Karuppai Nachiar vs Sankaranarayanan Chetty and Others <BR>Nallapureddi Narasimha Reddi Vs Nallapureddi Mahalakshmamma and Others

These two references are so closely connected that it will be convenient to deal with them in one judgment.

The question referred for opinion in Appeal Suits Nos. 152 and 186 is whether when the stridhanam property of a woman devolves on her

sons, who, with their father, form an undivided Hindu family at the time of the mother''s death, the sons take as joint tenants with benefit of

survivorship, or jointly or in common without benefit of survivorship.

The Appellant''s pleader contends that the recent ruling of the Privy Council in the case of Venkayyamma Garu v. Venkataramanayyamma

Bahadur Garu ILR 25 Mad. 678, on which the Respondent mainly relies, does not apply to this case in which the co-heirs inherited the stridhanam

of their mother, and that there is no warrant under the Hindu Law of Mitakshara for holding that the stridhanam of a woman devolves upon her

heirs, even if they be her male issue, as joint property with benefit of survivorship. We think that this contention is well founded. It is impossible to

read the judgment of the Privy Council without coming to the conclusion that they guarded themselves against using language which would apply to

the devolution of stridhanam property. After setting forth the facts of the case fully at the beginning of the judgment, they advert to the obscurity of

the ''Mitakshara Law of Inheritance'' in the case of women, and refer to their former decisions as conclusively establishing that property inherited

by a widow from her husband or by a daughter from her father, is a limited and restricted estate only, and not stridhanam, and that upon her death

the next heirs of the husband or father succeed thereto, and that, therefore, the co-heirs in the case before them on the death of their mother

succeeded as heirs to their maternal grandfather. Their Lordships then propose the question ""What then was the character of the property which

they took?"" and begin to answer it as follows: ""In the grandfather''s hands it was separately acquired property. In the hands of the grandsons it was

ancestral property which had devolved on them under the ordinary law of inheritance."" If their Lordships were of opinion that it would have made

no difference whatever whether it was the mother''s stridhanam which had devolved upon her sons, or the maternal grandfather''s property which

had devolved upon them, there was no object in making a pointed statement that the estate which a daughter inherits from her father is not her

stridhanam, and that on her death her sons take it directly as heirs of their maternal grandfather, and that the estate, devolved on the grandsons

under the ordinary law of inheritance. The ordinary law of inheritance referred to is, there can he no doubt, the cardinal text of the ''Hindu Law of

Inheritance'' to the separate property of a male, as opposed to the inheritance to the property of a hermit, dealt with separately by the author of the

Mitakshara in chapter 2, Section 8, and devolution of the stridhanam property of a woman, also separately dealt with in chapter 2, Section 11. We

cannot accede to the suggestion of the Respondent''s pleader that ""ordinary law of inheritance"" is here used as distinguished from any mode of

descent sanctioned by a special custom or usage opposed to the general law of inheritance, as laid down in the Mitakshara. Nor can we accede to

the Appellant''s contention, founded upon the passage quoted and followed by their Lordships from the judgment in the case of Katama Natchiar

v. Rajah of Sivagunga 9 Moo. I.A. 543 at p. 611, that the ruling of the Privy Council under consideration cannot apply to the present case by

reason that the undivided family in the present case consisted not only of the two undivided brothers, on whom the stridhanam devolved, but also

of their father, for in the case before their Lordships there was in fact, as appears from the judgment of this Court as well as of the Privy Council,

the very same joint family as in the present case, and the property devolved on the sons to the exclusion of their father.

As, then, the question before us is not concluded by the authority of the Privy Council ruling relied on by the Respondent, we have to consider

what is the rule of Hindu Law under the Mitakshara which is applicable?"" At the outset we may observe that the stridhanam property of a woman,

with a solitary exception which need not be referred to here, primarily descends upon her daughters, who either are or will necessarily on marriage

become members of a different family, and in default of daughters, on the daughter''s offspring, females having precedence over male off spring. It

is only in default of the daughter''s line that sons succeed to their mother''s stridhanam. The rule of devolution is substantially the same under the

