Skip to content


Dattatraya Bhimrao Sabnis Vs. Gangabai Ganeshbhat - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal Nos. 56 and 67 of 1919
Judge
Reported in(1922)24BOMLR69
AppellantDattatraya Bhimrao Sabnis;gangabai Ganeshbhat
RespondentGangabai Ganeshbhat;dattatraya Lingo Yejman
Excerpt:
hindu law-succession-bandhus-sister's daughter-son's daughter's son-priority--adoption-adopted son inherits to adoptive mother's ancestors-daughter-in-law can adopt with father-in-law's consent in his life-lime-widow succeeding as gotraja sapinda cannot adopt-divesting of estate by adoption-sister as heir-balambhatta's commentary on mitakshara, value of.;according to hindu law, among bandhus, the son's daughter's son is entitled to succeed in preference to the sister's daughter.;an adopted son takes completely the place of a natural son, and is competent to inherit the property of his adoptive mother's ancestors.;per macleod c.j.-though some may think that this court in deciding that all male bandhus should be preferred to female bandhus without regard to propinquity has gone too far,.....shah, j.1. several questions of fact and law arise in these appeals.2. the following genealogical table indicates the relationship of the parties subject of course to their contentions as to certain facts:- hanmant | ____________________________________________________ | | | kristava venkaji balava (daughter) (son) (daughter) | | | _______________________ bhimrao = venkawa keshav alias | | | | (son) hanmantramchandra krishtapa venkava gangawa | | | (plff.) | |gurunath | jivava = ishwar |(adopted son) | (daughter) | deft. 4 | | | nilkant | | | (adoped son) | | | deft. 3 | | | | _________________ | | | | | hanmant | lingo gurunath jivaji (adopted son) | | (given in (deft. 2) | | adoption). ___________3. gangawa, who claims to be the daughter of kristava is the plaintiff in this case.4......
Judgment:

Shah, J.

1. Several questions of fact and law arise in these appeals.

2. The following genealogical table indicates the relationship of the parties subject of course to their contentions as to certain facts:-

Hanmant

|

____________________________________________________

| | |

Kristava Venkaji Balava

(daughter) (son) (daughter)

| | |

_______________________ Bhimrao = Venkawa Keshav alias

| | | | (son) Hanmant

Ramchandra Krishtapa Venkava Gangawa |

| | (plff.) | |

Gurunath | Jivava = Ishwar |

(adopted son) | (daughter) |

Deft. 4 | | | Nilkant

| | | (adoped son)

| | | Deft. 3

| | |

| _________________ |

| | | | Hanmant

| Lingo Gurunath Jivaji (adopted son)

| | (given in (Deft. 2)

| | adoption).

___________

3. Gangawa, who claims to be the daughter of Kristava is the plaintiff in this case.

4. Defendant No. 1, Dattatraya, not shown in the above table, claims to have been adopted by Venkava, the widow of Bhimrao. Defendant No. 2 claims to be the adopted son of Jivava, the daughter of Bhimrao.

5. Defendant No. 3 is the adopted grandson of Balava.

6. Defendant No. 4 is the adopted son of Ramchandra son of Kristava.

7. The last male owner of the property in suit was Venkaji. Bhimrao, son of Venkaji, predeceased Venkaji leaving a widow Venkava, and a daughter Jivava. He died in union with Venkaji. Venkaji died in 1880, and his widowed daughter-in-law Venkava got the property; whether she got it as an heir or under the will said to have been made by Venkaji in her favour is a matter to be considered. Venkava died on the 26th December 1907.

8. The present suit was filed by Gangava to recover possession of the property mentioned in the plaint with mesne profits. She claimed to be the heir of Venkaji as his sister's daughter. She claimed on the footing that Venkaji was the last male owner and that the inheritance was to be traced to him. She alleged that the adoption of defendant No. 1 did not take place in fact and that even if it took place it was invalid; that defendant No. 2 was not adopted by Jivava; that he had no title to the property, which was said to have been wrongfully retained by him; and that defendants Nos. 3 and 4, who claimed to be entitled to the property, had no title to it.

