JUDGMENT Randhir Singh, J.
1. This second appeal arises an interesting point of law.
2. It appears that one Srimati Kaniz Begam started living with one Maheshi Lal sometime about the year 1892. Maheshi Lai was a Hindu while Kaniz Begam was a Muslim. There were some children born of Kaniz Begam and begotten by Maheshilal and they are plaintiffs 1 and 2 and defendants 1 to 5. Kaniz Begam continued to live with Maheshi Lal till his death in about 1941 and she herself died in 1946. She left some movable property in the shape of a share in a sugar mill and, according to the plaintiffs, also some jewellery etc. The share and jewellery were taken over by defendants 1 to 4 and the suit which has given rise to this appeal was then brought for the recovery of this property on the allegations that Srimati Kaniz Begam had been living with Maheshi Lal as his wife, that she had also undergone a regular ceremony of conversion in the year 1927 and that she died as a Hindu woman in 1946. The property in dispute was her stridhan property and the plaintiffs were entitled to succeed to that property in preference to defendants 1 to 4. A succession certificate had been obtained by defendants 1 to 4 in respect of the share and the plaintiffs alleged that this was brought about by practising fraud and deception upon the Court which necessitated the institution of a suit in respect of the share on the will.
3. Jhabbu Lal, defendant No. 4, alone contested the suit. Defendant No. 5 who was the own sister of the plaintiffs admitted the plaintiffs' claim. The other defendants remained absent and the suit proceeded ex parts against them. The defence raised by defendant No. 4 was two-fold. He alleged that the share in the sugar mill worth Rs. 1,000/- had been purchased) by Maheshi Lal with his own money in the name of Srimati Kaniz Begam, but Maheshi Lal was the owner of the share and as such it was not the stridhan property of Kaniz Begam and the plaintiffs were not entitled to succeed to that property in preference to defendants 1 to 4.
The other contention of the defendant was that amongst the Agarwals of Mohalla Alinagar in Gorakhpur there was a custom under which daughters were not preferential heirs in the matter of movable stridhan. Some other pleas were also raised but they are not material for the decision of this appeal.
4. The trial Court found that the plaintiffs had failed to establish that their mother left any jewellery or Sari and they were, therefore, not entitled to claim any relief in respect of the price of these articles. With regard to the share money in the sugar mill the court held that the plaintiffs were entitled to a decree and the suit was therefore decreed for the recovery of Rs. 750/-against defendants 1 to 4. The custom set up by the defendant was not established. Both the parties went in appeal.
The appeal of the plaintiffs was in respect of the claim which had been disallowed by the court below while defendant No. 4 objected to the decree passed by the trial court. The learned Cavil Judge who heard the appeal came to the conclusion that the parties being illegitimate children of Kaniz Begam were not entitled to the property left by her which was her stridhan property and on these findings the appeal of defendant No. 4 was allowed and the suit was dismissed. The appeal instituted by the plaintiffs was also dismissed. The plaintiffs have now come up in second appeal
5. The court below has found it as a matter of fact that Srimati Kaniz Begam had been living with Maheshi Lal since 1892 but she continued to be a Muslim till 1927 when she was converted to Hinduism. All the children of Kaniz Begam begotten by Maheshi Lal, who are parties to the present appeal, were born before Srimati Kaniz Begam was converted to Hinduism and was renamed as Savitri Devi Srimati Kaniz Begani having been a Muslim till 1927 her children Would evidently be illegitimate even though she had been living with Maheshi Lal for all practical purposes as his wife. It has not even been alleged that there was any form of marriage gone into between Maheshi Lal and Kaniz Begam and there would, therefore, be no presumption of a valid marriage having ever come into existence between Maheshi Lal and Kaniz Begani. Moreover, there could be no valid marriage between Maheshi Lal and Kaniz Begani so long as she continued to be a Muslim.
The finding of the lower court, therefore, that the parties to this suit, who were children born of Srimati Kaniz Begam before her conversion to Hinduism in 1927, were illegitimate children can not be assailed. Even after 1927 when Kaniz Begam was converted to Hinduism there was no marriage in any form between Maheshi Lal and Savitri Devi and even if their living together after 1927 may lead to a presumption that Savitri Devi was a wife of Maheshi Lal after 1927 this circumstance would not affect the status of the plaintiffs and the defendants who were all born before Kaniz Begam was converted to Hinduism.
6. It has now to be determined as to whether Srimati Kaniz Begam died as a Hindu in 1946. Mulla, in his well-known commentary on Hindu Law relying on certain decisions of various High Courts has mentioned that the Hindu Law applies not only to Hindus by birth but also to Hindus by religion, i.e., converts to Hinduism. No contrary view has been placed before me and it would appear that Srimati Kaniz Begam who became a Hindu in 1927 was a Hindu to whom the Hindu Law would be applicable on her death in 1946.
