KALLAVA PARBHU DESAI Vs. VITHABAI APPU DESAI

JUDGEMENT

(1.) The property in suit belonged to one Shiddappa Ramappa Desai who died unmarried on October 5, 1919, leaving Kallava defendant No. 1, the widow of his predeceased uncle Parbhu, and two widows of his predeceased uncle Appu (1) Vithabai, the plaintiff, and (2) Kashibai, defendant No. 2. The present suit was brought by Vithabai, one of the widows of Appu, for partition of the property.

(2.) The learned Subordinate Judge held that according to Hindu law the widows of a gotraja sapinda took per capita, and that the plaintiff, defendant No. 1, and defendant No. 2, who were equally related to their deceased nephew Shiddappa, inherited the property in equal shares.

(3.) The first question arising in the case is whether the widows of the collaterals succeeding as gotraja sapinda take per capita or per stirpes. It is urged on behalf of the appellant that the right of the widow is co-extensive with her husband, and reliance has been placed on West and Buhler's Hindu Law, p. 84, and on the decisions in the cases of Lakahmibai V/s. Jayram Hari (1869) 6 B. H. C. B. (A. C. J.) 152 Lallubhai Bapubhai V/s. Mankuvarbai (1876) I.L.R. 2 Bom. 388, 440 ; and Lulloobhoy Bappoobhoy V/s. Cassibai (1880) L.R. 7 I. A. 212; and therefore it is said that defendant No. 1 is entitled to a moiety and plaintiff and defendant No. 2 are entitled to the other moiety. The passage in West and Buhler is based on the decision in Rooder Chunder V/s. Sumbhoo Chunder (1821) 3 Cal. S. D. A. R. 106, where it was held that the heirs of the deceased owner are to be ascertained on the death of the widow on the ground that a wife is half the body of the husband and another person would not take the property while half of the body survives. The succession is laid down in Yajnavalkya's text, Shlokas 135-136, Mitakshara, Ch. II, Section 1, pi. 2, namely, that " the wife, and the daughters also, both parents, brothers likewise and their sons, gentiles, cognates, a pupil and fellow students; on the failure of the first among these, the next in order is indeed the heir to the estate of one who departed for heaven leaving no male issue." It would, therefore, follow that on the death of the prior heir the other heirs succeed consecutively. The widow would succeed first in the absence of issue and after her death the other heirs succeed in the order mentioned. It is not, there fore, necessary to consider that the widow is half of the body of the husband or is an extension of the life of the husband in order to ascertain the heirs of the husband after the widow's death. The contention of the appellant that the wife represents the husband on the basis of the text of Brihaspati that the wife is the half of the body of the husband would lead to the anomaly that she would even exclude the son from inheritance. There is the fiction of the identity of the son with the father in the Aitareya Brahmana VII. 13, 10 that " His wife is only a real wife (jaya from jan to be born) when he is born (jayate) its her again." See Mitakshara Achara Adhyaya on Yajnyavalkya's Shloka 56. Translation by Vidyarnava, Panini Office, p, 121. The son according to the text is the man himself born again in his wife who according to Brihaspati is half of the body of the husband. There is further the fiction of the identity between a father and a daughter " As is the self, so is the son and a daughter is equal to a son. When the self stands in her form, how shall any one else take away the estate?" See Manu, Ch. IX, Sh. 130. On the whole I think that these fictions cannot be carried too far.