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Appaji Jijaji Vaidya Vs. Mohan Lal Raoji Gujar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Reported inAIR1930Bom273
AppellantAppaji Jijaji Vaidya
RespondentMohan Lal Raoji Gujar and ors.
Excerpt:
- - which case in western india they are clearly excluded by the daughter-in-law as being in the nearer line. on failure of the first among these, the next in order is indeed heir to the estate of one, who departed for heaven leaving no male issue. on failure of brothers also, their sons share the heritage in the order of their respective fathers. in case of competition between brothers and brothers' sons, the brothers' sons have no title to the succession, for the right of inheritance of brothers' sons is declared to be on failure of brothers. 4, on failure of the father's descendants the heirs are successively the paternal grandmother, the grandfather, and the uncles and their sons, the word 'sons' must be construed not as meanig the son in the english sense but must include three.....judgementmadgavkar, j.1. the contest in this case is between defendant 1, purchaser from defendant 2, mainabai, the widow of a predeceased son of the propositus veerchand and the plaintiffs, the grandsons of veerchand's brother hemchand, joint, according to the finding of the trial court, but separated from veer chand, according to the finding of the lower appellate court.2. the relationship between the parties is shown in the following genealogical tree. panamchand | __________________________________________________ | | | ksvalchand veerchand hemchand (deceased propositus) | | ravji= ________________ ramjnbai | | gautam ____________________ (predeceased son) | | =mainabai mohanal panalal (defendant 2) (plaintiff 1) (plaintiff 2)3. the question is whether the brother's grandsons are.....
Judgment:
Judgement

Madgavkar, J.

1. The contest in this case is between defendant 1, purchaser from defendant 2, Mainabai, the widow of a predeceased son of the propositus Veerchand and the plaintiffs, the grandsons of Veerchand's brother Hemchand, joint, according to the finding of the trial Court, but separated from Veer chand, according to the finding of the lower appellate Court.

2. The relationship between the parties is shown in the following genealogical tree.

Panamchand

|

__________________________________________________

| | |

Ksvalchand Veerchand Hemchand

(deceased propositus) |

| Ravji=

________________ Ramjnbai

| |

Gautam ____________________

(predeceased son) | |

=Mainabai Mohanal Panalal

(defendant 2) (plaintiff 1) (plaintiff 2)

3. The question is whether the brother's grandsons are included in the compact series of heirs, or whether that series ends with the brother's son and the brother's grandsons succeed only as got-raja sapindas, in.which case in Western India they are clearly excluded by the daughter-in-law as being in the nearer line. Both the lower Courts decided in favour of the brother's grandsons, holding that the decision in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 applied to this case and to this Presidency. The defendants appealed, and the second appeal, coming before Baker, J., has been referred to this Bench.

4. The decision of their Lordships of the Privy Council referred to above is sought to be distinguished for the defendants-appellants on three grounds: firstly, that the decision is only as regards the Benares School of Hindu Law, secondly, that the compact series ends with the brother's son; thirdly, that the place of the grandmother is immediately after the brother's son and the brother's grandson cannot intervene and displace her. It is contended for the respondents that the decision of the Privy Council expressly includes the brother's grandson in the compact series of heirs, and is based on a construction of the texts of Yajnyavalkya and Vijnanesvara, and is thus equally applicable to Western India, particularly in the absence of any express authority in the Mayukha, and that in any case, as defendant 2, Mainabai died pending litigation, the brother's grandsons, the plaintiffs, are entitled to succeed, no legal necessity for the sale by Mainabai to defendant 1, appellant, being set up or proved.

5. The question turns upon the meaning of the word 'suta', in Yajnyavalkya Smriti, verses 135, 136 and of 'putra' in the Mitakshara. C. 2, Section 1. Pl. 2:

The wife, and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellow student: on failure of the first among these, the next in order is indeed heir to the estate of one, who departed for heaven leaving no male issue. This rule extends to all (persons and) classes.' If there be no brother's sons, the gotrajas share the estate. Gotrajas are the paternal grandmother and sapindas and samanodakas.

On failure of brothers also, their sons share the heritage in the order of their respective fathers.

In case of competition between brothers and brothers' sons, the brothers' sons have no title to the succession, for the right of inheritance of brothers' sons is declared to be on failure of brothers.' The Mitakshara by Gharpure, p. 252, Sections (7) and (8).

6. On the question whether the words 'suta' and 'putra', as applied to the gotraja sapindas, meant sons only or included at least three if not six descendants, there was some difference of opinion, the authorities, in favour of the widest construction of six descendants baing Mr.Harrington, Dr. Rajkumar Sar-vadhikari going to the extent of three, whilst Mr. Mandlik and Messrs. West and Buhler intepreted the word as meaning son only.

7. In the Full Bench case of Ishiuar Dadu v. Gajabai I pointed out that in order to construe the exact applicability of a binding judgment sueh as a Privy Council judgment, it was necessary to distinguish between, firstly, fehe actual principle of law enunciated and applied; secondly, the ratio decidendi and thirdly, obiter dicta, The first is binding, the third is not. The second may or may not be according to the facts and the reasoning of the particular judgment and of the case to be decided. Applying these observations to the decision in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 the actual decision is that under the Benares School among the gotraja sapin-das, the, great-grandson of the grandfather of the propositus is a preferential heir to the grandson of the great-grandfather. The ratio decidendi expressly applied was that in the verse of the Mitakshara (Colebrooke) C. 2, Section 5, Pl. 4, on failure of the father's descendants the heirs are successively the paternal grandmother, the grandfather, and the uncles and their sons, the word 'sons' must be construed not as meanig the son in the English sense but must include three degrees according to Dr. Sarvadhikari's view. In arriving at this conclusion their Lordships considered the use of the word 'aputrasya' in the versa of Yajnavalkya quoted above and of the words putra' or 'suta' by Vijna-nesvara in other parts of the Mitakshara, and came to the conclusion enunciated above as to the meaning of the word 'putra' in C. 2, Section 5, Pl. 4, including three degrees.

8. The verse directly interpreted in the Privy Council case, however, was not the verae of Yajnavalkya, but was the particular verye of the Mitakshara, C. 2, Section 5, Pl. 4, which deals with the order of gotraja sapindas after the compact series is exhausted. And I understand their Lordships' decision as an authority for the construction of that particular verso of the Mitakshara and not for the construction of each and every verse of the Mitakshara in which words such as 'putra' and 'suta' occur, much less, for such construction in the verse of Yajnavalkya quoted above, laying down the compact series.

