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1982 DIGILAW 388 (CAL)

UJJAL KUMAR SING v. LAKSHMAN CHANDRA SINGH

1982-12-23

A.K.SEN, S.N.SANYAL

body1982
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. 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. ( 4 ) THE view expressed by the Bombay High Court is, however, not shared by the Punjab and Haryana High Court or the Madras High Court. In (2) Swaran Singh v. Dhan kaur, AIR 1971 Punjab and Haryana 323 and (3) Yellaya Gounder v. Laxmi, AIR 1975 Mad 253, a contrary view has been taken. There, the learned Judge have agreed with the author's comments on Mulla's principles of Hindu Law that the meaning of the words, 'the nature of the relationship' must be found in the sense in which they best harmonies with the scheme and object of the Act, and not so much in a strictly etymological propriety of the language. On a careful review of the legal position, we prefer to accept the view expressed by the Madras and Punjab and Haryana High Courts, to the one expressed by the Bombay High Court. In our view, if we construe the words, "if the nature of the relationship is the same in every other respect" in the manner indicated by the Bombay High Court based on the plain meaning of the words used that would result in such an anomaly as the legislature could not have intended. In our view, if we construe the words, "if the nature of the relationship is the same in every other respect" in the manner indicated by the Bombay High Court based on the plain meaning of the words used that would result in such an anomaly as the legislature could not have intended. As pointed out by the Bombay High Court on the terms of this provision though the full-brother would exclude the half brother, he would not exclude the half-sister. It is difficult for us to find out any reason for such a succession being provided by the statute. Moreover, in our view, that is contrary to the rule of Hindu Law which the legislature adopted in section 18 whereby the relations of the whole blood are preferred to those of the half-blood. We, therefore, agree with the view that the meaning of the words, "if the nature of the relationship is the same in every other respect", is that where the heirs of an intestate stand in the same degree of relation to him, the nature of their relationship with the intestate must be taken to be the same in every other respect. It is wholly immaterial whether amongst such heirs one is a brother and the other is a sister. ( 5 ) IN the result, the view taken by the learned Subordinate Judge cannot be upheld. The revisional application, therefore, succeeds and the impugned order is set aside in part to the extent the learned Subordinate Judge allowed the heirs of the half sisters to be brought on record in the place of the deceased defendant No, 1. Sanyal, J. : I agree. Application succeeds.