L.S. Jackson, J.
1. The question which we have been called upon to consider in this special appeal is whether the plaintiff has any right to maintain the present suit as the right heir, under the Hindu law, to the property which is claimed in this suit. That property was given to the deceased wife of the plaintiff after their marriage and during the continuance of the marriage state by the husband's father's sister's son. It is admitted that this property was the stridhan of the deceased wife, and that the plaintiff claims it as being preferable heir to such property on her decease. This was a matter objected to by the defendant in his written statement. The Munsif dismissed the suit upon other grounds, but did not go into this question. On appeal before the Subordinate Judge, he reversed the decision of the Munsif as regards the grounds on which it rested, and, having then to decide this question, he disposed of it in this wise.
2. The learned Judge read the portion of the Subordinate Judge's judgment set out above, and continued:
There is some obscurity in the language of this judgment, but, setting that aside, I must observe that it is not satisfactory to find a Subordinate Judge, himself a Hindu and sitting in a Court of appeal, disposing of a question of this kind merely on the authority of a text book, however valuable, such as Baboo Shamachurn Sircar's Vyavastha Darpana. That is a book of which I am far from underrating the excellence, but after all it is merely a collection of various authorities upon the main points of Hindu law, and any Judge, who has to decide a question of this description, ought undoubtedly to refer to those authorities themselves, although, in the decision of it, he is of course not precluded from considering and using such a valuable commentary as that of Babu Shamachurn Sircar. I think we are bound to decide the case entirely upon the authority of the Dayabhaga, and if we can satisfy ourselves as to the meaning of the author of the Dayabhaga on this question, it will be unnecessary to go to any inferior authority. But we have the express authority of Jimuta Vahana himself. In Chap. iv, Section iii, the question of succession to the separate property of a childless woman is fully discussed, and we find that the author, after propounding the text of Yajnyavalkya in the second verse of that section, goes on, and in the fourth verse says: 'it is not right to interpret the text as signifying that any property of whatever amount which belongs to a woman married by any of those ceremonies termed Brahma, &c;, whether received by her before or after her nuptials, devolves wholly on her husband by her demise;' he goes on to give reasons for that, and then we find it stated in the 10th verse of the same chapter and the same section; 'But wealth received by a woman after her marriage, from the family of her father, of her mother, or of her husband, goes to her brothers (not to her husband), as Yajnyavalkya declares, that which has been given to her by her kindred, as well as her fee or gratuity, and anything bestowed after marriage, her kinsmen take, if she die without issue:' and after the brother there is no doubt, that, where the husband does not first take, the mother and the father come in between. The husband, therefore, in such a case would not be the heir, if the text applies, until after brother, mother, and father. The question is whether the text applies to this case. It seems to me that it very clearly does. The property in dispute is undoubtedly wealth received by a woman after her marriage, and it was received, not from the family of her father, or of her mother, but from the family of her husband. That the expression 'family of her husband,' includes the degree of kindred in which the donor of this property stood to the deceased woman I have no doubt. The question was raised before us to-day whether such a relation could be properly called sapinda. It is not necessary that we should decide that point, but we think that the 'family of the husband' is a term wide enough to include this kind of relation, and it appears to us that, if the Subordinate Judge, in deciding this appeal, had looked carefully to the very author to whom he does refer, he would have found ample authority so far as the book itself goes for not coming to the conclusion that he arrives at. He appears to have referred to text 473, which is at page 722 of the second edition of the book; but if he had referred to the preceding texts, 470 and 471, he would have found what we now decide set out very fully, and moreover in the table of succession set out at page 733, we find that the order of succession to property given by the parents before marriage or bestowed after marriage, is, first the brother, second the mother, third the father, and fourth the husband. Pages 712 and 720 are here referred to us, showing what was meant by the words 'bestowed after marriage,' and the explanation is given under the third branch of Vyavastha 470, which says: 'Wealth received by a woman after her marriage, from the family of her father or mother or of her husband, goes to her brothers.' A great deal has been sought to be made of the language of the Dayakrama Sangraha and Dayatattwa upon this point, but it seems to us that the contention so raised is based entirely upon the very concise language used in some places by the authors of those two books who, when they mean to designate a particular class of persons, use the person who heads the class to designate the whole. We are reminded by Baboo Mohinee Mohun Roy, who argued this case for the appellant, of the careful explanation given of this very matter by my late colleague, Dwarknath Mitter, J. in the very able judgment which he delivered in the case of Judoonath Sircar v. Bussunt Coomar Roy Chowdry 11 B.L.R. 286 a judgment to which I was a party, and in which I at the time entirely concurred. For these reasons we think that in this case the plaintiff is not the next, heir, and therefore the Subordinate Judge has come to an erroneous decision on the point of Hindu law involved, and that his judgment must be set aside, and the plaintiff's suit dismissed with costs
3. I am bound to say that, as far as we have been able to judge, it seems to us that it is a suit which in every way deserves to be dismissed on the merits. I should observe that the contention that the donor of this property is not a member of the husband's family involves the contention that he was a stranger, and this is contrary to the admitted fact that the property was stridhan.