H.R. Khanna, J.
1. The only question which arises for determination in this second appeal directed against the Judgment and decree or learned Senior Sub Judge, Kangre, reversing on appeal the decree of the trial Court, is whether mother's half brother of Deva Ram deceased is a preferential heir compared to Deva Ram's father's brother's daughter.
2. The facts giving rise to the present appeal are that Deva Ram was the owner of the land in dispute situated in Phati Narmand, Tehsil Saraj, District Kangra. He died on 29-1-1955 and his land was mutated in favour of his father's brother's daughter Dwarku defendant, Gowardhan Datt, plaintiff-appellant, thereupon brought the present suit for a declaration that he was in possession of the land in dispute as its owner and for permanent injunction against Dwarku defendant restraining her from interfering with plaintiff's possession of the land. According to the plaintiff, he was maternal uncle of Deva Ram deceased and had been looking after him during his lifetime and the deceased had executed a Will dated 12-1-1955 in plaintiff's favour. The plaintiff as such claimed to be entitled to remain in possession of the land in dispute.
3. The suit was resisted by the defendant who denied that the plaintiff was the real maternal uncle of Deva Ram deceased. According to the defendant, the father of the plaintiff and of Mst. Niru, mother of Deva Ram, was the same but the plaintiff and Mst. Niru were born from different mothers. As regards the Will relied upon by the plaintiff, it was stated to be a forged and fabricated document. Following issues were framed in the case :
1. Whether any valid will was executed by Deva Ram deceased in favour of the plaintiff ?
2. If issue No. 1 is affirmed, whether the said will is void by reason of undue influence ?
3. Whether the plaintiff is a real maternal uncle of the deceased Deva Ram If so, to what effect ?
4. Whether the defendant is the real cousin of Deva Ram deceased? If so, to what effect?
5. If issues Nos. 3 and 4 are affirmed, whether the plaintiff is a superior heir of Deva Ram deceased?
6. Whether the deceased Deva Ram was totally deal, dumb and of unsound mind and what is the effect on this suit?
The trial Court found that Deva Ram deceased had executed valid Will in favour of the plaintiff who was not the real maternal uncle of Deva Ram deceased. The defendant was found to be the daughter of uncle of Deva Ram and as such a preferential heir compared to the plaintiff. In view of the finding on the question of the Will, the plaintiff's suit was decreed. On appeal, the learned Senior Sub Judge held that the Will propounded by the plaintiff was not a genuine document and Deva Ram deceased had no disposing mind at the time of its alleged execution. The plaintiff was accordingly held to be not to be entitled to succeed to the property of Deva Ram deceased on the basis of the aforesaid Will. The learned Senior Sub Judge affirmed the finding of the trial Court that the plaintiff was not the real brother of Mst. Niru but her step brother. The plaintiff was held not entitled to succeed to the estate of Deva Ram in preference to Dwarku defendant. The defendant's appeal was accordingly accepted and the plaintiff's suit was dismissed.
4. In second appeal, the only contention which has been raised by the learned counsel for the appellant is that the plaintiff as the half brother of Mst. Niru, mother of Deva Ram deceased, is a preferential heir under the Hindu Law compared to the defendant who is the father's brother's daughter of the deceased. After hearing the learned counsel for the parties, I am of the view that this contention is well founded. The observations in Articles 38 to 41 of the Principles of Hindu Law by D. F. Mulla, 12th Edition, go to show that there are three classes of heirs recognized by the Mitakshara, namely, Gotraja sapindas, samanodakas and Bandhus. The first class succeeds before the second and the second succeeds before the third. Gotraja sapindas of a person, according to the Mitakshara, are -
(i) his 6 male descendants in the male line,
(ii) his 6 male ascendants in the male line, the wives of the first three of them, and probably also of the next three,
(iii) the 6 male descendants in the collateral male linoof each of his six male ascendants, and
(iv) his wife, daughter, and daughter's son.
The sapindas are 57 in number as shown below :
S1 to S6.6F1 to F6 and their wives M1 to M6.12X1 to X6 in each of the six lines frorn F1 to F6.36Wife, daugbter anddaughter's son.3
The samanodakas of a person include all his agnates from 8th to the 14th degree. They are 147 in number counting up to the 14th degree only and are as follows:
S7 to S13 inthe descending line.7F7 to F13 inthe ascending line.7F7 to X13 ineach of six collateral lines (from F1 to F6 7 x 6 ....42X1 to X13 in each of the 7collateral lines from F7 toF13 13 x 7.91
The defendant admittedly does not belong to the category of Gotraja sapindas and samanodakas. In the absenceof anything on the record to indicate that the deceased hadany Gotraja sapindas and samanodakas, the estate of thedeceased would devolve on his Bandhus. Para 54 of Mulla'sHindu Law gives the order of succession amongst the Bandhusin the list given in that para. It is stated thatmother's father's son is one of the Alma Banusof a Hindu male and succeeds to his estate in the absenceof any nearer heirs whose names are given in the list atNos. 1 to 15. Father's brother's daughter nowhere findsmention amongst the list of heirs who are entitled to succeedbefore the mother's father's son. The Courts below havelaid stress on the fact that the plaintiff is not the realbrother of Niru but was the son of the father of Niru froma different mother. This fact does not make any materialdifference for the purpose of the present case.
In case E. O. Muthtisami Mudaliyar v. Muthukurparaswami Mudaliyar, ILR 19 Mad 405 (PC) their Lordships of the Judicial Committee held that a mother's brother by half blood stands on the same footing as the whole brother In regard to the priority over more remote Bandhus tinder the Mitakshara school of the Hindu' Law. The relevant observations which are incorporated in the head note read as under :
'A mother's brother by the half-blood stands on the same footing as her whole brother In regard to priority over more remote Bandhus. A half-brother may be postponed to a whole brother, but there is no ground for his postponement to more distant kinsman.'
The observations in Article 61-A of the Principles of Hindu Law by D. F. Mulla, 12h Edition, go to show that according to the strict Hindu Law, as governed by the Benaras School, the only females recognized as heirs were the widow, the daughter, the mother, the father's mother, and the father's father's mother. Hindu Law of Inheritance (Amendment) Act of 1929 was then passed whereby the son's daughter, the daughter's daughter, and the sister were also included in the list of heirs in those parts of India where the Mitakshara law prevailed. The daughter of the father's brother of a Hindu was, however, rot included in the list of the heirs. The plaintiff as such is clearly a preferential heir of Deva Bam compared to the defendant, I accordingly accept the appeal, set aside the judgment and decree of learned Senior Sub Judge and restore the decree of the trial Court. The parties, in the circumstances of the case, shall bear their own costs throughout.