The lower appellate court has held that the share in the sugar mill owned by Srimati Savitri) Devi was her stridhan. Learned counsel for the respondents has contended that the finding of the two courts below on this point is not correct inasmuch as the theory of advancement does not apply to India and the share purchased by Kaniz Begam out of the funds provided by Maheshi Lal should be deemed to be the property of Maheshi Lal. It has to be noted that, there is no presumption that the property owned or held by a woman necessarily belongs to her husband or that the funds for the acquisition of such a property had been supplied to her by her husband or by somebody else.
In the present case there was no evidence to show that the share which stood in the name of Srimati Kaniz Begam alias Savitri Devi had been acquired out of the funds provided by Maheshi Lal and in the absence of any satisfactory evidence on this point it would not be correct to say that Srimati Kania Begam alias Savitri Devi acquired the share out of the funds given to her by Maheshi Lal. The lower appellate court has considered two possibilities.
This share might have been purchased by Srimati Kaniz Begani alias Savitri Devi out of her own funds or by money given by Maheshi Lal as a gift to her. These are after all surmises and in the absence of any definite evidence that the money had been provided by Maheshi Lal no question of the application of the theory of advancement would arise. Moreover, the lower appellate court has found it as a matter of fact that Srimati Kaniz Begam was the owner in her own right of the share and this is evidently a finding of fact which cannot be challenged in second appeal.
It remains now to be seen if this share was the stridhan of Srimati Savitri Devi. As remarked above, the Hindu Law is applicable to converts to Hinduism also and after Srimati Savitri Devi had adopted the Hindu faith in 1927 she became subject to the Hindu Law & any property owned by her would become her stridhan or was her stridhan at the time of her death. The finding of the lower appellate court that the share was the stridhan of Srimati Savitri Devi appears therefore, to be correct.
7. The main point of contention raised in this appeal however, is whether the illegitimate children of Srimati Savitri Devi were entitled to succeed to her stridhan property and, if so, in what order. The property having been acquired by srimati Kaniz Begam alias Savitri Devi of her own funds would be non-technical stridhan. It was not a gift by the husband or by any other relation. Even if Maheshi Lal made a gift of money to Srimati Savitri Devi from time to time it would be a gift from a stranger which again would be non-technical stridhan and succession to non-technical stridhan would under the Mitakshara Law be governed by the same principles which govern other Hindus.
The order of succession to non-technical stridhan is given by Mulla in his commentary on the Hindu Law and an unmarried daughter stands first in the order of succession. Coming next to an unmarried daughter is a married daughter who is unprovided for and the third in order of succession is a married daughter who is provided for, it has been argued on behalf of the respondents that it was only in the case of Sudras that illegitimate children would succeed to the property of their mother. There is no reported case which is applicable on all fours to the facts of the present case but a case reported in Arunagiri Mudali v. Ranganayaki Ammal, (ILR 21 Mad 40 (A)), is helpful in deciding this point In this reported case a Hindu woman had daughters begotten of one paramour as also a son begotten toy another. On the death of the Hindu woman the daughters sued for possession of a house in succession to their mother. The claim was resisted by the brother but the claim of the daughters was decreed. Reliance was placed in that case on a text of Manu; but it was held that the proposition of law as laid down by Manu referred not to the devolution of property of a concubine but of a woman married in succession, to two husbands.
It appears, however, that the point that the daughters were preferable heirs as compared to the sons was not raised in that case but the fact that the claim of the illegitimate daughters was decreed against the Illegitimate son itself shows that the court was of the view that the succession to stridhan was the same as given by Mulla in his commentary on the Hindu Law. The point can also be considered from another aspect. A Muslim on conversion to Hinduism cannot claim to belong to any of the twice-born classes and a Hindu not falling under any of the twice-born classes would be a Sudra.
In the case of sudras there is no dispute that the illegitimate children will inherit the property of their mother. J.C. Ghose in his book "The Principles of Hindu Law" has also remarked that according to Hindu Law an Illegitimate child is not the child of the father but of the mother and can thus have no relations or rights of inheritance except to the mother's property. The plaintiff's and defendants being illegitimate children of Savitri Devi who, on conversion, as pointed out above, would be classed only as a Sudra would therefore be entitled to inherit the property of their mother which was her stridhan property at the time of her death.
The plaintiffs claim to be unprovided married daughters of Srimati Savitri Devi and they claim exclusive right to the stridhan movable property of their mother to the exclusion of defendant No. 5 who was a married daughter but was provided for. It was expressly mentioned in paragraph 17 of the plaint that the plaintiffs were unprovided while their sister defendant No. 5 was a rich lady and was, therefore, not entitled to succeed to the property of Srimati Savitri Devi in preference to the plaintiffs. Defendant No. 5 admitted the claim of the plaintiffs and did not contest the suit.
The plaintiffs were therefore entitled to a decree for the recovery of Rs. 750/- realised by defendants 1 to 4 on account of the price of the share of the sugar mill which went into liquidation and the view taken by the lower appellate court to the contrary does not appear to be correct.
8. No other point has been raised, in arguments.
9. As a result, the appeal is allowed with costs and the decree passed by the lower appellate court is set aside and the decree passed by the trial court is restored.
10. As the point of law involved in this appeal is of considerable importance leave to file a special appeal is granted.