9. Defendant No. 1 contended that he was validly adopted by Venkava, that the plaintiff was not the daughter of Venkaji's sister Kristava as alleged by her and that in any case defendants Nos. 2, 3 and 4 were nearer heirs to Venkaji than the plaintiff and that as he had settled with them he was entitled to retain the property as against the plaintiff. He further contended that certain property was the property of Venkava and that at least so far as that property was concerned the plaintiff had no right to it.

10. Defendant No. 2 claimed to be the nearest heir of Venkaji as well as Venkava as the adopted son of Jivava, and maintained that he was entitled to the whole property. He repudiated the settlement referred to by defendant No. 1.

11. Defendant No. 3 claimed to be a nearer heir as the sister's son's son than the plaintiff and repudiated the settlement relied upon by defendant No. 1.

12. Defendant No. 4 claimed to be a nearer heir than the plaintiff on the same ground as defendant No. 3 but admitted having relinquished his rights in favour of defendant No. 1 and conceded that defendant No. 1 was the real owner of the property.

13. The trial Court held that the plaintiff was the daughter of Kristava, sister of Venkaji, that the adoption of defendant No. 2 by Jivava was proved, that the adoption of defendant No. 1 by Venkava was neither proved nor valid, that the will of Venkaji set up by defendant No. 1 was not proved, that the plaintiff was a nearer heir than defendants Nos. 3 and 4 and that the plaintiff and defendant No. 2 were equally removed from the last male holder and that therefore they were equally entitled to the property. Accordingly a decree for partition was passed in favour of the plaintiff. As regards the land which was alleged to have been acquired by Venkava on her own account, it was found that it was not shown to be her Stridhan, and it was held that in any case the property would go to the plaintiff and defendant No. 2.

14. Both the plaintiff and defendant No. 1 have preferred separate appeals to this Court: and practically all the points which were contested in the lower Court arise for our decision here.

15. [His Lordship dealt at this point with several questions of fact arising in this case and came to the conclusion that the plaintiff Gangabai was the daughter of Venkaji's sister Kristava; that defendant No. 2 was duly adopted by Jivava; that the adoption of defendant No. 1 by Venkava was not proved and that the plaintiff was in no way estopped from showing that it was not proved; and that the will of Venkaji was not proved and Venkava must be taken to have inherited the estate of her father-in-law according to the Hindu law as the widow of the nearest gotraja sapinda.]

16. Strictly speaking the question of the validity of the adoption of defendant No. 1 does not arise. But in view of the argument on the question it seems to me to be desirable to decide that question. And in any case its invalidity if established could afford an additional ground for ignoring the adoption. The will of Venkaji not having been proved, no question of his consent to an adoption by Venkava could arise, the only consent suggested being that contained in the will.

17. According to the decision of this Court in Lakshmibai v. Vishnu Vasudev I.L.R(1905) Bom. 410; 7 Bom. L.R. 436 the consent of the father-in-law would be operative only during his life-time. So the consent such as is contained in the will, even if proved, would not avail defendant No. 1.

18. It is urged, however, that Venkava by adopting defendant No. 1 did not divest any estate vested in a third person, that the adoption had only the effect of divesting the estate vested in her, and that on that ground the adoption is valid. According to the decisions of this Court that is not a conclusive test of the power to adopt. It may be that where the adoption has the effect of divesting any estate vested in a third person it might not be valid : but it does not follow that where it has no such effect the adoption is necessarily valid. That view has been accepted in Ramkrishna v. Shamrao (1902) I.L.R. 26 Bom. 526; 4 Bom. L.R. 315, F.B. The ratio decidendi of this case has been approved by the Privy Council in Madana Mohana Deo v. Parushothama (1917) L.B. 45 I.A. 136; 20 Bom. L.R. 1041. It has been applied by this Court in Datto Govind v. Pandurang Vinayak i.l.r(1908) 32 Bom. 499: 10 Bom. L.R. 692 specifically to the case of a widow succeeding as a gotraja sapinda of the last male owner under the rule established by Lallubhai Bapubhai v. Mankuvarbai I.L.R(1876) Bom. 388 and approved by the Privy Council in Lulloobhoy v. Cassibai (1879) L.R. 7 IndAp 212 in consequence of the absence of nearer heirs. In the present case the daughter-in-law succeeded as a gotraja sapinda of the last male owner in the absence of any nearer heir (see Vithaldas Manickdas v. Jeshubai `It is clear that Venkava could not adopt to her husband so as to affect the devolution of the estate inherited by her as a gotraja sapinda.

