TRIKAM PURSHOTTAM Vs. NATHA DAJI

JUDGEMENT

(1.) The question of Hindu Law, arising in this second appeal, is, whether under the Vyavahara Mayukha the half-sister or paternal uncle of the porosities is to be preferred as heir. Both the Courts below have preferred \ha half-sister; and, in our opinion, they are right. It is admitted for the appellant that a full-sister is entitled to come in as heir before the paternal uncle; but it is argued that it is so because she is one of the specifically named heirs and that the word "sister" (bhagini) does not include a half-sister. It is too late in the day to urge this argument in the face of the. decisions of this Court in Sakharam Sadashiv Adhikari v. Sitabai (1879) I.L.R. 3 Bom. 353 and Kesserbai v. Valab Raoji (1879) I.L.R.4 Bom. 188. In the latter especially, the position of the half-sister in the line of heirs was carefully considered and determined. In the first, the opinion of a Shastri was referred to as giving preference to a half-sister to a step-mother (see p. 364 of the report). That opinion was cited from West and Buhler s Digest (pp. 469 and 470 of the 3rd Edition). The authors of the Digest approve of that opinion. Now, this Court has held in Russoobai v. Zoolekhabai (1895) I.L.R. 19 Bom. 707 that "a step-mother succeeds to the property of her step-son in preference to the step-son s paternal uncle s son, because the latter represents a remoter line of succession." If the step-mother is nearer in the line than those in the line of the paternal uncle, the half sister who is nearer than the step-mother must exclude those in the latter line.

(2.) In Kesserbai v. Vallabh Raoji, it was held that a full-sister and a half-sister must be preferred to a step-mother and to a paternal uncld s widow. The position of the half-sister was considered there and the grounds on which the Court determined her place in the line of heir ship were shortly these:- (1) the reason assigned for bringing the full-sister in immediately after the grand-mother, viz. her gotrajatva, i. e. the being born in the same gotra as the propositus, applies to the half-sister as well; (2) as "the daughter of the father" of the propositus, she is nearer in line than the step-mother and the paternal uncle s widow; and (3) "Messrs. West and Buhler place both the full sister and half-sister before the paternal uncle in the order of heirs."

(3.) These grounds are unanswerable. If once it is conceded that a half-sister is a gotraja sapinda, she stands nearer to the propositus in the line of heirs than a paternal uncle. This conclusion is in accordance with the list given by the late Rao Saheb Mandlik in his Hindu Law, p. 372.