PIRTHEE SINGH Vs. SHEO SOONDAEY

JUDGEMENT

(1.) THE single question in this appeal is whether in a joint family a brother of the half-blood is entitled to succeed equally with a brother of the whole blood to the sharo of a deceased brother. It arises at the close of a long litigation, and in consequence of a remand which was made by Her Majesty, upon the recommendation of this Committee, on the hearing of a former appeal in this suit. It is not necessary to recount at any length the proceedings in the suit, because the determination of the above question will support either the decree of the subordinate Judge or the decree of the High Court which reversed that decision; but it may be stated that the action was brought by the present Respondent, Pirthee Singh, against the Court of Wards, who wore representing Sheo Shoondary, to recover an estate called talook Sunlcra in zillah Bhaugulpore. The estate had belonged to Soomaor Singh, the common ancestor of the Plaintiff and Sheo Soondary, and on the original hearing of the suit in India, and upon the former appeal here it appeared that two only of his descendants were before the Court, namely, the Plaintiff and the Defendant. Pirthee Singh was one of the suns of Soomaer, and Sheo Soondary was a granddaughter of Manick, another son, Manick left an only son of the name of Durbijoy and ho had died leaving his daughter, Sheo Soondary, as his heir and representative.

(2.) THE questions originally contested in the suit were whether Pirthee Singh was the legitimate or illegitimate son of Soomaer Singh, and an issue was directed to try that question. The other question way one of law, whether the law of primogeniture obtained in the family of Soomaer Singh or not. Those were the two questions upon the former appeal. It became, however, necessary to ascertain whether the family were governed by the law of the Mitakshara or by the law of the Dayabhaga, and how that was remained uncertain upon the record as it was brought up before this Committee. The result of the appeal was that their Lordships recommended that the cause should be remanded to try the following issues:

(3.) THEIR Lordships have been referred to the Dayabhaga and the commentators upon the text of the Dayabhaga, and they have also been referred to a decision of the Full Bench of the High Court of Bengal, in which the question now to be determined was raised and very fully considered. That decision is opposed to the judgment of the High Court in the case under appeal; but at the time this judgment was given, the decision of the Full Bench had not been delivered, and the High Court appear to have determined the question in this suit without going rery fully into the doctrine. They probahly acted upon certain decisions which have been given by Divisional Courts of the High Court of Bengal, which held that the half-brother was entitled ' to share in the same way as a uterine brother. The cases which have so held are Tilluk Chunder Roy v. Ram Luckhee Dossee 2 Suth. W.R. 41, Kylash Chunder Sircar v. Gooroo Churn Sircar 3 Suth. W.R. 43 (in which the Court went fully into the text-books and commentators), and Ram Narain Bose v. Ram Nidhee Boss 9 Suth. W.R. 87. These decisions come near together in point of time. They are not decisions running over a long period of years, which might in that case be considered to have declared the law with regard to the succession to property, and which under such circumstances their Lordships would have been unwilling to disturb; but they are decisions of a recent date and coming very nearly together.