1. We have already disposed, on July 29, of Appeal No. 337 of 1922 apart; from the question of costs, and have also dealt with some of the points raised in Appeal No. 67 of 192:l We have since heard full arguments on the remaining points in Appeal No. 67 of 1023 and also Civil Application No. 533 of 1924.
2. Under the rulings of the Court already given, a one-fifth share in the income, the subject-matter of the accounts directed by the preliminary decree (if 1894 as subsequently varied by the orders of the appellate Court, devolves on the original defendant No 3, Himatlal, or his assigns or personal representatives). If one looks at the pedigree, it will bo observed that Himatlal was one of five brothers, throe of whom, viz., Girdharlal, Bhagubhai and Jaswantrai predeceased him, and one, namely, Hiralal, the original plaintiff No. 1, survived him. It will also be seen that Himatlal died in 1902 leaving a widow Chaturba who died in September 1917. It is alleged that Himatlal left a will in favour of Chaturba under which she was his universal legatee and devisee, and that Chaturba in her turn passed a sale-deed in respect of this one-fifth share to defendants Nos. 1 and 2 dated March 8, 1905. it is common ground that this sale-deed only affected the income after March 8, 1905. Accordingly as the accounts directed by the Omul extended from 1870 up to 1907 when possession of the land was given up by defendants Nos. 1 and 2, it follows that the suras found due in respect of this one-fifth share may have to be apportioned so that the amount up to March 8, 1905, passes to the representatives of Himatlal or Chaturba, and the amount accruing after March 8, 1905, passes to the purchasers under the sale-deed of 1905.
3. All these points are contested. The present plaintiff's Nos, '1-4 all contest the validity of the will and also the validity of the sale-deed as regards the moneys after 1V-05. But as regards the moneys prior to 190.' the present plaintiffs Nos. 2 to 4 join with defendants Nos 1 and 2 in contending that on Ohaturba's death these moneys passed to the surviving brother and the sons of the deceased brothers of Chaturbn's husband Himatlal. The present plaintiff No. 1, however, contends that Hiralal as the sole surviving brother alone takes these moneys and that his nephews are not entitled to share with him. [ The learned Judge next dealt with an objection, as to jurisdiction and proceeded :]
4. In the result, therefore, I think we have jurisdiction to determine who are now entitled to this one-fifth share, and to say in what shares and proportions we should pass a final decree for payment of that share amongst the parties so entitled.
5. That being so, the first question arises about the will of Himatlal which is Exhibit 357 and is dated October 12, 1902. [ After discussing the evidence, the learned Judge continued:] In my judgment, therefore, the will, Exhibit 357, was rightly held by the learned Judge to be the last will and testament of Himatlal. That being so, this one-fifth share passed under that will to Himatlal's widow Chaturba.
6. That brings us next to the sale-deed, Exhibit 358, which was passed by Chaturba in favour of defendants Nos. 1 and 2.
7. ...In my opinion there is really no ground here for contesting the validity of this deed. Accordingly we hold that so much of Himatlal's one-fifth share of income as accrued after the date of this sale-deed passed thereunder to the purchasers defendants NOB. 1 and 2.
8. There yet remains the question whether Himatlal's nephews are entitled to share along with their uucK Hiralal, or whether Jliralal alone takes so much of Himatlay one-fifth share as did not pass under the sale-deed Exhibit 358. 1 have had the advantage of reading the judgment which my brother Fawcett has prepared on that; point, and I need only say that 1 concur in it. Our final conclusions on these appeals will be stated after that judgment has been delivered.
9. I agree with ray learned brother in upholding the findings of the lower Court as to the will of Himatlal (Exhibit 357) and the sale-deed (Exhibit 358)....
10. The dispute resolves itself into one whether under the law of succession contained in the Mayukha, which is the leading authority in the province of Gujarat, whence the parties come, the sole heir of Himatlal was lliralal, his only surviving brother, or whether the nephews of Himatlal, plaintiffs Nos. 2 3 and 4 and defendants Nos. 1 and 2, who are the sons of predeceased brothers, are entitled to share along with Hiralal, as if their fathers had survived Himatlal. The son of the deceased plaintiff No. 1, namely Jagubhai, puts forward the former contention, while plaintiffs Nos. 2, 3 and 4 and defendants Nos. 1 and 2 contend that they are entitled, as nephews, to share in the succession.
