Gajendragadkar J. - (1.)THE short question which arises in these appeals is one of succession under Hindu law. The contest is between the sisters on the one hand and the daughter's daughter on the other. This point arises in this way :
(2.)THE property in suit originally belonged to Prabhashankar on whose death it devolved upon his widow Kashi. While Kashi was in possession of this property as a limited owner she sold the same to the defendants under two sale deeds dated 23th January 1941, and 31st January 1941, for Rs. 400 and Rs. 1000 respectively. Subsequently Kashi died on 9th July 1941, leaving her surviving her daughter's daughter Madhu, and the present plaintiffs who are the sisters of her deceased husband. The present appeals arise from suits filed by the sisters claiming to recover possession of the properties left by their deceased brother on the allegation that the sales effected by Kashi in favour of the defendants were not for legal necessity and as such not binding on them. The defence was that the sales were justified by legal necessity and that in any event the title to the property vested in Madhu and not in the plaintiffs. On the question of legal necessity both the Courts have held against the defendants. It has been found that the sale deeds in question were not for legal necessity and do not bind the plaintiffs. On the question as to whether daughter's daughter was a preferential heir to the property in suit both the Courts have taken the view that she is not. The result has been that the suits by the sisters have succeeded and their claims for possession decreed. It is these decrees against which the purchasers have preferred the present appeals. On their behalf the only point which has been urged before us is that the Courts below were wrong in coming to the conclusion that the daughter's daughter was not a preferential heir to the property in suit.
This question really turns upon the effect of the provisions of the Hindu Law of Inheritance (Amendment) Act, II [2] of 1929. The parties in the present case are governed by the Mayukha and there is no doubt that before the said Act was passed the sister was recognised as a gotraja sapinda both in the Mitakshara and in the Mayukha. It was also recognised in Bombay that the sister comes before the widows of gotraja sapindas and that her position in the order of succession is after paternal grandmother, but before paternal grandfather. But it has been argued before us by the appellants that this position has been substantially altered by reason of the provisions of Act II [2] of 1929. It is therefore necessary to examine the scope and effect of the provisions of this Act.

This Act extends to the whole of British India, but applies only to persons who, but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions therein contained, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will. Section 2 of this Act provides that a son's daughter, daughter's daughter, sister, and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother. Section 3 provides an exception. It says that nothing in the Act shall affect any special family or local custom having the force of law and that it shall not vest in the heirs mentioned in Section 2 an estate larger than or different in kind from that possessed by a female in property inherited by her from a male according to the school of Mitakshara law by which the male was governed.

(3.)MR. Patel for the respondents has argued that the whole of this Act cannot apply to the parties in the present case because they are governed by Mayukha and cannot be said to be subject to the law of Mitakshara as required by Section 1 (2) of the Act. This argument is based upon the assumption that the Mitakshara and Mayukha are two schools of Hindu law, independent and exclusive of each other and based upon different foundations. Unfortunately for Mr. Patel, however, this contention was raised before a Division Beach of this Court and has been negatived by them in Ambabai Bhaichand v. Keshav Bandochand, 43 Bom. L. R. 114 : (A. I. R. (28) 1941 Bom. 233), Divatia J. in his well considered judgment examined this question in detail and came to the conclusion that there are only two fundamental schools of Hindu law, the Mitakshara and the Dayabhaga, and Mayukha in spite of its different interpretation of the ancient texts on some points, belongs to the Mitakshara school of Hindu law. He pointed out that the phrase "the law of Mitakshara" used in Section 1 of the Act of 1929 includes all sub -divisions of the Mitakshara law and excludes the law of Dayabhaga. In support of this conclusion Divatia J. has also referred to Clause (b) of Section 3 which refers to the school of Mitakshara and has suggested that the word 'school' evidently refers to the Bombay school on the one hand and the Benares and the Madras schools on the other. With respect we agree with this conclusion. That being so, it is not open to MR. Patel to contend that the Act of 1929 does not apply to the parties because they are governed by the Mayukha.
