1. The property in suit belonged to one Shiddappa Ramappa Desai who died unmarried on October 5, 1919, leaving Kallava defendant No. 1, the widow of his predeceased uncle Parbhu, and two widows of his predeceased uncle Appu (1) Vithabai, the plaintiff, and (2) Kashibai, defendant No. 2. The present suit was brought by Vithabai, one of the widows of Appu, for partition of the property.
2. The learned Subordinate Judge held that according to Hindu law the widows of a gotraja sapinda took per capita, and that the plaintiff, defendant No. 1, and defendant No. 2, who were equally related to their deceased nephew Shiddappa, inherited the property in equal shares.
3. The first question arising in the case is whether the widows of the collaterals succeeding as gotraja sapinda take per capita or per stirpes. It is urged on behalf of the appellant that the right of the widow is co-extensive with her husband, and reliance has been placed on West and Buhler's Hindu Law, p. 84, and on the decisions in the cases of Lakahmibai v. Jayram Hari (1869) 6 B. H. C. B. 152 Lallubhai Bapubhai v. Mankuvarbai ILR (1876) 2 Bom. 388 ; and Lulloobhoy Bappoobhoy v. Cassibai (1880) L.R. 7 I. A. 212; and therefore it is said that defendant No. 1 is entitled to a moiety and plaintiff and defendant No. 2 are entitled to the other moiety. The passage in West and Buhler is based on the decision in Rooder Chunder v. Sumbhoo Chunder (1821) 3 S. D. A. R. 106, where it was held that the heirs of the deceased owner are to be ascertained on the death of the widow on the ground that a wife is half the body of the husband and another person would not take the property while half of the body survives. The succession is laid down in Yajnavalkya's text, Shlokas 135-136, Mitakshara, Ch. II, Section 1, pi. 2, namely, that ' the wife, and the daughters also, both parents, brothers likewise and their sons, gentiles, cognates, a pupil and fellow students; on the failure of the first among these, the next in order is indeed the heir to the estate of one who departed for heaven leaving no male issue.' It would, therefore, follow that on the death of the prior heir the other heirs succeed consecutively. The widow would succeed first in the absence of issue and after her death the other heirs succeed in the order mentioned. It is not, there fore, necessary to consider that the widow is half of the body of the husband or is an extension of the life of the husband in order to ascertain the heirs of the husband after the widow's death. The contention of the appellant that the wife represents the husband on the basis of the text of Brihaspati that the wife is the half of the body of the husband would lead to the anomaly that she would even exclude the son from inheritance. There is the fiction of the identity of the son with the father in the Aitareya Brahmana VII. 13, 10 that ' His wife is only a real wife (jaya from jan to be born) when he is born (jayate) its her again.' See Mitakshara Achara Adhyaya on Yajnyavalkya's Shloka 56. Translation by Vidyarnava, Panini Office, p, 121. The son according to the text is the man himself born again in his wife who according to Brihaspati is half of the body of the husband. There is further the fiction of the identity between a father and a daughter ' As is the self, so is the son and a daughter is equal to a son. When the self stands in her form, how shall any one else take away the estate?' See Manu, Ch. IX, Sh. 130. On the whole I think that these fictions cannot be carried too far.
4. In the case of Lahshmibai v. Jayram Hari (1869) 6 B. H. C. R. 152 it was held that, according to the Hindu law obtaining in Western India, the wives of all gotraja sapindas and samanodakas have rights of inheritance co-extensive with those of their husbands immediately after whom they succeed. The decision in Lakshmibai v. Jayram Hari appears to have been widely expressed. In Bachava v. Kalingapa ILR (1892) 16 Bom. 716 Telang J. observed at page 718 :-
It is to be observed, however, that, if that rate of Manu is strictly applied, and the widow is treated, in the language of Brihaspati, as ' half the body of the husband,' the result will have to be in favour of a husband and wife inheriting jointly to a gotraja sapinda, and a female gotraja cannot be excluded from inheriting even by her own husband, This certainly looks like a case of proving too much.