11. It is common ground that, although it is now a question of the legal representation of Bai Chaturba (who as already mentioned), wan brought on the record as the legal representative of Himatlal, the original defendant No.fJ, this only entails a question of heirship to her husband Himatlal, for the marriage between Himatlal arid Chaturba being presumably in an approved form, and Chaturba having died leaving no issue, her Stridhan inherited from her husband goes to his, and not her, heirs. There is no dispute on this point. The sole question, therefore, before us is whether Hiralal was entitled to succeed to Chaturba's Stridhan alone, or whether the nephews, being sons of predeceased brothers, are entitled to share along with plaintiff No. 1.
12. This question turns upon the meaning of paragraph 17 of Section VIII of Chaper IV of the Vyavahara Mayukha, and there is a dispute as to the correct translation of this paragraph. According to the translations of Messrs. Borrodaile and Stokes, the sons of brothers share the inheritance, without any restriction as to their father being alive at the death of their uncle, and the rule has accordingly been taken to be a general one that the sons of a deceased brother succeed along with the surviving brother or brothers. The translation, however, of the same passage made by Messrs. Mandlik, Jamiotram and Ghar-pnre, limits the right to the case where the father of any nephew was alive at the death of the paternal uncle, and allows such a nephew to take the share of his father on a division with the other paternal uncles.
13. Before us no expert evidence has been adduced as to which of these two translations 'IB correct, nor has there been any detailed discussion on this point. In any case it would obviously be difficult for us, without a knowledge of Sanskrit, to decide which translation is to be preferred. I understand on good authority that the difference between the two translations turns upon whether an unexpressed negative should be read into one or two words, which are in this passage, and that Sanskrit allows a negative to be read in or the reverse, according to the context. There is, therefore, obviously room for legitimate difference of opinion as to the correct translation. In view of this it seems to me that in considering this question as it arises before us, we should be mainly governed by the principle laid down by the Privy Council in The Collector of Madura v. Moottoo Ramalinga Satkupathy (1868) 12 M.I.A. 397where their lordships, after stating that the different commentaries had given rise to the different schools of law, say (p. 486):-
The duty, therefore, of an Knropoun Judgu, who is unilor the obligation to administer Hindoo Law, is not ao much to inquire whether a disputed doctrine is fairly dodueible from the earliest authorities (Smritis), as to ascertain whether it haa boon received by the particular School which governed the District with which lie lias to deal, and has there been sanctioned by usage. Vor, under the Hindoo system of law, clear proof of imago will outweigh the written text of the law.
14. Similarly in Muthukaruppa Pillai v. Sellathammal I. L. R.(1914) Mad. 298 it is observed : It is not the literal meaning of the original text that has to be looked to in the administration of Hindu law. Though commentators may have been wrong in their interpretation of an original text, their opinion should be enforced as having the sanction of usage.
15. No doubt this principle has reference primarily to ancient commentaries : but in a case like the present I think it can almost equally be applied to usage based on an interpretation accepted by modern commentators. In the present case, we have the fact that undoubtedly for a long time it has been accepted as a rule laid down by the Mayukha that the sons of full brothers succeed with full brothers and in Chandiku Bakhfsh v. Muna Kuar (1902) L. R 29 I. A. 70 this was accepted as being a definite rule in cases governed by the Mayukha, It is true that the translation there referred to was Stokes', and that there was no discussion, and therefore no decision, on the point now before us. On the other hand, the fact remains that this was taken as a definite rule, and the case affords a strong instance of usage. Practically all the modern commentators accept without any questioning this particular rule (see, for instance, Mayne's Hindu Law, 9th Ed , p. 834 ; Trevelyan'a Hindu Law, 2nd Fdn,, p 391; Mulla's Hindu Law, 4th Ed., p. 91; and even Ghar-pure's Hindu Law, 1921 Ed,, p. 307 ). Again in Haribhai v. Mitthur : AIR1924Bom140 Shah J., who himself comes from Gujarat, treats the rule as unquestioned. Russell J. in Haridas v Ranahordas (1903) 5 Bom. L. R. 516 also follows the interpretation of the rule accepted in the Privy Council case I have already mentioned. The construction which the learned Judge there gives to ' the share of their father' in the translation that was furnished to him, is no doubt open to criticism; but, on the other hand, this case affords a definite judicial recognition of the rule about all nephews sharing in the succession, and no (subsequent case has been cited where this interpretation lias been questioned.
