AMBABAI BHAICHAND GUJAR Vs. KESHAV BANDOCHAND GUJAR

JUDGEMENT

(1.) THE decree against which this appeal is preferred by defendant No.1 was passed in favour of the plaintiff who sued to recover possession of certain property on the ground that he was a preferential heir of one Rajaram. THE plaintiff was the natural brother of Rajaram, but the latter was adopted by his maternal grandfather and he therefore became his sister's son, Rajaram died on June 10, 1932, without leaving a widow or any issue, and the dispute arose about his property which was claimed by the plaintiff against defendant No.1, who is the sister of Rajaram's adoptive father. THE contest is thus between sister's son and father's sister. It is common ground between the parties, who are Jains, that their ancestors migrated from Gujarat and settled in the Belgaum District. It was agreed during the hearing of the suit that Rajaram's adoption was proved and Was valid, as a daughter's son could be adopted among the Jains. THE plaintiff claimed to be the preferen, tial heir under the Hindu Law of Inheritance (Amendment) Act (II of 1929), Section 2 of which provides that "a son's daughter, daughter's daughter, sister, and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother." His case was that defendant No.1 being the father's sister was a remote gotraja sapinda, and therefore not entitled to priority over him.

(2.) IT is clear that if the Act of 1929 applies, the plaintiff is a preferential heir. Before the passing of this Act a sister's son was only a bandhu, while a father's sister was held to be a gotraja sapinda in cases governed by the Mayukha, and, therefore, came before the bandhus; but under the new Act the sister's son is taken much higher up and placed even before a father's brother. Defendant No.1, however, contended--and that was her main defence to the suit--that the case was not governed by the Act, firstly, because it applies only to Hindus and not to Jains, and, secondly, because it applies only to persons who are subject to the law of Mitakshara, while the parties' ancestors, having migrated from Gujarat, were subject to the law of Mayukha. The first two issues were, therefore, framed to cover this contention. The first issue was whether Mayukha or Mitakshara was applicable to the parties, and the second was whether the Act was applicable to Jains, The learned Judge below held that the parties were governed by Mitakshara subject to Mayukha, and that the Act was applicable to Jains. He, therefore, decreed the suit.

(3.) A number of decided cases have emphasized the intimate relation between the doctrines of the Mitakshara and those of the Mayukha. The decisions in Krishnaji Vyanktesh v. Pandurang (1875) 12 B.H.C.R. 65, Gojabai v. Shrimant Shahajirao Maloji Raje Bhaste (1892) I.L.R. 17 Bom. 114, Bai Kesserbai v. Hunsraj Morarji (1906) L.R. 33 I.A. 176, s.c. 8 Bom. L.R. 446 and Bhagwan V, Warubai (1908) I.L.R. 32 Bom. 300, s.c. 10 Bom. L.R. 389 are relevant on this point. The gist of these decisions is summarized in Mayne's Hindu Law, at p. 47, 10th edn., as follows:- In Gujerat, in the island of Bombay and also in the North Konkan, its authority [of Mitakshara] is controlled by the Mayukha on the very few points on which they differ, the general principle however being to construe the Mitakshara and the Mayukha so as to harmonise them as far ass it is reasonably possible.