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Haribhai Gulab Vs. Mathur Lallu - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 16 of 1922
Judge
Reported inAIR1924Bom140; (1923)25BOMLR929
AppellantHaribhai Gulab
RespondentMathur Lallu
Excerpt:
.....mayukha-uncle and nephew cannot succeed simultaneously to a distant relative.; under the vyavahara mayukha an uncle and a nephew are not entitled to succeed equally to a distant relative; but according to the principle of propinquity the nephew is excluded by the uncle. - - 2. it is urged on behalf of the plaintiff, who raised this contention in the lower court without success, that as according to the rule under the vyavahara mayukha a brother's son takes with the brother when the inheritance to another deceased brother opens, by the same analogy in the case of distant sapindas the same rule should be adopted. this contention is so opposed to the plain meaning of the vyavahara mayukha that we are not surprised that the learned counsel for the appellant has not been able to..........it is clear that lallu is nearer by one degree to varadhbhai, haribhai being the son of lallu's brother gulab who was dead at the date the inheritance opened.2. it is urged on behalf of the plaintiff, who raised this contention in the lower court without success, that as according to the rule under the vyavahara mayukha a brother's son takes with the brother when the inheritance to another deceased brother opens, by the same analogy in the case of distant sapindas the same rule should be adopted. it is a contention which is not supported by any authority. it seems to us to be entirely opposed to the whole scheme of the rules of inheritance. it is enough to refer to the passage in the vyavahara mayukha itself at page 82 in mandlik's hindu law, where it is stated: 'all the.....
Judgment:

Lallubhai Shah, Kt., Ag. C.J.

1. The only question argued in this appeal is that Haribhai, the plaintiff, would take equally with his uncle Lallu as reversionary heir to the deceased Varadhbhai who was the first cousin of Lallu's father. The relationship of the parties is given at page 3 of the print in the judgment of the lower Court, and according to the relationship it is clear that Lallu is nearer by one degree to Varadhbhai, Haribhai being the son of Lallu's brother Gulab who was dead at the date the inheritance opened.

2. It is urged on behalf of the plaintiff, who raised this contention in the lower Court without success, that as according to the rule under the Vyavahara Mayukha a brother's son takes with the brother when the inheritance to another deceased brother opens, by the same analogy in the case of distant Sapindas the same rule should be adopted. It is a contention which is not supported by any authority. It seems to us to be entirely opposed to the whole scheme of the rules of inheritance. It is enough to refer to the passage in the Vyavahara Mayukha itself at page 82 in Mandlik's Hindu Law, where it is stated: 'All the Sapindas and the Samanodakas follow in the order of propinquity'; and after the specified heirs when we come to the agnates, the only test is the test of propinquity. Applying that rule, it is clear that Lallu would be a nearer heir than Haribhai, and would exclude him. This contention is so opposed to the plain meaning of the Vyavahara Mayukha that we are not surprised that the learned Counsel for the appellant has not been able to rely upon anything better than the analogy of brother and brother's son in support of this proposition, A case like the present is not of uncommon occurrence, and if the analogy had ever been extended in this Presidency in the Districts governed by the Vyavahara Mayukha, there would be some decision in favour of such a proposition. But the absence of such a decision indicates that the contention is not sound. We, therefore, confirm the decree of the lower Court and dismiss the appeal with costs.


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