CHINNASWAMI Vs. PONGINANNA GOUNDAR

JUDGEMENT

(1.) THE question for decision in this second appeal is. settled from the earliest times and dues not require any reconsideration. It is argued by Mr. D. Ramaswami aiyangar for the appellant that when a man dies leaving a divided brother and a pre-deceas-ed divided brother's son, the succession should be for the brother and the nephew together and that the brother does not take precedence "over the nephew. The basis of this argument is centred round the text of Yanjavalkya which Mr. Ramaswami Aiyangar contends means that the brother's son stands on an equal footing with brother, in which case, the brother cannot exclude the brother's son. He admits that a brother would exclude a brother's son if the son is that of a living brother; but if the son is that of a deceased brother and if there is another living brother, then both of them take together. We do not think that there is any justification for this argument, in Mayue's Hindu law, Edn. 11, at p. 653, the learned author says as follows:

(2.) WE do not think there is any doubt involved in the case and the lower appellate court is right in coming to the conclusion it did. The second appeal is dismissed with costs. Ramaswami, J.

(3.) I agree. In addition to the authorities pointed out by my learned brother, I would like to mention Trevelyan (Hindu Law of Inheritance, page 425), West and majid (Digest of Hindu Law of Inheritance, 1919 Edn. page 104), Sarvadhi-kari (Principles of Hindu Law of Inheritance Tagore Law Lectures, page 312), Dr. Gour Hindu code, page 947, Sarkar Sastri's Hindu Law, pages 435, 475 and 484, 8th edn. , N. R. Eaghavachari, Hindu Law, Principles and Precedents, Page 488; Mulla, hindu Law, pages 25 and 43, 44 also all mention that the sons of a deceased brother cannot daim to succeed along with the brothers on the theory of representation.