16. The only commentators who appear to favour the view put forward by Mr. Kamdutt Desai for plaintiff No.l are Messrs West and Majid, who in the 4th Edition of West and Buhler's Hindu Law, at page 104, limit the right of a nephew to succeed to the particular case of his father being alive when the succession opens, but dying before the partition of the estate takes place; and it is added that ' Representation is not recognised in the case of a predeceased brother who has left sons. These nephews are excluded by their surviving uncles. It is only on the complete failure of brothers of the deceased that brothers' sons succeed to him,' In a foot-note on the same page it is stated:---
Some surprise may be fait that this rule should have seemed necessary. But according to Hindu notions, as possession is generally necessary bo the completion of ownership, so separate possession in essential in theory to the completion of a separate ownership of a share derived from a prior joint ownership of the aggregate. The father, however, having once become it coparcener, his son has acquired a concurrent interest which is but expanded by the father's death.
17. Two cases are cited in support of this proposition, viz., Burhum Deo Roy v. Punchoo Roy (1865) 2 W.B. 123 and Chandika Bakhsh v. Muna Kuar (1902) L.R. 29 IndAp 70 : 4 Bom. L.R. 376. With great respect, I cannot follow how these two cases really support it I have referred to the report of Burhum Deo Roy v. Punchoo Roy and the head-note of that case sufficiently shows the nature of the decision. It says ' According to the Mitakwluira Law, a stepbrother inherits after the widows, if he survives them; otherwise a uterine brother's son succeeds. ' The Privy Council case of Chandika Baksh v. Muna Kuar contains, so far as I can see, nothing on the subject. It merely assumes the existence of the rule, as I have already mentioned, that the sons of a brother who is dead share along with the surviving brothers. There is another thing which goes against their view. Among the replies of Sliastris collected in West and Majid's Hindu Law at p. 492 will be found a case at Ahmednagar in 1859, where the question put to the Shastri and his answer were as follows :-
Q.-A deceased woman has no sons or other near relations, but there are one brother-in-law, and four sous of another brother-in-law who aro all united in interests. The question is; which of those will bo her heirs.
A.-The brothor-in-law and the sons of brother-m-Iaw will all be her heirs.
18. This seems to show that in 1859 the Shastri who advised Was following the Mayukha rule, as generally interpreted by modern commentators, and the Mayukha is in fact mentioned among the authorities given below the reply, for the Shastri can hardly have rested his opinion on the fact that the brother-in-law and the sous of the brother-in-law were united in interest, as this affords no basis either under the Mitakshara or the Mayukha for the sons of the other brother-in-law joining in the succession.
19. Ahmednagar is one of the places where the Maynkha is considered to be of equal authority with the Mitakshara hut generally not capable of overruling it (see The Collector of Madwa v. Mooltoo Ramalinga Sathupathy (1868) 12 M. I. A. 397 and Jikagirthibai v. Kuhnujirav. I. L. R.(1886) 11 Bom. 285 In the Ahmednagar Zilla, however, the Mayukha was then supposed to have a special authority, as mentioned by West J hi the case last cited, and this seems to account for the adoption of the Mayukha rule in this case. The learned authors Messrs. West and Majid have put a foot-note to this case that 'the brother-in-law must have the preference as nearer by one degree,' but the case shows the contrary interpretation of the rule is fairly old.
20. No doubt the rule is an exception to the general principle th.it the nearer Sapinda excludes the more remote, and the view of MHSSI.U Went and Majid may be tin; correct one, but the exception seems to be so well established that in the absence of something fairly conclusive to the contrary, I do not think we should hold that the accepted rule is erroneous, and decide in favour of the suggeste 1 restriction that the brother's sons' father must be alive when the deceased uncle died. The principle of stare is clearly applicable to a question of the present Kind which relates to property and title. Lord Loreburn in Went Ham Union v. Edmonton Union  A.C. 1 says:-
Great importance is to be attached to old authorities, on the strength of which many transactions may have boon adjusted and rights determined. But where they are plainly wrong and specially where the subsequent course of judicial deoisiims has disclosed weakness in the reasoning on which they were based, and practical injustice in the consequences that must How from them, I consider it is the duty of this House (of Lords) to overrule them, if it has not lost the right to do so by itself expressly affirming them.
21. But in the present case it has not been shown that the previous interpretation of this paragraph 17 in the Mayukha is plainly wrong or that any of the other considerations mentioned by his lordship Helios.
22. Therefore I would arswer the question by holding that the nephews, namely plaintiffs Nos. 2, 3 and 4 and defendants Nos. 1 and 2, are entitled to be treated as the legal representatives of Bai Chaturba, and to share in the estate of the deceased Himatlal, which is now in question, along with plaintiff No. 1.