N.R. Chatterjea, J.
1. This appeal arises out of an application for probate of the will of one Adya Sundari Debi who bequeathed her properties to the three respondents who were her paternal relations and appointed them executors, one of them, Charu Chunder, being related to her as her half-sister's son. The appellant, Shashi Bhushan Lahiri, was the daughter's son of the great-grandson of the great-great-grandfather of Adya Sundari's husband, Ram Kanai Moitra. The appellant had applied for letters of administration 'to the estate left by Adya Sundari before the application for probate of her will was made by the respondents.
2. Therefore, in the proceedings on the application for probate citation was issued upon the appellant, and he put in a petition of objections contesting the genuineness and validity of the will, and also alleging that the estate belonged to Adya Sundari's husband which she had no power to dispose of by will. The learned District Judge held that he was not entitled to oppose the grant of probate, and, after taking formal evidence of the execution of the will, g) anted probate to the respondents. Shashi Bhushan has appealed to this Court.
3. Before Shashi Bhushan can contest the will, he must show that he has an interest in the estate of Adya Sundari. If the estate dealt with by the will belonged to her husband, the grant of probate of the will executed by her cannot affect the rights of the heir of her husband, and the Court of Probate of course has no power to go into the question whether the estate belonged to Adya Sundari or her husband.
4. It has accordingly been contended on behalf of the appellant, Shashi Bhushan, in this appeal, first, that assuming that the estate belonged to Adya Sundari 5ver which she had a disposing power, the respondent Charu Chunder, as the half-sister's son of the deceased, was not her heir in preference to him, and secondly, that citation having been issued upon him, the Court below is wrong in holding that he had no locus standi to oppose the grant of probate.
5. The question therefore arises whether Charu Chunder, as the half-sister's son of the testatrix, is the heir to the stridhan of Adya Sundari. If he is, then the appellant, Shashi Bhushan, has no locus standi to contest the will.
6. The parties are governed by the Dayabhaga School of Hindu Law. The Dayabhaga, in dealing with the succession to the separate property of a childless woman after enumerating certain heirs down to the husband, says as follows: 'On failure of heirs down to the husband, this rule is again provided which Vrihaspati thus delivers: 'The mother's sister, the maternal uncle's wife, the paternal uncle's wife, the father's sister, the mother-in-law and the wife of an, elder brother are pronounced similar to mothers; if they leave no issue of their bodies, nor son [of a rival wife], nor daughter's son, nor son of those persons, the sister's son and the rest shall take their property' (see Dayabhaga, Chapter IV, Section III, verse 31).
7. The sister's son is expressly named as an heir iii the above text of Vrihaspati, and the only question is whether a half-sister's son is included in the expression 'sister's son.' This question was raised in the case of Dasharathi Kundu v. Bipin Behari Kuhdu (1904) I.L.R. 32. Calc. 261 and it was held in that case that ' sister's son' includes a half-sister's son, and that under the Dayabhaga a step-sister's son is entitled to succeed to a woman's stridhan in preference to her husband's elder brother. That is a direct authority against the appellant's contention. In that case the learned Judges, with reference to the translation of the expression 'sister's son' in Vyavastha Darpana as own sister's son, pointed out that the author probably used the words ' own sister's son ' as contradistinguished from the woman's husband's sister's son who is the next in order in the table of succession. In the case of Bholanath Roy v. Rakhal Dass Mukherji (1884) I.L.R. 11 Calc. 6 it was held that under the Bengal School of Hindu Law sons of sisters of the half-blood are entitled to succeed equally with sons of sisters of the whole blood to the property of a deceased brother. That case, no doubt, related to the question of succession, to a male owner, but it is an authority for the proposition that the expression ' sister's son' includes a half-sister's son, and that there is no difference between the son of a sister of the whole blood and the son of a sister of half-blood.
8. It is pointed out, however, on behalf of the appellant, that the rival wife's son is expressly mentioned as a son in the Dayabhaga (Chapter IV, Section III, verse 32), and that if it had been meant to include the son of a sister of the half-blood in the expression 'sister's son,' it would have been expressly so stated. But no argument can be based upon this ground. The word 'brother' in the well known text of Yajnavalkya relating to the succession of a male owner dying without male issue is applicable to a brother of the whole blood as well as to a brother of the half-blood.. The fact of being a male offspring of one common parent makes one a brother (see Sree-krishna's Commentary on the Dayabhaga, Chapter XI, Section V, paragraphs 7-12). There is, no doubt, a distinction between brothers of the whole blood and those of the half-blood, but the former confers a greater amount of spiritual-benefit.
9. In the case of a sister's son, according to some authorities (see Colebrook's Digest Book V, chapter 8, Section 1), there is no difference in the amount of spiritual benefit conferred by a full sister and a half-sister, respectively, and that therefore they inherit together; and, although a different view is taken by some other authorities, the above view is 'respected and followed' (see Shyama Charan Sarkar's Vyavastha Darpana, 2nd edition, page 265). In the Dayakrama Sangraha, Chapter I, Section X, verse I, in dealing with the question of succession to a male owner, Srikrishna Tarkalankar says.---'According to Acharjya Chudamoni, the son of the proprietor's own sister and the son of his half-sister have an equal right of inheritance.' Srikrishna's recapitulation of the line of inheritance, in which a different view is alleged to have been taken, and the difference in the copies of the recapitulation were discussed in the case of Bhola Nath Hoy (1884) I.L.R. 11 Calc. 69. cited above, and it was there held that Srikrishna's opinion was the same as that of Acharya Chudamoni.
10. As already pointed out, it was held in the case of Dasharathi Kundu v. Bipin Behari Kundu (1904) I.L.R. 32 Calc. 261 that the half-sister's son is entitled to succeed in preference to the husband's elder brother. Even if the half-sister's son does not stand in the same position as the full sister's son, he is entitled to succeed in preference to the appellant who is the daughter's son of the great-grandson of the great-great-grandfather of the deceased. The latter, accordingly, is not the heir of Adya Sundari and has no locus standi to oppose the grant of probate. This disposes of the first contention.
11. The second contention also has no force. The mere fact that it was stated in the application for probate that the appellant had applied for letters of administration to the estate of the testatrix and, that the Court had issued a citation upon him, would not entitle him to come in and oppose the grant. of probate, if it is found that he has no interest in the estate of the deceased. The case of Chatoo Kurmi v. Rajaram Tewari (1909) 11 C.L. J. 124 relied on by the appellant, has no-application to the facts of the present case. There the relationship of the caveator with the testatrix was admitted, and the caveator would have succeeded if it had been proved that the testatrix was not a degraded woman. He wanted to cross-examine the witnesses for the petitioner for probate to show that the deceased was not degraded; his title to succeed depended upon the question whether the woman was degraded or not, he was a party to the proceeding and he had certainly a right to cross-examine the witnesses. In the present case Charu Chunder being the heir of Adya Sundari had she died intestate, the appellant had no interest in her estate and had no locus standi to contest the will.
12. The appeal accordingly fails and is dismissed with costs.
Cecil Brett, J.