NARAYAN MORESHWAR WELANKAR Vs. WAMAN MAHADEO KULKARNI

JUDGEMENT

(1.) The facts which have given rise to this Second Appeal are not in dispute. The following table shows the relationship of the parties concerned: The property in suit belonged to Yajneswara who died leaving a widow, Gangabai, and a pre-deceased son's widow, Savitribai. After his death Gangabai adopted the natural brother of the present plaintiff from the other branch. It is common ground that after the death of Shankar and his widow in 1909, the property was vested absolutely in Shankar's daughter, Krishnabai, who was a few months old then. She died a few months after her parents. Savitribai took possession of the property as the next heir of Krishnabai, and sold it to the present defendant in 1913. Savitribai died in 1915; and the plaintiff, who is the grandson of the brother of Yajneswara, claims the property in this suit on the ground that the alienation by Savitribai was not for any legal necessity and that it ceased to be operative on her death.

(2.) The defendant pleaded that Savitribai was absolutely entitled to the property as the heir of Krishnabai, and that in any case the sale was for a legal necessity. Both the lower Courts have found that there was no legal necessity for the alienation, but they have held that Savitribai was absolutely entitled to the property and was competent to alienate it without any necessity.

(3.) In the appeal before us it is not disputed that Savitribai as the widow of the uncle of Krishnabai was a nearer heir to Krishnabai than the plaintiff according to the rule laid down in Lallubhai Bapubhai V/s. Mankuvarbai (1876) 12 Bom. 388 and affirmed by the Privy Council in Lulloobhoy Bappoobhoy V/s. Cassibai (1880) L.R. 7 I.A. 212. She would undoubtedly be a nearer gotraja sapinda of Krishnabai's father than the plaintiff according to that rule, and, therefore, a preferential heir to Krishnabai. It is hardly necessary to discuss this point any further in view of the decisions in Tukaram V/s. Narayan Ramchandra (1911) 36 Bom. 339 and Basangavda v. Basangavda (1914) 39 Bom. 87, and the clear provisions as to the succession to the estate of a maiden, both in the Mitakshara and the Vyavahara Mayukha (see Mitakshara, Chapter II, section XI, paragraph 11; Stokes Hindu Law Books, p. 463 and Vyavahara Mayukha--Mandlika's Hindu Law, pp. 97 and 98).