Lawrence Jenkins, K.C.I.E., C.J.
1. The principal point that arises on this appeal is whether for the purpose of succession to the non-technical Stridhan of a widow who has died without issue the whole brother of her deceased husband is to be preferred to his half-brother.
2. This case conies from Dharwar and must be determined by the rules of the Mitakshara so far as they apply.
3. Now it is not disputed that the deceased was married in an approved form, and where that is so the Mitakshara in Ch. II Section 11, pl. 11, as translated by Mr. Colebrooke, says 'Of a woman dying without issue as before stated, and who had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha and Prajapatya, the whole property, as before described, belongs in the first place to her husband. On failure of him it goes to his nearest kinsmen, Sapindas allied by funeral oblations. '
4. It is pointed out by Mr. Justice Telang in Gojubai v. Shrimant Shahajirao Maloji Raje Bhosle ILR (1802) 17 Bom. 114 that the rendering of Sapindas as 'Kinsmen allied by funeral oblations' is not correct in this Presidency.
5. But if we ask who, as between his brother and his half-brother, were the nearest kinsmen of the deceased's husband, the answer is clear : the whole brothers admittedly were nearer to him than his half-brothers.
6. But Mr. Setalvad argues that the Mayukha treats the point in a manner which forbids our taking this view.
7. There is a difference between the translation of Mr. Borra-daile and that of Mr. Mandlik and the difference is so marked that it suggests the inference that they must have worked on different originals.
8. But, however that may be, it is we think enough for us to be guided-by Mr. Justice Telang on this point. He says 'It is possible to harmonize them, if both the Mitakshara and Mayuka, are understood to refer to the same heirs, only by different descriptions-the Mitakshara describing them as Sapindas of the husband, the Mayukha as Sapindas of the wife in the family of the husband.' Gojabai v. Shrimant Shahajirao Maloji Raje Bhosle ILR (1892) 17 Bom. 114 .
9. It is therefore (in our opinion) clear that the full brother is to be preferred to the half-brother; and we hold that the lower Court came to the correct conclusion.
10. The only other question is as to whether Nilawa acted in such a way as that it can be said that she recognized a transfer by which Mallawa purported to pass the property to the defendants along with the plaintiffs. That is a question of fact ; it has been determined adversely to the defendants; we cannot in second appeal interfere with the conclusion of the lower appellate Court,
11. The result therefore is that we must confirm the decree with costs.