Judgement

Consolidated Appeals from judgments and decrees of the High Court (April 9, 1910, and April 13, 1911) reversing judgments and decrees of the Subordinate Judge of Farrakhabad.

The consolidated appeals related to property which formed part of the state of Bahadur Singh, deceased, and the main issue raised was whether under the Mitakshara law of succession his heirs were the sons of his fathers own brother deceased (those claimants being represented in the appeal by the parties Munshi Lal and others), or whether his fathers half-brother (represented in the appeal by Kesri and others) was entitled to succeed. The property in suit was a third share in two villages which were in the possession of Ganga Sahai, he having purchased the villages at an auction sale held under a mortgage decree made in favour of himself and others as mortgagees, and having obtained certificates under s. 317 of the Code of Civil Procedure, 1882. The mortgagee interest under the mortgage in question was at the date of the decree and sale vested as to a one-third share in the heirs of Bahadur Singh.

In 1906 the two sets of claimants above referred to each instituted a suit against Ganga Sahai, joining their rival claimants as parties with him, and each claiming, as heirs of Bahadur Singh, to recover the third share in the two villages to which the latter had been entitled.

Both Courts in India held that Ganga Sahai was not by reason of his purchase at the auction sale entitled as against the heirs of Bahadur Singh, and those claiming under them, to the entire possession of the two villages.

Upon the question as to who was entitled under the Mitakshara law to succeed to Bahadur Singh the Subordinate Judge decide1, in favour of the claimants represented in the appeals by Munshi Lal and others, holding that the sons of a fathers own brother were to be preferred to a fathers half-brother.

A Full Bench of the High Court, consisting of Sir George Knox, Banerji, and Richards JJ., by its judgment delivered on April 9, 1910, reversed this decision. Banerji J., with whose opinion his learned colleagues concurred, in the course of his judgment said " In ch. 2, s. 5, of the Mitakshara, the rule of succession in default of brothers sons is Laid down, the heirs being gotraja sapindas and after them bhinna gotra sapindas or bandhus. Among the former the heirs are successively the paternal grandmother, the paternal grandfather, the uncles and their sons (s. 5, v. 4). The word in the original Sanskrit which has been translated as successively is kramena, which means one after another. Among gotraja sapindas, therefore, the paternal grandmother takes first; after her, the paternal grandfather; alter him uncles, that is, the paternal grandfathers sons; and, in default of them, their sons. The son of the paternal uncle thus comes in after the paternal uncle, whether he is of the whole blood or the half-blood. As we have seen, a brother of the half-blood excludes the son of a brother of the whole blood. On the same principle, which is that of propinquity, a paternal uncle of the half-bloo.1 excludes the son of a paternal uncle of the whole blood. The learned advocate for the respondents contends that s. 5, v. 4, is intended to apply only to relations of the whole blood, but there is no authority as far as we are aware in support of this contention, and none has boon cited. On the contrary, the Madana Parijata by Visvesvara Bhatta, a commentary on the Mitakshara of great authority, clearly explains what the meaning of the rule is. The passage in the Madana Parijata bearing on. the point is thus translated by Professor Sarvadhikari in the Tagore Law Lectures for 1880, p. 440 Among the paternal uncles, the succession of uterine and half-blood uncles should be regulated in the same manner as in the case of brothers, that is, the paternal grandmothers sons first inherit and after them the step-grandmothers sons, and in their default the paternal uncles sons inherit in the s