Judgement Appeal (No. 2 of 1930) from a decree (July 14, 1928) of the Court of the Judicial Commissioner, Central Provinces, reversing a decree (September 30, 1926) of the Additional District Judge, Bilaspur. The suit, which was instituted by respondent No. 1, related to the right of inheritance in a Hindu family governed by the Benares school of Mitakshara law, the question for determination in the appeal being whether a paternal uncle of the whole-blood excluded two paternal uncles of the half-blood or whether the three uncles inherited in equal shares. The facts appear from the judgment of the Judicial Committee. The Court of the Judicial Commissioner, reversing the decision of the trial judge, held that under the Mitakshara the preference of the whole-blood to the half-blood was restricted to the cases of brothers and their sons, and that consequently the three uncles were entitled to inherit in equal shares. The learned Judicial Commissioners by their judgment said that the trial judge had followed the decision of a single judge of that Court in Narain v. Homarji (( 1921) 21 Nag. L. R. 163.), that decision being based upon the judgment of the Privy Council in Ganga Pershad v. Kesri. (( 1915) L. R. 42 I. A. 177.) They were of opinion, however, that the judgment of the Privy Council had not approved the view that the preference extended beyond brothers and their sons. The question, they said, had been fully considered by Ranade J. in Vithalrao v. Ramrao (( 1899) I. L. R. 24 B. 317.) and they concurred in the view expressed by him that the preference was restricted as above stated. The judgment is reported at 24 Nag. L. R. 172. 1933. Jan. 30. Parikh for the defendant-appellant. The parties were governed by the Benares school of the Mitakshara law. Although in Ganga Sahai v. Kesri (( 1915) L. R. 42 I. A. 177.) the contest was between a paternal uncle of the half-blood and the son of a paternal uncle of the whole-blood, the question whether the preference of the whole-blood to the half-blood extended beyond brothers and their sons was clearly material. It was there argued that it did not, and reference was made to Suba Singh v. Sarfaraz Kunwar (( 1896) I. L. R. 19 A. 215 (F. B.).), Natiappa Gounden v. Kishen Sahai (( 1915) 28 Mad. It was there argued that it did not, and reference was made to Suba Singh v. Sarfaraz Kunwar (( 1896) I. L. R. 19 A. 215 (F. B.).), Natiappa Gounden v. Kishen Sahai (( 1915) 28 Mad. L. J. 1 (F. B.).), in which it was held that the preference so extended, and to Vithalrao v. Ramrao (( 1899) I. L. R. 24 B. 317.)—relied on in the judgment now appealed from—in which it was held that it did not. Moreover the judgment of the Full Bench at Allahabad (( 1910) I. L. R. 32 A. 541.) which was being appealed from had reaffirmed, though it distinguished, the view expressed in Suba Singhs case. (( 1896) I. L. R. 19 A. 215 (F. B.).) The question therefore was fully before the Board, and the passage towards the end of the judgment adopts the view taken by the Full Bench at Allahabad. The decision in Vithalrao v. Ramrao (( 1899) I. L. R. 24 B. 317.) was impliedly overruled, or possibly was treated as inapplicable, as the parties in that case presumably were of the Bombay school. The recent decision of the Board in Jatindra Nath Roy v. Nagendra Nath Roy (( 1931) L. R. 58 I. A. 372.) treated it as settled law that the preference extended to all sapindas of equal degree and held that it applied to bandhus. [He was stopped.] De Gruyther K.C. and Wallach for the plaintiff-respondent. The judgment of the Board in Ganga Sahais case (L. R. 42 I. A. 177.) did not approve the view that the preference of the whole-blood extended beyond brothers and their sons ; if it did so, the approval was obiter. The actual decision was that even if the principle so extended it did not operate, because the contesting parties were not of an equal degree of propinquity. There was no balancing of the view adopted in Allahabad and that adopted in Bombay, or consideration of the texts. In Shankar Baji v. Kashinath Ganesh (( 1926) I. L. R. 51 B. 194 (F. B.).) a Full Bench of the Bombay High Court held that so far as the judgment of the Board in the above case might appear to adopt the Allahabad view it was obiter, and