L.H. Jenkins, K.C.I.E. C.J.
1. The question arising on this appeal is, whether the appellant should be preferred to the respondent as hair to the property in suit? The relationship of the parties is shown in the tabular statement contained in the judgment of the first Court. On Tukaram's death, about thirty years ago, he was succeeded by his widow, but on her remarriage the property passed to Tukaram's mother who has now died.
3. The present claimants are the appellant who derives title under Tai and Salau on the one hand, and Waghu who is the grandson of Mahadaji.
4. In the first place it was contended that on Tukaram's mother's death succession ought to be traced to Kushaji, her husband.
5. The purpose of this argument was to take advantage of the rule in Jahis Presidenoy which assigns a high place in the order of succession to the sister. We are, however, of opinion that the point is covered by authority and that the heir of Tukaram is the person to succeed. The Question therefore resolves itself into this; is the paternal aunt or the paternal great-grandfather's grandson to be preferred? Both the lower Courts have decided against the aunt.
6. Now there is no doubt that the great-grandfather's grandson is a sagotra sapinda. Mr. Chaubal contends that the same, or as good a qualification, is possessed by the aunt, and he is forced so to contend; for he concedes that if she be bhinna gotra sapinda or bandhu, she cannot succeed unless, by reason of the parties being Sudras, it can be said gotra is not a determining factor. Now an aunt by marriage? becomes of another gotra. Reliance is however, placed on the text of the Vyavahar Mayukha, which deals with a sister's succession (IV, viii, 19). In the record of Second Appeal No. 158 of 1870 we have the following translation of this passage:
In her (father's mother's) absence the sister. For Manu says--that among sapindas to the nearest the inheritance belongs. Brahaspati (also) says where there are many caste-fellows and bandhus of the same family (Sakulya), among them, the nearest takes the wealth of the childless deceased. And because of her also having been born in the gotra of the brother, there is the identity of gotratva (state of belonging to the gotra). Only she has no sagotratva (evenness of gotra)(with the brother). Sagotratva (however) is not stated as the cause (occasion) of vesting the inheritance.
7. The same reasoning, it is urged, is applicable to the paternal aunt.
8. In Second Appeal No. 158 of 1870 it was decided that the father's sister even in Gujarat was not entitled to come in at the head of the gotraja sapindas, and she was postponed to distant male gotraja sapindas. Here then we have the decision of a bench of this Court more than thirty years old on a point of property law which governs this case, and we think that in the absence of strong reasons it would be wrong for us not to treat ourselves as bound by it; for in property law the principle of stare decisis must have the greatest weight ascribed to it. Therefore we hold that the paternal grandfather's grandson is to be preferred to the paternal aunt, and we think it should make no difference in this respect that the parties are Sudras. The decree of the lower Appellate Court must therefore be confirmed with costs.