9. As between a paternal uncle's son and a brother's grandson, the Madras High Court in Suraya v. Lakshminarasamma [1881] 5 Mad. 291 had held in favour of the former, on the ground that in the Mitakshara, C. 2, Section 4, Pl. 7, and Section 5, Pl 8, the word 'putra' did not include grandson. The Allahabad High Court in Kalian Bai v. Ram Chandar [1901] 24 All. 128 had held the contrary on the ground that in this verse the word 'putra' did include grandson. In Chinnasami Pillai v. Kunja Pillai [1911] 35 Mad. 152 the Madras High Court re-affirmed their previous view in Suraya v. Lakshminarasamma [1881] 5 Mad. 291 on fehe same construction of the words 'putra' and 'suta' in the Mitakshara, C. 2, Section 1, Pl 2; Section 4, Pls. 7 and 8, and Section 5, Pl. 1, and held that the great-grandson of the brother was to be preferred to the uncle's grandson. In Buddha Singh v. Laltu Singh [1912] 34 All. 663 the contest was between the great-grandson of the grandfather and the grandson of the great-grandfather. The question turned on the interpretation of the words 'santana' and 'putra', in the Mitakshara, C. 2, Section 5, paras. 4 and 5. It was held by the Allahabad High Court, contrary to the view in Madras that these words meant not 'son' only but included also grandsons. And in appeal in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 their Lordships of the Privy Council upheld the Allahabad view and overruled the Madras view and held that in the case of gotraja sapinda, as in these verses of the Mitakshara such as C. 2, Section 5, para. 4, the words 'the paternal grandfather, the uncles, and their sons include grandsons.'

10. None of these cases raised nor did the decision turn on the compact series of heirs. They do not interpret the word 'suta' in the verse of Yajnavalkya. Their Lordships' approval of the Allahabad decisions and the disapproval of the two Madras decisions, therefore, cannot, in my opinion, be taken as authority for the construction of the word 'suta' in the verse of Yajnavalkya. In regard to the Bombay cases, their Lordships expressly approved of the decision of Telang, J., in Rachava v. Kalingapa [1892] 16 Bom 716, which deals with the order of descendants among the gotrajas only as enunciated in C. 2, Section 2, paras. 4 or 5, of the Mitakshara. No Bombay decision is overruled or disapproved. On the contrary, under the Bombay view, that sapindas of the nearer line must be exhausted before the sapindas of the more remote line can come in, the great-great-grandson of the grandfather would, as the Privy Council have held, be preferred to the grandson of the great-grandfather.

11. The actual decision of the Privy Council is, therefore, that the great-grandson of the grandfather is a preferential heir to the grandson of the great-grandfather. The ratio decidendi binding on this Court is that in cases under the Benares School and in those verses above applying to gotraja sapindas son includes grandson' and in the Benares School in the case of gotraja sapindas the descendants up to and including at least the third descendant, so that the great-grandson in the nearest line to the propo'situs must be exhausted before the next line can come in. Among the observations on which the judgment proceeds there are general observations that the Mitakshara in other places uses the words such as 'putra' and 'santana 'in the larger and not in the narrower sense. But these observations do not interpret the words 'tatsuta' in Yajnavalkya, verse 135, as including even grandson much less great grandson expressly or even by implication in the compact series.

12. Turning to the Mayukha, the relevant verses are (Mandlik at p. 54):

13. In default of brother's son come gotraja sapindas. The previous verses of the Mayukha deal with the view of Vijnanesvara in the Mitakshara, Caluse 2, Section 6, and other verses, that in default of uterine brothers, those by different mothers inherit the estate. Nilakantha differs from this view. His reasons being :

14. It cannot be said that the Mayukha is any more decisive on the point now in question. But, as pointed out by my learned brother Patkar in his-exhaustive judgment, to introduce the brother's grandson at the end of the compact series and before the grandmother, introduces a difficulty, if the half brother is taken into consideration. In Shankar Baji v. Kashinath Ganesh A.I.R. 1927 Bom. 97, it has been held by this Court that the distinction of the whole blood which obtains in the case of brothers-and sons does not extend to the paternal uncle of the deceased 'and that the observations of their Lordships of the Privy Council in Ganga Sahai v. Kesri Munshi Lal A.I.R. 1915 P.C. 81, could not be taken to extend the distinction further. If so, the grandson of the brother by the half blood would come into the compact series as much as the brother by the whole blood. Whereas, under the Mayukha the brother by the half blood is the sapinda along with the grandfather and his son with the great-grandfather. In this Court the proposition that the compact serios ends with the brother's son, and the brother's grandson is a gotraja sapinda and can never come in before the paternal grandmother, has never been questioned, and it has been held, he may even be postponed to the daughter-in-law. It suffices-to refer to cases such as Vithaldas Manickdas v. Jeshubai [1879] 4 Bom. 219; Vallabhdas v. Sanlcarbai [1900] 25 Bom. 281; Bhagwan v. Warubai' [1908] 32 Bom. 300; Kashibai v. Baghunath [1911] 35 Bom. 339 and Basangavda v. Basangavda [1914] 39 Bom. 87.

15. On the whole, therefore, I would hold that the view of this Court hitherto that the compact series ends with the brother's son and does not include the grandson has not been overruled by the Privy Council but rests upon the consistent, long standing, and hitherto undisputed construction of Yajnavalkya in the light of the Mitakshara and the Mayukha, which, as far as possible, must be harmonised; and there is no reason, until and unless this view is expressly overruled, to hold otherwise.

16. I would hold that the brother's grandsons, the plaintiffs, are gotraja sapindas Doiendant 2 Mainabai, widow of the jpredeceased son, took a widow's estate in the property of the deceased Vearchand. Her alienation could only be supported by legal necessity as she is now dead. The issue whether there was legal necessity justifying the sale by defendant 2 to defendant 1 of the property in suit not being raised, I am of opinion that it should be so raised and remanded to the trial Court with liberty to both sides to adduce evidence. If legal necessity is proved the suit must stand dismissed. If it is not, the plaintiffs will succeed.

17. After the findings are received the appeal and the application for stay may be;placed before a Division Bench for final disposal. Findings to be returned in six months.

Pafkar, J.

18. This is a suit brought by the plaintiffs as the grandsons of the brother of the deceased Veerchand for a declaration that the sale deed passed by defendant 2, the daughter-in-law of the deceased Veerchand, in favour of defendant 1, is void and for possession of the property.

19. The learned Subordinate Judge held that Veerchand and Hemchand and his son Bavji were members of a joint family, and, therefore, the plaintiffs vv'are entitled to the property by right of survivorship, and consequently the sale deed passed by defendant 2, the daughter-in-law of Veerchand, in favour of defendant 1 was void. He also held that even if Veerchand and Hemchand were held to be divided the plaintiffs as the, grandsons of Veerchand's brothers were entitled to the property in preference to Mainabai, the daughter-in-law of Veerchand, on the authority of the ruling of the Privy Council in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76.

20. On appeal the learnefl Assistant Judge held that Veerchand was divided in interest from the plaintiffs, and, relying on the Privy Council decision in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 held that the words 'putra' and 'suta' include grandsons and great-grandsons, and that tha brother's grandson would be included as the last heir in the compact series.