19. I may add that in the argument it has not been suggested that Venkava could have adopted to her deceased husband during her father-in-law's life-time without his consent and that her power to adopt remained unaffected even after her father-in-law's death in spite of her having inherited the estate from her father-in-law: and in view of the decisions in Ramji v. Ghamau I.L.R (1879) Bom. 498, F.B. and Vithoba v. Bapu I.L.R (1890) 15 Bom. 110 such a suggestion could not be made. The recent decision of the Privy Council in Yadao v. Namdeo (not yet reported) was not referred to in the argument, and its effect upon the view accepted by the Fall Bench in Ramji v. Ghamau may require to be considered hereafter I the present case, however, the daughter-in-law inherited the property of her father-in-law and the question of her power to adopt thereafter stands on a different footing. The principle underlying the rulings in Ramkrishna v. Shamrao and Datto Govind v. Pandurang Vinayak is not in any way affected by the observations in Yadao v. Namdeo. I think, therefore, that the adoption of defendant No. 1 by Venkava would not be valid.

20. It follows from these findings that defendant No. 1 has no title to the property in his own right.

21. It remains to consider the rights of the plaintiff, defendant No. 2 and defendants Nos. 3 and 4 to this property. I may mention here that we are not concerned in this suit with the effect of the settlement said to have been effected by defendant No. 1 with defendants Nos. 3 and 4 and with defendant No. 2. Their rights inter se need not be considered here.

22. All these relations are undoubtedly bandhus: they are all within the limits specified in the Mitakshara beyond which the blood relationship cannot exist. A translation of the relevant passage is given in Ramchandra v. Vinayak (1914) L.R. 41 IndAp 290; 16 Bom. L.R. 863. They are all atma bandhus. None of them is specifically mentioned in the Mitakshara or the Mayukha: and the only test to determine the heirship is propinquity to the propositus. This is clear from the Mitakshara (see Mitakshara, Chap. II, Sec. VI, Stokes Hindu Law Books, pp. 448-449). Whatever doubt there may have been at one time it is now accepted that the list of bandhus given in the text is merely illustrative and not exhaustive; nor does the list necessarily indicate anything more than this that the atma, bandhus are to be preferred to the pitri bandhus and that the pitri bandhus are to be preferred to the matri bandhus. It has been held by this Court in Mohandas v. Krishnabai I.L.R (1881) Bom. 597 and Parot Bapalal Sevakram v. Mehta Harilal Surajram I.L.R(1894) Bom. 631 that propinquity is practically the sole test, and indeed in the first case the Court preferred an obviously nearer atma bandhu, not mentioned in the Mitakahara, to an atma bandhu specifically mentioned therein. The recent judgments of the Privy Council in Adit Narayan Singh v. Mahabir Prasad Tiwari and Vedachela Mudaliar v. Ranganathan Chettiar (not yet reported) place this point beyond controversy. The difficulty arises in the application of the test of propinquity. I may also add here that the test of religious efficacy or the right to offer oblations is regulated by somewhat different considerations, and it does not necessarily afford any safe guide or useful assistance in determining the nearness of blood relationship in the case of distant relations such as we have in the present case.

