GARUDAS Vs. MAHANT LALDAS

JUDGEMENT

(1.) The only question for determination in this appeal is as to rival claims to succession under the Hindu law between uncles of the whole and of the half blood. The parties are Grihastha Gosains, known as Mahants, and are governed by the Benares School of the Mitakshara. Their relationship will sufficiently appear by the following abbreviated pedigree in which names of females are printed in italics :

(2.) The property in question consists of 28 villages of the Ilaka of Lormi in the Bilaspur District of the Central Provinces, which came to Ramkrishnadas on a family partition. On his death they passed to his son Bhagwatdas, who died without issue on 30 November 1912. The villages then went to his mother, Rajkuar, as his heir, and on her death in 1914 to his paternal grandmother Phulkuar. She died on 23 October 1922, when the disputed succession opened, the rival claimants being Garuddas, the father's brother of the whole blood, and Laldas and Bajrangdas, his half brothers. Garuddas obtained possession of the villages and Laldas sued him in the District Court of Bilaspur claiming a one-third share. Bajrangdas did not join in the suit but was brought in as defendant 2.

(3.) The District Judge, following a decision of a single Judge of the Superior Court in his Province, held Garuddas alone to be entitled to succeed, on the ground that as between sapindas in the same degree of descent from the common ancestor, those of the half blood were excluded by those of the whole blood. The decision in question was based upon the judgment of this Board in Ganga Sahai V/s. Kesri, AIR 1915 PC 81, to which more particular reference will be made hereafter. The suit was accordingly dismissed by the decree of the District Judge dated 30-09-1926. Laldas appealed to the Court of the Judicial Commissioner. His appeal was heard by Hallifax and Mohiuddin, A. J. C's. who, differing from the District Judge, held that as between uncles no preferential right attached to the whole blood, and that the parties were therefore entitled to share equally. They accordingly set aside the decree of the lower Court and passed a decree in favour of Laldas for a one-third share of the property with costs. No corresponding relief was given to Bajrangdas on the ground, apparently, that he had paid no court-fee. The decree of the appellate Court was dated 14 July 1928. From this decree Garuddas has appealed to His Majesty in Council. He is opposed by Laldas, the original plaintiff. Bajrangdas has not appeared. The material text of the Mitakshara, Ch. 2, S. 4, Paras. 5 and 6, is in the following terms : "Among brothers such as are of the whole blood take the inheritance in the first instance under the text 'to the nearest sapinda the inheritance next belongs,' since those of the half blood are remote through the difference of mothers. If there be no uterine brothers those by different mothers inherit the estate"."