1. This appeal has been referred to the Full Bench as the Division Bench which heard the appeal was of the opinion that the earlier decision of the Division Bench of this Court in Purshottam Waman Gabale v. Shripad Ramchandra Pargaonkar : AIR1976Bom375 needed reconsideration.
2. In Purshottam's case, the Division Bench on a construction of provisions of Section 18 of the Hindu Succession Act, took the view that the effect of Sec. 18 was that only if there is a brother of full blood and a brother of half blood, then the brother of full blood will exclude the brother of half blood, then the brother of full blood will exclude the brother of half blood and similarly, where there is a sister of full blood and a sister of half blood, the former will exclude the latter. The Division Bench was of the view that if there is a brother of half blood and a sister of full blood, the former will not be excluded by the latter and that it will be only the presence of a relation of a heir of half blood along with an heir of full blood in that particular category of the heir that the full blood heir. The correctness of this view of the Division Bench has been challenged by Mr. Abhyankar appearing on behalf of the appellants in this appeal.
3. The appeals in this appeal are original defendants Nos. 1 to 5 and 15 to 17. For a proper understanding of the nature of controversy, it is necessary to reproduce the genealogical table showing the relationship between the plaintiffs and the defendants. One Dinkar had two wives. From his first wife he had a son Baburao who died in 1950. His son Bhalchandra had predeceased him in 1930. Bhalchandra left behind him his widow Yeshodhabai and daughter Sudha. They are defendants Nos. 6 and 7. From the second wife, Dinkar had a son called Amrit and two daughters by names Radhabai and Bhagirathibai. Amrit died issueless in 1970. Radhabai died in 1969 and defendants Nos. 1 to 5 are her sons and daughters Bhagirathibai died in 1932. The defendants Nos. 15 to 17 are her sons. The plaintiff Gopal is a son of deceased Baburao who was the step-brother of deceased Amrit. Amrit had left behind of deceased Amrit. Amrit had left behind certain property which is the subject matter of the suit. According to the plaintiff, Amrit had never cancelled this will. On 10th April 1969, as alleged by the plaintiff, but alternatively his case was that this deed of cancellation must have been got executed by the defendants by taking undue advantage of the weakness of mind and body of the deceased Amrit and by using undue influence and by fraud. According to the plaintiff, though he was the sole owner of property of Amrit, since he desired that he should share the estate amongst his brothers the defendants Nos. 8 to 19, he made certain statements before the City Survey Officer at Solapur and according t ohim, the defendants Nos. 1 to 5 were not in possession of any property. Alternatively, accordingly to the plaintiff, he along with defendants Nos. 8 to 14 had become owners of the suit property under the provisions of the Hindu Succession Act. A further alternative case pleaded by him was that he along with all the other defendants Nos. 1 to 14 had become the owners of the suit property, and therefore, partition should be effected and the shares of the respective parties should be determined.
4. The common case of all the defendants was that the Will dated 10th September 1968 was not voluntarily executed by Amrit and he had cancelled it by a registered deed dated 18th April 1969 after taking advice of his legal adviser Shri H. K. Kalekar. According to them, they were the nearer heirs of Amrit under the Hindu Succession Act and their names have been recorded as heirs in the City survey records. According to the defendants Nos. 1 to 5 were the only nearest heirs of deceased Amrit and were entitled to his estate. The defendant No. 3 admitted the claim of the plaintiff and asked his share to be determined the defendants Nos. 3 and 5 adopted the written statement of defendants Nos. 1, 2, and 4. The defendants Nos. 15 and 17 claimed that they were also the heirs, according to Hindu Law and their shares should be determined. This plea was adopted by defendant No. 16.
5. The trial Court held that the Will dated 10th September 1968 was invalid and that the deed of cancellation of the will was a valid one. It held that the deed of cancellation dated 18th April 1969 was not vitiated by undue influence, fraud or coercion. However, on the alternative plea based on the provisions of Hindu Succession Act, 1955, the trial Court held that the plaintiff was entitled to 1/16th undivided share in the property in suit. The trial Court also determined the share of defendants Nos. 1 to 5, 8 and 10 to 16 as 1/6th. The defendants Nos. 9 (A) to 9 (E), who had died heirs of defendant No. 9 who had died during the pendency of the suit were also held entitled to have their 1/16th share separately.
