JUDGMENT Srivastava, J.
1. This is a plaintiff's special appeal. It is unnecessary to give the facts in detail because only a single point has been argued before us. It would be sufficient if we state that the property in dispute originally belonged to one Amrit Rai, who died in 1923. On his death his Step-mother Smt. Balli Kuar took possession of his property. Certain collaterals of Amrit Rai then filed a suit to recover possession over the property from Smt. Balli Kuar. The suit ended in a compromise.
Smt. Balli Kuar was allowed to retain a portion of the property belonging to Amrit Rat but the rest of the property was given to the collaterals. The property which is now in dispute appears to be the portion of the property which was by that compromise given to the collaterals. Smt. Balli Kuar died in 1935. Smt. Pabitra Kuar alias Pitra Kuar, the present appellant then filed a suit against the collaterals to recover possession of the property in suit.
This suit was filed on the 4th of November 1944. within 12 years of the death of Smt. Balli Kuar but more than 12 years after the date of the compromise arrived at between her and the collaterals of Amrit Rai. The plaintiff in this suit claimed to be the sister of Amrit Rai and contended that she was not bound by the compromise and was entitled to get the property after the death of Smt. Balli Kuar, she having become the heir of Amrit Rai under the Hindu Law of Inheritance (Amendment) Act II of 1929.
The Suit was contested on various grounds including limitation and want of right to sue. The contention put forward on behalf of the defendant was that Smt. Balli Kuar was not the heir at law of Amrit Rai and if she entered into possession of the property after his death she did so without any right and was really a trespasser. The plaintiff could claim to be an heir of Amrit Rai as his sister only it Smt. Balli Kuar can be held to have succeeded him as a limited owner with a life estate.
If she was not an heir but a trespasser the plaintiff could not claim the property at all as a sister was not considered to be an heir in 1923 when Amrit Rai died. In any case the plaintiff should have claimed the property left by him within twelve years of his death and as she did not do so and waited till the death of Smt. Balli Kuar her suit for possession of the property filed in 1944 was clearly barred by the twelve years rule of limitation.
2. The suit was dismissed by the trial Court but in appeal the learned civil Judge decreed the suit. A second appeal was then filed in this Court which was heard by Mr. Justice Mushtaq Ahmad. He allowed the appeal and restored the decree of the trial Court. He, however, granted leave to appeal under the Letters Patent and the present appeal has been filed in pursuance of that permission.
3. The only contention that has been pressed before us on behalf of the appellant is that the learned single Judge was not correct in his view that Smt. Balli Kuar was not the heir of Amrit Rai because she was his step-mother Under the Hindu Law a step-mother is as much an heir as a mother. Smt. Balli Kuar, therefore, succeeded to the estate of Amrit Rai as a limited owner and the succession opened only after her death. The plaintiff had become an heir under Hindu Law by that time. Her suit having been filed within twelve years of her death was well within time and should not have been dismissed. The contention appears to us to be without force.
4. It may be mentioned at the very out set that from the judgment of the learned single Judge it appears that counsel for both the parties were agreed before him that 'apart from two cases taking the Hindu Law as it stands a step-mother is not an heir of a deceased Hindu at all.' The two cases which were relied upon as laying down the contrary proposition were the cases reported in Mst. Sahodra v. Ram Babu, 1943 All LJ 271: (AIR 1943 PC 10) (A) and Mst. Besar Kuar v. Bishun Deo Singh. 1943 All LJ 501: (AIR 1943 PC 184) (B).
Both these cases did not relate to the question whether a step-mother was an heir or not. They were decided with reference to the provisions of the Hindu Law of Inheritance (Amendment) Act II of 1929, and the only question considered in them was whether the word "sister' used in the Act included a step-sister. These cases thus being of no help the position of law that was conceded before the learned single Judge was that a step-mother was not an heir.
5. Before us, however, the learned counsel for the appellant has contended that on a correct view of Hindu Law according to the original texts a step-mother is an heir and should have been held to be an heir by the learned single Judge. Learned counsel concedes that in all the reported cases in which the question has been specifically considered the view taken is that in the whole of India with the exception of Bombay a step-mother is not an heir according to the Hindu Law.
The question appears to have been considered first of all by a Full Bench of the Calcutta High Court in Lala Joti Lal v. Durani Kower, Beng LR Sup Vol 67 (C). It was held on a consideration of the original texts that a step-mother was not an heir. In 1884 a Full Bench of the Madras High Court considered this question in Mari v. Chinnammal, ILR 8 Mad 107 (D) and took the same view. The learned Judges considered the original texts from all points of view.
In our own High Court the question came up For consideration in the case reported in Rama Nand v. Surgiani, ILR 16 All 221 (E) and the same view was taken. More recently the Nagpur High Court considered the matter in Chattar Singh v. Roshan Singh, AIR 1946 Nag 277 (F) and arrived at the same conclusion. It appears to us to be entirely unnecessary to repeat the discussion contained in these cases.
They show that so far as the Banaras School of Mitakshara Law is concerned, it has been taken to be settled law for almost about a century now that so far as inheritance is concerned a step-mother is not an heir to her step-son. The matter is thus not res integra. Apart from any other consideration, therefore, on the principle of stare decisis alone this settled state of law should not be unsettled unless there are compelling reasons for that course.
6. In support of his contention that a stepmother should be considered to be an heir the learned counsel for the appellant relied mainly on three things. He pointed out in the first place that so far as the original texts were concerned, there was nothing definite on the point in Vajnavalkya. In Vijnanesvara's commentary the word used in this connection was 'pitrau' which had been translated as 'father and mother'.
