Basil Scott, Kt., C.J.
1. The question which we have to decide is whether among Hindus in this presidency governed by the law of the Mitakshara a paternal uncle's widow or a paternal uncle's grandson is to be preferred as an heir for the purpose. of grant of Letters of Administration. That the paternal uncle's widow is a gotraja sapinda eligible for inheritance results from the decision in Lallubhai v. Mankuvarbai ILR (1876) 2 Bom 388, which was affirmed by the Judicial Committee. The question which now comes before the Court was anticipated by Mr. Justice West in his judgment in that case in the following passage.
The recognition of the widows of gotraja sapindas : as themselves gotraja sapindas, however slender the basis on which it originally rested so far as collaterals are concerned, has become a part of the customary law wherever the doctrines of the Mitakshara prevail, and the Courts must give effect to it accordingly. Whether, indeed, the widow of a collateral should take before the son or grand-son of the same man, may admit of question. The mother of the propositus takes before her son or grand-son, and a like precedence is assigned to his grandmother and great grand mother ; but brothers' wives, on the other hand, are not mentioned between brothers and their sons in Yajnavalkaya's text, nor has Vijnaneshwara found a special place for them or for a descendant's widow as he has for the daughter's son. Although, therefore, a woman, becoming a member of her husband's family, takes the benefit of a rule resembling that of the Roman Law, yet as in that law the widow's right of inheritance was limited and of late introduction, the ' gradus' applying, in strictness, only to blood relations, so analogy may be thought to lean somewhat to the preference of the eldest surviving male as representative of any branch to the widow of any collateral in the same line ; but the point cannot be finally decided until it arises in the proper form. It is enough for the purposes of the present case to say that a widow in a nearer collateral line has precedence, according to the Mitakshara, over a male in a remoter line.
2. In a subsequent passage he states that-
If the foundation of the rights of widows of gotiojas under the Mitakshara is slender, under the Mayukha it may be culled almost shadowy.
3. In Rachava v. Kalingapa ILR (1892) 16 Bom. 726 the Court gave effect to the opinion thus expressed by West J. by holding that a paternal uncle's son was to be preferred to the widow of another paternal uncle of the propositus. Mr. Justice Telang expressed the conclusion of the Court in these words:
When it is remembered that the widows of collaterals among the goliojas are not specifically mentioned, even in these works like the Mitakshara where collateral males, like uncle's sons etc., are expressly named, it seems to be the fairer interpretation of the law to hold, that a female gotraja sapinda in any one line cannot exclude any male properly belonging to that line.
4. The question then is whether the paternal uncle's grandson can be said to be a male properly belonging to the line to which a paternal uncle's widow belongs within the meaning of that judgment. In dealing with the question of lines of descent Mr. Justice Telang makes the following observations:
In the Mitakshara, Chapter II, Section 5, P1 4 and 5, it is laid down, that the propinquity of golrajas is to be determined by lens of descent-that is to say, the inheritance is to go first in the line.(the. word in the original is santana, literally, 'continuation') of the paternal grandfather, then, in default of any one in that line, of the paternal great- grand-father, then of the paternal great-great-grand-father, and so forth. Now ordinarily there can be no doubt, that each of these lines must be treated as represented, or 'continued,' by any male member belonging to that line in preference to any female. As in an undivided family no female member of the family would be ordinarily regarded as representing the family while any male member was alive, so it should be in the case of the lines' to which the Mitakshara refers. (p. 719)
5. It has been laid down by the Judicial Committee that the line of sapindas includes descendants in the sixth degree; Bhyah Ram Singh v. Bhyah Ugur Singh (1870) 13 M.I.A. 373. The respondent as uncle's grand-son of the propositus is third in descent from the grand-father from whom the line of collaterals springs, and therefore well within the line. This is not disputed, but it is argued that the lines of collaterals are, according to the better opinion, interrupted after the second in descent from the ancestor from whom they spring and that the third in descent is postponed both to the first and second in descent in more remote collateral lines and also to the last four in descent in all earlier collateral lines. The argument is supported by reference to Suraya v. Lakhminarasamma ILR (1881) Mad. 291 and to the article on Sapinda relationship in Appendix III of Mandlik's Hindu Law. The views expressed in these authorities have by no means obtained universal acceptance ; the arguments in favour of an uninterrupted line of six descendant gotraja sapindas from each of six male ancestors are to be found in West and Buhler's Hindu Law (3rd Edn., pp. 114-123) and Kallian Rai v. Ram Chundar ILR (1901) All. 128. We do not think it necessary in this case to discuss the arguments on either side in connection with this difficult question as the decisions of this Court to which reference has been made would not in our opinion justify the preference of the widow of a gotraja sapinda to any male sapinda within the six degrees of the same line for the purpose of inheritance among collaterals.
6. The grand-son of the uncle is, therefore, to be preferred to the widows of other uncles of the propositus.
7. We affirm the order of the lower Court. The parties may have their costs out of the estate.