J.B. Mehta, J.
1. This matter has now come to us on a remand by their Lordships of the Supreme Court for determination of, one question which had remained to be considered by us for disposing of this appeal as to whether 1/3rd share of Bai Kashi, the appellants-heirs of the original defendants are entitled to succeed. The suit was for partition and separate possession of this ancestral house which belonged to the three sons of one Fakirchand, the eldest being Nathubhai, second Nanabhai and the third Lallubhai. Nathubhai, died in 1940, Nanabhai, the defendant has expired in appeal, while in 1942 Lallubhai had expired leaving plaintiff No. 1 son Manilal and the widow Bai Mani, plaintiff No. 2, who bad also expired during the appeal and whose heirs have also been brought on the record. The deceased defendant's heirs are also brought on the record. Their Lordships confirmed the original findings that the defendant and his two brothers had separated in status but only this ancestral house was not divided in metes and bounds. The other finding of this Court as to the sale deed executed by Bai Kashi widow of Nathubhai who expired on January 24,1956, in favour of defendant No. 2 being not for legal necessity bad also been confirmed. As the separation in status was there but the suit house was not divided by metes and bounds, their Lordships held that the plaintiff and the defendant would be entitled to division and separate possession of 1/3rd share in the house and to this extent decree of the Courts below had been modified. However, so far as 1/3rd share of Bai Kashi was concerned, the question had arisen before their Lordships because in the memo of appeal of this Court a ground had been raised that the trial Judge was in error in saying that Mayukh School of Hindu law would override Mitakshara in Gujarat. It was, therefore, observed by their Lordships as under:
We find that the question that arose mainly whether the appellants are entitled to succeed to Bai Kashi's 1/3rd share on her death has not been satisfactorily dealt with either by the High Court, especially when the point was specifically raised on behalf of the appellants. While we agree with the concurrent finding of the trial Court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity, we are satisfied that the claim of the respondents for partition and allotment of 1/3rd share by metes and bounds cannot be resisted. Though the brothers became separate, admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to 1/3rd share in the house. Therefore, though they became separated in status the suit house was not divided by metes and bounds and, therefore, they will be entitled to division and separate possession of 1/3rd share in the house. To this extent the decide of the courts below will be modified.
But so far as the 1/3rd share of Bai Kashi is concerned, as the courts below have not considered the appellants' plea that the respondents are not entitled to succeed to Bai Kashi's 1/3rd share, the question is remitted to-the High Court for consideration. The High Court will consider as to whether the respondents are entitled to succeed to 1/2 or the 1/3rd share of Bai Kashi and pass a decree accordingly. To this extent the appeal is allowed and the decree of the trial court and the High Court modified. The parties will bear their own costs in this appeal.
2. Mr. Oza has raised three contentions:
(1) That a childless widow was entitled to inherit absolutely as per the settled principles of Hindu law and, therefore, no question arose of any reversion to the husband's heirs;
(2) That the father of Fakirchand had migrated from Jalgaon and he took his personal law with him, and in any event, the question of custom in this Rana community should be judicially determined for considering this question as to whether Mayukh law prevailed over Mitakshara so as to depart, from the settled principle that the nearest Sapinda should exclude the remote one, and for that purpose he pressed in aid the C.A. for taking additional evidence.
(3) That there was no such settled principle of Mayukh law which should be held to prevail over the normal principle of Mitakshara succession and in such cases the Court must not allow such an inconsistent rule to prevail in absence of any evidence of custom on principles of harmonious construction, even if Mayukh principle of succession was to be applied.
As regards the first question the position is well settled after the full Bench decision in Bhagirthibai v. Kahnujirav 1886, 21 I.L.R. Bombay, 285. It was only the daughter who was entitled to inherit absolutely from the mother or the father under the Hindu law as prevailing in the Presidency of Bombay, and in the case of a daughter that estate passed to her own heirs in the event of her death and did not revert to the heirs of the preceding owner. The position of a widow, however, was different. At pages 297 to 299, the legal position has been considered in the light of the ancient texts of Hindu law which leaned in favour of woman's proprietary capacity under the Bombay law. It was, however, pointed out that the restriction of a widow's full ownership on what was inherited from her husband could not now be questioned and the opinions of the native lawyers which had been referred to must, of-course, be regarded as overruled, so far as the estate of the widow was concerned, to assign to a female taking by inheritance as full and complete an estate as to a male. The stride from Mynabial's case (II M.I.A. 487) to the inferences deduced from it was no longer and more difficult when that case itself rested on a construction of the law hardly admitted in the Bombay Presidency, and opposed to the sense in which the Mitaksbara had been understood by the chief rival commentaries. Therefore, the widow's estate under the settled principles of law, as per the judicial interpretation was always a restricted estate and not an absolute estate as contended by Mr. Oza. Therefore, on the widow's death, the property would revert to the heirs of, her husband, original owner, Nathubhai who died in 1940. Nathubhai was issueless and the only controversy is that Lallubhai having expired in 1942 whether the brother Nanabhai alone took the estate or along with the deceased brother's son Manilal, plaintiff No. 1.
3. The second question raised by Mr. Oza is based on an assumption of certain facts that the father of Fakirchand had migrated from Jalgaon and that there was different customary law prevailing among these Ranas for which there is no foundation any where. Mr. Oza plainly conceded that even in the C.A. No. 1748/77 where additional evidence prayer is made, no such facts are alleged for laying down the foundation for this contention. The matter is hanging fire since 1960 even before this Court and in this matter we can never allow a contention of mixed question of law and facts for the first time when it is never stated as a fact till the hearing before us today. Therefore, no question could arise of the defendant being permitted to lead any additional evidence to bring in these new facts and, therefore, the second question raised by Mr. Oza must also be decided against him as he cannot be permitted to lead any additional evidence by setting up totally a new case for the first time whose foundation is not made out on anything in the record of this case. Except the bare statement of Mr. Oza there was no foundation for these facts in the record.
4. Coming to the material question as to whether Mayukh law which holds a special authority and is of paramount importance so far as the Gujarat area is concerned, including Surat city area, where the brother could exclude the deceased brother's son, this question is also completely concluded. In Chandika Daksh v. Muna Kuar 29 I.A. 70 at page 74 their Lordships had considered this question in the context of the parties who were Abhan Thakurs, a tribe which originally came from Gujarat and settled in Oudh. Although the migration took place before the Mayukh was written, their Lordships assumed that it might well be that the rule was in force in earlier time, and that on this point the Mayukha only embodied and defined a pre-existing custom. Therefore, this pertinent observation was made:
In Gujarat the Mayufkha is recognised as an authority of paramount importance when it differs from the Mitakshara. According to the Mayukha, sons of a brother who is dead share along with surviving brothers. The rule, however, as found in the Mayukha. does not go beyond brothers and brothers' childern.
It was the suggested extension of the Mayukha rule beyond the brothers and brothers' children by way of a family custom which was held to be in derogation of the ordinary law could not be supported on a very slender foundation. Mayukha rule, however, as laid down by their Lordships is categorical as prevailing in Gujarat that the sons of a brother who are dead share along with the surviving brothers. This ratio was followed by Russell J. in Haridas v. Ranchhoddas 5 Bombay L.R. 516. Russel, J. even relied on the correct translation of the passage in the Mayukha. This rule as stated from the earlier decision is as under:
If the sons of brothers have their father alive at She time of the death of a paternal uncle, and on this account have no share in the wealth of a paternal uncle, they shall take the share of their father by a division with the other paternat uncles by the analogy of the rules in the ease of sharers with different fathers the allotment of shares according to the fathers (i.e. per stirpes).
The learned Judge, therefore, observed that the share of their father, according to Mayne's Hindu law and the Privy Council must mean their father living at the time of the death of the paternal uncle. He added that it was not for that Court to put an interpretation on the rule different from that which the Privy Council had put upon it. The learned Judge pointed out that there was no anomaly as this rule was precisely the same in similar, cases in England under the Statute of Distribution referred to by him which provided as under:
The rule is that only those who take are in the nearest degree of kindred represented by living persons at the death, with the exception that, if any brother or sister is living and their degree (i.e. the second) is the nearest in which there are survivors, then children of a deceased brother or sister are let in as if they were of second degree. Representation shall not be admitted among Collateral after the children of brothers and sisters of the intestate. So that grand-children of a deceased brother do not come in with their grand uncles and uncles.
