SHIDRAMAPPA NILAPPA UJALAMBE Vs. NEELAVABAI CHANBASAPPA

JUDGEMENT

(1.) A preliminary question arises in this appeal as to who is the heir of respondent No. 1, Bhagirthibai, the original plaintiff. The contest is between Neelava, respondent No. 4, who is the widow of Chanbasappa, the separated brother of Bhagirthibai's husband Shivlingapa, and Shivlingappa's three sisters Akavva, Sangava, and Kushava. The point is of importance as Neelava supports the appellant, and therefore if she is found to be the heir of Bhagirthibai there is not likely to be much oppostion to the appeal. It is settled law in the Bombay Presidency that the sister inherits immediately after the father's mother and before the father's father under the Mitakshara. But it is contended that her place in the order of succcession is affected by Act II of 1929, Hindu Law of Inheritance (Amendment) Act, Section 2, which provides that a son's daughter, daughter's daughter, sister, and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother. If, therefore, this Act is literally interpreted the effect is to place the sister in a lower position than that which she at present occupies in the Bombay Presidency where she succeeds before the father's father and before the brother's widow as laid down in Rudrapa V/s. Irava, s.c .5 Bom. L.R. 676., There are two views possible, one, that in view of the words of the Act the sister must rank in the order of succession after a father's father, and the other, which is the view adopted by Sir Dinshah Mulla in his Hindu Law, is that her place in the order of succession is not affected by the Act, for the Act contemplates succession after the father's father while her place as determined by a series of decisions since 1865 is immediately after the father's mother. Under Section 3 of the Act it is provided that nothing in this Act shall affect any special family or local custom having the force of law. It is argued that the position of the sister in Bombay depends not on any special local custom but on the interpretation of the texts by this High Court in a series of decisions.

(2.) The object of the Act was to legalise the position of certain heirs including the sister and it was not intended to change for the worse the position which the sister holds in the Bombay Presidency. This is perhaps not so clear from the Act, as it might be, although it says in paragraph 3(a) "Nothing in this Act shall affect any special family or local custom having the force of law." If, therefore, the position of the sister in the Bombay Presidency is regarded as depending on local custom, it would not be affected by the Act. The view taken by Sir Dinshah Mulla in his Hindu Law, 7 Edn. p. 40, is that the place of the sister in the order of succession is not affected by the Act, for the Act contemplates succession after the father's father, while the sister's place as determined by a series of decisions since 1865 is immediately after the father's mother :- In cases governed by the Mitakshara, this appears to be the only way of supporting the old order of succession. It cannot be saved on the ground of custom, for otherwise a sister in the Madras Presidency should still rank as a bandhu on the ground of custom, she having been recognized as such in that Presidency for upwards of half a century. This difficulty cannot arise in places where the Mayukha is the overruling authority, such as Gujarat, the island of Bombay and North Konkan, for the Act applies only to cases subject to the law of the Mitakshara.

(3.) It would, therefore, in view of the opinion of Sir Dinshah Mulla, which, though not binding on us, is entitled to great respect, be unsafe to exempt the sister in Bombay from the operation of Act II of 1929, on the ground of custom, but apart from this in view of the fact that the Act, if literally interpreted, while designed to improve the position of the sister, has actually the contrary effect in Bombay, I would adopt the view that the Act was not intended to affect the position of the sister in Bombay, and this being so, the sister is the preferential heir to the brother's widow. Therefore, the sisters Akavva, Sangava and Kushava are the heirs of the deceased and their names should be added on the record in her place. Bangnekar, J.