followed the decision in Vithalraos case. In Shankar Baji v. Kashinath Ganesh (( 1926) I. L. R. 51 B. 194 (F. B.).) a Full Bench of the Bombay High Court held that so far as the judgment of the Board in the above case might appear to adopt the Allahabad view it was obiter, and followed the decision in Vithalraos case. (I. L. R. 24 B. 317.) The view as to the effect of the Mitakshara on various points differs in the different High Courts, and the Central Provinces follow the Bombay view. Neither did the recent judgment of the Board in Jatindra Nath Roys case (( 1931) L. R. 58 I. A. 372.) consider the present question ; it appears to assume that the judgment in Ganga Sahai’s case (L. R. 42 I. A. 177.) determined it, which it is submitted is not the case. The passage in the Mitakshara, ch. II., s. 4, vv. 5 to 7, is in terms confined to brothers and their sons, and does not suggest that it is laying down a general principle. If, however, the Board is of opinion that its judgments in the two cases referred to conclude the matter it is not necessary to discuss the texts. Feb. 28. The judgment of their Lordships was delivered by SIR GEORGE LOWNDES. The only question for determination in this appeal is as to rival claims to succession under the Hindu law between uncles of the whole and of the half-blood. The parties are Grihastha Gosains, known as Mahants, and are governed by the Benares school of the Mitakshara. Their relationship will sufficiently appear by the following abbreviated pedigree in which names of females are printed in italics Dularkuar = Lakhmidas = Phulkuar || | | | = Rajkuar | Laldas Bajrangdas Ramkrishnadas Garuddas . | Bhagwatdas. The property in question consists of twenty-eight villages of the Ilaka of Lormi in the Bilaspur District of the Central Provinces, which came to Ramkrishnadas on a family partition. On his death they passed to his son Bhagwatdas, who died without issue on November 30, 1912. The villages then went to his mother, Rajkuar, as his heir, and on her death in 1914 to his paternal grandmother Phulkuar. She died on October 23, 1922, when the disputed succession opened, the rival claimants being Garuddas, the fathers brother of the whole-blood, and Laldas and Bajrangdas, his half-brothers. The villages then went to his mother, Rajkuar, as his heir, and on her death in 1914 to his paternal grandmother Phulkuar. She died on October 23, 1922, when the disputed succession opened, the rival claimants being Garuddas, the fathers brother of the whole-blood, and Laldas and Bajrangdas, his half-brothers. Garuddas obtained possession of the villages and Laldas sued him in the District Court of Bilaspur claiming a one-third share. Bajrangdas did not join in the suit but was brought in as second defendant. The District Judge, following a decision of a single judge of the superior court in his Province, held Garuddas alone to be entitled to succeed, on the ground that as between sapindas in the same degree of descent from the common ancestor, those of the half-blood were excluded by those of the whole-blood. The decision in question was based upon the judgment of this Board in Ganga Sahai v. Kesri (L. R. 42 I. A. 177.), to which more particular reference will be made hereafter. The suit was accordingly dismissed by the decree of the District Judge dated September 30, 1926. Laldas appealed to the Court of the Judicial Commissioner. His appeal was heard by Hallifax A.J.C. and Mohiuddin A.J.C. who, differing from the District Judge, held that as between uncles no preferential right attached to the whole-blood, and that the parties were therefore entitled to share equally. They accordingly set aside the decree of the lower Court and passed a decree in favour of Laldas for a one-third share of the property with costs. No corresponding relief was given to Bajrangdas on the ground, apparently, that he had paid no court fee. The decree of the Appellate Court was dated July 14, 1928. From this decree Garuddas has appealed to His Majesty in Council. He is opposed by Laldas the original plaintiff. Bajrangdas has not appeared. The material text of the Mitakshara, ch. II., s. 4, paras. 5 and 6, is in the following terms "Among brothers such as are of the whole-blood take the inheritance in the first instance under the text ‘to the nearest sapinda the inheritance next belongs, since those of the half-blood are remote through the difference of mothers. The material text of the Mitakshara, ch. II., s. 4, paras. 5 and 6, is in the following terms "Among brothers such as are of the whole-blood take the inheritance in the first instance under the text ‘to the nearest sapinda the inheritance next belongs, since those of the half-blood are remote through the difference of mothers. If there be no uterine brothers those by different mothers inherit the estate." The question is whether this text enunciates only an exception to the general rule, confined to the case of brothers of the propositus, or whether it states a principle applicable to all sapindas in the same degree of consanguinity. The former view has been adopted by the Bombay High Court Vithalrao v. Ramrao (I. L. R. 24 B. 317.), followed in 1926 by Shankar Baji v. Kashinath Ganesh (I. L. R. 51 B. 194.) ; the latter, by the High Courts of Allahabad, Calcutta and Madras Suba Singh v. Sarfaraz Kunwar (I. L. R. 19 A. 215.) ; Sham Singh v. Kishun Sahai (( 1907) 6 Cal. L. J. 190.) ; Nachiappa Gounden v. Rangasami Gounden. (28 Mad. L. J. 1.) The learned Judicial Commissioners in the present case followed the earlier Bombay authority without considering the other cases above cited, though they were all elaborate and exhaustive judgments, and in the Allahabad and Madras cases were decisions of the Full Bench. The rival authorities were before this Board in Ganga Sahai v. Kesri (L. R. 42 I. A. 177.), to which reference has already been made. The decision in that case was that a paternal uncle of the half-blood inherited in preference to the son of a paternal uncle of the whole-blood, but Mr. Ameer Ali in delivering the judgment of the Board commented on Suba Singhs case (I. L. R. 19 A. 215.), and with reference to the passage from the Mitakshara above quoted he says that there seems to be " in principle " no reason to differentiate between the brother of the propositus and the brother of his father. He continues " Having regard to the general scheme of the Mitakshara, their Lordships think that the preference of the whole-blood to the half-blood is confined to members of the same class, or to use the language of the High Court in Suba Singh v.. He continues " Having regard to the general scheme of the Mitakshara, their Lordships think that the preference of the whole-blood to the half-blood is confined to members of the same class, or to use the language of the High Court in Suba Singh v.. Sarfaraz Kunwar to sapindas of the same degree of descent from the common ancestor. " Dealing with Ganga Sahais case the learned Judicial Commissioners thought it impossible to find in the judgment of Mr. Ameer Ali any approval " even by the most distant implication " of what may be called here for convenience the Allahabad doctrine. Their Lordships would themselves have come to the opposite conclusion. Had this not been intended the judgment could hardly have characterized the preference of the whole-blood to the half-blood as confined to members of the same class of sapindas ; it would almost obviously have been referred to as confined to the case of brothers. The matter however is put beyond doubt by a more recent decision of this Board which was not available to the learned Judicial Commissioners Jatindra Nath Boy v. Nagendra Nath Boy. (L. R. 58 I. A. 372.) That was a case between bandhus. Ganga Sahais case was referred to and the passage quoted above from Mr. Ameer Alis judgment was cited, clearly as laying down a rule of general application among sapindas, and the principle involved was held applicable even in the case of bandhus. From this it follows that as between paternal uncles of the propositus the whole-blood will exclude the half-blood. For the reasons given their Lordships art of opinion that the appellant is solely entitled as the heir of Bhagwatdas to the villages in dispute. They will therefore humbly advise His Majesty that the decree of the Appellate Court should be set aside, and that of the District Judge, dated September 30, 1926, restored. The first respondent must pay the appellants costs in the Judicial Commissioners Court and before this Board.