5. That was the principle of Indian Succession Act, Section 40. That is why the learned Judge made a very pertinent observation; 'The similarity of the Mayukha with the Statute of Distribution makes one regret that they could not trace their history back to probably their common Aryan origin in a distant age'. When this question again came up before the Division Bench consisting of Mr. Justice Marten and Mr. Justice Fawcett in Jagubhai v. Kesarlal I.L.R. 49 Bombay 282, the learned Judges exhaustively went into this question about the two rival translations of paragraph 17 in the Vyahara Mayukha, which bad also been taken into account. According to the translations of Messrs. Borrodaile and Stokes, the sons of brothers share the inheritance, without any restriction as to their father being alive at the death of their uncle, and the rule was treated as a general rule that the sons of a deceased brother succeed along with the surviving brother or brothers; while the translation of the same passage of Messrs. Mandlik, Jamietram and Champure introduced restriction of a limited right to the case where the father of any nephew was alive at the death of the paternal uncle, and allowed such a nephew to take the share of his father on a division with the other paternal uncles. But in the absence of any expert evidence as to which of these translations was correct, because the difference turned upon whether an unexpressed negative should be read into one or two words which were in that passage because Sanskrit language, permitted a negative to be read or the reverse, according to the context, it was held that there was obviously some room for legitimate difference of opinion as to the correct translation. However the decision of the Privy Council in the Collector of Madura v. Moottoo Ramlinga Sathupathy (1868) 12 Moo. I.A. 397 had been followed by pointing but that this principle having reference to ancient commentaries can be well applied to usage based on an interpretation accepted by modern commentators. The Division Bench in terms pointed out that for a long time it had been accepted as a rule laid down by the Mayukha that the sons of full brothers succeed with full brothers, and in Chandika Baksh v. Muna Kuar 29 I.A. 70 even the Privy Council had accepted this rule as being a definite rule in cases governed by the Mayukha. The translation referred was of Stoke's and, therefore, the question before the Division Bench as to which translation was correct was not there. However, the Division Bench pointed out that the fact remained that this was a definite rule and the case afforded a strong instance of usage, because practically all the modern commentators like Mayne, Trevelyan and Mulla and Gharpure accepted without any questioning this particular rule. Even Shah J. of Gujarat in Haribhai Gulab v. Mathir Lallu, had treated the rule as unquestioned and Russell J. in Haridas v. Ranchhoddas's case, also followed the interpretation of the rule in the Privy Council case. That is why at page 290, the Division Bench pointed out that no doubt the rule was an exception to the general principle that the nearer Sapinda excluded the more remote and the other view might be correct one, but the exception seemed to be so well established that in absence of something fairly concluded to the contrary, it could never be held that the accepted rule was erroneous, and decided in favour of the suggested restriction that the brother's sons' father must be alive when the deceased uncle died. The principle of stare decisis was resorted to, which conclude this question. In the present case even the suggested restriction that the brother's sons' father must be alive when the deceased uncle died is fulfilled, because Lallubhai, father of plaintiff No. 1, was already alive at the time when the deceased uncle Nathubhai expired in 1940. Therefore, so far as the present question is concerned, both the translations and the decisions have accordingly laid down this role that the sons of full brothers succeed with the full brothers. In Gujarat State where the Mayukha law prevailed the general principle that the nearest Sapinda must exclude the more remote is departed from and the exception has now became the accepted rule on principle of stare decisis. Therefore, Mr. Oza after such a long period could never ask us to unsettle the settled legal position. Therefore, there is no substance even in the third contention raised by Mr. Oza and it must be held that as per the settled rule applicable in Gujarat where Mayukha prevailed the full brother and the brothers son i.e. defendant and plaintiff No. 1 both must succeed as heirs of Nathubhai, the original owner. Therefore, 1/3rd share of Bai Kashi must be equally divided between the defendant and plaintiff No. 1 and, therefore, the share of plaintiff No. 1 and defendant must be half to half in this suit house as per the original decree, because the original decree as finally confirmed by the Supreme Court gives 1/3rd and Kashi's 1/6th share if added would make 1/2 for both the plaintiff No. 1 and defendant. Therefore, the appeal must fail as the trial Court had rightly decreed the share half for the plaintiff No. 1 and half for the defendant and this conclusion was wholly right that Mayukha prevailed over Mitakshara, so far as this Gujarat area was concerned. No other ground was urged by Mr. Oza and, therefore, the appeal is dismissed with costs We clarify that in view of the decision on remand the decree which has now beep confirmed by the final decision of the Supreme Court, to the extent of the share of 1/3rd, now stands modified in view of our decision on the remanded question as we have held that the plaintiffs respondents are entitled to succeed to the 1/6th share of Bai Kashi and, therefore, the share being half-half of both plaintiff No. 1 and defendant, the trial Court's decree defining these shares as half-half is restored.
6. Mr. Oza asks for a certificate for appeal to the Supreme Court. In view of the aforesaid settled position, we do not consider that any substantial question of law of general importance arises which, in our opinion, can be certified as fit for appeal to the Supreme Court. The request is, therefore, summarily rejected. The C.A. is also rejected with no order as to costs.