5. Then at page 721 it is observed :-
Lastly, it must not be forgotten, that even in Lahshmibai v. Jayram Hari (1869) 6 B. H. C. R. (A. C. J.) 152, which was also cited for the appellant, the actual decision of the Court is in full conformity with the rule as stated in the later cases. It is only a dictum of the learned Judges in that case that can be relied on in favour of the right claimed here for the appellant, in consequence of the somewhat incautiously broad language in which it is couched.
6. It was held in Rachava's case that under the Hindu law the sons of a paternal uncle inherit in preference to the widow of another paternal uncle of the propositus, and that the females in each line of gotrajas are excluded by any males existing in that line within the limits to which the gotraja relationship extends.
7. In Kashibai v. Moreshvar Raghunath ILR (1911) 35 Bom. 389, 13 Bom. L.R. 552 it was held that among Hindus in the Bombay Presidency governed by the law of the Mitakshara, a paternal uncle's grandson is to be preferred as an heir to a paternal uncle's widow. It is clear, therefore, that the paternal uncle's widow is postponed in the order of succession to the paternal uncle's son and grandson or any male in the grandfather's line. This is contrary to the assumption that the widow represents the husband and that her right is co-extensive with her husband, In Lallubhai Bapubhai v. Mankuvarbai ILR (1876) 2 Bom. 388 it was observed by West J. at page 444 :-
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.
8. And at page 447 it is further observed :-
Thus, if the foundation of the rights of widows of gotrajas under the Mitakshara is slender, under the Mayukha it may be called almost shadowy.
9. The widows of gotraja sapindas themselves inheriting as gotraja sapindas are recognised as heirs by the customary law of Western India. The basis for the doctrine is that Vijnaneshvara abandoned the doctrine that the right to offer oblations alone constituted the right to sapindaship, and adopted in lieu of it the theory that sapindaship is based upon the community of corporal particles, or in other words, upon consanguinity, and that he maintained that there is such community between the wives of collaterals, See Zallubhai Bapubkai v. Mankuvarbai ILR (1876) 2 Bom. 383 where reference is made to the Achara Kanda of the Mitakshara. 'So also the wife and the husband are sapindas of each other as they together ' beget one body'. In Lulloobhoy Bappoobhoy v. Cassibai (1880) L.R. 7 I. A. 212 it was held that the widow of a paternal first cousin of the deceased becomes by her marriage a gotraja sapinda of the deceased, and is entitled to succeed to the estate in preference to male gotraja sapindas who are seventh in descent from the common ancestor of them and the deceased, which common ancestor is sixth in ascent from the deceased. It follows, therefore, that the decision in Lahahmibai v. Jayram Hari (1869) 6 B.H.C.R 152 is widely expressed according to the view of West J. in Lallubhai Bapubhai v. Mankuvarbai ILR (1876) 2 Bom. 388 and Telang J. in Rachava v. Kalingapa ILR (1876) 2 Bom. 388.
10. Succession per stirpes is laid down expressly in the case of a partition among the male descendants of the. deceased person. That is based upon a special rule laid down in the Mitakshara, Ch. I, Section 5, pi. 1, Stokes' Hindu Law, p. 391, Gharpure's translation, p. 196. A similar rule in relation with the distribution of stridhan is also based on the Mitakshara, Ch. II, Section 11, pi. 16, Stokes' Hindu Law, p. 462, Gharpure's translation p. 277. Telang J., in Nagesh v. Gururao ILR (1892) 17 Bom. 303 observed (p. 305):-
Succession per stirpes is laid down expressly in the case of a partition among the male descendants of a deceased parson, But that is distinctly stated to be a special rule based on a special text. The similar rule in relation be the distribution of stridhran is also based in the Mitakshara on a special text. It is not, therefore, a matter of course to apply that rule in a case to which no express text extends it, On the other hand, it is to be remarked, that the remoter heirs succeed in their own right, and directly to the propositus.
11. It was held in that case that among the remoter gotraja sapindas the inheritance goes per capita and not per stirpes. The same principle was followed in the case of Narsappa v. Bharmappa ILR (1920) 45 Bom. 296, 22 Bom. L.R. 1196, where it was held that under Hindu law, first cousins of the propositus take per capita and not per stirpes. Mayne in his Hindu Law, 9th Edition, page 836, observes:-
Succession per capita is the rule, and succession per siirpes the exception, in each case based on a special text.
