1. This was a suit by a purchaser from Radhabai of certain property in which, he alleged, that she possessed a life interest. He was resisted by the defendant, who is a second cousin of Radhabai's husband. It may be convenient to state the relations in which the persons, mentioned in the judgments of the Courts below and in the arguments here, stand to each other. Starting from the common ancestor Bapu, he had two sons, Venkatesh and Dhondu, Dhondo had a son Martand ; Martand had a son Khando, who is the defendant in the present suit. Venkatesh had two sons Balacharya and Krishnacharya. Balacharya had two sons Keshav and Venkatesh. Keshav left a widow Radhabai and Venkatesh left a widow Ramabai. Venkatesh predeceased Keshav, who predeceased Ramabai, and last Ramabai died leaving, as the plaintiff contends, Radhabai as the sole surviving gotraja sapinda of that line, and therefore possessed of a life interest in all the property of the family, starting from the elder Venkatesh, whether or not the members of that family have divided amongst themselves.
2. The lower appellate Court, dealing with the suggested issue, was there a partition or not between the brothers Keshav and Venkatesh, held that it made no difference since, in any event, Radhabai had acquired a life interest in all the property of the family. To this finding exception has been taken here and we have been asked to frame an issue and remand it for trial to the lower appellate Court, whether or not the brothers Venkatesh and Keshav separated.
3. On a first view it certainly appeared that that was a material issue, but on further arguments and a consideration of the authorities, to which we have been referred, we are of opinion that the learned Judge below was correct in the conclusion he has somewhat summarily stated.
4. In the recent case of Kashibai v. Sitabao : (1911)13BOMLR552 the point we are now dealing with arose and was decided by a Bench of this Court in accordance, we think, with the conclusion of the lower appellate Court. Criticizing that decision, and indeed relying upon it for the purpose of his own argument, the appellant contends that rightly understood, it brings within the field of competition his client Khando; and therefore, since it holds that when the competition is between a male and a female within the line of gotraja sapindaship the male prevails, following Rachava v. Kalingapa ILR (1891) 16 Bom. 716, it would be an authority not in support of but against the conclusion we adopt. We have very carefully studied the cases reported at I. L. R. 16 Bom.716 and 13 Bom. L. R.552, and, we entertain no doubt that the effect of those cases, more particularly the rule enunciated in the latter case, correctly applied, would be to exclude, for the purposes of this proposed competition, the defendant Khando. We agree with the learned pleader for the respondent that in dealing with the line of gotraja sapindaship the descendants must be exhausted at each step of the ascent, before we proceed higher to bring other heirs into the competition.
5. Following that principle here and in endeavouring to ascertain by it the true heirs to the property in dispute, it appears to us to work out thus; and we assume that there was a partition between the brothers Keshav and Venkatesh and that the question to be answered is who are the heirs of the property of Venkatesh. On Venkatesh's death his heir would be his widow Ramabai. She survived his brother Keshav. On the death of Ramabai, the question is whether Radhabai, the widow of Keshav, is Venkatesh's heir or whether his second cousin Khando is to be preferred.
6. In the ascending line we find first the brothers Balacharya and Krishnacharya, and next above them the grand-father Venkatesh the elder. According to our understanding of the principle enunciated in Kashibai v. Sitabai, it would be necessary that the whole of this line should be exhausted before going one step higher and bringing in the descendants of the great-grand-father Bapu. It is only on the assumption that this ought to be done that any force whatever can be allowed to the appellant's contention that he will then be found within six degrees of the common ancestor Bapu. It appears to us, however, clear that so long as there are survivors in the direct line, as in the present case the widow Radhabai, there is no need to go further and by starting the line of descent at the great-grand-father opening a larger field of competition.
7. In this view we must hold that no point material to a correct decision has been left undecided by the lower appellate Court, and that its conclusion is in conformity with the settled rule of Hindu Law. We therefore think that this appeal fails and must be dismissed with costs.