A mother's half brother is a preferential heir compared to a father's brother's daughter under the Hindu Law.

H.R.Khanna, J.

1. The only question which arises for determination in this second appeal directed against the Judgment and decree or learned Senior Sub Judge, Kangre, reversing on appeal the decree of the trial Court, is whether mothers half brother of Deva Ram deceased is a preferential heir compared to Deva Rams fathers brothers daughter.

2. The facts giving rise to the present appeal are that Deva Ram was the owner of the land in dispute situated in Phati Narmand, Tehsil Saraj, District Kangra. He died on 29-1-1955 and his land was mutated in favour of his fathers brothers daughter Dwarku defendant, Gowardhan Datt, plaintiff-appellant, thereupon brought the present suit for a declaration that he was in possession of the land in dispute as its owner and for permanent injunction against Dwarku defendant restraining her from interfering with plaintiffs possession of the land. According to the plaintiff, he was maternal uncle of Deva Ram deceased and had been looking after him during his lifetime and the deceased had executed a Will dated 12-1-1955 in plaintiffs favour. The plaintiff as such claimed to be entitled to remain in possession of the land in dispute.

3. The suit was resisted by the defendant who denied that the plaintiff was the real maternal uncle of Deva Ram deceased. According to the defendant, the father of the plaintiff and of Mst. Niru, mother of Deva Ram, was the same but the plaintiff and Mst. Niru were born from different mothers. As regards the Will relied upon by the plaintiff, it was stated to be a forged and fabricated document. Following issues were framed in the case :

1. Whether any valid will was executed by Deva Ram deceased in favour of the plaintiff ?

2. If issue No. 1 is affirmed, whether the said will is void by reason of undue influence ?

3. Whether the plaintiff is a real maternal uncle of the deceased Deva Ram ? If so, to what effect ?

4. Whether the defendant is the real cousin of Deva Ram deceased? If so, to what effect?

5. If issues Nos. 3 and 4 are affirmed, whether the plaintiff is a superior heir of Deva Ram deceased?

6. Whether the deceased Deva Ram was totally deal, dumb and of unsound mind and what is the effect on this suit?

The trial Court found that Deva Ram deceased had executed valid Will in favour of the plaintiff who was not the real maternal uncle of Deva Ram deceased. The defendant was found to be the daughter of uncle of Deva Ram and as such a preferential heir compared to the plaintiff. In view of the finding on the question of the Will, the plaintiffs suit was decreed. On appeal, the learned Senior Sub Judge held that the Will propounded by the plaintiff was not a genuine document and Deva Ram deceased had no disposing mind at the time of its alleged execution. The plaintiff was accordingly held to be not to be entitled to succeed to the property of Deva Ram deceased on the basis of the aforesaid Will. The learned Senior Sub Judge affirmed the finding of the trial Court that the plaintiff was not the real brother of Mst. Niru but her step brother. The plaintiff was held not entitled to succeed to the estate of Deva Ram in preference to Dwarku defendant. The defendants appeal was accordingly accepted and the plaintiffs suit was dismissed.

4. In second appeal, the only contention which has been raised by the learned counsel for the appellant is that the plaintiff as the half brother of Mst. Niru, mother of Deva Ram deceased, is a preferential heir under the Hindu Law compared to the defendant who is the fathers brothers daughter of the deceased. After hearing the learned counsel for the parties, I am of the view that this contention is well founded. The observations in Articles 38 to 41 of the Principles of Hindu Law by D. F. Mulla, 12th Edition, go to show that there are three classes of heirs recognized by the Mitakshara, namely, Gotraja sapindas, samanodakas and Bandhus. The first class succeeds before the second and the second succeeds before the third. Gotraja