12. See also Mulla's Hindu Law, 6th Edition, pages 19 and 22.
13. It would, therefore, follow that the widows of the gotraja sapindas inherit in their own right as sapindas of the deceased, and therefore, according to the rulings to which I have referred, they take per capita.
14. The right of a widow to succeed as an heir to the stridhan of a co-widow as the gotraja sapindas of her husband is recognised in Bai Kesserbai v. Hunsraj Morarji ILR (1906) 30 Bom. 431, 8 Bom. L.R. 446. and Krishnai v. Shripati ILR (1905) 30 Bom. 333.
15. In Narayan v. Waman : (1921)23BOMLR587 it was held that a Hindu widow inheriting under the rule in Lallubhai Bapubhai v. Mankuvarbai ILR (1876) 2 Bom. 388 as a gotraja sapinda, to the daughter of her husband's brother, takes an absolute estate.
16. It would, therefore, follow that the widow of a gotraja sapinda, succeeding under the rule in Lallubhai Bapubhai v. Mankuvarbai, takes in her own right as an heir and not only as representing her husband.
17. Mr. Gumaste in his reply referred to the decision in the case of Basangavda v. Basangavda ILR (1914) 39 Bom. 87, which does not bear directly on the point under consideration. It was held that the general rule in favour of widows of gotraja sapindas of nearer collateral lines excluding male gotrajas of remoter lines applies not only to the line of the grandfather and other remoter lines but also to the line of the father, and that the widow of a brother of the deceased is, as a sapinda, a nearer heir of the deceased than his paternal uncle's sons. Even the dissenting judgment of Beaman J. at p. 98 characterizes as extravagant the text of Brihaspati that the wife is half the body of the husband.
18. The appellant's counsel further relied on the decision in the case of Gauri Nath v. Gaya Kuar (1928) 31 Bom. L.R. 1. 16 Bom. L. B. 699 where the question, wan as to the nature of the estate inherited by the widows from their husband and it was held that they took a joint estate. It is a case of co-widows succeeding as co-heirs to a deceased person and not succeeding as gotraja sapindas, and is an exception to the general rule that the heirs take as ten ants-in-common. See: Mulla's Hindu Law, page 21, para 31. I think, therefore, that the widows of gotraja sapindas succeeding as heirs take in their own interest as gotraja sapindas, and therefore, according to the general rule they would inherit per capita and not per stirpes.
19. The second point urged on behalf of the appellant is that the lower Court erred in awarding interest, and, secondly, that the interest awarded was too high. Under Section 2, Clause (12), of the Civil Procedure Code, mesne profits would include interest upon such profits, and the Court has discretion to award the rate of interest. We think under the circumstances of the present case that there is no reason to interfere with the exercise of that discretion by the lower Court.
20. We think, therefore, that the decision of the lower Court is correct and this appeal must be dismissed with costs.
Amberson Marten, Kt., C.J.
21. The exact principle whereby in this Presidency Hindu widows become gotraja sapindas and can inherit may be open to doubt. The theory that each widow is half her husband and therefore a continuation of his life cannot be pressed too far, for otherwise she would succeed in preference to or together with her sons and others. Another theory that by marriage and begetting sons she and her husband thereby form one link between the ancestor and the descendant and thus has particles of the family in each of them, does not seem altogether logical if they beget no children at all as in the present case. The established usage, therefore, in this Presidency whereby widows do in fact inherit is easier to justify as being in accordance with comparatively modern notions, than as a corollary from the ancient texts and commentaries prevailing in this Presidency.
22. But that usage being established in fact and the widows being deemed to be gotraja sapindas, I see no adequate reason why their succession should not be governed by the same general rule as governs all Hindu successions, viz., succession per capita and not per stirpes, apart from the two recognised exceptions in the cases of (a) certain male descendants of a deceased male Hindu, and (b) certain grandchildren succeeding to stridhan property as stated in Mulla's Hindu Law, 6th Edition, para. 32. To hold otherwise would be to establish a third exception, and seeing that Hindu law favours in general a division per capita even amongst the sons of several deceased brothers, it would seem more logical to have a per capita division also amongst their widows, should there as in the present case be no sons.
23. I would, therefore, uphold the decision of the learned Judge and dismiss the appeal with costs.