Banerji and Aikman, JJ.
1. The suit out of which this appeal has arisen relates to certain money left in the firm of a banker of Benares by one Sita Ram Dikshit, a Marattha Brahmin governed by the Maharashtra school of Hindu law. He had two sons, Bishan Dikshit and Gobind Dikshit, both of whom pre-deceased him. Musammat Parbati is the widow of Bishan Dikshit, and Musammat Annapurna is the widow of Gobind Dikshit. Chintaman, the plaintiff, was, adopted by Musammat Annapurna after the death of her husband. Before that Musammat Parbati had adopted Sita Ram, the appellant before us, who is the son of Salu Bai, the daughter of Sita Ram Dikshit. Salu Bai is admittedly alive. Chintaman claims a half share of the money by virtue of his adoption by Musammat Annapurna.
2. The suit was dismissed by the Court of first instance, but decreed in appeal by the lower appellate Court. It is conceded that by virtue of the adoptions made by the two daughters-in-law of Sita Ram Dikshit, the adopted sons could inherit only such property as had vested in their adoptive mothers, the adoptions not having been made under the authority of their respective husbands. We have therefore to see whether any portion of the estate of Sita Ram Dikshit passed to Musammat Annapurna, the plaintiff's adoptive mother. It was contended on behalf of the defendant that Salu Bai the daughter of Sita Ram being alive, she was the heir to Sita Ram's estate, and that no part of that estate passed to any of the daughters-in-law of Sita Ram. In our opinion this was a valid contention. The learned Judge of the lower appellate Court was of opinion that under the Maharashtra law a daughter-in-law excludes a daughter, and the reason upon which the learned Judge came to that conclusion was that the daughter being a bhinna gotra sapinda, and the daughter-in-law a gotraja sapinda, the latter takes precedence over the former. The learned Judge is wrong in thinking that the daughter succeeds to her father by reason of her being a bhinna gotra sapinda. Under the Mitakshara and the Mayukha, which is the paramount authority in the Maharashtra school, the daughter has a fixed place in the order of succession. She comes immediately after the widow, and takes precedence over such gotraja sapindaa as come after the brother's son. As Mr. Mayne observes at page 771 of his work on Hindu law, sixth edition: 'In Bombay the widows of gotraja sapindas stand in the same place as their husbands, if living, would respectively have occupied, subject to the right of any person whose place is specially fixed, as a sister, mother, or the like. 'The learned Judge has overlooked the important qualification set forth in the concluding portion of the sentence quoted above. We may also observe that the Bombay High Court has held in Nihalchand Harakchand v. Hemchand (1884) I.L.R. 9 Bom. 31 that the sons of a separated brother inherit in preference to the widow of the son of an undivided brother, and the learned Judges remark: 'The members of the 'compact series' of heirs specially enumerated take in the order in which they are enumerated (Mayukha Chapter IV, Section VIII, 18) preferably to those lower in the list, and to the widows of any relatives, whether near or remote, though where the group of specified heirs has been exhausted, the right of the widow, is recognised to take her husband's place in competition with the representative of a remoter line.' This is a clear authority for holding that a daughter must have precedence over the widow of a deceased son who is not enumerated as one of the heirs and only comes in as a gotraja sapinda. The learned vakil for the respondent has referred to a passage in the Vaijayanti by Nanda Pandit as supporting the view of the learned Judge. We cannot regard that work as of any authority in comparison with the Mayukha, which, as we have said above, is the paramount authority in the Maharashtra school. He also cited to us a judgment of the Bombay Sudder Dewani Adalut of 1822. No reasons have been given in that judgment for the conclusion at which the Court arrived, nor is any authority cited.
3. The result is that the daughter of Sita Ram being alive, no portion of his estate vested in Annpurna, and by adopting Chintaman the plaintiff she conld convey to him no interest in Sita Ram's estate. We allow the appeal with costs, and, setting aside the decree of the lower appellate Court with costs, restore that of the Court of first instance.