6. While taking the view that the plaintiff was entitled to succeed to the estate of Amrit, the trial Court held that the defendants Nos. 8 to 14 and the plaintiff were the step-children of the brother of Amrit and the defendants Nos. 8 to 14 and the plaintiff were the step-children of the brother of Amrit and the defendants Nos. 1 to 5 and 15 to 17 were the children of the two sisters of Amrit. Holding that there are no heirs in Class I in the Schedule to the Hindu Succession Act, the trial Court found that the plaintiff and the defendant were Class II heirs who fell in Entry No. IV Relying on the decision of purshottam's case : AIR1976Bom375 , the trial Court held that plaintiff and the defendants would not be excluded by defendant's Nos. 1 to 5 and 15 to 17 and that the children of the half blood brother of Amrit. The correctness of this view is challenged by the appellants. According to the learned Counsel for the appellants, in view of the provisions of Section 18 of the Hindu Succession Act, all the children of the deceased Baburao who was the step-brother of Amrit will have to be excluded and according to the learned Counsel, the view taken by the trial Court relying upon Purshottam's case that the nature of relationship of defendants Nos. 6 to 14 on the one side fendants Nos. 15 to 17 on the other is not the same in all these cases was not correct.
7. Under Section 8 of the Hindu Succession Act, the property of the male Hindu dying intestate devolves firstly upon the heirs being the relatives specified in Class I of the schedule; secondly if there s no heir of Class I, then up on the heirs, being the relatives specified in Class II of the Schedule; thirdly, if there is no heir any of the two Classes, then upon the agnates of the deceased and lastly if there is no agnate, then upon the cognates of the deceased. Under Section 9, heirs in Class I take simultaneously and to the exclusion of all other heirs and those in the first entry in Class II are preferred to those in the second entry, and those in the second entry are preferred to those in the third entry and so on. Admittedly neither the plaintiff nor the defendants fall in Class I. They do not also fall within Entries, I, II and III of Class II. The plaintiff and all the defendants fall within Entry IV of Class II. The first four entries of Class II are as follows:-
(1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.
(1) Daughter's son's son, (2) daughter's son's (3) daughter's brother's son, (4) daughter's daughter.
(1) Brother's son, (2) sister's son, (3) brother's daughter. (4) sister's daughter.'
8. Now, admittedly the plaintiff, deceased Bhalchandra who is represented by defendants Nos. 6 and 7 and defendants Nos. 8 to 14 are all relations of half blood of deceased Amrit being sons and daughters of the half blood brother Baburao. The definition of full blood and half blood which is relevant for out purpose is in Clause (e) of Sec. 3(1) together with the Explanation reads as follows:
'3 (1) (c) 'full blood', 'half blood; and 'uterine blood'-
two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but by different wives.
two persons are said to be related when they are descended from a common ancestress but by different husbands.
Explanation.- In this clause 'ancestor' Includes the father and 'ancestress' the mother;'
Under Section 11 of the Hindu Succession Act, it is provided that the property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. The effect of Sec. 11 is that all the he mentioned in each entry will take an equal share when they succeed under the provisions of Sec. 8 to the property of the deceased. Section 18 which is the relevant provision on the construction of which there has been a long debate at the Bar reads as follows; 'Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.'
9. Now, admittedly the plaintiff and the defendants Nos. 6 to 14 fell within Entry IV in Class II, and all of them are heirs by half blood brother of Amrit, both of them being born of a common ancestor but by different wives. The question is whether these defendants are excluded by virtue of the preference laid down in Section 18. While there is no doubt that the defendants Nos. 6 to 14 are heirs related by half blood, the preference will operate only 'if the nature of relationship is same in every other respect'. According to the ratio of Purshottam's case, the nature of relationship of defendants Nos. 1 to 5 and 15 to 17 who are the heirs of full blood is not the same as the nature of relationship of defendants Nos. 6 to 14 with the deceased Amrit.
10. Before the coming into force of the Hindu Succession Act, 1956, succession was governed by the Mitakshara Law. The order in which succession took place among sapindas is set out in para. 43 of Mulla's Hindu Law (15th edition). In the order of succession set out the 'Brother' is at serial number 9 and the entry is Brother - (a) of the whole blood and (b) of the half blood. Even under the Mitakshara Law of Succession the rule was that brothers of whole blood succeeded before those of the half blood. Entry 9 at p. 128 reads as follows:
of the half-blood.
Whole before half-blood.- Brothers of the whole blood succeed before those of the half-blood. The half-brothers referred to here are sons of the same father by a different mother. Sons of the same mother by a different father by a different father are entitled to succeed as ' brother'....' The Entry No. 10 refers to 'Brother's son - (a) of the whole blood and (b) of the half-blood' and there also the law was that sons of brothers of the whole blood succeeded before sons of brothers of the half-blood. Entry No. 11 refers to 'Brother's son's son' and the grandsons of the whole brother took before the grandsons of the half-brother. The general rule thus was that the sapinda of the whole blood was preferred to the sapinda of the half blood but this preference was restricted to the sapinda of the same degree of descent. In paragraph 44 in Mulla's Hindu Law, the following appears: 'Whole blood and half-blood.- (1) A sapinda of the whole blood is preferred to a sapinda of the half-blood. This preference, however, is confined to sapindas of the same degree of descent from the common ancestor; it does not apply to sapindas of different degrees.'
11. Giving illustration of this it is pointed out by the learned author that a paternal uncle of the whole blood is entitled to succeed in preference to a paternal uncle of the half-blood, they being sapindas of the same degree of descent. But a paternal uncle of the half-blood is entitled to inherit in preference to the son of a paternal uncle of the whole blood, the former being a nearer sapinda of the deceased than the latter (see p. 133). The position, therefore, before the coming into force of the Hindu Succession Act was that the question of preference arose only if the heirs entitled to succeed were of the same degree of descent from the common ancestor and if heirs of the whole blood and half-blood were sapindas of different degrees a question of preference did not arise.
12. Formulating fundamental rules for succession to males, it is observed in Hindu Law by S. V. Gupte 3rd edition Volume II at page 47 as follows :-
'Art. 5. - (1) Kinsmen of the sapinda class succeeded before hose of the
Within each class (viz., the Sapinda, samanodaka and the bandhu class).
The nearer excluded the more remote, that is to say,
the nearer in each line excluded the remoter in that line.
kinsmen or relationship of equal nearness and of the same kind of relationship, succeeded together except that kinsmen of whole blood were preferred to those of half.
Provided that notwithstanding anything hereinabove contained those whose rank was fixed by special text, usage, or statute, took the rank assigned to them.'
13. The position thus was that while kinsmen of equal nearness and of the same kind of relationship succeeded together, there was certain exceptions to this general rule. The most important exception was that as between the whole blood and half-blood relationship of equal degree, those of full blood excluded those of half-blood. Giving reason for this exception, the learned author writes :
'This exception was itself the result of the rule of nearness or propinquity since (according to the Mitakshara) half-blood relations were remoter than those of the whole blood through the difference of mothers.... Where there was competition between relations of the whole-blood and those of half-blood there was a preference in favour of those of the whole blood provided they were of the same degree or proximity of relationship to the deceased.'
14. As already pointed out under the Shastric Law the rules of preference did not apply where claimants by whole blood and those by half were of different degrees of relationship to the deceased. In a case where the heirs were of different degrees of relationship. The rule 'nearer excluded the more remote, applied. The illustrations given in Gupta's Hindu Law are also instructive. The illustrations are:
'(I) Brothers of the whole-blood succeeded before those of the half, Ekoba v. Kashiram AIR 1922 Bom 27, and sons of brothers of the whole blood excluded sons of brothers of the half-blood. But a brother whether half-blood or full uncle, the two claimants being related to the deceased in different degrees.
A maternal uncle of the full-blood was preferred to a maternal uncle of the half-blood, Muthuswami v. Muthukumarswami (1896) 23 Ind App 83.