21. On second appeal, Baker, J. desired that the appeal should go before a Bench for a determination of tha point whether, in view of the ruling of tha Privy Council in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 the brother's g.vandson should be included in the compact series of heirs so as to be preferred to the predeceased son's widow or whether, as held by Scott, C.J., in Basangavda v. Basangavda [1914] 39 Bom. 87, the compact series of heirs should be held to end with the brother's son. The second appeal has been referred to this Bench for final decision.

22. The important question arising in this appeal is whether the daughter-in-law is entitled to preference under the Hindu law over the brothers' gran-sons? In the Bombay Presidency a wifa becomes by her marriage a sagotra sapindx of her husband, and as a widow succeeds to the property which ha would have taken as a sapinda before tha male representative of a remoter branch: see Lallubhai Bapubhai v. Manlcuvarbai [1876] 2 Bom. 388 (F.B.); Lallubhai Bapubhai v. Gassibai [1880] 5 Born. 110 and Basangavda v. Basangavda [1914] 39 Bom. 87. The female in each line of gotrajas is excluded by any mala existing in that line within the limits to which gotraja relationship extends. Where, however,-the eontsst lies between a female gotraja representing a nearer line and a male gotraja representing a remoter line of gofcraja sapindas, the former inherits by preference over the latter: see Vithaldas Ma nickdas v. Jeshubai [1879] 4 Bom. 219 and Baahava v. Kalingapa [1892] 16 Bom 716. The enumerated heirs, i.e., the members of the compact series of heirs specifically enumerated, take in the order in which they are mentioned prefei ably to those lower in the list and to the widows of any relatives whether near or remote, but where tha group of specified heirs has been exhausted the right of the widow is recognized to take her husband's place in competition with the representative of a remoter line: sea Nahalchand Ha-rakchand v. Hemchand [1884] Bom. 31. In Nahal-chand Harakohand v. Hemchand [1884] Bom. 31, at p. 34, two cases have baen referred to in the foot-note. In the first, Venkapa v. Holyaiva Sp. App. No. 60 of 1873, it was held that the enumerated heirs take before all other hairs, and, therefore, the brother of a separated Hindu inherits before the widow of his predeceased son. In the second case, Vithal Raghunath v. Haribayee Sp. App. No. 41 of 1871, the brother's son was held entitled to preference over the daughter-in-law. In Vithaldas Manickdas v. Jeshubai [1879] 4 Bom. 219 the daughter-in-law was held entitled to succeed to the property in priority to the paternal first cousin. At p. 221 Westropp, C.J. obearved:

No doubt, by the law of Bengal, Bsnares and Madras no claim as heir can be set up on bohalf of the widow of a son, but a different rule obtains in Bombay; and, albeit the daughter-in-law is not one of the gotraja jsapindas specially named in the Mitakahara, Balambhatta, one of the commentators on the Mitakshara, expressly mentions the right of a predeceased son's widow and places her immediately after the paternal grandmother, saying that the word 'sapinda' must be everywhere interpreted as including the males and females.

23. It would, therefore, follow that if the brother's grandsons can be considered to* be included among the specifically enumerated heirs, i.e., the heirs in the compact series of heirs, they would be entitled to preference over the daughter-in-law, but if they come in as gotraja sapindas, the daughter-in-law being the widow in the line of the propositus himself, would be entitled to preference over the brother's grandsons who would come in the line of the father. It is conceded by both sides before us that if the brother's grandsons do not come in the compact series of heirs immediately after the brother's sons, the daughter-in-law would be entitled to preference over the brother's grandsons.

24. The question, therefore, in this case is whether the brother's grandsons come in as specifically enumerated heirs in the compact series or are entitled to inherit as gotraja sapindas.

25. The brother's grandsons are not specifically mentioned in the compact series. It was held in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 that in the Mitakshara,,as expounded in the Benares School, the word ' putra ' used in connexion with brothers and uncles, in Chap. 2, Section 5, must be understood in a generic sense, as in the case of lineal descendants of the deceased, and the descendants in each, ascending line, up to the fixed limit, should be exhausted at any rate to the third degree before making the ascent to the line next in order of succession. The question arising in that case was as to the right of priority between the great-grandson of the grandfather and the grandson of the great-grandfather. The present question as to whether the brother's grandsons are included in the compact series of heirs did not arise for determination in that case. The question related to agnatic succession. While considering that question their Lordships take the accepted meaning of the word 'aputra,' i.e., sonless or issueless as signifying 'in default of son, grandson, and great-grandson,' and consider that the word 'putra' is used in the generic sense when the Mitakshara dealt with the right of the widow to inherit in Chap. 2, Section 1. In Chap. 1, Section 1, Vol. 3, the word 'putra' is no doubt used in a generic sense in connexion with the rights of inheritance to unobstructed heritage. In Chap. 2, Section 5, the first paragraph is as follows:

If there be no brother's sons, gotrajas share the estate. Gotrajas are the paternal grandmother and sapindas and saminodakas.

26. The word used for sons is 'putra' in original. Verse runs as follows:

Here on failure of the father's lino (santan) the heirs are successively the paternal grandmother, the paternal grandfather, the paternal uncles and their sons.

27. Verse 5:

On failure of the patsrna grandfather's line, the paternal great-grandmother, the great grandfather, his sons and their issue, inherit. In this manner must be understood the succession of the samauagotra sapindas as far as the seventh.

28. The word used for line is 'santana'; the word for sons is 'putrah' and for their issue is 'tatsunavah.' It was contended before the Privy Council, at p. 219, that the succession in the father's or grandfather's line must cease ipso facto on the failure of descendants of the seoond degree, and the inheritance must be diverted to another line ascending, first to the female ancestor. The Privy Council after a full and detailed consideration of the authorities came to the conclusion that the words 'brother's sons' and 'uncle's sons' were used in the generic sense and that the sons included grandsons and great-grandsons. With regard to this Presidency, their Lordships at p. 225 observed:

In the Bombay Presidency also the doe-trines of the Mitakshara are recognized subject to the interpretation of the Vyavahara Mayukha of Nilkantha Bhatfca, and although on many points there is considerable divergence between the Benares and the Maharashtra Schools, as regards the question involved in the present oa-se, one decision at least of the Bombay High Court indicates an agreement, with the Allahabad High Court.

29. The decision, referred to by their Lordships, of Telang, J., in Baohava v. Kalingapa [1892] 16 Bom 716 related to agnatio succession and the meaning of the word santana (line), and not to the question whether the brother's grandsons were to be included in the compact series of heirs. At p. 227 their Lordahips' view was confined to the Mitakshara as expounded in The Benares School.

30. In The Collector of Madura v. Moottoo Bamalinga Sathupathy [1868] 12 M.I.A. 379 their Lordships of the Privy Council observed (p. 436):

The duty, therefore, of a European Judge who is under the obligation to administer Hindu law, is not so muoh to inquire whether a disputad doctrine is fairly deduoible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has thera been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.

31. Couch, C. J., observes in Kery Kolitany v. Mooneeram Kolita [1873] 13 Beng. L.R. 1 (p. 90):

I think we are not at liberty to declare a doctrine, which is not shown to have been received and sanctioned by usage, to be the law, because it may seem to be analogous to a doctrine that has been received.

