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

162 VYAVAHĀRAMAYŪKHA [ S. IV ś. 20.
M p. 81 L 30-p. 82 L 4
In default of her (the sister),¹ the paternal grandfather and half brother
take (the estate) by dividing it (equally) since their nearness to the
deceased (propinquity) is equal, as (the former) is the father's father (of
the deceased) and (the latter) is the son of (the deceased's) father In
other cases also where the propinquity (of several heirs) is equal and
there is no distinguishing circumstance, however slight such as the order² of
the words (in a text) the same (rule) holds good Hence in default of
garded as a gotraja heir because born in the gotra, there is no reason why other females who
are born in the gotra such as the son's daughter, the brother's daughter, the aunt (father's
sister) should not be classed as gotraja heirs. But Nīl. is entirely silent about those other
females. The courts hold that the reasoning of the V M about a sister cannot be extended
to a son's daughter Vide Venilal v Parjaram 20 Bom. 178. NīL wanted somehow to
bring in the sister and quibbles on the word gotraja. In Ganesh v Waghu 27 Bom. 610 (=5
Bom. L. R. 581) the paternal grand father's grandson being a gotraja was preferred to father's
sister who was held to be only a bandhu. The Mit. does not mention the sister at all and
brings in the paternal grandfather immediately after the paternal grandmother In Lallu
bhai v Mankuvarbai 2 Bom. 388 it is said (at p. 421) that here Borradaile's translation of
the passage about the sister is infelicitous and almost unintelligible at the end and a correct
rendering is given. In Kesserbai v Valab 4 Bom. 188 at p. 200 a corrected translation of the
passage about the sister is given. In Sakharam v Sitabai 3 Bom 353 it was held that a
full sister succeeded in preference to a half brother in the island of Karanja near Bombay as
the Mayūkha was the paramount authority in Gujarat Bombay island and North Kon-
kan. But in the other parts of the Bombay Presidency where the Mitākṣarā is supreme, the
result would have been exactly the opposite as in Bhagwan v Varubai 32 Bom 300 (where
the half brother's son was preferred to the sister) At p 319 of this last case the passage
of the Mayūkha about the sister is quoted In Lakshmi v Dada 4 Bom 210 full sister was
preferred to step-mother or paternal first cousin. In Jana v Rakhma 43 Bom. 461 it was
held that the full sister is to be preferred to the half-sister The rule about indigent dau-
ghter succeeding before the rich one does not apply to sisters (vide Bhagirthibai v Baya
5 Bom. 264). The sister whether full or half, takes an absolute estate in Bombay Kesser
bai v Valab 4 Bom. 188 The sister is not in the line of heirs at all in Bengal and Benares
5 All. 311 F B. and 2 Cal. 795. But this law about the sister is now changed by Act II
of 1929 which enacts that the son's daughter the daughter's daughter sister and sister's son
succeed in that order after the father's father and before the father's brother but this Act
is not to affect the sister's position as laid down in Bombay decisions (Shidramappa v
Neelawabai 35 Bom. L. R. 597 ).

1. The order of succession according to the Mit. is different it is full brother
   half-brother full brother's son half brother's son paternal grandmother paternal grand
   father paternal uncle and then his son. According to the Mayukha the order is full
   brother full brother's son, paternal grandmother sister paternal grandfather and half
   brother together Though the Mit. does not mention the sister as heir under
   judicial decisions she is an heir even under the Mit., but would be placed (where the
   Mit. prevails in the Bombay Presidency) after half brother's son and paternal grand-
   mother while under the Mayūkha the full sister would come before the half brother
   and his son.
2. Krama or sthāna is one of the means for settling what things or actions are
   principal or subsidiary Vide Jaimini III.3.14 krama (order) is of six kinds of which
   arthakrama (order of the senses denoted by words) and pāṭhakrama (order of words
   only) are two. Vide notes to V M p. 253 for examples. Vide Kalian Rai v Ramchandran
   24 All. 128 at p. 130 for reference to this equality of nearness in the case of brother's grandson
   and paternal uncle's son.