BAI MANEKBAI Vs. NARANJI DWARKADAS

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Davar in which he has decided that the son of a father's brother is a nearer heir than the daughter of a brother.

(2.) The argument for the appellant is professedly based upon the reasoning of Mr. Justice West in the case of Lallubhai V/s. Mankuvarbai (1876) I.L.R. 2 Bom. 388, 446 in which he points out that the inclusion by Nilakantha of the paternal grandmother amongst gotraja sapindas involves the conclusion that Nilakantha thought that marriage as well as birth created the gotraja relationship and it was argued that if this is so a brother's daughter must be a gotraja sapinda having been born within the gotraja, and upon that basis she is more nearly related to the propositus than the son of the husband's brother also a gotraja sapinda.

(3.) It is, however, to be observed that Mr. Justice West was of opinion that the blood gotrajaship of married woman cannot safely be extended beyond the sister, and Sir Michael West-ropp in the same case discussing the position of a sister said : So far as gotrajaship as understood in this Presidency is an essential qualification for inheritance, she if her marriage preceded her brother's death, would not be qualified to succeed to his estate, inasmuch as after her marriage and consequent transfer to the gotra of her husband, the only relation which existed between her and the family in which she was born was sapinda-ship and not gotraship.