GHUSLYA S/O. CHHOTIA Vs. BHURIA S/O. NAHARIA

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff whose suit for declaration of his title to and possession of certain agricultural holding has been dismissed by the Courts below.

(2.) THE Plaintiff's case was that the property in suit belonged to his mother Jhumribai who had married twice; that he was begotten by Chhotia; that the Defendant's father Deetya was the son of one Chensingh, another husband of Jhumribai; that Jhumribai had divided her landed property between her two sons, namely, the Plaintiff and Deetya; and that the land in suit was allotted to Deetya and on his death Bhuria, who claimed to be an adopted son of Deetya, had taken possession of the land. The Plaintiff has alleged that the Defendant was not the adopted son of Deetya and on his death he (Defendant) is not entitled to succeed to the property in suit. In his defence, the Defendant denied that the land belonged to Jhumribai. According to him, the land in suit was acquired by Deetya himself and stood in his name in the revenue papers during the life -time of Jhumribai. On these pleadings, the trial Court framed inter alia the issues whether the land in question belonged to Jhumribai and whether the Defendant was an heir of Deetya. Without giving any finding on these issues, the trial Court dismissed the Plaintiff's suit solely on the ground that as the Plaintiff and the Defendant's father Deetya were admittedly sons of Jhumribai from different fathers, the Plaintiff was not entitled to succeed as brother of Deetya. The decision of the original Court was upheld in appeal by the Additional Civil Judge, First Class, Dhar. Mr. Dubey, learned Counsel for the Appellant, contended that the view taken by the Courts below that the Plaintiff was not entitled to succeed as brother was wrong in that the sons of the same mother by different fathers can succeed to each other and that, therefore, the Courts below should have after investigation determined the issues whether the property in suit belonged to Jhumribai and whether the Defendant was the adopted son of Deetya.

(3.) THE contention of the Appellants seems to me to be opposed to the basic principles of Hindu Law as to inheritance, and there is no provision in the Mitakshara or elsewhere for treating the sons, born of the same mother after her re -marriage, being treated as brothers born of the same womb for the purpose of inheritance so as to be included in the meaning of the word (sic) : (Bhratarah) used in the Texts. For the same purpose of inheritance sons of the same father are brothers and there is a distinction made between sons by different mothers. But the sons of the same mother by a different father though born of the same womb belong to a different family and as such are entirely outside the category of the class of heirs under the heading of brothers. It is not so much the meaning of the word (sic) as the context, coupled with the basic principles of Hindu Law, that is against the Defendants' contention.