(Appeal (disposed of on 13-11-1942) against the decree of the Court of the Subordinate Judge of Madura, in O.S. No. 10 of 1937.)

The question which has been referred is whether the word sister in the Hindu Law of Inheritance (Amendment) Act, 1929, includes a half sister. That Act was passed because the Legislature deemed it to be expedient to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate. S. 2 says that a sons daughter, daughters daughter, sister, and sisters son shall, in the order so specified, be entitled to rank in the order of succession, next after a fathers father and before a fathers brother. There is a conflict of opinion on the question whether the word sister includes a half sister. The Allahabad High Court in Ram Adhar v. Sudesra (55 All. 725 (F.B.), has held that the word sister does not include a half sister, and this decision has been followed by this Court in Angamuthu Muthirian v. Sinnapennammal (47 L.W. 286), and by the Patna High Court in Mst. Daulat Kuer v. Bishundeo Singh (19 Pat. 382). On the other hand the Nagpur High Court has held that it does. The Nagpur case is Amrut v. Mst. Thagan (I.L.R. 1938 Nag. 115 (F.B.), in which an earlier unreported case of the same Court was followed. The learned Judges (Krishnaswami Ayyangar and Kunhi Raman, JJ.) who have made this reference have carefully examined all the cases in which this question has been discussed and as we are in agreement with their observations, it is not necessary to travel over all the ground again. We will state the reasons given for the two opinions and our own reasons for agreeing with the Nagpur opinion which we consider to be the correct one.

The reasons given by the Allahabad High Court for holding that the word sister does not include a half sister are that in the English language the word ordinarily means a sister of the full blood; that while S. 27 of the Indian Succession Act states that for the purpose of succession under that Act there is no distinction between those who are related to a person by the full-blood, and those who are related to him by the half-blood. S. 23 says that this provision shall not apply to Hindus; that according to the spirit of the Hindu law, as interpreted in those parts of the country where the Mitakshara law prevails, a relation of the full-blood excludes a relation of the half blood and that if the word sister were held to include a half sister, it would mean putting the half-sister in the same category; that if a sister includes a half sister there can be no reason to make a distinction between a uterine sister and a consanguine sister; and that the Act should be construed strictly. Stated broadly, the opinion of the Nagpur High Court is that the word sister is a generic term which would include not only a sister of the full-blood, but also a sister of the half-blood, and that it is contrary to the underlying ideas of the Mitakshara and of the society whose laws were there expressed to attach importance to the fact that one daughter was born of one wife and another of another.

The Court is here called upon to interpret an Indian statute relating to the Hindu Law of Inheritance and therefore it must have regard to the Hindu conception of the word sister, and not to the ordinary meaning which it has in England. The Hindu Law makes no distinction between sons of the same father by different wives so far as ancestral property and the self-acquired property of the father are concerned. All his sons have the same rights in the ancestral property and share equally in the fathers self acquired property should he die intestate. To the Hindu mind there is no distinction between daughters born of the same father by different wives, and like sons of the same father by different wives, daughters by different wives, rank equally so far as the fathers property is concerned.

As we have pointed out one of the reasons given by the Allahabad High Court for its decision is the statement that the whole blood is preferred to the half-blood under Hindu Law and that if the word sister were held to include a half sister it would mean putting the half-sister in the same category. The whole-blood is preferred in the case of sapindas of the same degree of descent from the common ancestor. The preference does not apply to persons of different degrees. This was pointed out by the Privy Council in Ganga Sahai v. Kesri (37 All. 545 = 2 L.W. 837 (P.C.), where an uncle of the half-blood was preferred to the sons of an uncle of the full-blood, and in Garuddas v. Laldas (60 I.A. 189 = 37 L.W. 772 (P.C.) the Judicial Committee drew attention to placita 5 and 6 of the fourth section in the second chapter of the Mitakshara which embody this principle. We are in agreement with the statement in Mayne (10th edition, 670) that the suggested difficulty of the half-sister and the sister taking together under the Mitakshara vanishes if the Act is read in the light of Hindu law, according to which a full sister will exclude a half sister and only in default of a full sister will the half sister succeed. To read the word sister in the Hindu Law of Inheritance (Amendment) Act, as including the half sister means that the half sister will share equally with the full sister in the property left by the father, but she will come after the full sister when the succession is to the property of any other relation. This reading accords in full with Hindu ideas and principles of Hindu law, and in our opinion is the correct reading.

It follows that we are unable to accept the statement that if a sister is held to include a half sister there will be no reason to make a distinction between a uterine sister and a consanguine sister. In fact, the judgment of the Allahabad High Court itself provides the reason for the rejection of this argument. It is there pointed out that among Hindus a woman on becoming a widow does not remarry except under the enabling Act of 1856, which is rarely invoked, and that ordinarily it would be repugnant to the notions of Hindus to recognise a woman as a sister who has not got the same father. It certainly would be repugnant to Hindu ideas to put the daughter of a widow by her second husband on the same footing as her daughter by her first husband and it would be manifestly wrong to interpret the Hindu Law of Inheritance (Amendment) Act, in a sense repugnant to Hindu ideas.

The argument based on Ss. 23 and 27 of the Indian Succession Act is, with great respect, equally lacking in force. These sections appear in Part IV of the Indian Succession Act. S. 23 says that nothing in that part of the Act shall apply to intestate or testamentary succession to the property of any Hindu, Mohammadan, Buddhist, Sikh, Jaina or Parsi. These communities were excluded from the operation of that part of the Act, because they possess their own personal laws. The exclusion section certainly cannot be called in aid in deciding what those personal laws are, and therefore cannot help in the interpretation of the Hindu Law of Inheritance (Amendment) Act.

We agree that the Act under discussion must be construed strictly, but it must be construed strictly in accordance with Hindu conceptions and when this is done, we have no hesitation in holding that the word sister in the Hindu Law of Inheritance (Amendment) Act, 1929, includes a half-sister by the same father. It may be added that this opinion is strongly held by the learned editors of both Mayne (10th edition 669) and Mulla (Preface to the 9th edition).

For the reasons stated the question will be answered in the affirmative, which means that the decision of this Court in Angamuthu Muthirian v. Sinnapennammal (47 L.W. 286), will be overruled.

The costs of the reference will be made costs in the appeal.