Sen, J. - (1.) This is a revisional application at the instance of the defendants in Title Suit No. 64 of 1972 of the 8th Court of the learned Subordinate Judge at Alipore. The order impugned is one dated May 11, 1982, passed by the learned Subordinate judge allowing a prayer for substitution on the death of defendant No. 1. The revisional application raises an interesting point as to what is meant by "if the nature of the relationship is the same in every other respect", in section 18 of the Hindu Succession Act (hereinafter referred to as the said Act).
(2.) On the death of defendant No. 1, the plaintiff filed an application for substitution for bringing on record not only the heirs of the full-brothers of the deceased but also the heirs of the half-sisters of the deceased. On behalf of the defendants an objection was raised that in view of the provisions of section 18 of the said Act, the heirs of full-brother would exclude the heirs of the half-sisters and, as such, the heirs of the half-sisters cannot be brought on record as the heirs and legal representatives of the deceased defendant No. 1. This objection though well-supported by the author's comments of Mulla's principles of Hindu Law was overruled by the learned Subordinate Judge relying upon a Bench decision of the Bombay High Court in the case of (1) Purusottam v. Sripati, AIR 1976 Bom 375. The learned Subordinate Judge having thus allowed the prayer of the plaintiff and having directed the heirs of the half-sisters of the deceased defendant No. 1 to be brought on record, the contesting defendants are challenging the said order in the present revisional application.
(3.) Section 18 of the said Act provides as follows: - "Heirs related to an intestate by full- blood shall be preferred to the heirs related to half-blood, if the nature of the relationship is the same in every other respect". In this provisions, the legislature intended to codify the old rule of Hindu Law w3hereby relations of the whole blood are preferred to those of the half-blood. In our view, if we apply the said rule, the heirs of the full-brother of the deceased would certainly exclude the heirs of the half-sisters. The Judge in the Bombay High Court have taken the view that the exclusion of the heirs by the half-blood is, however, subject to the condition that the nature of the relationship is otherwise the same and the words, 'nature of the relationship' should be given the plain meaning to mean that a brother and a sister do not stand in the same relationship. According to the learned Judge, under section 18 of the said Act, while a brother of a full-blood will exclude a brother of half-blood and a sister of full-blood would exclude a sister of half-blood, a brother of full-blood will not exclude a sister of half-blood or a sister of full-blood will not exclude a brother of half-blood.;