32. Even if the word 'putra' is susceptible of the meaning which has been attributed to it viz., of being used in a generic sense, the question is whether that meaning has been received by the Mitakshara and the Mayukha as prevalent authorities in 'Western India, and whether it has been sanctioned by usage so as to include brothers's grandsons in the compact series of heirs.

33. The principle adopted by the High Court of Bombay and sanctioned by The Privy Council ia to construe the Mitakshara and the Mayukha so as to harmonise them with each other where-ever and so far as that is reasonably possible: see Bai Eesserbai v. Hunsraj Morarji [1906] 30 Bom. 431 and Bhagwan v. Warubai [1908] 32 Bom. 300.

34. In Vyavahara Mayukha, Chap. 4, Section 8, pl. 18 runs as follows:

In default of brother's sons, succeed the gotrajas who are sapindas. Among them also the first is the paternal grandmother under the text of Manu, viz.:-'And if the mother also be dead, the father's mother shall take the heritage'.

35. Although she is (here) mentioned immediately next to the mother, still as there is no (place of) entry for them in the compact series (of heirs) ending with the brother's son, she is to be entered at the end after the brother's sons, after the manner of '' the entry of the uninvited at the end.' (Gharpure's Translation, p. 113, and Stokes' Hindu Law, p. 88). This verse clearly shows that the compact series ends with brother's sons, and that the grandmother takes first among the sapindas after the heirs in the'eompaet series ending with the brother's sons are exhausted. In Basangavda v. Basangavda [1914] 39 Bom. 87 at pp. 106 and 111, it was held by Hayward, J. and Scott, C.J., that the compact series of heirs ends with the brother's son.

36. In Mayukha, para. 17, Chap. 4, Section 8, (Stokes, p. 88) relating to the right of brother's sons sharing with other brothers, the woras ' sons of brothers ' could not have been used in the generic sense but in the ordinary sense, for the propositus is described as the paternal uncle. It is conceded, however, on behalf of the appellant that the words sons of brothers ' in pl. 17, Chap. 4, Section 8, are not used in the generic sense but in the ordinary sense according to its context. It is-clear, however, that in this placitum the words' sons of brothers ' are not used in the generic sense.

37. In Vyavahira Mayukha, Chap. 4, Section 8, pl, 16, the question as to the whole blood and half blood has been considered, and the Mayukha differs from the Mitakshara in placing the half brother after the uterine brother, and in pl, 20 of the same chapter and section the half brother and tha paternal grand father both share and take the property, their propinquity being equal. Mayukha deals only with brothers and brother's sons of the whole blood and half-blood, and no reference is made to the brother's grandsons whether of the whole blood or the half-blood. It would, therefore, follow that the Mayukha, when dealing with the brother's sons, uses the words in their ordinary sense and not in their generic sense. If there be no brothers of the whole blood, those of half blood are entitled to inherit according to the Mitakshara. The Mayukha, however, prefers the nephews of the whole blood to the brothers of the half blood who according to Mayukha would shara the inheritance with the grandfather: see Mayukha, G. 4, Section 8, pl. 20 (Gharpuro's Translation, p. 114). The Privy Council in Ganga Sahai v. Kesri A.I.R. 1915 P.C. 81 held that under the Mitakshara law the preference given to the whole blood over the half blood was confined to sapindas of the same degrees of descent from the common ancestor, and the preference of the whole blood to the half blood was not restricted to the case of brothers and sons' of brothers only. In Shankar v. Kashinath A.I.R. 1927 Bom. 97 it was held by a Pull Bench of this Court, not following the decision of the Privy Council in the case of GaiKja Sahai v. Kesri A.I.R. 1915 P.C. 81 that the distinction between the whole blood and the half blood observed in the case of brothers and their sons does not extend to the uncles of the propositus, that is, the sons of his grandfather. The MayuJiba does not deal with the brother's grandsons of the whole blood or the half blood. Mulla in his Hindu Law, p. 85, considers that a grandson of a brother of the whole blood would inherit; along with a grandson of a brother of the half blood. It is clear, therefore, that so far as the question of the preference between the whole blood and half blood is concerned the Mayukha dees not deal with the brother's grandsons and considers that the sons of the half-brother would share with the paternal great-grandfather. The word bhinnodar bhratriputra ' (sons of half-brothers) in Mayukha C. 4, Section 8, pl. 20, Stokes' Hindu Law, p. 89, is is not used in a generic sense, but in its ordinary sense. In Vithalrao v. Ramrao [1899] 24 Bom. 317 Ranade, J. observjsd (p. 338):

As regards tha Mayukha, its position is still more clear. The Mayukha interprets tha words of bhe Yajnyavalkya text 'bhratarah' as meaning full brothers only, and there is no place in it for any conflict between half and full brothars. The half brother comes in only after brother, brother's son, grandmothor and sister as a gotraja sapinda along with the grandfather.

38. The half brother, according to Kanade, J., would not come in as heir under tha compact series and would come in as a gotraja sapinda according to the Mayukha. It is difficult go hold that the brother's grandsons, who are not mentioned by the Mayukha in dealing with the question of the preference of the whole blood, would come in in the compact series. According to the decision of the Full Bench in Shankar v. Kashinath A.I.R. 1927 Bom. 97 that the preference of the whole blood to the half blood is restricted to the case of brothers and sons of brothers only, brother's grandsons would include half-brother's grandsons and according to the argument on behalf of the respondent would come in the compact series in Yajnyavalkya's text whereas the Mayukha places half-brother as sapinda sharing inheritance with tha grandfather and half brother's son sharing with the great-grand.fatlser, and by a parity of reasoning based on pratyasatti or propinquity, half-brother's grandsons would share with the great-great-grandfather. It appears that the word 'bhratriputra' (sons of brother) is not used in the generic sense in the Mayukha and that according to to the Mayakha the compact series ends with the brother's sons. If brother's grandsons were intended to be included in the words 'sons of brother ' they would have been mentioned in the Mayukha. Even the sister is specifically mentioned in the Mayukha though not in the Mitakshara, and sha is placed immediately after the grandmother. I am not, therefore, satisfied that the words 'sons of brother' as understood in Western India were used in a generic sense in the compact series, and I think that the Mayukha uses the words 'sons of brother' (bhratriputra) in their ordinary sense.

39. The decision o the Privy Council turned upon the question whether the great-grandson of the grandfather of a deceased person was entitled to inherit in preference to the grandson of the great-grandfather. According to the decision in Baohava v. Kalingapa [1892] 16 Bom 716 a male sapinda in tha line of the grandfather would exclude a male sapinda in the line of the great-grandfather. This ground in itself, would have been sufficient for the decision, but the difficulty occasioned by the words 'brother's sons' in the line of the father and uncle's sons in the line of the grandfather as limiting the line to two degrees has been removed by the judgment of the Privy Council who had not directly to consider the question whether*the brother's sons are included in the compact series of heirs, and expressly restricted their view to the Mitakshara as expounded in the Benares School. Further, their Lordships of the Privy Council at p. 227 (42 I. A.) refer to another ground on which the plaintiff in that case must fail, and base it on the defendant's conferring greater benefit on the deceased by the offerings he made to the manes of the common ancestors.

