History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.252
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.252
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v4.c63.t2.252.1
Even under the Mitākṣarā in the whole of India (except in the Bombay and Madras schools), no women succeed as gotraja sapiṇḍas (except five expressly named and cited above on p. 713). In Bombay the sister (full or half) is brought in as a gotraja by the V. Mayūkha (though the Mitākṣarā is entirely silent) and placed by it immediately after the paternal grandmother. It relies on the general words of Manu IX. 187 and of Bṛ. (quoted above on p. 733) that to the nearest person in blood the inheritance goes and then proceeds:¹⁴⁴² 'She is also a gotraja as being born in the gotra in which her brother (the deceased owner) was born. She is, however, not a *sagotra* (of the deceased brother), but being a sagotra is not mentioned here (in Yāj.) as the condition that leads on to the taking of the wealth of the deceased'. Here the V. Mayūkha plays upon the word *gotraja* and takes its literal meaning. But that is a specious argument. The widow and mother are not gotrajas (in this sense of being born in the gotra) but on marriage they enter the gotra of their husbands and become sagotra. Further, on the same reasoning, a son's daughter, brother's daughter, father's sister and other women born in the family of the deceased will become his gotrajas (though not sagotras because on marriage they pass into the gotra of their husbands). But these other women are not expressly recognised even by the V. Mayūkha as gotrajas. Even though she was not mentioned in the Mit.
v4.c63.t2.252.2
the sister has been recognised as a gotraja sapiṇḍa by the Bombay High Court in parts of the Bombay Presidency where the Mit. is the paramount authority. The order of heirs under the Mit. would be as follows:—Full brother, half brother, full brother's son, half brother's son, paternal grandmother, sister (full being preferred to half), paternal grandfather. According to the V. Mayūkha the order is slightly different, viz. full brothers along with sons of full brothers that are dead, full brother's son, grandmother, full sister, halfbrother, halfsister, paternal grandfather. The unmarried sister had been recognized as entitled to a share when brothers came to a partition and they had to provide for her marriage expenses. Vide above pp. 619-620 and Nār.¹⁴⁴³ (dāyabhāga, 13), Viṣṇu Dh. S. 18. 35, Manu IX. 118, Yāj. II. 124. In Madras the sister had been recognized as a bandhu. The Legislature has intervened and laid down (Hindu Law of Inheritance Amendment Act II of 1929) that in territories governed by the law of the Mitākṣarā and in respect of the property of males not held in coparcenary and not disposed by will, a son's daughter, daughter's daughter, sister and sister's son shall be entitled to rank as heirs in the order specified in the Act next after a father's father and before a father's brother.
v4.c63.t2.252.3
The first three of these were before this Act not at all recognized as heirs in the whole of India except in Bombay (where the sister was recognised as a gotraja sapiṇḍa and the first two as bandhus) and except in Madras (where the first three were recognized only as bandhus). The sister's son was given a very high place as a sapiṇḍa under the Dāyabhāga and was treated as a bandhu elsewhere in India. This enactment does not affect the Dāyabhāga scheme and so the three females mentioned in the Act are not heirs even now under the Dāyabhāga. The sister's place as settled by Bombay decisions is after the paternal grandmother and before the paternal grandfather, while the above Act places her after the paternal grandfather. In *Bai Mahalaxmi v. The Deputy Nazir* 45 Bom. L. R. 434 it has for this reason been held that the Act does not apply to the Bombay Province. If it be held that the Act does apply to Bombay (except as to the sister), then the same Act will have to be deemed to be laying down two different orders of succession as to the same four heirs in different provinces, which, to say the least, is not a reasonable or desirable way of interpreting statutes (just as in the case of texts).