Muhammad Husain Khan v. Babu Kishva Nandan Sahai
AIR 1937 PC 233

SIR SHADI LAL – This is an appeal from a decree of the High Court of Judicature at Allahabad, dated 23rd January 1933 which reversed a decree of the Subordinate Judge of Banda, dated 17th January 1929 and allowed the plaintiff‘s claim for possession of a village called Kalinjar Tirhati with mesne profits thereof. One Ganesh Prasad, a resident of Banda in the Province of Agra, was the proprietor of a large and valuable estate, including the village in dispute. He died on 10th May 1914 leaving him surviving a son, Bindeshri Prasad, who was thereupon recorded in the Revenue Records as the proprietor of the estate left by his father.

In execution of a decree for money obtained by a creditor against Bindheshri Prasad the village of Kalinjar Tirhati was sold by auction on 20th November 1924; and the sale was confirmed on 25th January 1925. Bindeshri Prasad then brought the suit, which has led to the present appeal, claiming possession of the property on the ground that the sale was vitiated by fraud. He died on 25th December 1926 and in March 1927 his widow, Giri Bala, applied for the substitution of her name as the plaintiff in the suit. She was admittedly the sole heiress of her deceased husband, and this application was accordingly granted. She also asked for leave to amend the plaint on the ground that under a will made by her father-in-law, Ganesh Prasad, on 5th April 1914 her husband got the estate only for his life, and that on the latter‘s death his life interest came to an end, and the devise in her favour became operative, making her absolute owner of the estate including the village in question. She accordingly prayed that, even if the sale be held to be binding upon her husband, it should be declared to be inoperative as against her rights of ownership. The trial Judge made an order allowing the amendment, and on 28th May 1927 recorded reasons to justify that order. But in July 1927 when the defendants in their additional pleas again objected to the amendment, the learned Judge framed an issue as to the validity of the amendment. He was, thereafter, transferred from the district; and his successor, who decided the suit, dismissed it on various grounds, and one of these grounds was that the amendment of the plaint changed the nature of the suit and should not have been allowed. The High Court, on appeal by the plaintiff, has dissented from that conclusion, and held that the amendment was necessary for the purpose of determining the real questions in controversy between the parties.

The learned Counsel for the appellants argues that the property inherited by a daughter‘s son from his maternal grandfather is ancestral property, and he relies, in support of his argument, upon the expression ―ancestral property‖ as used in the judgment of this Board in 29 I A 156 [Chelikani Venkayyamma Garu v. Chelikani Venkataramanayyamma], in describing the property which had descended from the maternal grandfather to his two grandsons. It is to be observed that the grandsons referred to in that case were the sons of a daughter of the propositus, and constituted a coparcenary with right of survivorship. On the death of their mother they succeeded to the estate of their maternal grandfather, and continued to be joint in estate until one of the brothers died. Thereupon, the widow of the deceased brother claimed to recover a moiety of the estate from the surviving brother. The question formulated by the Board for decision was whether the property of the maternal grandfather descended, on the death of his daughter, to her two sons jointly with benefit of survivorship, or in common without benefit of survivorship. This was the only point of law which was argued before their Lordships, and it does not appear that it was contended that the estate was ancestral in the restricted sense in which the term is used in the Hindu law. Their Lordships decided that the estate was governed by the rule of survivorship, and the claim of the widow was, therefore, negatived. The brothers took the estate of their maternal grandfather at the same time and by the same title, and there was apparently no reason why they should not hold that estate in the same manner as they held their other joint property. The rule of survivorship, which admittedly governed their other property was held to apply also to the estate which had come to them from their maternal grandfather. In these circumstances it was unnecessary to express any opinion upon the abstract question of whether the property, which a daughter‘s son inherits from his maternal grandfather, is ancestral property in the technical sense that his son acquires therein by birth an interest jointly with him. This question was neither raised by the parties nor determined by the Board. It appears that the phrase ―ancestral property, upon which reliance is placed on behalf of the appellants, was used in its ordinary meaning, namely, property which devolves upon a person from his ancestor, and not in the restricted sense of the Hindu law which imports the idea of the acquisition of interest on birth by a son jointly with his father.

There are, on the other hand, observations in a later judgment of the Board in 35 I A 206 [Atar Singh v. Thakar Singh] which are pertinent here. It was stated in that judgment that unless the lands came ―by descent from a lineal male ancestor in the male line, they are not deemed ancestral in Hindu law. This case however, related to the property which came from male collaterals and not from maternal grandfather; and it was governed ―by the custom of the Punjab‖, but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships. The rule of Hindu law is well-settled that the property which a man inherits from any of his three immediate paternal ancestors, namely his father, father‘s father and father‘s father‘s father is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issue, and the doctrine of survivorship applied to it. But the question raised by this appeal, is whether the son acquires by birth an interest jointly with his father in the estate, which the latter inherits from his maternal grandfather. Now, Vijnanesvara, (the author of Mitakshara), expressly limits such right by birth to an estate which is paternal or grand[1]paternal. It is true that Colebrooke‘s translation of the 27th sloka of the first section of the first chapter of Mitakshara, which deals with inheritance is as follows: ―It is a settled point that property in the paternal or ancestral estate is by birth. But Colebrooke apparently used the word ‘ancestral‘ to denote grand-paternal, and did not intend to mean that in the estate, which devolves upon a person from his male ancestor in the maternal line, his son acquires an interest by birth. The original text of the Mitakshara shows that the word used by Vijnanesvara, which has been translated by Colebrooek as ‘ancestral‘ is pitamaha which means belonging to pitamaha. Now, pitamaha ordinarily means father‘s father, and though it is sometimes used to include any paternal male ancestor of the father, it does not mean a maternal male ancestor.

Indeed, there are other passages in Mitakshara which show that it is the property of the paternal grandfather in which the son acquires by birth an interest jointly with, and equal to that of his father. For instance, in the 5th sloka of the fifth section of the first chapter, it is laid down that in the property which was acquired by the paternal grandfather…the ownership of father and son is notorious; and therefore partition does take place. For, or because the right is equal, or alike therefore partition is not restricted to be made by the father‘s choice, nor has he a double share.

Now, this is translation of the sloka by Colebrooke himself and it is significant that the Sanskrit word which is translated by him as paternal grandfather‘ is pitamaha. There can therefore be no doubt that the expression ‘ancestral estate‘ used by Colebrooke in translating the 27th sloka of the first section of the first chapter was intended to mean grand-paternal estate. The word ‘ancestor‘ in its ordinary meaning includes an ascendant in the maternal, as well as the paternal, line; but the ‘ancestral‘ estate in which under the Hindu law, a son acquires jointly with his father an interest by birth must be confined, as shown by the original text of the Mitakshara, to the property descending to the father from his male ancestor in the male line. The expression has sometimes been used in its ordinary sense, and that use has been the cause of misunderstanding. The estate which was inherited by Ganesh Prasad from his maternal grandfather cannot in their Lordships‘ opinion be held to be ancestral property in which his son had an interest jointly with him. Ganesh Prasad consequently had full power of disposal over that estate, and the devise made by him in favour of his daughter-in-law, Giri Bala, could not be challenged by his son or any other person. On the death of her husband, the devise in her favour came into operation and she became the absolute owner of the village Kalinjar Tirhati, as of the remaining estate; and the sale of that village in execution proceedings against her husband could not adversely affect her title. For the reasons above stated, their Lordships are of opinion that the decree of the High Court should be affirmed, and this appeal should be dismissed with costs. They will humbly advise His Majesty accordingly.