains of Learning Act, 1930 (Act XXX of 1930).The Hindu Women’s Right to Property Act, 1937 (Act XVIII of 1937).The Hindu Women’s Right to Property (Amendment) Act, 1938.The Assam Hindu Women’s Right to Property Extension to Agricultural Land Act, 1943 (Act XIII of 1943).The Hindu Married Women’s Right to Separate Residence & Maintenance Act, 1946 (Act IX of1946).Hindu Widow’s remarriage Act, 1856.

It is worth to be pointed out that many parts of Hindu law require reform and legislation. It is essential that Hindu law should be in a form readily accessible to all. A codification of Hindu law, especially Hindu law of succession and marriage is urgently desirous. So there should be a comprehensive legislation in the form of a uniform code.

It is to be pointed out that Hindu law is not static but was progressive. The authors of the dharmashastrias had themselves been progressive and tried to keep the law in harmony with their environments and in general responded to changing idea.

We know that shastric Hindu law embodied in the codes has been modified, changed and developed by the Hindu commentators by means of fiction of interpretations. Now there is no machinery for introducing any change in Hindu law. Some machinery should be constituted by the Government for introducing any desirable change by legislation or otherwise according to wishes and sentiments of the Hindus. So with the rapid change of socio-economic and political conditions of the country, Hindu law of Bangladesh should be codified in gradual stages beginning with the law of intestate succession and marriage.

The change of law which Hindus are desirous of introducing by legislation, is not to be supposed to be contrary to their divine law, but is to in the nature of giving effect to the true interpretation, the revive view being taken to be erroneous; and the legislation is to purport as declaratory of the correct view of divine law, as was done when the Hindu Widow’s Remarriage Act, 1856 was passed.

So it is now desirous that the condition which has arisen in matters of socio-economic and political need it is imperative that the polygamy should not be permitted and relief by way of judicial operation, declaration of nullity of marriage is to be permissible and there should some documents of marriage under the Hindu law. There should be same rule relating to the succession of the property of Hindu male and female. The rights of woman should be treated as equal without any distinction.

Conversion to another religion of the daughter or sister or widow should be the ground for exclusion from inheritance. At present in our country daughter or mother are not entitled to any share in presence of sons or widow, she is entitled only to a limited interest called widow’s estate in the property inherited by her, she held the same for life.

She cannot alienate except for legal necessity as on her death the same passes to the next heirs of the deceased and not to her own heirs. So in our country at present daughter whether married or unmarried, can not inherit simultaneously with different male.

Hindu women’s right of limited estate is to be abolished and any property possessed by a female Hindu however acquired should be held to be her absolute property and she has full power to deal with it disposes of it by transfer or sale or by will, as she likes.

The existing rules of Hindu succession to property being nature of arbitrary are in system of law mostly conventional and that even deeply routed traditions may have to change with the march of time.

So, the reform of Hindu succession in Bangladesh is urgently called for and which a pressing necessity is in view of changed in social, economic and political conditions. A uniform and comprehensive system of inheritance recognizing equitable distribution between male and female heirs so there should be a codification of Hindu law relating to intestate succession and marriage among the Hindus in Bangladesh.I hope, in near future, the legislature will be called upon to consider measures of reform of Hindu law in Bangladesh, and the personal law of Hindus is to be enacted to codify the law relating to law of succession and marriage. And also to amend the law so as to being it in line with modern concept of social justice.

ReferencesBooksDr. U. D. P. Kesari, Modern Hindu Law, 5th Edition (Allahabad: Central Law Publications, 2006).S. K. Routh, Elements of Hindu Law (Comilla: Ideal Library, 1974).Noshivan H. Jabvala, Principles of Hindu Law (Mumbai: Educational and Law Publishers, no date).Sundarlal T. Desai, Mullah’s Principles of Hindu Law, 15th Edition (Bombay: N. M. Tripathi Private Limited, 1998).H. L. Chakravarty, Elements of Hindu Law (Calcutta: Eastern Law Company, 1954).Mridul Kanti Rakshit, Principles of Hindu Law, 5th Edition (Dhaka: Kamrul Book House, 2005).Prafulla C. Pant, Sanjiva Row’s The Indian Succession Act 1925, 7th Edition (New Delhi: Butterworths, 2000).

StatutesHindu Widow’s Remarriage Act, 1856 (Act XV of 1856).Code of Civil Procedure, 1908.Hindu Women’s Right to Property Act, 1937 (Act XVII of 1937).Hindu Women’s Right to Property Act, 1937 as amended by Act XI of 1938.Transfer of property Act, 1882 (Act IV of 1882).Sylhet Tenancy Act.Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946.Criminal Produce Code, 1898.Hindu Adoptions and Maintenance Act, 1956.Limitation Act, 1908 (Act IX of 1908).State Acquisition and Tenancy Act, 1951 (Act XXVIII of 1951).Government of India Act, 1935.Bengal Tenancy Act, 1885 (Act VIII of 1885).Evidence Act, 1872 (Act I of 1872).Religious Endowment Act, 1863 (Act XX of 1863).Contract Act, 1872 (Act IX of 1872).Partition Act, 1893 (Act IV of 1893).The Hindu Disposition of Property Act, 1916 (Act V of 1916).Succession Act, 1925 (Act XXXIX of 1925).Hindu Inheritance (Removal of Disability) Act, 1928 (Act II of 1928).The Assam Hindu Women’s Right to Property Extension to Agricultural Land Act, 1943 (Act XIII of 1943).

CasesNurun Nabi Mondal and others v. Joynal Abedin Khondkar and ors, 29 DLR 138 SC 1977. Saudamini Roy Malakar v. Narendra Chandra Barman, 4 DLR (1952) 492.Matilal Sarcar and others v. Brajabashi Biswas and others, 12 DLR 142 (1960).Utpal Kanti Das v. Monju Rani Das, 50 DLR (AD) 47 (1998).Ram Dasi Pal v. Surabala Dasya & others, 14 DLR 810 (1962).Srivivas Krishaarao Kango v. Narayan Devjit Kango and others.Joy Kumar Dutta and others v. Sitanath Dutta, adopted son of Late Jyotish Chandra Dutta, 4 DLR (1952) 400.

Bhubaneswari Debi v. Nilkomul Lahiri.Abdul Gani Khan v. Tamejuddin Howlader and others, 5 DLR 440 (1953).Umakanta Bhattacherjee v. Bedbati Debi.Sheik Md. Siddique v. Hari Lal Nath and others, 22 DLR 359 Dha. (1970).Budhan Mathon v. Ramanugrah Singh and another.Maharaja Kumar Sitangsu Kanta Acharjee and others v. Moyna Sundari and others, 6 DLR 66 (1954).Satish Chandra Das and others v. Diliph Chandra Misra and others, 37 DLR (1985)134.Sudhindra Chandra Singha Sarma and others v. Debesh Kumar Singha and other, 13 DLR 232 (1961).Rabia Khatoon v. Mohendra Chandra Mondal, 12 DLR 634 (1960).Matungini vs. Ram Rutton.Akram Hossain and others v. Abdul Karim Mondal and ors, 27 DLR (AD) 125 (1975).Jaggo Bai vs. Utsava Lal.Geeta Rani Alias Shamima Khatoon v. Bangladesh, 36 DLR (AD) 225 (1984).Visvanath Mudali and another vs. Duraisari Mudali and another.Promode Kumar Roy and others v. Benodi Haldar and others, 21 DLR 673 (1969).Kalikesh Biswas and others vs. Gheasuddin Ahmed and others, 15 DLR. (1963) 330.