EKOBA PARASHRAM Vs. KASHIRAM TOTARAM

JUDGEMENT

(1.) IN this appeal we are concerned with the property of Jairam. He was the son of Ramji by his first wife Sadi. Ramji re-married and had a son Totaram by his second wife who also was named Sadi. Totaram is the plaintiff and claims the property of Jairam as his heir. The first wife of Ramji was divorced by him: and she re-married one Parsharam: she had two sons by her second husband. The defendant No. 1 is one of these sons and the other defendants are the sons of the other son. They claim the property of Jairam as representing the brothers of Jairam born of the same mother. It seems to me clear on these facts that according to Hindu law the sons of Parashram belong to a different gotra altogether, and can have no claim as brothers to the property of Jairam, in preference to the claim of the plaintiff, who is admittedly the half brother of Jairam. The lower Courts have rightly disallowed their contention. Before us a feeble attempt has been made to suggest that the word (sic) (sodara) used in the Mitakshara is indicative of the brothers born of the same mother, though not the same father I do not think that in the Mitakshara, Chapter II, Section IV, paragraphs 5 and 6 (Stokes Hindu Law Books, page 445) where the subject of the brother's right to inheritance is dealt with, any thing beyond the difference between brothers of the whole blood and brothers of the half blood is indicated. The brothers there referred to are all sons of the same father. The contention of the appellants seems to me to be opposed to the basic principles of Hindu law as to inheritance, and there is no provision in the Mitakshara or elsewhere for treating the sons born of the same mother after her re-marriage being treated as brothers born of the same womb for the purpose of inheritance so as to be included in the meaning of the word (sic) (bhratarah) used in the texts. For the purpose of inheritance sons of the same father are brothers: and there is a distinction made between sons by different mothers. But the sons of the same mother by a different father though born of the same womb belong to a different family and as such are entirely outside the category of the class of heirs under the heading of brothers. It is not so much the meaning of the word (sic) as the context, coupled with the basic principles of Hindu law, that is against the defendants contention. I have no hesitation whatever in holding that the view taken by the lower Courts is correct. The appeal must, therefore, be dismissed with costs. Norman Macleod C.J.

(2.) I agree.