40. According to the rules of inheritance prevalent in Western India, the priority with regard to the inheritance does not depend on tha greater capacity to perform funeral rights and comparative efficacy of spiritual offerings, but according to the Mitakshara and Mayukha the determining factor is the propinquity or pratyasatti. The brother's grandson is not specifically mentioned in the compact Series of heirs which expressly ends according to the Mayukha with the brother's son, and reading the Mayukha and 'the Mitakshara together it does not 'appear that in the absence of express mention of brother's grandsons in the compact series of heirs, they can be so included by a process of inferential reasoning. The remarks of the Privy Council even if unnecessary for the decision of the case are entitled to the highest respect, but having regard to the fact that their Lordships restricted their decision to the Benares School of Hindu Law and that the immediate point as regards the word 'bhratriputra' (brother's sons) being used in the generic sense so as to include grandsons in the compact series was not necessary for the decision of the point then under consideration, the remarks of the Privy Council on the immediate point now under consideration have, in my opinion, no binding force. In Halsbury's Laws of England, Vol. 18, para 535, p. 210, it is stated with reference to the binding, force of a judgment as follows:

It may be laid down aB a general rule that that part alone of a decision of a Court of law is binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent ia often termed the ratio decidendi. Statements which are not necessary to the decision, which go beyond the occasion and lay down the rule that is unnecessary for the purpose in hand (usually termed dicta) have no binding authority on another Court, though they may have some merely persuasive efficacy.

41. The brother's grandsons would, in my opinion, come in as gotraja sapindas inj the line of the father. In Mitakshara,' Ch. 2, Section 5, Pl. 4:

On failure of the father's descendants (santan) the heirs are succeasivsly the paternal grandmother, the paternal grandfather, his sons and their sons.

42. It appears, however, from Mayukha,, Ch. 4, Section 8, Pl. 18, that in default of brother's sons, succeed the gotrajas who are sapindas. Among them also the first is the paternal grandmother under the text of Manu: see Gharpure's Translation, p. 113. It would, therefore, follow that if the Mitakshara and Mayukha are read together, after the brother's son, the first gotraja to succeed is the paternal grandmother. In Pl, 19, the next in default of grandmother comes the sister, and in Pl. 20, in default of the sister comes the paternal grandfather. I think, therefore, that the brother's grandsons would come in as sapindas after the mother and sist6r and before the grandfather. As to the line or 'santan' there is a difference of opinion as to whether a descendant up to the seventh degree, or a descendant up to the fourth degree, or a descendant up to the second degree is to be considered as included in the word 'line.' According to Mr. Harrington's view in Rutcheputty Dutt Iha v. Rajunder Narain Bae [1839] 2 M.I.A. 132 and Bhijah Bam Singh v. Bhyah Agar Singh [1870] 13 M.I.A. 273, the line would include descendants up to the sixth degree from the ancestor from whom they spring. According to Dr. Sarvadhikari's view, the descendants include three degrees of descendants from the ancestor from whom they spring, and the three degrees of descendants must be exhausted before the inheritance goes to the line of the higher ascendant. The view of Dr. Sarvadhikari has been adopted by their Lordships of the Privy Council in Buddha Singh v Laltu Singh A.I.R. 1915 P.C. 76 asbased on Manu's rule viz.:

To three (ancestors) water must bs ofiared, to throe funeral cake is given, the fourth (descendant is) the givor of thoaa (oblations), the fifth has no connexion with them.

43. The view of Mr. Mandlik is that the descendants mean only two degrees from the ancestor from whom they spring. The Mitakshara in his commentary of Yajnavalkya, Slokas 52 and 53 (Achara Kanda), has elabarated the theory of sapinda relotionship. The translation appears in Gharpure's Hindu Law, Appendix B, p. 430. The sapinda relationship extends up to se?en degrees if traced through the father and up to only five degrees if traced through the mother, and is based on the possession of the particles o the same body, that is, on the fact of being descended from the common ancestor. The word 'pinda,' according to the Mitakshara, means body and not oblations. A man and his six paternal ancestors and the six descendants of himself and of his six ancestors are his sapindas on the father's side. Similarly, a descendant within five degrees of his mother's father, grandfather and great-grandfather would be his sapinda. lu counting these five and seven degrees The ancestor and the descendant whose relationship is in question are to be included: see translation of Achara Adhyaya by Srisa Chandra Vidyarnava, Panini Office, p. 109, and Kane's Vyava-hara Mayukha, p. 204. This theory would correspond with Mr. Harrington's view. Dr. Sarvadhikari's view is based on Manu's doctrine which is based upon the capacity to offer oblations.

44. Their Lordships of the Privy Council in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 have not definitely rejected Mr. Harrington's theory, but have rejected the theory of Mr. Mandlik wnich is supported by the decisions of the Madras High Court in Suraya v. Lakshminarasamma [1881] 5 Mad. 291 and Ghinnasami Pillai v. Kunju Pillai [1911] 35 Mad. 152, and have held that tha descendants in each ascending line, up to the fixed limit, should be exhausted at any rate to the third degree before making the ascent to the line next in order of succession. The brother's grandson would coma within tha limit of the third degree from the father and would be a sapinda entitled to inherit as a gotraja sapinda before the grandfather. In the Bombay Presidency it has never been suggested, much less held, that the brother's grandson comes in the compact series of heirs, and whenever a question as regards the brother's grandson has arisen his rights have been placed not higher than as a gotraja sapinda. I may refer in this connexion to Vallabhdas v. Sakarbai [1900] 25 Bom. 281, where it was held that a brother's grandson was entitled to preference over the widow of the daughter's son on the ground that the latter would be a bandhu and not a gotraja sapinda.

45. I am decidedly of opinion that the. brother's grandson is not recognised by usage in the Bombay Presidency as in-eluded in the compact series of hairs, and reading the Mitakshara and tha Mayukha together I think that the words bhratripatra,' i.e., 'sons of brother' are not used in a generic sense in fete compact series so far a3 the Mayukha is concerned, and that the brother's grandson in the Bombay Presidency can not be included in the compact series of heirs by any process of inferential reasoning without being specifically enumerated.

