1. This appeal arises out of an interpleader suit and raises a short point which can only be understood when a genealogical table is set out. For the sake of lucidity, we will not give the actual names but letters:
2. X married, inter alia, M and N. By M he had three children, a son A, and two daughters C and D. A had a daughter B. X by N had two daughters E and F. At the time this suit was filed C, D, E and F were alive and the rest were dead. F was unmarried, C, D and E were married. B, when she died, died unmarried.
3. The law applicable to this family is the Bombay school of Hindu law, the Mayukha. The plaintiff has certain property belonging to C, D, E, F; and the suit is to determine which of the four is or are entitled. There are other complexities which do not arise in this appeal. The learned Judge has decided that C and D are entitled as being the sisters of A in preference to E and F who are the half-sisters of A. The following arguments have been addressed to us on behalf of the appellants.
4. It is said that under the Hindu Law of Inheritance (Amendment) Act, 1929, a sister is put in the order of heirs and as that term (sister) has been held in I.L.R (1938) Nag. 115 (’38) 25 A.I.R 1938 Nag. 134 , 174 I.C 211 , I.L.R (1938) Nag. 115 (F.B) to include half-sister the two classes must be treated as on a parity and that therefore the old Hindu law is superseded and E and F take along with C and D. The answer to that argument is found in the fact that the Hindu Law of Inheritance (Amendment) Act, 1929, gives directions as to the order of certain heirs where the subject of enquiry is who is entitled to a Hindu male's estate. In this case B being governed by the Bombay school had an absolute estate in this property and not merely a Hindu woman's estate. It was her stridhan property and accordingly on her death it is not a case where her interest had ended and of tracing the heirs from her father, A. It is a case where one traces the heirs from her; and one is not therefore enquiring who has succeeded to A's estate but who should succeed to B's. It would be idle to enquire how the Legislature came to consider it was important whether the estate was that of a male or a female when considering the meaning of statutory provisions as to who should be heirs, but it appears to us clearly to have done so. Accordingly, in our opinion, considerations derived from the Hindu Law of Inheritance (Amendment) Act, 1929, are irrelevant. It is next said that in cases like this old Hindu texts only trace the succession as far as the deceased's father (see Mayne on Hindu Law and Usage para. 621) and that nothing is to be found as to what is to happen in default of the father. Another text adds another rule for it provides that where there is no father alive it goes to the nearest relations. As Mayne points out, a Full Bench of the Bombay High Court has held that “in default of the father, his nearest heirs are the heirs to the maiden's property.” This is the view that Sir Dinshah Mulla accepts where at p. 136, Edn. 9 (Mulla's Principles of Hindu Law) the learned editors give the order as follows:
“(1) uterine brother; (2) mother; (3) father; (4) father's heirs in order of propinquity; (5) kinsmen of the deceased herself, that is, her mother's heirs in order of propinquity.”
5. It is said that in circumstances such as those, i.e, where the circumstances are such that one has to trace the father's heirs in order of propinquity, one has a valuable guide in the Hindu Law of Inheritance (Amendment) Act, 1929, which says that the male's heirs are in such and such order. The sister comes in that order at a certain place and when you find that there is no distinction between sister and half-sister when tracing out this line of heirs you come to the conclusion that C, D, E and F are all alike. That is one branch of the argument, a branch of the argument which we cannot assent to because we are of the opinion that the Hindu Law of Inheritance (Amendment) Act, 1929, is almost the worst possible guide in determining what the old Hindu law of inheritance was as its whole purpose is to alter the old Hindu law of inheritance. But the above facts are made the basis for another argument. It is said that on any view of this case as F was at all material times unmarried she was in the gotra of X whereas C, D and E having all married had left the gotra of X and had entered into the respective gotras of their husbands. Therefore, it is argued that F is the only person of these four who is in the same gotra as B and that she should therefore be selected as the true heir. That appeared to be an attractive line of thought but it has already been considered and set aside in a very great number of cases referred to in Mayne in paragraph 507. We reproduce the passage:
“In Bombay, however, a sister's right has long been settled beyond dispute. She is considered a gotraja sapinda, on the ground that this term is satisfied by her having been born in her brother's family, and that she does not lose her position as a gotraja by acquiring on her marriage her husband's gotra. That being so, her place among the gotraja is determined by nearness of kin.”
6. We are thus driven to enquire who of these four ladies is the nearest to A viewed from the point of Hindu law of inheritance under the Bombay school. In our opinion they are all equally near, but for the purpose of inheritance under the rule that the whole blood excludes the half blood C and D being the sisters of A of the whole blood exclude E and F. This is the conclusion arrived at by the learned Judge and we think that he was right. The appeal fails and is dismissed with costs.
G.N/R.K
7. Appeal dismissed.