Dayabhaga system of Hindu law which, unlike the Mitakshara, does not recognize the benefit of survivorship even in the case of unobstructed

succession to the property of a male. In the case of the devolution of a male''s property under the Mitakshara, the cardinal principle is that it should

remain in the same family, and that is the reason why agnates, however remote, are preferred to cognates, however near, with one exception, viz.,

the daughter''s son. So far as a widow, daughter, mother and paternal grandmother, who are specially provided for in the line of inheritance, are

concerned, they, as has now been conclusively established, are simply interposed during their life-time, without diverting the line of inheritance

among agnates, until they are exhausted. There is not a single instance indicated in the Mitakshara of the benefit of survivorship between co-heirs

inheriting stridhanam property, and, in our opinion, there is no divergence between the Mitakshara and the Dayabhaga as to the character of the

estate which, in the case of stridhanam property, devolves upon co-heirs. It would be revolutionary to hold that all property which comes to two or

more persons who happen to be members of an undivided family is taken by them with benefit of survivorship, and there is no warrant whatever in

the Mitakshara for such a general proposition. It has been held in more cases than one that property which comes to members of an undivided

family by devise or gift is not taken by them with benefit of survivorship (Remun Persad v. Mussumat Radha Bceby 4 Moo. I.A. 137 at p. 174,

Bai Diwali v. Patel Bechardas ILR 26 Bom. 445). The Privy Council, no doubt, has ruled in Venkay-yamma Garu v. Vekataramanayyamma

Bahadur Garu ILR 25 Mad. 678 that the position taken by the High Court of Calcutta (Jasoda Koer v. Sheo Pershad Singh ILR 17 Cal. 33) and

by this Court (Sri Raja Chelikani Venkataramanayamma Garu v. Appa Rau Bahadur Garu ILR 20 Mad. 207) that obstructed heritage universally

devolves on co-heirs as tenants in common, and not as joint tenants with benefit of survivorship, is one that is erroneous; but their Lordships have

abstained from laying down that, as a universal rule, a heritage which devolves upon co-heirs, who happen to be all or some of the members of an

undivided family under the Mitakshara, is taken by them with benefit of survivorship. They refer only to two instances as disproving the universal

proposition laid down by the Calcutta High Court, viz., the case of widows and daughters on whom the inheritance devolves with benefit of

survivorship, both under the Mitakshara and Dayabhaga, and that even after they effect a partition between themselves of their limited estate in

which they have no interest surviving them, either joint or several, transmissible to their heirs (Muttu Vaduganadha Tevar v. Dora Singha Tevar ILR

3 Mad. 290 at p. 301). But we may observe that both these cases are cases of inheritance to the property of a male, and do not affect the

question of the devolution of stridhanam property.

It is certain that the author of the Mitakshara does not make a distinction between ""obstructed"" and ""unobstructed"" heritage, in respect of the

devolution of stridhanam property: such distinction was according to his scheme, pertinent only to the inheritance of the property of a male. The

definitions of ""obstructed"" and ""unobstructed"" heritage given by him and by those who follow him, refer in terms only to the property of a male.

The learned pleader for the Respondent urges that the character of the property which devolves upon sons, whether from their father or from

their mother should to taken to be the same, inasmuch as the Mitakshara deals with both in one and the same text in more than one place. He first

refers to chapter 1, Section 3, commenting upon Yagnavalkya''s text, chapter II, verse 117, which runs as follows: ""Let sons divide equally both

the effects and the debts after the demise of their two parents. The daughters share the residue of the mother''s property after payment of their

share of her debts, and the issue succeed in their default."" The author of the Mitakshara explains this text, so far as it relates to the mother''s

property, as meaning only that, inasmuch as it is the obligation of the sons, and not of the daughters, to discharge the mother''s debts, the sons are

entitled, even if there are daughters, to inherit so much of the assets of the mother as is necessary to discharge her debts, and that the daughters

succeed to the residue; but if there be no debts of the mother to discharge, the daughters inherit the whole estate in preference to the sons. The

author of the Mitakshara, therefore, in this passage had not in contemplation the character of the estate devolving upon sons from the mother.

He Was only pointing out that the real meaning of Yagnavalkya was not that, on the death of the mother, the sons ought to divide her property

among themselves as might at first sight he supposed, but only that they are to inherit such portion of the mother''s property as may be necessary to

discharge her debts, and that it is upon the daughters that the inheritance devolves, subject merely to a deduction in favour of the sons if there are

any debts of the mother to be discharged.

The learned pleader for the Respondent next refers to chapter 1, Section 4, commenting upon Yagnavalkya''s text, chapter 2, verse 118, in

which it is declared that whatever is acquired by one coparcener alone, without detriment to the father''s estate, does not appertain to the co-heirs.

The author of the Mitakshara explains that the father''s estate referred to in the text will also apply to mother''s estate, in other words, whatever is

acquired by one of the sons, without the aid of the mother''s stridhanam, will belong to himself, and not to him along with the co-heirs. Though the

author of the Mitakshara here refers only to the mother, the reference is only by way of illustration, and the import simply is that whatever is

acquired by one of the co-heirs without the aid of the heritage which has devolved on the co-heirs, no matter from whom, will belong to him solely,

and it is only if the acquisition is made with the aid of the heritage that it will really form an accretion to the heritage and belong to all the co-heirs

(Burnell''s ''Dayavibhaga,'' page 48; ''Smritichandrika,'' chapter 6, paragraph 2; Krishnasvami Iyer''s ''Translation,'' page 78; ''Dayabhaga,'' chapter

6, Section 1, paragraph 17; Stokes'' ''Hindu Law Books,'' page 269). The author of the Mitakshara, therefore, was not thinking of the character of

the heritage devolving on a plurality of co-heirs from different relations, but his object was only to declare that if one of the co-heirs makes an

acquisition without the aid of such an heritage, it belongs to him solely, and the co-heirs of the heritage cannot claim a share in such acquisition.

Though the author of the Mitakshara deals specially with the partition of the father''s property by sons, yet it is clear from chapter 1, Section 1,

paragraphs 4 and 5, that the rules prescribed for the partition of the father''s estate apply mutatis mutandis to the partition of property inherited

from any relation, and by co-heirs, whether sons or other relations of the deceased.

Another argument used by the Respondent''s pleader is that, as in the case of the grandsons inheriting to the paternal grandfather, so in the case

of grandchildren inheriting to the Stridhanam of the maternal or paternal grandmother, they take per stirpes and not per capita. No doubt there may

be this similarity, but, as pointed out by the learned pleader for the Appellant, there is a dissimilarity in another respect, viz., that where the

deceased dies leaving children and grandchildren the grandchildren do not by representing their deceased mother or father, as the ease may be,

step into their shoes and inherit along with the children of the deceased.

The Respondent''s argument does not, therefore, carry any weight, and is especially ineffective in view of the fact that, notwithstanding that

daughter''s sons do not take per stirpes, but per capita, it has been held by the Privy Council that maternal grandfather''s property devolves upon

them with benefit of survivorship. We must, therefore, hold that none of the arguments addressed to us show that stridhanam property, when it

devolves upon a plurality of heirs, is held by them with benefit of survivorship, or that, at any rate, it is so in the case of stridhanam property of a

mother devolving upon her sons. We must also hold that in the case of the devolution of stridhanam property there is nothing peculiar in the

Mitakshara law as distinguished from the Dayabhaga law, so as to import the doctrine of survivorship as between the co-heirs, and thus restrict the

operation of the rules of inheritance laid down for the devolution of stridhanam property.

Our answer to the question referred to us in Appeal Suits Nos. 152 and 186 is that the sons take the stridhanam of their mother as co-owners

or tenants in common.

The second question referred for our opinion is whether the maternal uncle''s estate devolves upon his nephews who, at the time of their

uncle''s death, are members of an undivided family, as joint tenants with benefit of survivorship, or as tenants in common, or co-owners without

benefit of survivorship.

The real question which we have to decide is whether this matter is concluded by the ruling of the Privy Council in Venkayyamma Garu v.

Venkataramanayyamma Bahadur Garu ILR 25 Mad. 678.

We should have no hesitation in holding that it is not so concluded, but for the observation contained in the judgment of the Privy Council that

the decision of this Court (Sri Raja Chelikani Venkataramanmyamma Garu v. Appa Rau Bahadur Garu ILR 20 Mad. 207) which was before their

Lordships in appeal and which was reversed and also the decision of this Court in Saminadha Pillai v. Thangathanni ILR 19 Mad. 70 were open to

the same objections as their Lordships pointed out to the decision of the Calcutta High Court in Jasoda Koer v. Sheo Pershad Singh ILR 17 Cal.

33, which was followed by this Court in the two cases referred to. After full consideration, and not without some diffidence, we have come to the

conclusion that the ruling in Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu ILR 25 Mad. 678 does not conclude the question

referred to us. At the outset we may observe that the ruling of their Lordships with which we are dealing in terms applies only to the case of

daughter''s sons. These form a class of co-heirs, not liable to be increased after the inheritance has devolved on. the class. But the same cannot be

said of all other classes of co-heirs, such as sister''s sons who succeed in priority to a sister (Lakshmanammal v. Tiruxengada Mudali ILR 5 Mad.

241). In the case of the latter class, therefore, an anomaly occurs in applying the principal of survivorship which does not arise in applying it to the

former class. In the case of daughter''s sons the inheritance will not devolve on them until after the death of all the daughters, and no one, therefore,

can come into existence in the undivided family, as a daughter''s son, after the inheritance has devolved upon the class; but in the case of the

heritage of a maternal uncle there may be only one or two nephews in the undivided family at the time of the uncle''s death, and other nephews may

be born subsequent thereto. Though such after-born nephews are part of the same class as the nephews who were in existence at the time of the

uncle''s death, yet they can acquire no right in the property of their maternal uncle, which has already vested in the nephews who were in existence

when the uncle died.

Such right as they may acquire by birth in the joint family property of their father or grandfather will be limited to paternal property or to

property of the paternal line. In an undivided family every member on birth acquires a right in such property, and the right accruing to him is equal

to that of his father in the paternal grandfather''s property. By the principal of representation, which obtains in an undivided family, the male issue of

a deceased member steps into the shoes of the deceased.

In the case, then, that we are considering, the after-born nephew cannot, on his birth into the undivided family, acquire any right in the property

of his maternal uncle since it had already vested in his brothers before he was born.

If sister''s sons take the heritage simply as co-heirs, without benefit of survivorship though they are members of an undivided family, the

property will belong to them as their separate property, and on the death of each, his undivided share will devolve upon his separate heirs,

including of course his after-born brothers.

In Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu ILR 25 Mad. 678 their Lordships of the Privy Council while stating that in

the grandfather''s hands the estate was separately acquired property, added that it became ancestral property in the hands of the grandsons when it

devolved on them by inheritance, and their Lordships applied the law of survivorship in tracing succession to such property on the death of one of

the grandsons. We cannot therefore regard the use of the expression ""ancestral property"" as suggested by the learned pleader for ''the Appellant as

a mere casual statement, carrying no special significance. In the Hindu law the word ""ancestor"" is not used in the wide sense in which it is used in

English law as merely equivalent to the propositus and as the co-relative of heir. In Hindu law it is used only as signifying a direct ascendant in the

paternal or maternal line, and more technically as signifying the paternal grandfather and his ascendants in the male line, and in Colebrook''s

''Translation of the Mitakshara'' it is the expression ""father''s father''s property"" that is translated into ""ancestral property."" While it may or may not

be that the expression ""ancestral property"" in their Lordship''s judgment is used in the latter sense in which technical sense it is used in several

judgments of their Lordship of the Privy Council and also by the Indian Legislature (Suraj Bunsi Koer v. Sheo Per sad Singh ILR 5 Cal. 148 at p.

164, Parbati Kumari Debi v. Jagadis Chunder Dhabal ILR 29 Cal. 433 at pp. 452 and 453, Rajah Suraneni Venkata Gopalla Narasimha Row v.

Rajah Suraneni Lakshma Venkama Row 13 Moo. I.A. 113 at p. 140, Umrithnath Chowdhry v. Goureenath Chowdry 13 Moo. I.A. 542 at p.

546 and Article 126 of the second schedule to the Indian Limitation Act, 1877) it appears to as clear that it is not used as denoting property other

than that which has devolved from a direct ancestor either in the paternal or maternal line. In the case before their Lordships the property had

devolved from the maternal grandfather. In the present case the maternal uncle from whom the inheritance devolved cannot be regarded as an

ancestor in the maternal line, in the sense in which the term is used by writers on Hindu law. So far as a daughter''s sons are concerned, they have a

peculiar position in the Hindu law which is denied to all other cognates. Under the older Hindu law, the son of an appointed daughter (putrika

putra) was equal to an aurasa or legitimate son and he took his rank, according to many authorities, as the highest among the secondary sons.

Although this branch of the law is now obsolete, its effect survives in the ''Hindu law of Inheritance'' and in the consciousness of the people, for

even now he takes a place practically next after male issue, the widow and daughters being simply interposed during their respective lives and the

maternal grandfather is regarded ""as becoming the possessor of a son''s son.

The position of a daughter and daughter''s son in the line of inheritance is considered in the Mitakshara, chapter 2, Section 2, paragraphs 5 and

6, from which we quote the following ""Then Vishnu says ''If a man have neither son, nor son''s son, nor (wife nor female) issue, the daughter''s son

shall take his wealth. For in regard to the obsequies of ancestors, daughter''s sons are considered as son''s sons.''"" Manu likewise declares ""by that

male child whom a daughter, whether formally appointed or not, shall produce from a husband of an equal class, the maternal grandfather becomes

the grandsire of a son''s son: let that son give the funeral oblation and possess the inheritance."". See also '' Dayabhaga,'' Chapter XL, Section II,

paragraphs 18, 19 and 20 (Stokes'''' Hindu Law Books,'' page 327).

The difference in his position under the old law and the present law is that under the former if he is the son of an appointed daughter (and only

one such daughter can be appointed), he becomes by a fiction of law the son or son''s son of the maternal grandfather, and as such a member of

the grandfather''s family, and is not a member of his own father''s family (''Mitakshara,'' Chapter 1, Section 11, paragraph 3).

Under the present law he is a member of his own father''s family, but he is regarded as being also as good as a son''s son to his maternal

grandfather.

If by reason of a daughter''s son being considered for spiritual purposes, as equal to a son''s son, when the maternal grandfather dies without

male issue, the estate devolving upon him (though as ""obstructed heritage"") from the maternal grandfather can, by a fiction of law, be regarded as

ancestral"" property in his hands in the technical sense in which that term is used in the Hindu law, viz., as denoting property descending from a

paternal male ancestor, the daughter''s sons, when there are more than one, will not only hold such estate as joint family property with mutual rights

of survivorship to the exclusion of their father and his other coparceners, if any, but their male issue will also on birth acquire, in such property, a

right jointly with and equal to their father''s. But if the estate devolving on daughter''s sons is to be regarded only-as in truth it is-as coming to them

from the maternal line, their male issue cannot acquire in such estate a right by birth equal to their father''s-for such right is expressly limited to

property devolving upon the father from the paternal line (''Mitakshara,'' chapter I, Section 5, paragraph 5). The anomaly in this latter view will be

that though the daughter''s sons who are undivided as between themselves hold the maternal grandfather''s estate (according to the ruling of the

Privy Council in Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu ILR 25 Mad. 678 as joint family property with the benefit of

survivorship as understood under the Mitakshara law, yet their male issue will not become joint owners in such property possessing equal rights

with their father. There can hardly be any doubt that the right of survivorship on which the ruling of the Privy Council is based, is the right of

survivorship obtaining under the Mitakshara system (Jogeswar Narain Deo v. Ramchandra Dutt ILR 23 Cal. 670 at p. 679) according to which

the right will not prevail in favour of the survivor, as against the male issue of the deceased. Under the Mitakshara joint family system there can be

no joint family property in respect of which the male issue of the joint owners will not by birth become joint owners with their father (see

Sudarsanam Maistri v. Narasimhulu Maistri ILR 25 Mad. 149 at pp. 155 and 156).

If, therefore, we are to understand the expression ""ancestral property"" in their Lordships'' judgment otherwise than in its technical sense,

according to which it is property in which a son on his birth becomes an equal owner with his father, the result of the ruling will be that a species of

joint family property unknown to the Mitakshara will be brought into existence.

But for the absence of any allusion in the judgment of the Privy Council to the texts already quoted, declaring a daughter''s son to be as good

as a son''s son and that ""there is no difference in law"" between them, we should not hesitate to say that the expression ""ancestral property"" is used

in the judgment in the technical sense already referred to. The nature of the estate devolving upon a daughter''s son was considered by this Court in

two cases (Muttayan Chetti v. Sivagiri Zamindar ILR 3 Mad. 370, Sivaganga Zarnindar v. Lakshmana ILR 9 Mad. 188), both of which were

considered by this Court in Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu ILR 25 Mad. 678. In both, the question raised was

whether the son of the daughter''s son had a right of interdiction against an alienation made by his father of his maternal grandfather''s property. In

both these cases it was held that though in respect of such property, the son may not on birth become an equal owner with his father, entitled to

demand partition from his father, yet such property is not the self-acquisition of the father which he can alienate at his will and pleasure. The former

case in Muttayan Chetti v. Sivagiri Zamindar ILR 3 Mad. 370 was carried in appeal to the Privy Council (Muttayan Chetti v. Zamindar of Sivagiri

ILR 6 Mad. 1) and their Lordships, while concurring in the view that the property was not the self-acquisition of the father, refrained from deciding

whether or not the father had absolute power of disposition over such property as he has over his self-acquisition-the decision of that question

having become unnecessary in the view which they took of the case on another point. If, in the recent decision of the Privy Council in

Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu ILR 25 Mad. 678 the expression ""ancestral property"" he regarded as having been

used by their Lordships in the restricted technical sense above referred to, the result will be that the son will have an equal right with his father in the

property which has devolved on the latter from his maternal grandfather, and the ratio decidendi of the ruling itself may be inferred to be that when

the maternal grandfather''s property devolves upon the sons of a daughter, they and they alone succeed to the maternal grandfather as if he was

their father''s father, but in respect of their own paternal property they will be joint owners thereof with their father and his other co-parceners, if

any.

Whether such be the ratio decidendi or not, and whether the expression ""ancestral property"" be used as denoting property coming from the

paternal line only or from both paternal and maternal lines, we are unable, notwithstanding the adverse comment of the Privy Council on the

decision of this Court in Saminadha Pillai v. Thangathanni ILR 19 Mad. 70 to extend the ruling in Venkayyamma Garu v. Venkataramanayyamma

Bahadur Garu ILR 25 Mad. 678 to cases other than those in which the inheritance devolves from a paternal or maternal male ancestor on his lineal

descendants, whether as ""unobstructed"" or as ""obstructed"" heritage. The decision in Saminadha Pillai v. Thangathanni was referred to as follows in

the judgment of this Court in the Jaggampet case (Sri Raja Chelikani Venkataramanayamma Garu v. Appa Rau Bahadur Garu ILR 20 Mad. 207

at p. 218): ""The ratio decidendi of this decision and of the Calcutta ruling (Jasoda Koer v. Sheo Pershad Singh ILR 17 Cal. 33) which in effect it

followed, is identical, viz., that survivorship does not exist in any case in which property passes as obstructed heritage."" The observation of the

Privy Council that Saminadha Pillai v. Thangathanni ILR 19 Mad. 70 case is open to the same objection as the decision, of this Court in

Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu ILR 25 Mad. 678 can be construed only as a disapproval of the general position

therein maintained that survivorship cannot exist in any case in which property passes as obstructed heritage, and not as a disapproval of the actual

decision in the case, even apart from the question of fact on which also it was based. The ruling of the Calcutta High Court in Jasoda Koer v. Sheo

Pershad Singh ILR 17 Cal. 33 also proceeded on the same general principle-which was disapproved of by the Privy Council. But as the Calcutta

decision, like Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu ILR 25 Mag. 678, related to the property of a maternal grandfather

devolving upon his daughter''s sons, it became necessary for their Lordships of the Privy Council to examine whether, apart from the reasons given,

which their Lordships disapproved of the decision itself was sound or not; and adverting to the principles regulating the devolution of joint family

property under the Mitakshara law, they came to the conclusion that the decision itself was erroneous. But as regards the decision of this Court in

Saminadha Pilhi v. Thangathanni ILR 19 Mad. 70, which related to a case of collateral succession it was unnecessary for their Lordships to

examine the soundness or otherwise of the actual decision in the case, apart from the general position therein taken, and the actual decision itself

cannot, therefore, be considered as overruled.

Our answer to the question referred to us in Second Appeal No. 1388 of 1901 is that on the death of the maternal uncle each of the nephews

then in existence took an undivided one-third share of the estate which on his death devolved as his separate property.