46. In Lallubhai Bapubai v. Cassibai [1880] 5 Born. 110, their Lordships of the Privy Council held that according to the law of the Mitakshara, as accepted in Western India, the right to inherit in the classes of gotraja sapinda should be determined by family relationship, or tha community of corporal particles, and not only by the capacity of performing funeral rites. At. p. 124 a reference is made to Balambhatta who places tha predeceased son's widow next after the paternal grandmother, and to Nanda Pandita, tha author of the Vaijayanti, a commentary on Vishnu, on whom the decision of the Privy Council in Buddha Singh v. Laltu Singh (I) relies and who appears to have held that the son's widow would succeed in preference to the daughter. It is, therefore, not safe to rely too njueh on the commentaries. The brother's grandson is not specifically mentioned either in the Mitakshara or in the Ma-yukha, which are the prevailing authorities in Western India. Nanda Pandita in his Vaijayanti, a commentary on Vishnu, places the brother's grandson immediately after the brother's sons and before the grandfather. Similarly, Dayabhaga and Apararka agree with the view of Nanda Pandifca. The two commentaries on Mitakshara are Subo-dhini by Vishveshyara and the commentary by Balambh'atta. The Subodhini distinctly says: the father's line is as far as the brother and his son: sea Gharpure's Subodhini, p. 74, and Translation, p. 188, Balambhatta does not refer to the brother's grandsons. In the Mitakshara only two generations, i.e., brother's sons and uncle's sons, are mentioned as constituting the lines of the father and grandfather respectively. The decision of the Privy Council in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 has now established that the line of a person extends to at least three generations, that is, the line of the father would extend up to brother's grandson and the line of the grandfather would extend to the uncle's grandson. The question in the Privy Council related to the succession of the uncle's grandson, and no question arose as to whether the brother's grandsons should be considered as being included in the compact series of heirs. The persons who are entitled to inherit according to the compact series of heirs are the specifically enumerated heirs, and the brother's grandsons are not expressly mentioned as heirs.

47. The Mayukha and the Subodhini which are considered as authorities in Western India do not include the brother's grandsons in the compact series of heirs. Nanda Pandita in the Vaijayanti, and Apararka describe the 'san-tan' to extend to three genarations in each line. I think, therefore, having regard to the authorities prevail ant in Western India, brother's grandsons cannot be included in the compact series of heirs, but would come within the line of the father which has now been fixed by the Privy Council to extend to three generations, and would be entitled to inherit as sapindas, but according to the Mayukha amongst the gotraja sapindas the first place is assigned to the grandmother and after her comes the sister, and therefore, in my opinion the brother's grandsons would come after the sister and before the grandfather as gotraja sapindas,

48. West and Buhler Eda. 3, p. 124, is decidedly of opinion that brother's grandsons do not come in the compact series of heirs.

58. Mr. Mandlik, in his Hindu Law at pp. 360, 361, 378, 380 and 382, holds the same view. The view of Mr. Mandlik as to the line extending only to two generations may now be considered to have been overruled by the Privy Council which extends the line up to at least three generations. It is clear that according to the eminent authorities in Western India brother's grandsons are ' not included in the compact series of heirs.

49. In Rutaheputty Dutt Iha v. Raj under Narain Bae [1839] 2 M.I.A. 132, and Bhyah Barn Singh v. Bhyah Agar Singh [1870] 13 M.I.A. 273 tha question as to whether the brother's grandsons come within the compact series of heirs did not arise for decision and Mr. Harrington's view with reference to the continuation of the heirs up to seven degrees was accepted. Their Lordships of the Privy Council in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 at p. 225, have not considered it necessary to decide whether the principle suggested by Harrington is correct or not.

50. In Kureem Ghand Gurain v. Oodung Gurain [1866] 6 W.R. 158 it was held that under the Mitakshara system of Hindu Law, in default of all heirs, a brother's grandson can succeed. At p. 159 the right of the brother's grandson to succeed as a sapinda was considered, and Jackson, J. tirst considered the right of the grand-son as a sapinda, and at the end of the judgment suggested that he might be included among the enumerated heirs under the words 'brother's sons.' Bayley, J., however, held that even if a brother's grandson could not inherit in the direct order of succession after a brother's son and before paternal grandmother, it did not follow that he could not inherit at all.

51. In Mt. Oorhya Eooer v. Bajoo Nye Sookool [1870] 14 W.R. 208, it was held that under the Mitakshara Law a brother's grandson might be an heir. The Calcutta cases mentioned above did not decide that a brother's grandson comes in the compact series of heirs.

52. In Kalian Rai v. Bam Chandar [1901] 24 All. 128 it was held that according to the Hindu law of the Mitakshara School the grandson of a brother is a nearer sapinda than the son of a paternal uncle. At p. 134, after suggesting that the words 'sons' and 'brother's sons' would in-duda brother's grandsons, it was observed:

But oven if that is not permissible, we see no reason why the brother's grandsons should not come in as the first gotraja sapindas entitled to succeed after the paternal grandmother under versa 3 of Section 5,

and at p. 135 it is observed:. All that we hold is that the father's line, us far down as his great-grandson, must be exhausted before the grandfather or his line can come in.

53. There is, therefore, no express decision that the brother's grandson comes in the compact series of heirs, and he is considered to be a sapinda entitled to succeed after the paternal grandmother and before the grandfather's line would come in.

54. In Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76, 'the contest was between a great-grandson of the grandfather and the grandson of a great-grandfather. The question as to whether the brother's grandson cornea within the enumerated heirs in the compact series did not arisa for decision, and it was held that the three immediate descendants of the grand-fathar succeeded in preference, to the grdat-grandfather and his descendants. The same case went up to the Privy Council in Buddha Singh v. Laltu 'Singh A.I.R. 1915 P.C. 76, and it would clearly follow that the question whether the brother's grandson comes amongst the enumerated heirs in the compact series did not arise for decision, though it was held that under the Mitakshara as expounded in the Benares School, the word sons 'putrah' and its synonyms in connexion with the brothers and uncles must be understood in the generic sense.

55. In Suraya v. Lakshminarasamma [1881] 5 Mad. 291, it was held that according to the Hindu law of succession, current in the Madras Presidency, a paternal uncle's son succeeded to the inheritance before a brother's grandson, and the term 'sons' used in the Mitakshara, Ch. 2, Section 4, pl. 7 and Section 5, pl. 1, does not include grandsons. That decision is a clear authority against including the brother's grandson in the compact series of heirs. The same view was taken by the Madias High Court in Chinnasami Pillai v. Kunju Pillai [1911] 35 Mad. 152 where it was held that the grandson of the brother could not claim rights of inheritance as heir enumerated in the texts. Though the view taken by the Madras High Court as to the line of each ascendant being confined only to two degrees may not now be accepted having regard to the Privy Council decision in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 the above decisions of the Madras High Court are clear authorities on the point that the brother's grandsons are not included in the compact series of heirs.

56. In Chinna Pichu Iyengar v. Padmanabha Iyengar A.I.R. 1921 Mad. 671 the Madras High Court held that the decision of the Privy Council in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 was confined to agnatio succession, and the extended meaning of the word 'putra' including grandson? and great-grandsons was not accepted by the Madras High Court in reference to succession among cognates (bandhus). In a subsequent case, Adit Narayan Singh v. Mahabir Prasad Tiivari A.I.R. 1921 P.C. 53 their Lordships of the Privy Council have held that even among cognates (bandhus) the word 'son' is used in a generic sense and includes a grandson.

57. On a consideration of the authorities, I think that it has never been clearly decided that the brother's grandsons are included within the compact series of heirs.

58. Their Lordships of the Privy Council in Lallubhai Bapubhai v. Gassibai [1880] 5 Born. 110 have held that the enumeration of sapindaa is not exhaustive, and also the enumeration of bandhus is not exhaustive, and at p. 121 describe the compact series as 'the series of heirs first entitled to inherit down to brother's sons.' The compact series of heirs consists of heirs specifically enumerated, and is, in my opinion, exhaustive. It has never been held at least in Western India that it is illustrative and not exhaustive. The effect of the decision of the Privy Council in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 in my opinion, is to include brother's grandson as a gotraja sapinda and not; to include him in the compact series, and to establish that the father's line does not end with brother's sons as the grandfather's line would not end with the uncle's sons. Their Lordships have not decided, nor was it necessary to decide in that case, that brother's grandsons are included in the compact series of heirs though the reasoning in some parts of the judgment might lead to that inference.

59. It is suggested by the lower Court that the Mitakshara includes the daughter's son under the word oha (and) in the Yajnavalkya's Smrifci, and therefore it would not be incongruous to include brother's grandsons in the word 'tatsutah' (his sons, i.e., brother's sons). But Mitakshara (in Ch. 2, Section 2, pl. 6, Gharpure's Translation, p 247, has referred to two Smriti texts, viz., of Vishnu and Mann (Ch. 9, Sh. 136) which expressly mention daughter's sons as heirs after the daughter. The text of Manu (Ch. 9, Sh. 136), is as follows?

By that male child, whom a daughter, whether not appointed or appointed shall produce from (husband of) equal class, the maternal grandfather beoomas the grandsire of a son's son; ha shall offer the funeral cake and take the estate: sot Mitakshara, Caluse 11, Section 11, pl. 6, (Grharpure's Translation, p. 247).

60. The word used for male child is 'suta'. Daughter's grandson is not suggested as entitled to come in the compact series. So also Mayukha, Ch. 4, Section 8, pl. 13, Gharpure's Translation, p. 111, relies on tiia text of Vishnu. Daughter's sons are expressly mentioned as heirs after the daughter in the Smriti texts, but brother's grandsons are not mentioned in any Smriti texts, but are mentioned by commentators like Nanda Pandita and Apararka who are not recognized as conclusive authorities in Western India.

61. The only instance in which an attempt was made to introduce a parson, not specifically named, in the compact series was with reference to the right of the sister to coma in under the generic word 'brothers' under the Mitakshara which does not expressly mention sister as heir. The decision of the Full Bench of the Bombay High Court in Vinayak Anandrav v. Lakshmibai [1301] 1 B.H.C. 117, and confirmed by the Privy Council, Venayeak Anundroiu v. Ltoxumebaee [1864] 9 M.I.A. 516 was rested upon the Mayukha, and partly so far a3 the Mitakshara was concerned on the special construction given to the generic word 'brothers' in the Mitakshara by Nanda Pandita and Balambhatta. The construction put upon the word 'brothers' by Nanda Pandifca and Balambhatta is opposed to the view of the Mayukha: see Chap. 4, Section 8, Pl. 16, Gharpure's Translation, pp. 112-113. The construction put by Balambhatta and Nanda Pandita was dissented from in the subsequent decisions of this Court in MvJji Purshotum v. Gursandas Natha [1900] 21 Bom. 363 and Bhagwan v. Warubai [1908] 32 Bom. 300 and the sister was held to come in as a gotraja sapinda immediately after the grandmother. Farther, with reference to the argument that son's daughter was entitled to preference over the ' brother's son on the ground that the compact series of heirs was not exhaustive, it was held by Sir Lawrence 'Jenkins in Mulji Purshotum v. Gursandas Natha [1900] 21 Bom. 363 at p. 582 that she was not a gotraja sapinda and that even assuming that she was a gotraja sapinda, it was well established that persons who claim as answering a general description coma in after those whose order of succession is specifically fixed. I think therefore that the brother's grandsons cannot come in the compact series but will come in as gotraja sapinda after those whose order of succession is specifically fixed.

62. The compact series of heirs, i.e., spe, cially enumerated heirs, ends with the brother's son. The paternal grandmother is the first of the sapindas: sea Mayu-kna, Chap. 4, Section 8, pl. 18:

In default of brother's sons, sucoeed fcha gotrajas who are sapindas. Amoag thorn also the first is the paternal grandmother under the text of Manu, viz.: 'And if the mother also be dead the father's mother shall take the heritage'. Although she is (here) mentioned immediately next to the mother still as fchore is no (place of; entry for them in the compact series (of heirs) ending with the brother's sons she is fco be entered at the end after tha brother's sons, after the manner of 'the entry of the uninvited at the end.

63. See also the remarks in the judgment of the Privy Council in Lallubhai Bapu-bhai v. Cassibhai [1880] 5 Born. 110 at p. 113, and the Full Bench decision in Lallubhai Bapubhai v. Manhuvarbai [1876] 2 Bom. 388 (F.B.). at p. 432, where it is observed:

The fifth section, as a whole Iead8 me to the conclusion that 'yijnyangsvara intended to plaoe the parternal grandmother as first of the gotraja sapindas after the compict series of jieirs.

64. According to Mayukha, Chap. 4, Section 8, Pl. 19, in default of the grandmother comes the sister. In Bhagzvan v. Warubai [1908] 32 Bom. 300 it was held that a sister comes in as heir to a deceased Hindu immediately after the grandmother so that where the competition is between her and a half-brother's sod, the latter being higher in the line among heirs specifically mentioned in the Mitakshara, is entitled to preference over her as heir though it would be otherwise in casas governed purely by the law of the Vyavabara Mayukha. The brother's grandsons would not come in as heirs in the compact series but would come as gotraja sapicda in the line of the father after the grandmother and sister and before the grandfather.

65. The order of succession given by Mulla at pp. 83 to 85 is, in. my opinion, correct. After the brother's son would come the grandmother and then the sister then the son's widow and afterwards' brother's grandson. It is unnecessary to consider in this case if Nos. 14 to 16 and 18 to 22 and others similarly situated in Mulla's list will retain their positions. It will depend on the question whether Harrington's view or Sarvadhikari's view is to prevail. Mr. Mandlik's view limiting the line to two degrees has not been accepted by the Privy Council in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 and Sarvadhikari's view is accepted by the Privy Council without expressing any opinion as to the correctness of Harrington's view. In Kashibai v. Sitabai Baghunath [1911] 35 Bom. 339, at p. 392, Scott, C.J., has rejected Mandli's view and accepted Harrington's view that the line of sapindas includes descendants in the sixth degree.

