SHER SINGH Vs. BASDEO SINGH

JUDGEMENT

(1.) This is a defendant's appeal in a suit brought to recover one-half of the property of one Durjansal Singh. On the death of the survivor of Durjansal Singh's widow and daughters his two nearest relations were a nephew, the plaintiff, son of Maharaj Singh, (who was the elder brother of Durjansal Singh) and a grand- nephew, the defendant, son of Pokhpal Singh, (a younger son of Maharaj Singh). The plaintiff and defendant are entered in the khewat as equal owners of Durjansal Singh's zamindari property. The plaintiff claims to be entitled to the whole of Durjansal Singh's property as the nearer sapinda, but counsel for the defendant contends that since the plaintiff and the defendant are in the same group, or class, of sapindas [see Buddhu Singh V/s. Laltu Singh A.I.R. 1915 P.C. 70] the principle of representation applies, and the defendant is entitled to the share which would have gone to his father, Pokhpal Singh, if the latter had been alive when the inheritance opened.

(2.) Counsel for the plaintiff relies on the well-known text of Manu, "to the nearest sapinda the inheritance next belongs." Taken literally these words would clearly exclude the defendant from claiming any share of the inheritance as long as a nearer relation, such as the plaintiff, is alive, and this view of the effect of the text has been accepted by all modern text-writers on Hindu law. Thus, for example, in the latest edition of Mayne's Hindu Law on p: 838 it is said that "he," that is the grandnephew, "cannot succeed as long as any nephew is alive, except by special custom"; and another text-writer, namely Trevelyan (see Hindu Law, p. 349-350) lays down a similar rule, (Sic) as an illustration of it Ch. 2, Section 4 Placitum 8 of the Mitakshara: In case of competition between brothers and nephews the nephews have no title to the succession; for their right of inheritance is declared to be on failure of brothers.

(3.) Counsel for the defendant contends that this is merely an exception to a general rule, i.e., that the principle of representation applies to any class or group of sapindas; and that the text of Manu should be construed as meaning that the nearer class of sapindas excludes the more remote class. If there were such a rule, there would almost certainly be decisions interpreting or giving effect to it; but no such decision has been quoted to us; and there are certain cases which show that the text of Manu has not been construed in that way. In case No. 2, Section 5 of Machaghten's Hindu Law, at p. 67 of the precedents, it is stated that on the death of the widow of the second brother the property left by her will be equally shared by the sons of her husband's brothers. The grandson of her husband's elder brother is excluded by them.