1. The civil revision petition raises an interesting question of Hindu law on which there is no authoritative decision of this Court. Petitioner Nesama Nadachi is the full sister of the plaintiff in O. S. No. 635 of 1967 on the file of the Court of the District Munsif padmanabhapuram who died on 17-7-1968. The respondent-Muthukannu Nadar Paul Nadar is the step-brother of the deceased plaintiff and on his application both the petitioner and the respondent were held to be the legal heirs of the deceased plaintiff and the respondent has been impleaded as the second plaintiff in the suit.
2. The question for consideration in this civil revision petition is whether the petitioner-defendant, as the full sister of the deceased plaintiff excludes the respondent step-brother of the deceased plaintiff by virtue of Section 18 of the Hindu Succession Act.
3. Section 18 of the Hindu Succession Act is 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 same in every other respect.'
In Mullah's Principles of Hindu Law, 13th Edn, at page 852, it is stated that Section 18 of the Hindu Succession Act is a substantial reproduction of the rule of Hindu law whereby relations of the whole blood preferred to those of the half blood. In fact at page 918 of N. R. Raghavachariar's Hindu Law 5th edn, the same view is expressed and it is pointed out that even under the Hindu law prior to the Hindu Succession Act, in the case of the same degree of relationship to the propositus, the whole blood excluded the half blood. It appears from the same page of the above text that having regard to the general scheme of the Hindu law of succession, the preference of the whole blood over the half blood is confined to the relations of the same degree. At page 852 in Mullah's Principles of Hindu law 13th Edn the learned author has observed that the words 'if nature of relationship is the same in every other respect' in Sec. 18 of the Hindu Succession Act may require judicial interpretation. The learned author has rightly pointed out that it is plain that a full brother is preferred to half brother and a full sister is preferred to a half sister and he has observed that a doubt may perhaps be raised as to whether the nature of the relationship with the intestate of his brother and sister enumerated in Entry II of class II of the Schedule can be said to be the same in every respect and a full brother would be preferred to a half sister or a full sister would be preferred to a half brother and the same doubt may be raised in other cases where the competing heirs are similarly related to the intestate. He has proceeded to observe as follows :--
'The rules of preference applicable to agnates and cognates of male intestate emphasize that the nearness of relationship recognized under the Act depends in their case on the number of degrees of ascent and descent and the same doubt may perhaps be raised in case of some of these relatives. The section speaks of the nature of relationship being the same and it would seem that in all such cases heirs related to an intestate by full blood would be preferred to heirs related by half blood having regard inter alia to the nature of relationship indicated in the scheme of the Act itself. The meaning of the words 'nature of relationship' must be found in the sense in which they best harmonize with the scheme and object of the Act and no so much in a strictly etymological priority of language. The general scheme of succession under the Act is to treat the son and the daughter in equali jure and to regulate the order of succession having regard to the degree of kindred to him. It is, therefore, submitted that since a brother and a sister of the intestate stand in the same degree of relation to him the nature of heir relationship with the intestate is the same in every other respect.'
At page 944 of N. R. Raghavachariar's Hindu Law 5th Edn. it is stated that a brother may be a brother of full blood and half blood; but if there is a full blood brother he excludes the brother related only by half blood. But the learned author has proceeded to point out an anomaly under which brother and sister are two of the simultaneous heirs and stated that if in a particular case there is a full brother, a half brother and a half sister the full brother and the half sister will inherit the property of a deceased person, but the half brother will be excluded. The learned author states that it is impossible to see, why a half sister should come in while a half brother should go out in such a group of heirs and suggests that one way of avoiding this anomaly is to hold that a full brother or full sister will exclude both a half brother and half sister.
4. In Rangamma v. Annapurnamma, AIR 1963 Mys. 168, the question arose under the following circumstances : A had two daughters B and C from his first wife and a daughter D from his second wife. After A's death his junior wife was in possession of the property as a limited owner, as his senior wife had predeceased him. After her death B brought a suit against C and D for partition. After preliminary decree B died. A question arose whether C the full sister was the sole heir of B or whether D who was only a half sister was also entitled to be brought on record as a legal representative of B who had died intestate after the Hindu Succession Act came into force. It was held that the succession to B was regulated By Section 15(2) of the Hindu Succession Act and that her heirs were the heirs of her father A; that the rule contained in Section 18 of the Act that in all cases of succession the heir related to an intestate by full blood brother should be preferred to the heir related by half blood should be applied to cases falling within Section 15(2) of the Act; and that thus C was the sole heir of B who was a full sister and was alone entitled to be substituted in her place. It was pointed out in this decision that 'upon this interpretation some incongruities were possible, but it would not constitute any justification in departing from the interpretation which its plain language fully justified.' The advocate for the unsuccessful petitioner in that case pointed out that the principle of an illustration appearing in the commentary to the book on Hindu law by Mullah 12th Edn. under Section 18 was diametrically opposed to the principle of another illustration appearing in the commentary to Section 15 of the Act. In the 8th illustration appearing in the commentary to Section 18, what the learned author has done is to give effect to the principle incorporated in Section 18 and to say that in circumstances similar to those of the present case a half sister was excluded by a full sister. But in the third illustration appearing under the commentary to Section 15, this principle has been overlooked and it is stated that a brother and step brother were both entitled to shares in the property of the sister. This illustration has been remodeled after the error in it was pointed out in AIR 1963 Mys 168 as stated in the foot note at page 842 of Mullah's Hindu law, 13th Edn.
5. In Swaran Singh v. Smt. Dhan Kaur 1966-68 Punj LR 609 the same question arising in the present civil revision petition came up for consideration. It was held in that decision that so far as the brothers and sisters in entry II, class II, of the schedule to the Hindu Succession Act are concerned they are the children of the deceased father and therefore the nature of their relationship must be taken to be the same, with the result that the full brother of the deceased would exclude a half sister. The said decision clearly supports the claim of the petitioner in this case.
6. Having regard to the fact that there is no authoritative decision of this Court on this point. I am of opinion that the question involved in this revision petition should be decided by a Bench of this Court. The civil revision petition is therefore directed to be placed before his Lordship the Chief Justice for being referred to a Bench for decision.
Judgment of the Division Bench
K. Veeraswami, J.
7. We are unable to see any point in the civil revision petition. The order of the court below which is sought to be revised merely directed that the half brother of the plaintiff and his sister, defendant, should be regarded as the legal representatives of the deceased. That is only for purpose of conducting the litigation and for representation of the deceased's estate. That cannot be regarded as a final decision on the question who is the heir of the deceased. Apparently, as a question of law, Sadasivam. J. thought fit to refer the revision petition itself for disposal by a Division Bench. But this is a revision under Section 115, C. P. Code and no question of jurisdiction arises. A mere question of law can in no sense be regarded as one involving jurisdiction. Nor is there any question of material irregularity. In the circumstances all that we need say is that the decision to bring the half brother and the sister, defendant, on record as the legal representatives of the deceased should not be taken as concluding the question as to who is the heir of the deceased plaintiff. That will have to be decided in the main suit. Subject to these observations, the petition is dismissed. No costs.