SHAKUNTALABAI W/O. BHIMRAO DESHMUKH AND ANOTHER Vs. COURT OF WARDS REPRESENTING ESTATE OF SUMANBAI D/O. ANANDRAO DESHMUKH

JUDGEMENT

(1.) THIS appeal arises out of an interpleader suit and raises a short point which can only be understood when a genealogical table is set out. For the sake of lucidity, we will not give the actual names but letters: M = X = N | | __________ _________ | | | | | A C D E F | B

(2.) X married, inter alia, M and N. By M he had three children, a son A, and two daughters C and D. A had a daughter B. X by N had two daughters E and F. At the time this suit was filed C, D, E and E were alive and the rest were dead, E was, unmarried, C, D and E were married. B, when she died, died, unmarried. The law applicable to this family is the Bombay school of Hindu law, the Mayukha. The plaintiff has certain property belonging to C, D, E, E; and the suit is to determine which of the four is or are entitled. There are other complexities which do not arise in this appeal. The learned Judge has decided that C and D are entitled as being the sisters of A in preference to E and E who are the half-sisters of A. The following arguments have been addressed to us on behalf of the appellants.

(3.) IT is said that in circumstances such as those, i.e., where the circumstances are such that one has to trace the father's heirs in order of propinquity, one has a valuable guide in the Hindu Law of Inheritance (Amendment) Act, 1929, which says that the male's heirs are in such and such order. The sister comes in that order at a certain place and when you find that there is no distinction between sister and half-sister when tracing out this line of heirs you come to the conclusion that C, D, E and F are all alike. That is one branch of the argument, a branch of the argument, which we cannot assent to because we are of the opinion that the Hindu Law of Inheritance (Amendment) Act, 1929, is almost the worst possible guide in determining what the old Hindu law of inheritance was as its whole purpose is to alter the old Hindu law of inheritance. But the above facts arc made the basis for another argument. It is said that on any view of this case as F was at all material times unmarried she was in the gotra of X whereas C, D and E having all married had left the gotra of X and had entered into the respective gotras of their husbands. Therefore, it is argued that F is the only person of these four who is in the same gotra as B and that she should therefore be selected as the true heir. That appeared to be an attractive line of thought but it has already been considered and set aside in a very great number of cases referred to in Mayne in paragraph 507. We reproduce the passage: In Bombay, however, a sister's right has long been settled beyond dispute. She is considered a gotraja sapinda, on the ground that this term is satisfied by her having been born in her brother's family, and that she does not lose her position as a gotraja by acquiring on her marriage her husband's gotra. That being so, her place among the gotraja is determined by nearness of kin.