JUDGEMENT

Appeal (No. 46 of 1940) from a decree of the High Court (April 13, 1937) which affirmed a decree of the Court of the Subordinate Judge at Muttra (September 13, 1933).

The following facts are taken from the judgment of the Judicial Committee The only question for decision in this appeal was one of law, namely, whether the words " sisters "son" in s. 2 of the Hindu Law of Inheritance (Amendment) Act, 1929—hereinafter referred to as " the Act "—included the son of a half-sister. "Sect. 2 of the Act is as follows "A sons daughter, daughters daughter, sister, and sisters "son shall, in the order so specified, be entitled to rank in the "order of succession next after a fathers fat! and before a "fathers brother

"Provided that a sisters son shall not include a son adopted "after the sisters death."

The facts of the case were not in dispute. The parties were Hindus governed by the law of the Mitakshara. The property in the suit belonged to one Krishna Murari, who was the last male owner. It was claimed by the respondent, Ram Babu, the plaintiff in the action, who was Krishna Muraris fathers uncles son. His claim was resisted by Musammat Sahodra, the defendant, for herself and on behalf of her son Dhanpat. Musammat Sahodra was the half-sister of Krishna Murari, being his fathers daughter by his first wife. When succession opened, those were the two claimants to the estate, namely, Ram Babu and Dhanpat. Dhanpat died during the pendency of the appeal.

Apart from the Act, Ram Babu as Krishna Muraris fathers uncles son would, as a sapinda, have been entitled to succeed to the estate of Krishna Murari as the nearest reversioner, in preference to Dhanpat, his half-sisters son, who was only a bandhu. Under the Act, however, the persons named in

s. 2 inherited with gotraja sapindas, and a " sisters son " coming next after a " sister " enjoyed priority in succession over the fathers paternal uncles son. If Dhanpat, as the son of the half-sister of Krishna Murari, was entitled under the Act to inherit the suit property, then Musammat Sahodra as his mother would have been entitled to succeed him under the ordinary law.

The subordinate judge decided in favour of the respondent, and decreed the suit for possession, and on appeal his judgment was affirmed by the High Court (Thorn and Iqbal Ahmad JJ.), following the decision in Ram Adhar v. Sudesra (( 1933) I. L. R.55 A. 725.), where it was held that " sister " in s. 2 of the Act of 1929 does not include a half-sister either consanguine or uterine.

1942. July 15, 16. Khambatta for the appellant. The question, whether the terms " sister " and " sisters son " in s. 2 of the Act of 1929 include a half-sister and a half-sisters son, has been answered differently in India Allahabad, Lucknow, Madras and Patna have all taken the view that a half-sister and a half-sisters son are not included in " sister " and " sisters son." Lahore is doubtful about that ruling, and has not expressed a final decision. A Full Bench of the Nagpur High Court have held that " sister " and " sisters " son " do include a half-sister and a half-sisters son. First, on the construction of the Act, the courts in India appear to have been in some doubt whether the Act alters only the order of succession among the heirs who were heirs before the passing of the Act, or whether it amends the law of inheritance under the Mitakshara so as to create as new heirs persons who were not so before the Act was passed Bhagwan Dei, Mst. v. Radha, Mst. (( 1933) I. L. R. 8 Luck . 646, 652-4.) ; Shrimati Shakuntla Devi v. Kaushalya Devi (( 1935) I. L. R. 17 Lah. 356,359, 361.) ; Rajpali Kunwar v. Sarju Rai (( 1936) I. L. R. 58 A. 1041, 1049.) ; and Dalsingar Singh v. Jainath Kuar (( 1940) A. I. R. (Oudh) 138.). What the position was before the Act {see Mulla, Principles of Hindu Law, 8th ed., paras. 38-40, 61A) does not really arise, because, it is submitted, the Act amended the law of inheritance so as to create and bring in new heirs as f