JANA APPA SUTAR Vs. RAKHMA NARAYAN BADIGER

JUDGEMENT

(1.) The question of law arising in this second appeal is whether as between a full sister and a half-sister the former is the preferential heir or both of them are heirs to their deceased brother under the Mitakshara. Both the lower Courts have answered it in favour of the full sister.

(2.) In support of the case for the half-sister it is urged that neither in the Mitakshara nor in the Vyavahara Mayukha is any preference shown to the full sister over the half-sister and that the preference of the whole to the half-blood under the Mitakshara is confined to brothers and nephews as pointed out in Samat v. Amra (1882) I.L.R. 6 Bom. 394 and Vithalrao v. Ramrao (1899) I.L.R. 24 Bom. 317

(3.) There is apparently no decided case in this Presidency directly bearing on the point. The position of the sister aa an heir has been considered in several cases : and it is not disputed before me that under the Mitakshara as under the Mayukha the sisters would be heirs, and that they would come in after the grand-mother. The ground upon which the sister has been assigned this place as an heir under the Mitakshara has been a matter of some controversy and difference of opinion, as the judgments in Sakharam Sadashiv Adhikari v. Sitabai (1879) I.L.R. 3 Bom. 383; Kesserbai v. Valab Raoji (1879) I.L.R. 4 Bom. 188; Mulji Purshotum v. Cursandas Natha (1900) I.L.R. 24 Bom. 563; 2 Bom. L.R. 721 and Bhagwan v. Warubai (1908) I.L.R. 32 Bom. 300; 10 Bom. L.R. 389 would show. The question, which I have to consider, relates to the preference of the whole to the half-blood, whatever the position of sisters aa heirs may be in competition with other relations.