23. It is strictly necessary to apply the test of propinquity, as best we can to the specific relationships we have in this case. Before dealing with this question, it will be convenient to deal with two general arguments that have been advanced in this case. It is contended on behalf of the plaintiff that defendant No 2 is an adopted son, and cannot take the place of a natural son, so far as his right to inherit the property of his adoptive mother's ancestors is concerned, as it depends upon the blood relationship, and that the fiction by which the adopted son takes his position as a natural son in the family of his adoptive father has not been carried so far in this Presidency in any of the reported cases and ought not to be applied to that extent. The second argument urged on behalf of defendant No. 1 is that the plaintiff's suit must fail on the simple ground that as she is a female, she is postponed to all male bandhus however remote; and the recent decisions of this Court in Balkrishna v. Ramkrishna I.L.R (1920) Bom. 353; 22 Bom. L.R. 1442 and Girimallappa Channappa v. Kenchava (2) I.L.R (1920) Bom. 768; 23 Bom. L.R. 213 have been relied upon in support of this argument.

24. As regards the first point I do not think that the argument can be accepted. In view of the decisions in Uma Sunleer Moitro v. Kali Komul Mozumdar I.L.R (1880) Cal. 256. approved by the Privy Council in Kali Komul Mozoomdar v. Umu Shunkur Moitra , it is hardly open to the plaintiff to rely upon the earlier decision of the Calcutta High Court in Morun Moee v. Bejoy (1863) W.R.F.B. 121 or of the Madras High Court in Chinnaramakristna Ayyer v. Minatchi Ammal (1873) 7 M.H.C.R. 245. It may be, as pointed out by Mr. Coyajee, that the point has not been decided by this Court or rather that there is no reported decision on the point; but the observations in Nagindas v. Bachoo (1915) L.R. 43 IndAp 56; 18 Bom. L.R. 172 wherein the relevant passage from the Full Bench decision of the High Court at Calcutta is quoted, are sufficient to render the argument untenable. The criticism of this view in Ghose's Hindu Law, Vol. I, p. 655 (3rd Edn.), which purports to be based upon certain texts, has been relied upon by Mr. Coyajee. That criticism no doubt deserves to be considered: but it is hardly an open question now at least so far as this Court is concerned. At one stage of the argument I thought that there might be some force in the argument: but having regard to the clear decisions of the Privy Council to which I have referred, I do not think that it is permissible to us to treat it as an arguable point.

25. As regards the other question about ranking all female bandhus after the male bandhus it seems to me that the two decisions of this Court already referred to proceed upon a some-what incomplete realisation of the position of the female bandhus in this Presidency, and do not give that effect to the test of propinquity which alone is to he determinative of the right to inherit in the case of distant blood relations. In Madras no doubt all female bandhus are postponed in favour of the male bandhus. But in this Presidency the position of the females has received a somewhat different treatment. For instance in the case of the widows of sagotra sapindas in this Presidency their right is recognised to an extent to which it is not recognised in any other part of India, governed by the Mitakshara law. That however, is the case of sagotra sapindas; and may not be strictly relevant to the present point. The sister is given a place in this Presidency which has not been assigned to her in Madras or elsewhere; no doubt this is due to a large extent to the fact that she is expressly mentioned in the Vyavahara Mayukha and even though she is not mentioned in the Mitakshara she has been practically assigned by the decisions of this Court the same place after the grandmother as in the Vyavahara Mayukha But the fact remains that a female in that position occupies such a high place among the heirs. Then the decision in Saguna v. Sadashiv ; 4 Bom. L.R. 527 implies a negation of the general proposition that the female bandhus must come in after the male bandhus. The questions and answers in West and Buhler's Digest of Hindu Law, pp. 465, 466 (4th Edn.), relating to brother's daughter and sister's daughter do not support the general statement that the female bandhus can come in only after all male bandhus without any regard to the nearness of their relationship. In short that view appears to me to be opposed to a fair application of the doctrine of propinquity which has been so far applied in this Presidency without giving any such general preference to the male bandhus over the female bandhus, I do not say that there is no preference of males over the females at all in determining the rights of the bandhus. The extent of the preference is not easy to define and has not been defined. Speaking with some diffidence on a point of this difficulty, I think that except in the two recent rulings, the preference has so far never been stated in this Presidency to go beyond this, that among bandhus of the same class, and of the same degree of nearness to the propositus in the same branch the males are preferred to females; for instance in the case of sister's son and sister's daughter, the son would be preferred to the daughter. But whether it is proper to go beyond that is a point which, in my opinion, requires consideration. The basis of the rule enunciated in Rajah Venkata Narasimha Appa Rao v. Rajah Surenani, Venkata Purushothama Jagannadha Gopala Row I.L.R(1908) Mad. 321 may be found in Lakshmanammal v. Tiruvengada I.L.R (1882) Mad, 241. The view adopted in this decision has never been accepted in this Presidency as regards the relative position of the sister and her son. It is not necessary in this case to discuss the texts referred to in that case. The result of adopting this view about preferring the male bandhus to the female bandhus generally would be to postpone some of the nearest female bandhus in favour of very distant relations. Even the son's daughter, who would be so near to the propositus, would be relegated to a very subordinate and distant position among the bandhus if she is to be postponed to all males; in competition with her own son, she would be postponed. Of course, whether this state of law would be anomalous or not is a matter open to argument : but in this Presidency at any rate it would be considered anomalous. In Mohandas v. Krishnabai, Melvill J. observed as follows (p. 601):-

The plaintiff's mother who is still alive, was a sister of Sunderlal's mother; and it may wall be doubted whether the plaintiff would be entitled to succeed in preference to his own mother, through whom ha claims.

26. This shows how this question has been looked at in this Presidency. No doubt if the rule as to giving preference to the male bandhus over female bandhus apart from any consideration of propinquity were adopted it would simplify matters considerably. But I am humbly of opinion that that would not be in accordance with the Hindu law as understood and administered in this Presidency.

27. Without deciding this question of general preference of the male bandhus over the female bandhus and without reference to it, we can determine the question as to who is the nearest heir among the bandhus in this case. As between the plaintiff and defendants Nos. 3 and 4, I am inclined to take the view that the plaintiff would be the preferential heir. The sister's daughter is nearer to the propositus than the sister's son's son. In West and Buhler's Hindu Law, in the questions and answers to which I have already referred, the opinion is expressed that a brother's daughter is to be preferred to the brother's daughter's son, and that the sister's daughter is nearer than sister's daughter's son. That, however, does not exactly meet the present case as the competition is with the sister's son's son. The case of the sister's son is mentioned in the same book at page 462. According to the opinion expressed there the sister's son comes after the sister but before the sister's daughter. It is based upon the old case of Ichharam v. Prumanund (1823) 2 Borr. 515 and upon the fact that the sister's son is mentioned in the Nirnaya Sindhu. That Waves the question of the sister's son's son in relation to the sister's daughter open. If the sister's sons mentioned in the Nirnaya Sindhu can be interpreted as including the sister's son's son and not the sister's daughter, it may be said that the latter cannot be preferred to the former. But there is no justification for adopting such an interpretation. Applying the test of propinquity it would seem that the sister's daughter would be nearer than the sister's son's sons. I do not, however, decide this question as it is not necessary to do so.

28. As between defendant No. 2 and defendants Nos. 3 and 4 the question presents no difficulty. The defendant No. 2 is nearer by one degree to the propositus and is in the line of descent. He is to be preferred to defendants Nos. 3 and 4.

29. As between the plaintiff and defendant No. 2 the question is not easy. In order to appreciate the difficulty it is necessary to bear in mind not only the high position assigned to the sister as an heir in this Presidency but also the reasons for that view. In order to have a clear idea of those reasons the judgments in the following cases may be perused with advantage : Vinayak Anandrav v. Lakshmibai (1861) 1 B.H.C.R. 117; Sakharam Sadashiv Adhikari v. Sitabai 24 Bom. 563; 2 Bom. L.R. 721; and Bhagwan v. Warubai I.L.R (1908) Bom. 300; 10 Bom. L.R. 389.

30. Apart from the references to the views expressed in the commentary known as Balambhatti on the Mitakshara with which I shall deal separately as bearing on the point in question, it is clear that the position of the sister is largely due to the fact that the author of the Vyavahara Mayukha has assigned to her a special place : and the ground as stated by him when shorn of all technicalities is propinquity as the texts of Manu and Brihaspati referred to by him go to show. (See Mandlik's Hindu Law, p. 81). Under the Mitakshara though the sister is not mentioned by Vijnanesvara, practically the same position is assigned to her under the decisions of this Court. I may refer to the case of Rudrapa v. Irava I.L.R (1903) Bom. 82; 5 Bom. L.R. 676 which, like the present case, came from the Dharwar District.