A paternal uncle of half-blood was preferred to sons of paternal uncles (though of full-blood) (Ganga Sahai v. Kesri, AIR 1915 PC 81 and father's half-sister's son was preferred to mother's full sister's son, Jotindra Nath v. Nagendra Nath . Similarly as between a father's brother's daughter and a maternal uncle (both bandhus) the latter is a preferential heir even if he is only the half-brother of the mother of the deceased, Gowardhan Dutt v. Smt. Dwarku, AIR 1968 Punj 398.
A paternal uncle of whole-blood was preferred to a paternal uncle of half-blood, Garudas v. Laldas .
But the sons of a step-sister shared equally with the sons of a full sister for there was no competition here between claimants (sons) by different blood, Jotindra Nath v. Nagendra Nath .' (see p. 52).
15. One of the revolutionary changes which was brought about by the Hindu succession Act was the recognition of the necessity of vesting in women absolute rights of ownership in property and giving them a right of succession to property on the same basis as the rights of the male heirs. The Hindu Succession Bill came before the Parliament after the Parliament had passed the Hindu Marriage Act. While introducing the Hindu Succession Bill, the then Law Minister in his speech had said as follows :
'...I am sure Sir, that having passed that Bill (Hindu Marriage Bill), it would now be the moral and legitimate duty of those gentlemen to see that to woman is restored her natural rights in property and to take steps to ensure her economic independence and that could only be done by removing the invidious distinction between the son and daughter in the matter of inheritance and to making the woman the full owner of whatever property she acquires whether by inheritance or otherwise....'
16. As a result of the enactment of the Hindu Succession Act, the three classes of heirs recognised by Mitakshara namely and Bandhus and the three classes of heirs recognised by Dayabhaga, namely, Sapindas, Sakulyas and Bandhus ceased to exist in case of devolution taking place after coming into force of the Act. The heirs were divided into four classes of categories, namely, (1) heirs in Class I of the Schedule, (2) heirs in Class II of the schedule, (3) Agnates and (4) Cognates. The outstanding feature of new scheme of succession is that the property devolves in equal shares among the son, daughter, window and the mother of the deceased. 'Eight other categories of heirs also come into the scheme of simultaneous succession. They are all included in Class I of the Schedule. On the principle of representation of the pre-deceased son or the daughter, the male and female heirs are treated as equal without distinction under the Act. The distribution of property among the heirs in Class I is according to the four rules specified in section 10. The shares of the heirs specified in any one entry in Class II is determined as equal under Sec. 11. The rules of preference determining the order of succession and relating to the method or mode of reckoning degrees of ascent or descent according to which priority amongst agnates and cognates is regulated are stated in Sections 12 and 13.
17. The effect of all these provisions is that the distinction between male and female heirs in the matter of succession has been removed and male and female heirs, have been treated equally in the matter of succession under the Hindu Succession Act. The provisions of Section 18 of the Hindu Succession Act will have to be considered in the light of the avowed object with which the said Act was enacted. Now, on a plain reading of the provisions of Sec. 18 of the Hindu succession act, it appears to be clear that it is nothing but a substantial reproduction of the prevalent rule of Hindu Law under which relations of the whole blood were preferred to those of the half-blood if their decree of relation-ship of the deceased was the same. Section 18 provides for a preference of one category of heirs to another. Under Section 3(f) heir is defined as meaning any person, male or female who is entitled to succeed to the property of an intestate under the Hindu Succession Act. When Section 18, therefore, refers to heirs related to intestate by full blood shall be preferred to heirs related by half-blood, these heirs may be males or females or both. Now, so far as the Entry No. 4 in Class II is concerned the female heir will be a brother's daughter or sister's daughter and the male heir will be a brother's son or a sister's son. In each one of the these categories there may be heirs who are related to the deceased by full blood or by half-blood, according as whether the heir is a full blood brother's son or daughter or daughter or full blood sister's son or daughter. If at the time when the succession opens there are male and female heirs of full blood and male and female heirs of half-blood then all the heirs male and female of the full blood will exclude the male and female heirs of the half-blood, provided of course the condition in section 18 that the nature of relationship is the same in every other respect is satisfied.