66. I therefore think that the brother's grandson would come in as a gotraja sapinda as he is included at least within the three descendants of the father be-foro the grandfather's line comes in. The brother's grandson, therefore, would in my opinion come in after the grandmother who is mentioned first amongst gotraja sapindas by Mayukha and also after the sister who is mentioned as coming immediately after the grandmother, and would come before the grandfather as a gotraj a sapinda.

67. Therefore, as I have said in the beginning, defendant 2 as the daughter-in-law would succeed in preference to the brother's grandsons who are not specifically mentioned in the compact series and who come in only as gotraja sapindas in the line of the father. On these grounds I hold that in Western India according to the Mitakshara and Mayukha and the usage prevalent therein, the daughter-in-law is entitled to, preference over the brother's grandsons.

68. Though defendant 2 is entitled to preference as heir to the plaintiffs who are brother's grandsons, she takes only a widow's estate. Defendant 2 is now dead, and the alienation made by her would, therefore, not be binding on the plaintiffs who are the reversioners unless it is shown by the purchaser, defendant 1, that there was legal necessity for the alienation. I would, therefore, send down an issue for determination by the lower Courts on this point as follows:

69. Whether there was legal necessity justifying the sale by defendant 2 to defendant 1 of the property in suit?

Murphy, J.

70. The facts have already been recited in my learned brothers' judgments which I had the great advan-tage of perusing, and I need not repeat them.

71. The contest is essentially one between gotraja sapindas, for in this presidency the current of decision is, that a predeceased son's widow is with in that class, and as being nearer to ths deceased would exclude the more remotely related brother's grandsons. The latter's claim is, however, based on the contention that the word ' sons' as usacl in the verse of Yajnavalkya's Code given below, connotes at least grandsons and great-grandsons, and if this is held to be so, the brother's grandsons would have preference as coming within the compact series of enumerated: heirs as well as being gotraja sapindas.

72. Verses 135 and 136 of the Code of Yajnavalkya are translated as follows:

The wife and the daughter, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil and a fellow student on failure of the first among these the next in order is indeed heir to the estate of one who departed' for heaven leaving no male isgue. This rule extends to all persons and classes.

73. The list at the beginning of this verse is called the compact series and the course of decision in this Court, though the point has never been specifically before the Courts, is in favour of the view that the enumerated heirs end with the brother's son. The cases have been quoted in my learned brothers' judgments, and I need, not re-enumerate them.

74. The difficulty of the appeal arises from the fact that their Lordships of the Privy Council have held that the word 'sons' as used in the Mitakshara connotes at least three degrees; and if that construction is applied to the facts here, would include the brother's grandsons and great-grandsons.

75. This decision is to be found in the well-known case of Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76.

76. The competition in that case was between the great-grandson of the grandfather of the propositus and his greater and father's grandson. It was decided in favour of the former heir and the decision rests on the interpretation of pl. 4, Section 5, Order 2 of Colebrooke:

If there be no brother's sons, gotrajas share the estate, gotrajas are the paternal grandmother and sapindas and samanodakas,

77. The word 'sons' in this verse was held to connote grandsons and great-grandsons and their Lordships based their interpretation on the use of the word 'aputra,' or sonless, in the Code, and of the two words for 'son' in other verses of the Mitakshara., one of their reasons being that so great an authority as Vijnanesvara could hardly use these words inconsistently in the several different parts of his great work. Though this case is under the Mitakshara, it is a decision on Hindu law as prevailing in the Benares School of that science, while the case before us must be decided in harmony with the doctrines of the Bombay School.

78. I agree with my learned brother Madgavkar's view that in considering whether a binding judgment, such as that of their Lordships in the ruling in question applies, or not, to an adjacent case, we have to consider the principle enunciated and the ratio decidendi, and that the principle is binding while the ratio decidendi may or may not be so.

79. The principle here is that in the Benares School of law in a competition among gotraja sapindas claiming under Vijnanesvara's rule quoted above, the great-grandson of the grandfather excludes the grandson of the great-grandfather, because the word 'son' is there used to include descendants up to the third degree.

80. The ratio decidendi appears to me to have been the general consideration that we must deem the Mifeakshara's author to have used the word 'sons' consistently throughout his work, and that this interpretation was, therefore, in view of the other uses of the word in different parts of the work, the correct one. To quote their Lordships' words (p. 220):

Having regard to the fact that this great legist whose logical acumen judging from his work seems to have been remarkable, has used the term putra in previous parts of his book on inheritance in a comprehensive and generic sense, their Lordships find it difficult to conceive why he should arbitrarily and without any explanation have used the word towards the end in quite a different and restricted sense, or why, if his intention was to confine the descent in the case of the collaterals to the actual sons of brothers and uncles, he did not employ terms which would have exactly conveyed his meaning, such as amah or auras, which, their Lordships understand, mean 'son of one's loins'. Nor can their Lordships appreciate the argument that the meaning of such words as santana and sunavas, which mean lineal male progeny without limitation, should be arbitrarily out down to two degrees.

81. The judgment also notes in this connexion that where a limitation is intended, it is made, as in the instances quoted. Strictly speaking, therefore, the authority is not directly one on the point we have to dame, though the point for decision was actually very similar, the construction being that of a different verse by another author.

82. If this distinction is well founded and valid, and as far as I can see it is a real one, it follows that the decision in Buddha Singh v. Laltu Singh A.I.R. 1915 P.C. 76 does not bind us and we may consider the question on the basis of the cognate Bombay decisions.

83. The principal difficulty in deducing a similar principle for like reasons from the verses of Yajnavalkya, enumerating the compact series of heirs, is that it would postpone the rights of the grandmother.

If there be no brother's sons, the gotrajas share the estate, gotrajas are the paternal grandmother and sapindas and samanodakas.

84. The view hitherto has been that her right to succeed immediately after the brother's sons is well established under the Mitakshara and the Mayukha, West and Buhler's Hindu Law, Edn. 3, p. 124, and this place has been invariably-assigned to her in the order of succession in this presidency.

85. This fact, however, could not have escaped their Lordships' notice, for Mitakshara C. 2, Section 5, verse 2 'she (grandmother) must, therefore, succeed immediately after the brothers' suta,' was considered by them.

86. But in this Presidency the Vyavahara Mayukha has to be read, and harmonized, as far as may be, with the Mitakshara, and C. 4, Section 8, pl. 18, of that work lays down:

In default of brothers' sons succeed the gotrajas who are sapindas. Among them also The first is the paternal grandmother under the text of Manu, viz., 'and if the mother also be dead, the father's mother shall take the heritage.' Althoughshe is here mentioned immediately next to the mother, still as there is no place of entry for her in the compact series of heirs ending with the brother's sons she is to be entered at the end after the brothers' sons after the manner of the entry of the uniuvited.

87. In this Presidency, therefore, there is no ground for what has been held to be the case, and the view that the compact series ends with the brother's son, and that the grandmother takes first after the brother's sons.

88. I agree with the view on the point enunciated by my learned brothers Madgavkar and Patkar, JJ., and in the order proposed to be made in the case.


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