31. The sister's position being thus established it is clear that in this Presidency she would be preferred to a son's daughter. The son's daughter can come in only as a bandhu as the decisions in Venilal v. Parjaram I.L.R(1896) Bom. 173 and Mulji Purshotum v. Carsandas Natha, already referred to on a different point, would show. I am not concerned with the merits of this position. But undoubtedly a sister is a preferential heir in relation to a son's daughter : and it may be argued that her issues should be preferred to the issues of the son's daughter. On the other hand, it may be urged that whatever the rights of the sister as against the son's daugther may be, the rights of these issues inter se should be determined solely with reference to their propinquity, that in the case of bandhus equally distant in degrees from the propositus those in the direct line of descent should be preferred to the bandhus among the collaterals in the ascending line, and that in the case of bandhus equally removed in degrees from the propositus a male may be preferred to a female. There is a third position which has been accepted by the lower Court, viz., that the propinquity must be determined merely with reference to the degrees by which the bandhus are removed from the propositus, and that as the sister's daughter and the son's daughter's son are equally distant in that way they should take the property equally. As regards this last view no doubt it is a recognised way of determining the nearness of relationship to see how far each is removed from the propositus, and in the absence of any other consideration justifying a differential treatment that would be the only means of determining it.

32. After a careful consideration of the position of the sister I do not think that the fact that she is preferred to the son's daughter as an heir affords any ground for preferring the sister's daughter to the son's daughter's son, Though at one time I thought that other things being equal perhaps this might afford a ground for preference. But it seems to me chat the position of the bandhus with whom we are concerned must be considered with reference to the propositus without any regard to the relative rights of their respective mothers. I think, however, that in the case of bandhus equally removed from the propositus one in the direct line of descent should be preferred to one in a collateral line. I do not desire to generalise beyond the strict requirements of this case; but the son's daughter's son can be preferred as being a nearer bandhu to the sister's daughter, though they are both equally removed from the propositus. It is rather strange that there should be no precedent to guide us on a point of this character: at any rate I have not been able to find any, and none is cited to us. But I am satisfied that it affords a safe basis for differentiation between these bandhus as to their propinquity.

33. It is, therefore, not necessary to consider the question whether defendant No. 2 can be preferred to the plaintiff on the ground that he is a male and both being atma bandhus equally removed from the propositus. I think that out of all these bandhus defendant No. 2 is the preferential heir.

34. I may add with reference to the Nirnaya Sindhu that so far us I have been able to ascertain none of the relations that we are concerned with is specifically mentioned as having any preferential right inter se to perform the shraddhas. The passage relating to the sister's son is to be found in Nirnaya Sindhu, p. 273 (Nirnaya Sagar Press, 2nd Edition). I have already stated my opinion that the expression 'sister's son', when read in relation to the context, cannot be understood as including the sister's son's sons : while speaking of the Nirnaya Sindhu it may be mentioned that the test of religious efficacy cannot help us in the case of such distant relations as we have in the present case.

35. As regards the Balambhatti, no doubt if the interpretation put by Balambhatta upon the word 'bhratarah' in the well-known text of Yajnavalkya were accepted the sister's daughter would come in not only before all bandhus but even before all the gotraja sapindas. A translation of the relevant passage has been given at page 306 and the list of heirs according to the scheme adopted in the Balambhatti is stated at page 308 of the report in Bhagwan v. Warubai. Though Westropp C.J. laid stress upon the Balambhatti as supporting the case for the sister in Sakharam Sadashiv Adhikari v. Sitabai, Jenkins C.J. in Mulji v. Carsondas and Chandavarkar J. in Bhagwan v. Warubai definitely rejected it as affording a basis for the sister's position in the list of specifically mentioned heirs: and that view was followed in Hari Annaji v. Vasudev Janardan I.L.R (1914) Bom. 438; 16 Bom. L.R. 283.

