KASHIBAI GANESH Vs. SITABAI RAGHUNATH SHIVRAM

JUDGEMENT

(1.) The question which we have to decide is whether among Hindus in this presidency governed by the law of the Mitakshara a paternal uncle s widow or a paternal uncle s grandson is to be preferred as an heir for the purpose. of grant of Letters of Administration. That the paternal uncle s widow is a gotraja sapinda eligible for inheritance results from the decision in Lallubhai v. Mankuvarbai (1876) I.L.R. 2 Bom 388, which was affirmed by the Judicial Committee. The question which now comes before the Court was anticipated by Mr. Justice West in his judgment in that case in the following passage. The recognition of the widows of gotraja sapindas : as themselves gotraja sapindas, however slender the basis on which it originally rested so far as collaterals are concerned, has become a part of the customary law wherever the doctrines of the Mitakshara prevail, and the Courts must give effect to it accordingly. Whether, indeed, the widow of a collateral should take before the son or grand-son of the same man, may admit of question. The mother of the propositus takes before her son or grand-son, and a like precedence is assigned to his grandmother and great grand mother ; but brothers wives, on the other hand, are not mentioned between brothers and their sons in Yajnavalkaya s text, nor has Vijnaneshwara found a special place for them or for a descendant s widow as he has for the daughter s son. Although, therefore, a woman, becoming a member of her husband s family, takes the benefit of a rule resembling that of the Roman Law, yet as in that law the widow s right of inheritance was limited and of late introduction, the gradus applying, in strictness, only to blood relations, so analogy may be thought to lean somewhat to the preference of the eldest surviving male as representative of any branch to the widow of any collateral in the same line ; but the point cannot be finally decided until it arises in the proper form. It is enough for the purposes of the present case to say that a widow in a nearer collateral line has precedence, according to the Mitakshara, over a male in a remoter line.

(2.) In a subsequent passage he states that- If the foundation of the rights of widows of gotiojas under the Mitakshara is slender, under the Mayukha it may be culled almost shadowy.

(3.) In Rachava v. Kalingapa (1892) I.L.R. 16 Bom. 726 the Court gave effect to the opinion thus expressed by West J. by holding that a paternal uncle s son was to be preferred to the widow of another paternal uncle of the propositus. Mr. Justice Telang expressed the conclusion of the Court in these words: When it is remembered that the widows of collaterals among the goliojas are not specifically mentioned, even in these works like the Mitakshara where collateral males, like uncle s sons etc., are expressly named, it seems to be the fairer interpretation of the law to hold, that a female gotraja sapinda in any one line cannot exclude any male properly belonging to that line.