व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

S. IV. 8. 17-18 ] BROTHERS' SON AS HEIR 159
M. p 81 ll. 9-16]
uncle they had no connection with the wealth (of the deceased uncle)
because their father was then alive, are entitled to take by partition with
their other paternal uncles the share of their father (in the deceased uncle's
estate) according to the rule (Yāj II 120) 'among (claimants) sprung
from different fathers the allotment of shares is according to the fathers'
"In default of the brother's son,¹ the gotraja² sapindas (succeed).
leaving B, C, D his brothers as his nearest heirs, but before the estate of A is actually divided
B dies leaving two sons E and F Here E and F have no right to the property of A at his
death, as their father B was alive Yet at the time of actual partition, they will take the
share that would have gone to their father B One has to see whether the property has vested
in a person and not whether it has been actually divided The Mit had to state this ex-
pressly because it might be argued that as Yāj prefers brothers to brother's sons, in dividing
the wealth of A the brothers C and D should exclude the sons of B The reply is that one
must look to the time of death and not to the time of actual division of the estate
The general rule of construction accepted by the Bombay High Court is to construe both
the Mit and the Mayūkha so as to harmonize them with one another wherever and so far as
that is reasonably possible Vide Gojabai v Shrimant Shahajirao 17 Bom 111, 118 There-
fore the above passage of the Mayūkha must be construed in the same way as the Mit In
Chandika v Muna 29 I A 70 (=21 All 273=1 Bom L R 376) the Privy Council follow-
ing an incorrect rendering of this passage made by Borradaile remarked with regard to the
tribe of Ahban Thakurs that migrated from Gujerat to the United Provinces before the
Mayūkha was composed that the Mayūkha only embodied and defined a pre-existing custom
and that according to the Mayūkha sons of a brother who is dead share along with surviv-
ing brothers and that the rule as found in the Mayūkha does not go beyond brothers and
their children It is submitted with great respect that there is a double error here. The
Mayūkha had nothing to do with Gujerat, being composed by a Mahārāstra Pandit, whose
family had migrated to Benares, under the patronage of a Bundella chieftain In Haridas v.
Ranchordas 5 Bom L R 516 the court following the P C decision allowed the son of a pre-
deceased brother to take along with the brothers of the deceased In Jagubhai v Kesarlal
49 Bom 282 (=27 Bom. L R 226) at p 286 the differing translations of this passage of the
Mayūkha are referred to and it was held following the P C decision on the principle of
stare decisis that the nephews of the deceased share the inheritance along with his surviv-
ing brother or brothers
The distinction between the whole blood and the half blood is not to be carried beyond
the brothers and their sons Vide Shankar v Kashinath 51 Bom. 194 F B (=29 Bom L
R 1), where all relevant texts and decided cases are referred to In Suba Singh v Sara-
fraz 19 All 215 (F B) it was held that this distinction between whole blood and half blood
applies also to all sapinda relations other than brothers and their sons In Ganga Sahai v
Kesri 37 All 545 P. C (=42 I A 177) the Privy Council held that 19 All 215 was restricted
to sapindas of the same degree of descent from the common ancestor and that a paternal uncle
of the half blood succeeded in preference to full paternal uncle's son
1 In Appaji v Mohanlal 54 Bom 564 F B (=32 Bom L R 709) it was held that a
brother's grandson is not included in the word 'brother's son' Vide also Chinnasami v.
Kunju 35 Mad 152 which discusses all texts and modern writers
2 Gotraja literally means 'born in the gotra or family' The gotrajas are agnatic
kinsmen and are of two kinds, sapindas and samānodakas The Mayūkha does not dilate
upon the explanation of sapinda It tacitly assumes the explanation of sapinda given by the Mit
In commenting upon Yāj I 52--58 the Mit explains sapinda relationship as arising from
having particles of the body of the same ancestor It is limited to seven degrees on the father's

• P. 148 (text).