Then the next question which falls to be considered is what is the scope of the provisions of this. Act and what is their effect. The Privy Council had occasion to consider this question in Mt. Sahodra v. Ram Babu, 45 Bom L. R. 350 : (A. I. R. (30) 1943 P. C. 10 ). No doubt, the actual question which arose for determination was whether the words "sister's son" in Section 2 of the said Act include the son of a half -sister; in other words, whether the word "sister" can be said to include a half -sister. The argument urged before the Privy Council was that the term "sister" in Clause (2) includes a half -sister and by parity of reasoning the words "sister's son" would include a half -sister's son. The Allahabad High Court, from whose judgment the said appeal had been preferred, had followed their own decision in Ram Adhar v. Mt. Sudesra, 55 ALL. 725 : (A. I. R. (20) 1933 ALL 491 F. B.), and had negatived this contention. The view which prevailed with the Allahabad High Court was that the word "sister" in the English language ordinarily means a sister of the whole blood, and that if the said term were held to include a half -sister, it would be putting a sister and a half sister in the same category which would be against the spirit of the Mitakshara law. This view did not appeal to their Lordships as reasonable. They took the view that the term "sister" should be interpreted according to the notions of Hindu law and that as a general rule the law of Mitakshara recognises no distinction between relations of whole blood and those of half blood which would include sisters and half -sisters as well except, when there is a competition amongst them inter se. While considering this question, however, their Lordships examined the scheme of this Act and the effect of its provisions. They pointed out that the object of the Act is to alter the order of succession of certain persons mentioned therein and that it was clear that the Act would apply to the persons specified so as to constitute them heirs not only in provinces where they were already recognised as heirs but even in those provinces where they were not heirs according to the prevailing view of the law of the Mitakshara : 'it will thus be seen", observed Sir Madhavan Nair in the course of his judgment, "that the Act has amended and altered the old order of succession in Hindu law. It affects all Hindus governed by the Mitakshara. . . It is obvious that the object of the Act is to give effect to the principle of propinquity by bringing into the order of succession some of these persons more nearly connected with the propositus by ties of blood than others whose connection with him though as sapindas is but remote" (p 354 ). In view of this decision of the Privy Council there would be little difficulty in holding that daughter's daughter must succeed in preference to the sister in the present case. Section 2 in terms provides that the four persons mentioned in the section shall be regarded as heirs, that they shall succeed in the order specified in the section and that they shall so succeed next after a father's father and before a father's brother. A daughter's daughter clearly must come before the sister under this section. But it has been pressed before us by Mr. Patel that the position of the sister in the Bombay Presidency cannot be deemed to be affected by reason of the provisions of Section 2 of this Act, and in support of this contention he has strongly relied upon a decision of a Division Bench of this Court in Shidramappa v. Nilavabai, 35 Bom. L. R. 397 : (A. I. R. (20) 1933 Bom. 272 ). In Shidramappa's case, (35 Bom. L. R. 397 : A. I. R. (20) 1933 Bom 272), the contest was between the widow of the brother of the propositus and his three sisters It was held by Baker and Rangnekar JJ. , that the sister succeeded in preference to the widow of the brother of the propositus. Both the learned Judges apparently took the view that Section 2 of the Act was intended to apply to heirs who would come after the father's father and not before him. According to them the Act contemplated change in the order of succession only after father's father leaving the order of succession before father's father undisturbed. There is no doubt, as I have already mentioned, that before this Act was passed the sister in the Bombay Presidency came immediately after the father's mother and before the father's father. It was alternatively argued in this case that this position of the sister in the order of succession could be saved under Section 3 (a) of this Act on the ground that the said position "was the result of a local custom having the force of law. " Baker J. was not impressed with this argument because he expressly observed that it would be unsafe to exempt the sister in Bombay from the operation of the Act on the ground of custom. But since he held that the Act was intended to apply to succession after father's father he accepted the appellant's contention that the sister should be preferred to the widow of the brother of the propositus. Rangnekar J. , however, based his decision both on the construction of Section 2 and on the saving clause in Sub -section (a) of Section 3 : "if necessary", said Rangnekar J. , "i would be prepared to hold that a sister in Bombay is assigned a fixed place on the ground of a local custom having the force of law," (p. 402 ).