BAI MAHALAXMI Vs. DEPUTY NAZIR DISTRICT COURT

JUDGEMENT

(1.) THE question in this second appeal is whether in the Broach District of the Bombay Province, which is governed by the law of the Mitakshara and the Mayukha, a full sister is a preferential heir to a half sister. THE question arises in an administration suit relating to the estate of Bhikhabhai Ranchhod, who died on October 11, 1935. He was succeeded by his mother Laxmi, the second wife of Ranchhod. She died on April 10, 1927. Plaintiff is Ranchhod's daughter by his first wife who predeceased him and is therefore the half sister of Bhikhabhai, the last male holder. Defendant No.1 is Laxmi's daughter and therefore Bhikhabai's full sister. THE plaintiff's claim to share equally with defendant No.1 is based on the Hindu Law of Inheritance Amendment Act II of 1929 THE suit has been dismissed by the lower Courts on the ground that the plaintiff as half sister is excluded by the full sister.

(2.) APART from Act II of 1929 it is conceded that the plaintiff has no case. The preferential right of the full sister is settled by the judgment of Sir Lallubhai Shah in Jana v. Rakhma (1918) I.L.R. 43 Bom. 461 : s.c. 21 Bom. L.R. 208 and the authorities there referred to. Act II of 1929 was enacted, according to the preamble," to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate." Section 2 provides : 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.

(3.) SHIDRAMAPPA Nilappa v. Neelawabai (1932) I.L.R. 57 Bom. 377 : s.c. 35 Bom. L.R. 397 is an authority binding on us to the effect that the Act does not apply to Bombay. learned Counsel for the appellant-plaintiff has criticised the reasoning in this case, and, with all deference to the learned Judges who decided it, the reasoning does certainly appear open to criticism in several respects. Mr. Justice Rangnekar evidently felt some hesitation about the matter. He said (p. 3S7) : Undoubtedly there is force in Mr. Dharap's argument that a literal rendering of the proviso or of the Act would show that the sister's position as heir is affected If it was the intention of the legislature to leave the order of succession prevailing in Bombay before father's father unaffected, as I think it was, it is unfortunate that more apt language has not been employed in this respect.