18. Now what is contended by Mr. Abhyankar is that the words used in Section 18 are 'if the nature of the relationship is the same' and not 'the relationship is the same'. According to Mr. Lalit, when Section 18 uses the terminology 'if the nature of the relationship is the same in every other respect' what was contemplated was that the attributes of the heirs must be the same and these attributes, according to Mr. Lalit, were: (1) the pious obligation to discharge debts and (2) religious efficacy. Mr. Valsangkar who adopted the arguments of Mr. Lalit has referred us to paragraph 51 in Mulla's Hindu Law in which referring to the decision of the Privy Council in Jotindra Nath Ray v. Nagendra Nath Ray it was pointed out that in that decision the parties were governed by Benares School of the Mitakshara and the contest was between the mother's sister's son and the father's half-sister's son, both atma bandhus, and the latter was preferred to the former on the ground of the superior spiritual efficacy of the pinda offered by him. The Privy Council in that decision has observed as follows:
'No doubt, propinquity in blood is the primary test, but....... The Viramitrodaya brings in the conferring of spiritual benefits as the measure of propinquity where the degree of blood relationship furnishes no certain guide'.
19. Form this, the learned author culled out two rules -
Propinquity in blood or nearness ill degree gives a ground of preference and
When it fails (and not until then), the conferring of spiritual benefit is a ground of preference. Now it is difficult to see how the concepts of pious obligation to discharge debts of spiritual efficacy can at all be considered as relevant in the matter of succession after the codification of the law relating to succession. Introduction of these concepts in the construction of the Hindu Succession Act will frustrate the very intention with which the Succession Act was enacted and will defeat the very purpose of treating male and female heirs equally. Such a course would also be wholly unwarranted in the face of the express words of the section which merely refer to 'the nature of relationship.' Neither the concept of pious obligation to discharge debts nor the concept of offering sapindas and spiritual efficacy have any place in the scheme of the Hindu Succession Act. It is significant that the words used in the section are 'the nature of relationship is the same' and not 'relationship is the same' with the additional words 'in every other respect'. Being related by half-blood or by full-blood would undoubtedly be one aspect of nature of relationship. It has to be noticed that while giving the order of succession amongst agnates and cognates, three rules of preference are laid down in Section 12, and this preference is based on the degrees of ascent or descent. It is obvious that when the Parliament referred to the 'nature of relationship is the same in every other respect', it was intended to restrict the preference only in cases where heirs stood in the same degree of relationship with the deceased. These words were clearly intended to codify the prevalent rule of law that the rule of preference between heirs of full-blood and heirs of half-blood applied only when there was a competition between heirs of the same degree or proximity of relationship to the deceased was of the same degree and the rule did not apply if claimants of full-blood or half-blood were of different degrees in relationship to the deceased. The words 'nature of relationship is the same in every respect' had nothing to do with the fact whether the full blood heirs were of the same gender as the half-blood heirs and there is no warrant for introducing in Section 18 a concept that the full-blood heirs and the half-blood heirs should be of the same gender, i.e., male or female before the preference can be claimed. While construing Section 18 we must also not lose significant of the fact (that) though it was intended to incorporate the already prevailing rule of preference that rule of preference would now operate both in respect of male and female heirs equally because the definition of 'heir' in Section 2(f) refers to 'any person male or female, who is entitled to succeed to the property of an intestate under this Act'.
20. We may usefully refer to the decision of a Division Bench of the Punjab and Haryana High Court in Sarwar. Singh v. Smt. Dhan Kaur AIR 1971 Pun 323. In that decision, the Division Bench took the view that when the applicability of rule of preference in Section 18 is conditioned by the words 'if the nature of relationship is the same in every other respect', all that is mean by saying that the 'nature of relationship should be the same' is that the, should be equally related. The Division Bench observed as follows.
'......Section 18 is a substantial reproduction of the rule of Hindu Law where by relations of the full-blood are preferred to those of the half-blood are preferred to those of the half-blood and lays down a rule of general applicability to heirs, male and female alike. The applicability of this rule of preference is conditioned by the words 'if the nature of relationship is the same in every other respect' and these are the words on which great stress was laid by the learned counsel for the appellants in support of his contention.
The nature of the relationship of the heirs, with the intestate is to be taken into consideration. For the purpose of preference this Act makes no distinction between a son and a daughter and the nature of the relationship of the both with the father or the mother is that of a child. Thus the nature of relationship of brothers and sisters, being the children of the father of the intestate is the same. The nature of relationship is to be reckoned in terms of degrees of ascent or descent or both. This section speaks of the nature of relationship being the same and not the relationship being the same and not the relationship being the same. The meaning of the words 'nature of relationship' must be found in the sense in which they best harmonise with the scheme. For applying the rule of preference given in this section; the nature of the relationship must be the same in every other respect, for example, it would not be applicable if an heir is preferred under any other provisions of this Act'.
21. We respectfully concur with the view of the Division Bench quoted above. It appears to us that the qualifying clause in Section 18 means nothing more than that other things being equal as between heirs of equal relationship and degree entitled to succeed together those of full blood will exclude those of half-blood.
22. What now stands enacted in Section 12 of the Act was originally clause (14) in the Bill. Rules 3 and 4 originally contemplated read as follows.
'3. Where the number of degrees of descent is also the same or none, the heir who is in the male line is preferred to the heir who is in the female line at the first point (counting from the intestate to the heir) where the lines of the two heirs can be so distinguished.
23. Where the two lines cannot be so distinguished, the heir who is a male is preferred to the heir who is a female.' These rules originally contemplated giving preference to the male heir in the circumstances referred to in those Rules. However, the Select Committee omitted both these Rules and the report of the Select Committee making reference to this omission states with reference to clause (14) of the Bill :
'14. Rules which discriminate between a female heir and a male heir have been omitted as both unjustifiable and unnecessary'. (See : The Gazette of India, Extraordinary Part II-Section 2 p. 369). The one principle which runs through the enactment of the Hindu succession act is that male and female heirs are to be treated equally. If that is one of the main principle and the object of codification, it is difficult to construe Section 18 in such manner as will give an undue preference to a male heir when there is a competition between male and female heirs. The effect of the decision in Purshottam's case : AIR1976Bom375 is that if there is a female heir of full-blood and a male heir of half-blood. Section 18 will not apply in such a case and both will take equally even though both of them have the same degree of relationship with the deceased a result which in our view, will be wholly contrary to the purpose and intent of S. 18. A possible consequence of decision in Purshottam's case will also be that if there is a full brother and half-brother and half-sister, only half-brother will be excluded, but the full brother will succeed to the estate of the deceased along with the half-sister. For such a result, there can be no justification of conversely if there is a full sister and half-brother and a half-sister the half-sister will be excluded but the full sister will take along with the half-brother an equal share. Various incongruous results are likely to arise as a result of the decision in Purshottam's case.
24. The decision of the Punjab and Haryana High Court referred to above was cited before the Division Bench in Purshottam's case : AIR1976Bom375 . That was a case in which sisters of full-blood were held to have exclude brothers of half-blood. Three reasons were mainly given by the Division Bench of the Punjab and Haryana High Court for taking that view. These reasons were : (1) Section 18 is a substantial reproduction of the Rule of Hindu Law whereby relations of the full-blood are preferred to those of the half-blood. (2) Section 18 lays down a rule of general applicability to heirs, male and female alike. (3) In interpreting the words 'if the nature of the relationship is the same in every other respect', the nature of relationship of the heirs with the intestate has to be taken into consideration and this nature of relationship is to be reckoned in terms of the degree of ascent or descent or both. With regard to the first reason, the Division Bench took the view that if Section 18 was intended to be a substantial reproduction of rule of full blood were preferred to those of the half-blood, that rule would have also been implicit in Section 18 if the section had ended with the words 'half-blood', and in that case according to the Division Bench, all the heirs in an Entry who were related to an intestate by half-blood would be and there would be no difficulty in finding out who can be the heirs. With respect it has to be pointed out that if the section had stopped at the words half-blood the full content of the original rule of succession that the same degree of descent from the common ancestor could not have been given effect to in the form suggested by the Division Bench. The Division Bench found that the second rule that males and females to be treated alike did not take them any further. Here again the Division Bench with respect, lost sight of the fact that male and female heirs were treated alike by the codified Law of succession. With regard to the third reason, the Division Bench took the view that Section 18 was an exception to the rules of succession which, in the case before them, was contained in Section 15(1)(b) read with Rule 1 of Section 16 and the second entry in Class II of the Schedule. The Division Bench described Section 18 as a 'limited exception' which must be strictly construed and the construction according to the Division Bench should be with a view to include rather than exclude an heir of half-blood from inheritance. Such an approach, in our view, would be only contrary to the purpose and intent of Section 18 which clearly prefers an heir of full-blood to an heir of half-blood subject to the nature of relationship of the two being the same. Having taken the view referred to above, the Division Bench then observed as follows.
