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

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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 KalinjarTirhati
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 KalinjarTirhati 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, GiriBala, 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
[ChelikaniVenkayyammaGaruv.ChelikaniVenkataramanayyamma], 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-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 pitamahawhich means
belonging to pitamaha. Now, pitamahaordinarily 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, GiriBala, 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 KalinjarTirhati, 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.