36. Apart from these decisions there is another difficulty in following the scheme in the Balambhatti logically. It would not be easy to determine what place would be assigned according to the Balambhatti to the son's daughter's son. For instance, in dealing with the position of the daughter's son, as stated in the Matakshara, the author has interpreted the word dauhitra (daughter's son) as including dauhitri (daughter's daughter) (also see Gharpure's edition of Balambhatti, Vyavaharadhyaya, page 207) and he has given her a higher place than the sister and her issues. It may be said that the same author would logically assign a higher place to the son's daughter and probably to her son. I may state that I have not been able to find in the Balambhatti any express reference to the son's daughter, or to the son's daughter's son in connection with the relative positions of different heirs. So it is possible to argue that the sister's daughter occupies a higher position than the son's daughter's son according to the Balambhatti. The true view about this commentary on the particular point under consideration appears to me to be that the interpretation of the word bhratarah disturbs the settled series of heirs under the Mitakshara and it is difficult to base any inference upon that view unless we are prepared to accept the scheme in its entirety. Though this commentary is useful as aiding the interpretation of the Mitakshara the views propounded therein cannot be accepted without due caution and examination. I do not think that the position assigned to the sister's daughter in the Balambhatti can be properly accepted.

37. In the result I would set aside the decree of the lower Court and dismiss the plaintiff's suit.

38. Having regard, however, to the various contentions raised by the parties and the findings thereon and to all the circumstances, I would order each party to bear his or her own costs throughout. The plaintiff to pay to the Government the amount which she would have been required to pay as Court fees in the lower Court if she had not been allowed to sue as a pauper.

Norman Macleod, Kt., C.J.

39. I agree with the conclusions of my learned brother, but I should like to add a few remarks of my own. Once the questions of fact have been decided there remains the contest between rival bandhus. It was first contended that the second defendant could not inherit as a bandhu to the relations of his adoptive mother, but apart from the decisions in Uma Sunker Moitro v. Kali Komul Mocumdar I.L.R (1880) Cal. 256. and Kali Komul Mozoomdar v. Uma Shunkur Moitra it would seem strange if an adopted son having left his natural family were to be considered as the son of his adoptive father only and not of his adoptive mother. As the second defendant then must be recognized as the son's daughter's son of Venkaji, it follows that defendant No. 3 as sister's grandson is one more degree remote, and the interesting question whether he would be preferred to the sister's daughter need not be decided. There remains then the plaintff, sister's daughter, and defendant No. 2, son's daughter's son, both atma bandhus three degrees removed from Venkaji. The learned Judge has decreed that they should take the suit property equally. Though some may think that this Court in deciding that all male bandhus should be preferred to female bandhus without regard to propinquity has gone too far, still there is no authority for the proposition that bandhus of different sex but of equal propinquity should take equally. It may be even noted that amongst those relations who have been held to be bandhus in decided cases, as detailed in Mr. Gharpure's book on Hindu Law at p. 315, there is only one female, the father's sister who, it was held in Saguna v. Sadashiv I.L.R (1902) Bom. 710; 4 Bom. L.R. 527., should be preferred to the mother's brother, and that decision must now be considered as virtually overruled by the decision of the Privy Council in Vedachela Mudaliar v. Ranganathan Chettiar (not yet reported), as their Lordships have expressed their disapproval of the preference given by the decisions of the Madras High Court to bandhus on the father's side to bandhus on the mother's side. I think, therefore, the second defendant should be preferred to the plaintiff. But apart from the question of sex there is another very interesting question which has not been considered, and which does not seem to have arisen in any reported case. The direct descendants of the propositus through daughters though they are bandhus are not cognates. Even if paternal cognates are not to be preferred to maternal cognates it might be plausibly argued that direct decendants should be preferred to both. I for one must regret that the principles with regard to the inheritance of bandhus cannot be laid down more definitely instead of it being left to their being discovered by a process of exhaustion as occasion arises for a decision between rival claimants.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //