Natesan, J. -
(1.) THIS second appeal raises an interesting question in the Hindu law of inheritance, I should say pristine Hindu law. The suit is one for declaration of the plaintiffs' title to the suit properties as the sole heir of one Athiadiyan and for recovery of possession of the same from the defendants. The appellants are defendants 3 and 4 and the legal representatives of deceased defendants 1 and 2. There were various defences to the action but now in second appeal they have crystallised into a question of law. The parties are governed by the Mitakshara system of Hindu law and the pedigree hereunder (Females underlined) gives the relationship of the parties.
The suit properties had belonged to Neelan the common ancestor of Athiadiyan the propositus and the plaintiff. After Neelan, one half of the property was taken by Chinna Kannu, the father of the propositus and the other half by the plaintiffs maternal great grandfather. The suit is in respect of the half share that had devolved to Chinna Kannu. Chinna Kannu died leaving surviving the propositus his only son Adiadayan, and his widow Arumugha Valli. The suit properties devolved on Adiadiyan and when he died leaving his surviving widow Chinnal and daughter Ananthammal, the properties devolved on his widow Chinnal.
After Chinnal's death the daughter of Adiadiyan, Ananthammal inherited the properties. She died in 1929, issueless, and the properties were inherited by Arumugha Valli as the mother of the propositus. Arumugha Valli died sometime later. The widow Chinnal, daughter Ananthammal and the mother Arumugha Valli had only a Hindu women's estate in the properties and succession has now to be traced to the suit properties from Adiadiyan. Admittedly there is no Gotharaja Sapinda and the plaintiff who is the father's father's son's son's daughter's son, claims the properties as a bandhu of the propositus. He is ranked 27 in the table of succession among Atmabandhus found in Mullah's Hindu Law, 13th Edn. In Mayne's table of Bandhu succession as the paternal uncle's son's daughter's son he ranks as the 33rd, the maternal uncle's son's son taking the 27th place in Mullah's table. The competing claimants defendants 1 to 4 are the second husband's sons of the mother of the propositus. Arumugha Valli, the mother of the propositus on the death of her husband took Previ Perumal as her second husband and the defendants are his sons.
(2.) NEITHER the factum of second marriage nor its validity is now in question. Defendants 1 to 4 contend that as the sons of the mother of the propositus, they are his nearest heirs. As descendants of the mother, sons born to her in lawful wedlock, it is contended that the primary test of Mitakshara succession propinquity in blood is most satisfied. Learned counsel for the appellants, Sri C. S. Swaminatha Iyer, submits that the fact the propositus and defendants 1 to 4 are sons by different fathers can be no bar to Bandhu succession and it would be a mockery of Hindu law to say that the mother's sister's son can succeed and not the mother's own sons by a different father where there is no illegitimacy. It is urged that unless it be held that on remarriage, the mother ceases to be and never to have been the mother of the propositus, logic and reasoning and the text of Hindu law placing propinquity of blood that is kinship, the primary test of Bandhu succession require the recognition of the claim of the appellants.
The contention of Sri Chellaswami, learned counsel for the respondent is that there is not a single case of succession to the first husband's son of a woman by her second husband's son or vice versa. It is submitted that recognition of heritable relationship between sons of different husbands would be opposed to the basic principles of Hindu law of Inheritance. Sri Chellasami's argument is that Section 2 of the Hindu Widows' Remarriage Act, Act 15 of 1856, providing for forfeiture by a widow who remarries of all rights and interests which she may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, is itself a clear indication on remarriage there is a complete cessation of all relationship to the agnatic family of her husband. And so, it is said, that it must follow that her son by the second husband cannot seek any heritable relationship through her with the son by her first husband.
It is rather surprising that though more than century has elapsed since remarriage of widows was validated by law, and all through custom had permitted remarriage among certain sections, there is no decided case directly on a problem like the one under consideration. The effect of Act 15 of 1956 is to legalise the marriage of Hindu widows and Section 1 says: - -
No marriage contracted between Hindus shall be invalid and the issue of no such marriage shall be illegitimate, by reason of the woman having been previously married.
So the second husband's sons are as legitimate as the sons by the first husband. As regards the consequences of such marriage with reference to her rights to and interests in property Sections 2 and 5 must be read together. A combined reading of the two sections shows that the forfeiture of property by a widow on remarriage is confined to the category of cases detailed in Section 2. Section 5 provides, that except as provided in the preceding sections, a widow shall not, by reason of her remarriage, forfeit any property, or any right to which she would otherwise be entitled; and every widow who has remarried shall have the same rights of inheritance as she would have had, had such marriage been her first marriage.
The contention for the plaintiff that for all purposes on remarriage with reference to, the members of the first husband's family she must be deemed to be civilly dead overlooks that the fiction of her civil death on remarriage is only in relation to the rights and property which she forfeits under Section 2 and not beyond. A fiction has to be limited to its purpose and cannot be extended. And civil death by itself even as natural death does not put an end to blood relationship. Law has to say so, if it so intends. The mother does not cease to be the mother of her children by reason of her second marriage and the mother's father and mother's mother would continue to be the maternal grandfather and grandmother of her issue by her first husband.
(3.) THE contention of Sri Chellaswami is that male issue of a woman by different fathers even though her marriage with the fathers may be valid are not brothers as understood in Hindu law. That is so. Wherever brother and half brother are referred to in Hindu law, the reference is to the male issue by the same father. When the reference is to brothers of the whole blood and brothers of half blood, the reference is to the sons of the same father by different mothers. See Mt. Sahodra v. Ram Babu, : AIR 1943 PC 10; half sister does not include one who has not the same father. The same connotation is maintained under the Hindu Succession Act XXX of 1956. In Ekoba v. Kashiram Totaram,, ILR 46 Bom 716 = ( : AIR 1922 Bom 27 (1)), the Bombay High Court decided that there is no provision in the Mitakshara or elsewhere for the sons born of the same mother after her remarriage being treated as brothers born of the same womb for the purpose of inheritance as to be included in the meaning of the word (Bharatarah) used in the tests. The sons of the same mother by a different father belong to a different family and are not the heirs referred to as "brothers".
In, ILR 46 Bom 716 = (AIR 1922 Bam 27 (1)) the propositus was the first wife's son. The first wife had been divorced and she took a second husband. The male children of the second husband were claimants on one side. The father of the propositus had remarried and his son by the second wife was the claimant on the other side. The second husband's sons laid claim to the property of their mother's son by the first husband, as brothers and the claim was rejected, if I may say so, with respect rightly.;