'In construing the words if the nature of the relationship is the same the test, in our opinion, cannot be the broad test of the heirs being equally related, that is, the test of their being the same degree in ascent or descent from the intestate. The classification of heirs in Entry II is not on the basis of nearness of blood relationship. For example, the heirs in the first two categories are much farther away than the heirs in the last two categories. In other words, the heirs in the last two categories. There is no reason why the concept of 'equally related' in the sense that the heirs are removed from the intestate to the same degree should be introduced in interpreting the words 'if the nature of the relationship is the same.'
25. The division Bench took the view that they found no material difference in the expression 'the nature of relationship being the same' and 'the relationship being the same' which according to them was the distinction without a difference. According to the Division Bench if a nature of the relationship is the same' the nature of the relationship of a brother from instate is not the same as that of the sister from the intestate. The Division Bench no doubt observed that if by nature of the relationship is meant equally related, then both the heirs being the same degree away in ascent or descent. Section 18 would be applicable. But the Division Bench found no reason why such a concept should be incorporated as it was foreign to Section 18. For reasons already set out by us earlier it is not possible to accept the view of the Division Bench. It is a well known canon of construction of statute that a construction which leads to results patently contrary to the purpose and intent of the enactment and which will defeat the object of the Act must be avoided.
26. If conferment of new rights of succession in favour of females was one of the avowed objects of the Hindu Succession Act and if female heirs were to be treated equally with the male heirs any construction which would defeat this purpose must be avoided. As already pointed out the effect of the decision in Purshottam's case is that if there are female heirs of full blood and male heirs of half-blood the heirs of full blood would not exclude male heirs of half-blood. This would obviously result in inferior treatment of female heirs of full blood in comparison with male heirs of full blood a result which is incompatible with the object of treating female heirs and male heirs equally. In the view which we have taken, we must hold that the decision in Purshottam's case is not correct and we, therefore, overrule the same
27. The plaintiff's claim to the extent of 1/16th, that is, one anna share was decreed on the basis of the law laid down in Purshottam's case : AIR1976Bom375 cited (supra) In the view which we have taken, all the heirs, who claim to succeed to the property of Amrit by virtue of they being the sons and daughters of Baburao, the step-brother of Amrit, must now he held to be excluded under Section 18 of the hindu Succession act. As a result of such exclusion, neither the plaintiff nor defendants Nos. 8 to 14 could claim any share in the property left behind by Amrit. Consequently the plaintiff's claim as maintainable and the suit was, therefore, liable to be dismissed.
28. Accordingly, the appeal filed by the original defendants Nos. 1 to 5 and defendants Nos. 15, 16 and 17 will have to be allowed. The decree passed by the trial Court holding the plaintiff entitled to partition and possession of 1/16th undivided share in the moveable and immovable properties left by deceased Amrit will have to be set aside. In view of the fact that the plaintiff's suit is being dismissed, there is no question of determining separately the shares of defendants Nos. 1 to 5 and the other defendants and that part of the decree contained in clause (c) of the order is also liable to be set aside. The appeal is thus allowed. However, there will be no order as to costs of this appeal and the suit.
29. Appeal allowed.