PICHANDI AND OTHERS Vs. E. RAMASWAMI

JUDGEMENT

(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.

(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.

(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".