While dealing with the question of partition he definitely provides that a step-mother would be entitled to a share when there was partition. From this it should be inferred that he was inclined to treat a step-mother as entitled to inherit also. The learned counsel relied particularly in this connection on certain verses in Nand Pandit's Keshav Vaijanti and the commentary on the Mitakshara Law by Balam Bhat. These writers, he urged, had treated the step-mother as one standing on the same footing as mother for the purpose of inheritance.
7. His second contention is that it has been held in various cases that a step-mother is en-
titled to a share when a partition is effected cither in the life-tune of the father or between the sons after his death. As instances he cited Har Narain v. Bishambhar Nath, ILR 38 All 83: (AIR 1915 All 340) (G); Babuna Kunwar v. Jagat Narain Singh, AIR 1928 All 330 (H) and Ram Peari v. Hari Dutt, AIR 1933 All 562 (I). If, he contended a step-mother was entitled to a share as a mother at the time of the partition there was no reason why she should not be held to be an heir for the purpose of inheritance.
8. His third contention is that one of the grounds on which a step-mother has not been held to be an heir is the principle which is known as the principle of exclusion of women from inheritance. According to Vijnanesvara, however, this principle did not exclude women from inheriting every kind of property only e.g., properties connected with religious sacrifices (Sic). On the basis of this principle therefore, one would not be justified in holding that a step-mother was not an heir at all.
9. As we have already mentioned the relevant texts have been considered by the Madras High Court in ILR 8 Mad 107 (D) and by the Calcutta High Court in Beng LR Sup Vol 67 (C). They have come to the conclusion, and in our opinion rightly, that so far as the question of inheritance is concerned the mother included in the word 'pitrau' is the real mother and not the step-mother. As has been pointed out in AIR 1946 Nag 277 at p. 281 (F), Nand Pandit or Balam Bhatt are commentators on Hindu Law j who do not carry much authority.
The Privy Council laid down in Puttu Lal v. Mst. Parbati Kunwar, 42 Ind App 155: (AIR 1915 PC 15) (J), that Nand Pandit's gloss must be accepted with caution. West and Buhler had remarked on p. 19 of their Digest on the Hindu Law of Inheritance, Partition and Adoption, 4th edn., 1919, that the opinions of the compiler of Balam Bhatt were held in comparatively small esteem and hardly ever brought forward by the Shastris if unsupported by other authorities. It is, therefore, not possible on the basis of certain verses contained in their commentaries to hold that for the purpose of inheritance a step-mother stands on a footing equal to that of a real mother.
10. It is true that it is now the settled view of all the High Courts that under Mitakshara Law in a partition a step-mother is entitled to a share. On that ground, however, it cannot be said that a step-mother is an heir of her Step-son also. The reason why she has been held to be entitled to a share at the time of partition appears to be this.
Partition, according to Mitakshara can take place either in the life-time of the father or between his sons after his death. If it is held by the father in his own life-time, the mother is entitled to a share not as a mother but as wife of the father. If the partition is held alter the father's death between sons and grandsons, the mother is entitled to a share as a mother of her sons. If she has no son she has been held to be entitled to a share because she would have got a share as a wife if the partition had taken place in the life-time of the father, she being entitled to be provided for in any event.
These considerations do not appear to be applicable when the question of a step-mother being an heir is considered in connection with inheritance. Whether a person is an heir to a deceased Hindu or not is decided under the Hindu Law mainly on two principles. One is the principle of propinquity or nearness in blood and the other is the efficacy of oblations. Under both these principles a step-mother will have to be excluded. Strictly speaking there is no blood relationship between the step-mother and her step-son.
They are connected with each other only because the former has been married by the latters father. It is also by no means certain that from the orthodox point of view the stepmother is in a position to confer any spiritual benefit on the deceased step-son by offering obsequial oblations. It is thus not possible to accept the contention that because a step-mother is entitled to a share at the time of partition She is entitled to inherit her step-son too.
11. So far as the principle of exclusion of females from inheritance is concerned, whatever may have been the position at the time when the Mitakshara was written it is now a universally accepted view that under Hindu Law as applicable to Banaras, only those females are heirs which find specific mention in the texts; they are, the widow, the daughter, the mother, the father's mother and the father's father's mother.
A step-mother does not find a specific mention and on that ground stands excluded. The females who are entitled to inherit are heirs to all properties left by a deceased and the other females who are not entitled to inherit and excluded from inheritance in respect of all properties. The distinction between the two different kinds of properties which may have (SIC) is-ted at one time has not been followed. Relying on that distinction, therefore, it cannot be said that a step-mother should be held to be an heir.
12. It was also urged that a step-mother was in any case a gotraj sapinda and had in that capacity been recognised as an heir in the Bombay State. As a gotraj sapinda she can be held to be an heir under the Banaras School also.
13. The Bombay view is based on certain commentaries which are considered authoritative in that State only. They are not followed in the other States of the country where it is considered to be established law that females other than those specifically mentioned in the texts stand excluded from inheritance even as gotraj sapindas.
14. In our opinion, therefore, the learned single Judge was perfectly correct in his view that under Hindu Law a step-mother is not an heir of a deceased Hindu. Smt. Balli Kuar was, therefore, not entitled to inherit the estate of Amrit Hai and cannot be considered to nave been in possession of his estate as a limited owner.
If she entered into possession of the estate on the death of Amrit Kai she did so as trespasser. If the plaintiff was an heir of Amrit Rai at all and had as such a right to claim the estate, she could have done so within twelve years of the death of Amrit Rai. Having not done so her suit was clearly barred by time. The view taken by the learned single Judge being correct the appeal must fail.
15. It is dismissed with costs.