1. The only question in both these appeals is, 'whether the brother or the sister, or both, of a deceased Hindu widow married in an approved form succeed to her stridhan property (other than shulka) if she dies without leaving any issue or any heir in her husband's family. The appellant contends that the sister alone or in the alternative the brother and sister equally succeed, while the respondents' case is that the brother alone is the heir to the exclusion of the sister. The point arises in this way: One Suganda a Hindu widow, died without having any issue. No heir in her husband's family also can be traced. Her mother Renuka, had one-fourth share in certain property and on her death she left one son Bapu, and two daughters, Limba and the said Suganda. That one-fourth share being Renuka's stridhan property devolved on her daughters Limba and Suganda to the exclusion of Bapu, so that each of them took one-eighth share. The succession to the one-eighth share of Suganda is now in dispute between her brother and her sister who has sold whatever share she has in Benuka's property to the appellant. The point is not covered by any authority nor is there any express text bearing on it. The decided cases have gone to the extent of holding that in the absence of her issue as well as her husband and his heirs, her blood relations in her father's family succeed, and they succeed in preference to the Crown: Ganpat Rama v. Secretary of State 1921 Bom 138, Kanakammal v. Ananthamathi Ammal (1912) 37 Mad 293 and Moti Chand v. Kalika Nand Singh 1926 All 663. But the order of succession among such relations is not defined or indicated. The lower Courts have decided in favour of the brother, relying on the opinion expressed by the learned authors of West and Majid's Hindu Law, Edn. 4, p. 508, which is as follows:
If, therefore, the right of the widow's own blood relations revives on failure of the husband's Sapindas, it seems natural to allow them to succeed in the same order as they would have done before her marriage, and to place the mother first, next the father, and after him the brothers, and the rest of the Sapindas, according to the nearness of their relationship.
2. What is meant is that the succession should be the same as it would be in case she had died as a maiden, though the particular order of succession stated in this passage is not to a maiden but to a woman married in an unapproved form. It is necessary, therefore, to see whether this analogy is correct and well founded on principle. The Mitakshara texts have divided succession to stridhan property (except what is known as shulka, i. e. bride price or a dowry) into three parts: succession to (1) a maiden, (2) a woman married in a regular or approved form, and (3) a woman married in an irregular or unapproved form. The succession to a maiden's property is governed by a special rule based on a text of Baudhayana: 'The wealth of a deceased damsel, let the uterine brothers themselves take. On failure of them shall it belong to the mother, or if she be dead to the father.' This has been supplemented by Viramitrodaya that 'on failure of the mother and father, it goes to their nearest relations.' The latter expression 'nearest relations' has been construed by our High Court to mean father's sapindas first, and then the sapindas of the mother who are the same as the sapindas of the deceased maiden: Janglubai v. Jetha Appaji (1908) 32 Bom 409. It would thus appear that this is a special order in which the brother is given first preference and the sister would come after the parents. Why the brother comes first, the texts do not explain.
3. Next we come to succession to a married woman. A distinction has been made in the texts between marriage in one of four regular or approved forms and marriage in one of the four irregular or unapproved forms. That distinction is obsolete now as all marriages must, under the present law be presumed to be of the Brahma, i. e. approved form, but the distinction rested on the important ground that in the case of an approved marriage the woman ceases to belong to her father's family and enters the husband's family and takes his gotra, while in an unapproved marriage, as she has not been given away by the father in marriage, she continues to be a member of the father's family, and therefore her gotra continues to be the father's and not the husband's. The result is that in the latter case the husband and his kinsmen do not come in the order of succession at all, and the property goes to her issue and then to her mother, father, the father's heirs and the mother's heirs respectively, while in the former case it goes to her issue, then to her husband, husband's heirs and her blood relations, on failure of each: Tukaram v. Narayan Ramchandra (1911) 36 Bom 339. Thus in the case of an unapproved marriage, the brother is preferred to the sister because he is a nearer heir to the father than the sister, and that would also be the result in the case of succession to a maiden though not exactly for the same reason, but because the brother is mentioned first even before the parents, in the special order of succession.
4. But should the result be the same in case of succession to a woman married in an approved form As her gotra is her husband's, her relations in her father's family are not her sagotra sapindas but bhinnagotra sapindas, i. e. bandhus, while in the case of a maiden as well as a woman married in an unapproved form, they remain her sagotra sapindas. The distinction is important because if they take as bandhus, the Mitakshara rule is that they take in order of propinquity, that bandhus related equally take in equal shares and no preference is given to males over females: Rajeppa v. Gangappa 1922 Bom 420 and Manilal Rewadat v. Bai Rewa (1892) 17 Bom 758. The result would be that the brother and sister would divide the property between themselves in equal shares. The analogy of the order of succession to a maiden is inapplicable as the change of gotra makes a material difference between the respective positions of a maiden and a married daughter in the family. Besides, the order of succession to a maiden is governed by a special text, and there being no similar text for a married woman it should be governed by the ordinary Hindu law under which the brother and sister would be bandhus, and even they would come in only in the absence of the husband or his heirs. The fact that her husband's heirs have preference to her blood relations, shows that a distinction is recognised between the two families, and that distinction can rest only on the fact that she belongs to her husband's family and is absorbed in his gotra, with the result that her blood relations would only be her bandhus, and succeed as such after the heirs in her husband's family are exhausted.
5. I think therefore that it is more in consonance with law as well as equity that the brother and sister should take equally than that the former should succeed exclusively. That seems to me to be a legal as well as equitable view. It is a recognised rule that where there is no express provision of Hindu law, the principle of justice, equity and good conscience should prevail: Meenakshi Ammal v. Rama Aiyar (1912) 37 Mad 396. The first alternative argument urged on behalf of the appellant that the sister is the exclusive heir of the stridhan property, is untenable as the preference of the females to the male heirs to such property under the Mitakshara rule is confined to issue, i.e. lineal succession only, and does not apply to collateral succession. In the result, therefore, the decrees of the lower Courts are varied by declaring that the appellant has become the owner of 3/16th share instead of 1/4th share as claimed by him in civil suit No. 1138 of 1927, and plaintiff in suit No. 47 of 1929 is entitled to 1/16th share instead of 1/8th claimed in the suit property. The parties will be entitled to proportionate mesne profits. In other respects the decrees are confirmed. Parties to bear their own coats throughout.