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Madras High Court
S. Balamma And Anr. vs Pullayya And Anr. on 27 September, 1894
Equivalent citations: (1895) 5 MLJ 22
Author: Best


JUDGMENT

Best, J.

1. The land in question belonged to one Aswattha Rao and on his decease.devolved on his widow and then on his daughter Oakaramma, the wife of Govindappa, by whom the property Was mortgaged to the plaintiff in this suit, who is the present respondent. The judge has found the will by Onkaramma in favour of her husband Govindappa to be true.

2. The appellants are (1) the widow of one Seshaiya, great grandson of the great grandfather of Aswattha Rao and (2) the alleged adopted son of the said Seshaiya.

3. Both the courts below have found the alleged adoption of 2nd appellant to be untrue.

4. His’ Lordship expressed his concurrence in the finding and proceeded as follows.

5. Such being the case, has 3rd defendant, as widow of Seshaiya,-any locus standi for opposing the plaintiff’s claim? The law as settled in this Presidency is that a widow can only succeed; to her husband’s property which was actually vented in him either in title or in possession at the time of his death. As observted.,by Mr. Mayne she must take, at once at her husband’s death or not at all.

6. No such right can accrue to her as widow in consequence of the subsequent death of any one to whom her husband would have been heir if he had lived, Cf. Peddamuttu Viramani v. Appa Rao (1865) 2 M.H.C.R. 117.

7. This appeal fails therefore and should be dismissed with costs.

Muthusami Aiyar, J.

8. I come to the same conclusion. My learned colleague has stated the facts found by the courts below. The District Munsif has also found that Onkaramma died 8 or 10 years before the suit and the District Judge has not expressed a different opinion on the subject. It was argued in Second Appeal that a cousin’s widow is a relative and that as such, the 3rd defendant was an heir to Aswattha Rao while Govindappa who was his son-in-law was no heir at all, In support of this contentiontion reliance was placed on the cases of Kulti Ammal v. Radahrishna Aiyar (1865) 2 M.H.C.R. 117 and Lakshmana Animal v. Tiruuejigada (1875) 8 M.H.C.R. 88. I may refer alsotothe decision of Kamavadhani Venkata Subbaiya v. Joysa Narasingappa (1866) 3 M.H.C.R. 117.

9. Under the Mitakshara law as administered in this Presidency a cousin’s widow is a female Gotraja Sapinda and the last case is an authority for the proposition that as between her and her husband’s coparcener or male Sapinda, she is not entitled to succeed to another coparcener or Sapinda. As pointed out by my learned colleague, she can only succeed to property vested in her husband prior to his death as his widow and not to a Sapinda who survives her husband as a female Gotraja Sapinda. As regards the decision in Lakshmanammal v. Tiruvengada (1881) I.L.R. 5 M. 241 it was held there that a sister’s son excludes a sister, that he has a preferential right as a Bhinna Gotra male Sapinda. In Katta Ammal v. Radakrishna Aiyar (1875) 8 M.H.C.R. 88 it was held that a sister was entitled to succeed as a bandhu. This decision proceeds on the view that any relative who is also a cognate may be treated as coming within the definition of Bhinna Gotra Sapinda and that the term Sapinda as used in Chapter 2, Section 6 of the Mitak shara includes females. A cousin’s widow who is a Gotraja Sapinda cannot be also a Bhinna Gotra Sapinda for her Gotra is by marriage that of her husband. She is therefore not among the relations who are contemplated as being among Bandhus. A cousin’s widow if she is an heir at all must be an neir as a Gotraja Sapinda and all female Gotraja Sapindas such as brothers and paternal uncle’s widows are excluded from the table of heirs prescribed by the Mitakshara. The decision of the District Judge is right and I would also dismiss the appeal with costs.


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