AKOBA LAXMAN PAWAR Vs. SAI GENU LAXMAN PAWAR

JUDGEMENT

(1.) THIS case raises an interesting point of Hindu law which does not seem to be covered by authority. The appellant, who was the original plaintiff, sued to recover certain property as a distant agnate of one Maruti who died in 1929 without leaving a widow or any issue. His father Sitaram had a brother named Genu who died several years back leaving a widow Sai who is defendant No.1 in this case. The property was taken possession of by Sai as she was the widow of the paternal uncle, i.e. a gotraja sapinda, of Maruti, and as such was entitled in our Presidency to inherit it as an heir in preference to a distant agnate under the ruling in Lallubhai Bapubhai v. Mankuvarbai (1876) I.L.R. 2 Bom. 388. The plaintiff contended that Sai was unchaste at the time when Maruti died, and was, therefore, incapable of inheriting the suit property. The only question at issue was whether Sai was debarred from inheriting the property of Maruti because of her unchastity. It was conceded by her that she was leading an unchaste life at the time of Maruti's death when the succession opened.

(2.) BOTH the lower Courts held that under the Hindu law the bar of unchastity applied only to a widow inheriting her husband's property, that in the present case the widow Sai inherited not her husband's property but the property of her husband's nephew, and the bar therefore did not apply. The suit was, therefore, dismissed on that ground.

(3.) IT has been contended by Mr. Sukhtankar on behalf of the plaintiff-appellant that the bar should be held as also applicable to the case of a widow inheriting property as the widow of a gotraja sapinda, because she inherits it from her husband's family and that too only in our Presidency by reason of usage. IT is, therefore, necessary to examine the genesis of this bar. So far as inheritance is concerned, the only text in the Mitakshara relating to this bar is mentioned in Chapter II, section II, placitum 2, which runs as follows: