JUDGMENT
Dawson Miller, C.J.
1. The question for determination in this reference is, whether in a family governed by the Mitakshara school of law the sister’s daughter’s son or the maternal uncle of the last male owner is to be preferred as next heir to his estate. The pedigree set out below shews the relationship between the parties. The last male owner of the property in suit was Chamman Lal Upadhya.
Mandal Missir,
Maternal grandfather
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Bechan Lal Upadhya = Mother Raghunandan
(Father) Missir, Maternal Uncle.
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Musammat Chunni Bibi Chamman Lal Upadhya Parmeshri Koer.
(Sister) (Propositus).
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Musammat Pun Bibi
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Uma Shankar (Plaintiff).
2. The persons whose claims to succeed to Chamman Lal’s estate have to be considered are (1) the plaintiff Uma Shankar, and (2) Raghunandan Missir. The former is Chamman Lal’s sister’s daughter’s son, the latter is his mother’s brother. Chamman Lal died childless in the year 1910 and his widow Musammat Parmeshri Koer succeeded to his estate. She died in 1912 and the plaintiff Uma Shankar claimed to succeed to the estate as nearest Bandu and next heir to chamman Lal. His claim was opposed by one Ganesh Prasad Panday, a nephew of Parmeshri Koer, Chamman Lal’s, widow, and by Musammat. Nageshari Koer, a sister of the same lady. The nature of their claims is got material to the present issue. They were based on a transfer and an adoption alleged to have been made by the widow. During the course of the trial, however, it transpired that Raghunandan Missir, the maternal uncle of Chamman Lal, was alive. He had made no claim to the estate, but the learned Additional Subordinate Judge at Gaya who tried the case came to the conclusion that even if the plaintiff could succeed in establishing his case in other respects, the maternal uncle of Chamman Lal would succeed to his nephew’s property in priority to the plaintiff whose relationship was that of sister’s daughter’s son. On appeal to this Court, the question, being considered one of importance in which there was some conflict of authority, was referred to a Fall Bench,
3. It is contended on behalf of the respondents (defendants) that although under the Mitakshara’ consanguinity may determine the right to inherit in the first instance, nevertheless as between rival claimants of the same class the efficacy of religious offerings is the determining factor establishing priority. In the present case both the plaintiff and Raghunandan Missir are Atma Bandhus of the propositus. Raghunandan Missir could confer some spiritual benefit on the deceased by his offerings. The plaintiff could confer none. The appellant contends that whatever may be the rule prevailing under the Bengal school, the right to inherit under the Mitakshara as well as the order of succession are determined solely by nearness of blood, subject to certain rules founded on the text itself or based by analogy on the principles to be deduced therefrom and that the efficacy of religious oblations forms no part of the scheme of succession prescribed by the Mitakshara. It is true that under the Mitakshara the nearest agnates who succeed are those who confer the greatest spiritual benefit on the deceased proprietor, but when the more distant agnates are considered it is clear that their claims to inherit in priority to near cognate relations, such as the sister’s son whose religious offerings rank much higher than those of distant agnates up to the 14th decree to whom he is postponed, cannot be based on any considerations of religious efficacy. Mr. Mayne, in his well-known treatise on Hindu Law and Usage, says: “The doctrine that heirs are to be placed in the direct order of their spiritual merit was announced for the first time by Jimuta Vahana and has been expanded by his successors,” and points out that this necessitated a remodelling of the order of succession in the Bengal system, the cognates being shuffled in amongst the agnates to the exclusion of those mentioned in the Mitakshara and whereas in Bengal the inheritance follows the duty of offering sacrifices, elsewhere the duty follows the inheritance. According to that learned author the cardinal distinction between the two schools of Hindu Law governed by the Dayabhaga and the Dayakrahma Sangraha on the one hand and the Mitakshara on the other is that in the former the order of succession is based on the efficacy of religious offerings and in the latter on consanguinity. Mr. Mayne goes so far as to say that the Mitakshara in dealing with succession never once alludes to the test of religious merit. There is a passage in the Mitakshara which might appear to conflict with this dictum where the commentator distinguishes between Sapindas and Samanodakas, stating that the former succeed before the latter and that the former offer funeral cakes and the latter only libations of water. This Mr. Mayne explains as merely a way of indicating different degrees of propinquity and not as evidencing different degrees of religious merit, and there is certainly no room for doubt that under the Mitakshara those who confer high religious benefits on the deceased owner are in many oases postponed to those who confer little or none. Sir Ernest Trevelyan, an authority of weight on this subject, when dealing with the difference between the law of inheritance prescribed by the Mitakshara and that of the Bengal school, also says: “In the system of inheritance under the Mitakshara school of law propinquity of relationship is the guiding principle for determining the order of succession.” (Hindu Law, 2nd Edition, page 377.) Colebrooke’s celebrated paraphrase of the word Sapinda in his translation of the Mitakshara as “connected by funeral, oblations” no doubt afforded material for the supposition that Vijnaneswara has in mind the efficacy of religious offerings, and not propinquity, as the criterion determining the order of succession. This translation of the word Sapinda made over a century ago would hardly appear to be justified by reference to other passages in the Mitakshara which have more recently been translated, but its effect has undoubtedly been felt in many ‘ of the judgments dealing with questions of inheritance under the Mitakshara Law. That part ‘ of the Mitakshara known as the Acharakanda which was not translated by Colebrooke makes it clear beyond doubt that the meaning attributed to the word Sapinda by Vijnaneswara himself was blood relationship. He says: “Sapinda relationship arises between two people through their being connected by particles of one body,” and truly enough observes that ‘ the word Sapinda on account of its etymological import (connected by having in common particles of one body) would apply to all men”, and accordingly restricts its signification as shewn in the text to relations connected by a common ancestor not more than 6 degrees removed from either. It is true this passage does not occur in that part of the text which deals with inheritance, but there is nothing to suggest that the use of the same word in other portions of the commentary was meant to have a different signification. I have stated that Colebrooke’s translation has been accepted by learned Judges when dealing with questions of inheritance under the Mitakshara Law, but in such oases it does not appear to have been questioned. In Omrit Koomaree Dabee v. Luckhee Narain Chuckeerbutty 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592 decided in 1868 the question was whether a person could be heir to his maternal uncle as a Bandhu, although not one of those specially named in the text of the Mitakshara. Dwarka Nath Mitter, J., in dealing with Colebrooke’s translation of the Mitakshara, Chapter II, Section 5, verse 3, made some observations which may be urged as shewing that that learned Judge accepted Colebrooke’s rendering of Sapinda in connection with the definition of Bandhu. He says at page 81; “It will be observed that two conditions are necessary to meet the requirements of this definition, namely, first that the claimant should be a kinsman sprung from a different family and second that he should be connected by funeral oblations.” Colebrooke’s translation is as follows: “For kinsmen sprung from a different family but connected by funeral oblations” (Sapindaship) “are indicated by the term cognate (Bandhu).” Both these conditions were fulfilled in that case by the claimant, a sister’s son of the propositus, and it did not become necessary to discuss the accuracy of Colebrooke’s translation nor does it appear to have been questioned. But in a later passage the learned Judge says: “It is perfectly true that the lawyers of the Benares school sometimes use the word Sapinda in the sense of consanguinity or mere connection through the body,’ and on either view, he decides that the sister’s son was a Bandhu. The real point decided in that case was that the enumeration of Bandhus in the Mitakshara was illustrative and not exhaustive, which was the view also taken by their Lordships of the Privy Council in Gridhari Lall Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28 decided in the same year. In the latter case also Colebrooke’s translation was accepted without comment but it was not necessary to consider the point. In 1880 the case of Lallubhui Bapubhai v. Cassibai 5 B. 110 : 7 I.A. 212 at pp. 233, 234 : 4 Sar P.C.J. 164 : 3 Suth. P.C.J. 795 : 4 Ind. Jur. 533 : 3 Shome L.R. 245 : 7 C.L.R. 445 : 3 Ind. Dec. (N.S.) 75 came before their Lordships of the Privy Council. It was a Bombay case and concerned the claim of the widow of a paternal cousin, who was a Gotraja Sapinda of the deceased, to succeed in preference to a more remote male heir, also a Gotraja Sapinda. It was contended inter alia that the passages in the Acharakanda of the Mitakshara defining Sapinda relationship as connected by particles of one body should apply also to the same word in the parts of the text which treat of inheritance. The Court below had so decided. Their Lordships in dealing with this proposition said they were “prepared to assent to the conclusion to which the Judges of the High Court upon consideration of the authorities arrived that by the Law of the Mitakshara as interpreted and accepted in Western India, the preferential right to inherit in the classes of Sapindas is to be determined by family relationship or the community of corporal particles and not alone by the capacity,, of performing funeral rites.”
4. In the same year the case of Umaid Bahadur v. Udoi Chand 6 C. 119 : 6 C.L.R. 500 : 5 Ind. Jur. 585 : 3 Shome L.R. 146 : 3 Ind. Dec. (N.S.) 78 was decided by a Full Bench of the Calcutta High Court. In that case the rival claimants to the property of the last male owner were the plaintiff whose father had purchased from the widow of the deceased owner and the defendant who was his sister’s daughter’s son. His relationship to the propositus was identical with that of the plaintiff Uma Shankar in the present case. The question turned upon whether the defendant as sister’s daughter’s son of the propositus could be an heir. This depended upon the meaning to be attached to the word Sapinda in Chapter II, Section 5, verse 3 of the Mitakshara. The defendant was certainly not connected by funeral oblations with the deceased. The Court consisting of Sir R. Garth, C.J., and four other Judges came to the conclusion that the word Sapinda should be used throughout the Mitakshara in the same sense, viz., connected by particles of one body as explained by the author himself in the Chapter on rituals and that Colebrooke’s translation was wrong, They accordingly decided that the defendant was entitled to inherit. In this judgment reference is made to a further passage in the Mitakshara (Acharakanda), where the author cites a text of Vrihat Mann dealing with Sapinda, relationship and that of Samanodakas in the case of agnates and says with regard to it: “Sapinda relationship with the father does not arise by reason of connection through funeral cakes but through the connection of particles of one body.” This is significant, as the Sapinda relationship referred to in the text of Manu was evidently that of Gotraja Sapinda. Reference to other parts of the Mitakshara also supports the view that propinquity and not religious efficacy is the principle on which the selection of heirs is based. In Chapter II, Section 3, verse 3, the mother is preferred to the father as an heir on the ground that “the father is a common parent to other sons (obviously meaning by another wife) but the mother is not so and since her propinquity is consequently greatest, it is fit she should take the estate in the first instance conformably with the text to the nearest Sapinda the inheritance belongs.” This quaint process of reasoning is based on the doctrine that man and wife are Sapindas to each other as they together beget one body but the privilege of the husband to a plurality of consorts, which is not shared by the wife, is supposed to place him in a category more removed from his children than that of their mother. As the mother presents no oblations to her son whilst the father does this is not only a striking instance of the meaning of the word Sapinda as used in the text dealing with inheritance but also indicates the doctrine on which priority of inheritance is based. A consideration of the Bandhus specifically named in the Mitakshara also discloses the fact that 4 out of the 9 mentioned confer no spiritual benefit at all on the means of the deceased. These are the 5th, 6th, 8th and 9th in the order given in the text. (Mitakshara, Chapter II, 6.) Moreover, after enumerating the 3 classes of Bandhus the text continues:
Here by reason of near affinity the cognate kindred of the deceased himself are his successors in the first instance, on failure of them his father’s cognate kind red; or if there be none, his mother’s cognate kindred. This must be understood to be the order of succession here intended.
5. The Mitakshara also bases the claim of the daughter to inherit upon consanguinity alone and not, as in the Dayabhaga, on the expectation of religious offerings from her son and neither the sonless widows nor the barren are excluded as in the Bengal system (Mitakshara, Chapter II, Section 2, verses 2–4). The question, however, appears to have been finally determined in so far as, Vijnaneswara’s conception of the meaning of Sapinda is concerned, by the decision of their Lordships of the Privy Council in the case of Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A. L. J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.) in the year 1914, where it is stated: “Mr. Colebrooke in his rendering of the Mitakshara has paraphrased Sapinda as a relation ‘connected by funeral oblations’, which resulted in virtually obliterating one of the main distinctions between the Benares and the Bengal schools. But it is now recognised that his paraphrase was erroneous and that the true theory of Sapinda relationship propounded by Vijnaneswara was based on community of blood.”
6. There are no doubt passages to be found in many of the earlier cases which support the view that the order of succession in the Mitakshara is founded to some extent at least on the doctrine of religious benefits. It is not necessary to refer to those oases in detail. It would appear that in most, if not all, of them the translation of Sapinda as connected by funeral oblations’ was the foundation of the opinions therein expressed, and in some instances much ingenuity has been expended in an attempt to reconcile the clear evidence to be found in the text of the Mitakshara itself that consanguinity and not funeral oblations is the guiding principle governing the order of succession with Colebrooke’s translation which for many years was accepted without question. Once it is conceded, as it must be, that this translation was erroneous, the authority of the cases which accepted it as accurate is materially diminished.
7. But our attention has been urgently directed by the learned Vakil for the respondents to certain passages in the case of Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.). The actual point there decided was that as between agnates the great-grandson of the grandfather was to be preferred to the grandson of the great-grandfather. The nearer stock up to 3 generations from the common paternal ancestor had to be exhausted before the nearer descendants of a more remote stock of descendant could take. The decision depended upon the meaning of the word Putra as used by Vijnaneswara in the Mitakshara, and this was interpreted as including three generations in descent from the common ancestor. There is a passage, however, towards the end of their Lordships’ judgment which, whilst recognising that the right of inheritance arises from Sapinda relationship or community of blood, points out that in determining propinquity amongst the Gotraja the preferential heir may be discovered by applying the test of the capacity to offer oblations, and a passage in the Viramitrodaya is referred to as supporting this proposition as well as an earlier ruling of the Board in the year 1870 in the case of Bhyah Ram Singh v. Bhyah Ugur Singh 13 M.I.A. 373 at pp. 380, 390 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 E.R. 591 (P.C), The application of this test in the case of near Gotraja Sapindas up to three generations in descent from a common ancestor is no doubt one which can be safely resorted to in the cases named, but it does not determine the vexed question of whether the inheritance follows the duty of offering oblations or the duty follows the inheritance. The whole, question is discussed at length by Mr. Mayne in Chapter XVI of his treatise, where he comes to the conclusion, that the Hindu Law of inheritance in its inception is founded on nearness of blood and not on the capacity to offer oblations, and that this is the governing principle regulating the rules of inheritance observed when the Mitakshara was compiled, whereas some three centuries later the effect of Brahminical influence resulted in a remodelling of the basic principle of inheritance in accordance with the religious doctrine as expounded by Jimuta Vihana and his followers. However this may be, it appears to me that when applied to the order of succession amongst Bhinna Gotra Sapindas the religious test fails at nearly every turn, and I am unable to accept the view that it was the intention of their Lordships in the oases last referred to lay down a rule of universal application which should govern the order of succession in a class of cases not then under consideration. The case of Adit Narayan Singh v. Mahabir Prosad Tewari 35 Ind. Cas. 687 : 1 P.L.J. 324 : (1917) Pat 12 : 2 P.L.W. 317 decided by a Bench of this Court in 1916 undoubtedly took a contrary view and decided that superior efficacy of religious oblations should be applied in the case of Bandhus even to the extent of preferring a Matri Bandhu to the son of one of those mimed in the text as an Atma Bandhu and who, according to a previous decision of the Bombay High Court in Bai Vilji v. Prabhalakshmi 9 Bom. L.R. 1129, was himself an Atma Bandhu. Assuming that Rajender in that case was an Atma Bandhu, and there is a series of decisions in addition to the Bombay case above cited which support this view [Krishna Ayyangar v. Venkatarama Ayyangar 29 M. 115, Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243], it is difficult to see on what ground the claim of a Matri Bandhu can be preferred to that of an Atma Bandhu in face of the express text of the Mitakshara to the contrary. The case, however, is decided on the hypothesis that none of the descendants of the named Atma Bandhns are themselves Atma Bandhus, and the reason given by the learned Chief Justice in that case for arriving at this conclusion is that if the descendants of an Atma Bandhu are entitled to succeed in preference to all the Pitri or Matri Bandhus expressly mentioned, it may easily happen that an obviously remote Sapinda may exclude a nearer Sapinda. I confess that it is with some hesitation that I venture to differ from the view here expressed by the learned Chief Justice for whose attainments and ability I entertain a profound respect, but I am unable to share in the difficulty which weighed with him and assisted to the conclusion to which he came. The number of heritable Bandhus is not indefinite but limited in any one line of descent. [See Umaid Bahadur v. Udoi Chand 6 C. 119 : 6 C.L.R. 500 : 5 Ind. Jur. 585 : 3 Shome L.R. 146 : 3 Ind. Dec. (N.S.) 78.] Within these limits those tracing through a nearer common ancestor may well be regarded as nearer in blood relationship to the propositus than others descended from a more remote ancestor though less removed from the common ancestor. In the present case the plaintiff is more remote from the common ancestor than Raghunandan, but he traces his descent through the father and mother of the propositus whereas Raghunandan traces through the maternal grandfather. This question was considered in Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243, where preference was given to the sister’s son’s son over the mother’s brother’s son, although the latter was 2 degrees only and the former 3 degrees removed from the common ancestor. Two main principles were relied upon and given effect to in that case, (1) that amongst Bandhus of the same class those ex parte paterna are preferred to those ex parte materna, (2) that the nearer line is preferred to the more remote.
8. The earlier case of Sundrammal v. Mangasami Mudaliar 18 M. 193 : 4 M.L.J. 275 : 6 Ind. Dec. (N.S.) 484 is also an authority for the first of the above propositions. In another case. Subramantu Mudeliar v. Ranganathan Chettyar 18 Ind. Cas. 506 : 24 M.L.J. 301 : 13 M.L.T. 213 : (1913) M.W.N. 202, the father’s sister’s son’s son is preferred to the mother’s brother on the same principle. The claims of the present plaintiff would appear to be even stronger than those of the successful claimant in the case last cited if it is admitted, as I think it must be, that the intervention of a greater number of females makes no difference except in cases where other tests fail. It has been so decided in Madras [Krishna Ayyangar v. Venkataramn Ayyangar 29 M. 115, Tirumalachariar v. Andal Ammal 30 M. 406 : 17 M.L.J. 285 : 2 M.L.T. 357] and I see no reason to differ from the rule there followed. In Bombay also where women are permitted to inherit as Bandhus, the preferential claim of the father’s line over that of the mother has been recognized to the extent of postponing the mother’s full brother to the father’s half sister [Saguna v. Sadashiv Pandu 26 B. 710 : 4 Bom. L.R. 527]. The rule that the nearer line excludes the more remote is accepted by Sir Ernest Trevelyan (Hindu Law, 2nd Edition, page 401), subject to the rule that in each of the 3 classes of Bandhus preference is given to those related through the father over those connected through the mother. In laying down the order of succession, however, in the case of Atma Bandus it is obvious that he does not exhaust the nearer line before bringing in the more remote. His reason appears to be that sons of daughters of the family (i. e., daughters who would have inherited if they had been sons) come first, then sons of daughters’ sons and lastly sons of daughters’ daughters. Subject to this the nearer line is preferred to the more remote. But he follows consistently what he regards as the dominant rule that in each of the 3 classes the Bandhus of the deceased connected with him through his father have preference over those connected through his mother. In this he is supported by Dr. Rajkumar Sarvadhikari and Dr. Jogendranath Bhattacharya. The authority of the former as an expounder of Hindu Law has been recognized by their Lordships of the Privy Council on more than one occasion and the reputation of the latter is well known. The question for determination is, I feel, one of some doubt and difficulty, but I think the principles to be gathered from the text of the Mitakshara and the weight of authority on the subject favour the claim of the plaintiff and, in my opinion, the sister’s daughter’s son should be preferred to the maternal uncle.
Mullick, J.
9. I am of opinion that the defendant must succeed. The term Bandhu is said to have been used for the first time in Hindu Law by Yajnavalkya. To him the term was synonymous with Bandhava and applied indiscriminately to relatives in general, both agnates and cognates, and even to friends. In some out of the 17 tests in which he uses the term, he applies it to the kinsmen on the mother’s side reserving for other kinsmen related through a female the term “Yonisamandba.” He was the first to prescribe obsequial offerings to maternal ancestors and their issue, and it would seem that his object in doing so was to find a reason for giving the heritable right to relations on the mother’s side. In truth the concession was made in deference to the continuous disintegration of communistic life. Though economic causes had begun to operate long before Gautama and the sages compromised with individualism by adopting spiritual benefit as a condition of heirship, Yajnavalkya found a further advance necessary and brought widows, daughters and some others within the circle of heirs who were incapable of offering the funeral cake. Not so courageous was his predecessor Manu who, while bowing before the advancing wave and affirming the principle of affinity by blood relationship, seems still to have retained, allegiance to the principle of spiritual benefit, rendering himself liable to the charge of indecision and inconsistency by such texts as “the funeral cake follows the family and the estate.” “To three ancestors must water be given for three is the funeral cake ordained, but the fourth in descent is the giver of oblations to them and the fifth has no concern with the gift of funeral cakes.” (Manu, IX-185, IX-187, IX-186.)
10. The efforts of the lawgivers, however, were powerless and compromises did not avail. Little use was it for Gautama to seek to stem the tide by ruling that “Those who are allied by the funeral cake should take the wealth of the deceased” or for Manu to temporize or for Yajnavalkya to extend the heritable right while still clinging to Gautama’s rule.’ The fact remains that by the time of Vijnaneswara, that is within the next 900 years, the doctrine of spiritual benefit had lost further ground. But the vitality of Hindu institutions is proverbial and although that commentator in clear and unequivocal terms declared Sapinda relationship to be dependent on community of blood, nevertheless between the 11th and the 15th centuries spiritual benefit still continued to affect the preferential right. In my opinion this explains why Vijnaneswara did not insist upon the father’s line being exhausted before any of the grandfather’s line were admitted.
11. The position in the 16th century ‘ is further elucidated by the Viramitrodaya, which repeatedly contains passages to the effect that “comparative propinquity is evidenced by the amount of spiritual benefit conferred on the deceased proprietor and that spiritual benefit can be conferred by the presentation of Pindas in the Parbana Sradh held in honour of the deceased and of his ancestors.” (Viramitrodaya III, 1–11; III, 5–1.) Again in book II, Section 1, verse 23 of that work, Mitra Missir, the author, gives the following remarkable opinion: “Blood relations alone are entitled in the first instance to celebrate Parbana rights of the deceased and their competence to benefit the Bandhus is in proportion to the nearness of their deceased relative. If we know the one, we know the other. Where there are many claimants to the heritage among the Gotrajas and the like, then the fact of conferring spiritual benefits on the deceased merely settles the question of precedence among the heirs.”
12. The next stage in the development of the theory of religious benefit is furnished by the Dayabhaga, which finally and definitely recognised it as a ground of preference in the case of both agnates and cognates. Whereas in the Mitakshara no cognate is allowed to succeed in preference to an agnate, however superior the offerings of the former may be in religious efficacy, the Dayabhaga adopted the more logical basis and applied the test equally to both. The result was that many cognates, who were excluded by the Mitakshara, took precedence under the Payabbaga over more distant agnates. It would be wrong, however, to say that the Dayabhaga discarded the principle of propinquity by blood. Equally wrong would it be in my opinion to say that the Mitakshara took no account of the principle of religious merit. In my opinion both systems recognise propinquity of blood and religious efficacy. The only difference is that in the Dayabhaga religious merit arising from the celebration of the Parbana Sradh is accorded greater weight and that in the absence of religious merit accruing from Parbana rights, the ability to benefit the deceased by some other religious ceremonies is a sufficient foundation of a title to inherit. The Mitakshara, on the other hand, regards oblations presented by cognate kinsmen as secondary and conferring no claim against the whole body of agnates. The Dayabhaga, admitting that the oblations are secondary as compared with agnates of the same line, insists that Parbana Pindas conferred by cognates should prevail against agnates of a remoter line. The point of difference between the two systems depends upon the interpretation of the scriptures relating to the efficacy of oblations presented by agnates and cognates. It would be” wrong, therefore, to say that the doctrine of spiritual efficacy was, as has been observed by one learned author, a figment of the Brahminic brain in Bengal and that in the Mitakshara it has no place. The true view appears to be that nearness of blood determines the heritable right, while the! doctrine of spiritual efficacy determines the preferential right.
13. The position of Bandhus could not fail to remain unaffected by the vicissitudes of the doctrine of religious efficacy and we find, therefore, that while Yajnavalkya left the question of their heritable right undetermined in his list of heirs and while he made express mention only of the “maternal uncle and the rest” in regard to their right to succeed a trader dying abroad, Vijnaneswara was the first to extend the list by the inclusion of nine selected cognates.
14. The next development that followed was the addition of the daughter’s son as a special heir and for nearly four centuries thereafter the commentators appear to have recognised only ten Bandhus.
15. Next Mitra Misser added three, namely, the maternal uncle of the deceased, of his father and of his mother.
16. Since then the number does not appear to have been added to for the next 300 years till the claims of the maternal uncle and of the sister’s son came up for consideration in the case of Omrit Koomaree Babee v. Luckhee Narain Chuckerbutty 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592. In that case Mitter, J., held that the list of Bandhavas given by Vridba Satatappa was not exhaustive and that although a sister’s son was according to their Lordships a Pitri Bandhu, he took precedence over other Bandhus on the ground of superior religious efficacy.
17. Following the principles enunciated by their Lordships it seems to me clear that we must look to a large expansion of the list of heritable Bandhus, but at the same time there does not seem to me to be any doubt as to how the present case should be decided.
18. Now the first point for consideration is, whether the plaintiff and Raghunandan have any heritable right at all. They are undoubtedly cognate Sapindas. For the purpose of marriage Sapinda relationship is prescribed by the Mitakshara to extend to seven degrees when relationship is claimed through the father and five degrees when claimed through the mother. There was some divergence of opinion between text-book writers as to whether these limitations applied, also for the purpose of determining the heritable right and Professor Golap Chandra Sarkar was of opinion that Sapinda relationship for purposes of inheritance extended to seven degrees both on the father’s and the mother’s side. Their Lordships of the Privy Council have, however, now ruled that the limits applicable to marriage also apply to inheritance, Ramchandra Martanda Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A. L. J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.).
19. Professor Golap Chandra Sarkar also doubted the correctness of the dictnm of their Lordships of the Calcutta High Court in Umaid Bahadur v. Udoi Chand 6 C. 119 : 6 C.L.R. 500 : 5 Ind. Jur. 585 : 3 Shome L.R. 146 : 3 Ind. Dec. (N.S.) 78 to the effect that in order to establish the heritable right Sapinda relationship must be mutual. On this point also their Lordships of the Privy Council in the above-mentioned case have pronounced in favour of the view of their Lordships of the Calcutta High Court.
20. Their Lordships of the Privy Council have not, however, yet pronounced any opinion on the point whether Sapinda relationship through cognates can be claimed through an ancestor more remote than the father’s or mother’s grandfather. Professor Raj Kumar Sarbadhikari in his Tagore Law Lectures answers this question in the negative, basing his conclusion on the following passage of the Mitakshara where Vijnaneswara quoting the text of Vridha Satatappa observes as follows. I give the translation made by West and Buhler, which is now accepted as more correct than that made by Colebrooke and which differs from the latter on the point whether the term Sapinda means connected by particles of the same body or connected by funeral oblations. The passage runs thus:
On failure of agnates, the cognates are heirs. The cognates are of three kinds, related to the person himself, to his father, or to his mother, as is declared by the following text. ‘The sons of his own father’s sister, the sons of his own mother’s sister and the sons of his own maternal uncle must be considered as his own cognate kindred. The sons of his father’s paternal aunt, the sons of his mother’s maternal aunt, and the sons of his father’s paternal uncle must be deemed as his father’s cognate kindred. The sons of his mother’s, paternal aunt, the sons of his mother’s maternal aunt and the sons of his maternal uncle must be reckoned as his mother’s cognate kindred.’ Here by reason of near affinity the cognate kindreds of the deceased himself are his successors in the first instance. On failure of them his father’s cognate kind red, or if there be none, his mother’s cognate kindred. This must be the order of succession here intended. Mitakshara (II Section 6.)
21. This indeed is the only other text besides the text of Yajnavalkya regarding the goods of a trader dying abroad in the whole of Hindu Law as at present known to us which is of any assistance in determining the limits of the heritable right of Bandhus. From this text Professor ” Sarbadhikari derives the following rules:
I. A Bandhu is a cognate Sapinda within four degrees counting, (1) from the deceased himself, in ascent or descent: (2) from any one of the four immediate ancestors of the deceased.
II. The right of inheritance accrues to a Bandhu if the late owner and the person claiming the heritable right were related as Sapindas to each other, either directly through themselves or through their mothers or fathers.
In other words, a heritable Bandhu is a cognate Sapinda within four degrees counting from–
1. The deceased in ascent or descent.
2. Deceased’s paternal ancestor within four degrees.
3. Deceased’s maternal ancestor within four degrees.
4. Deceased’s father’s maternal ancestor within four degrees.
5. Deceased’s mother’s maternal ancestor within four degrees.
N.B.–The word ‘five’ is to be substituted for ‘four’ in the case of father’s Bandhus. If the deceased or his ancestor be related through father’s mother, then five degrees instead of four should be counted in both directions. Thus grandson’s daughter’s grandson is related to the deceased (or his paternal ancestor) through father’s mother.
Rule of exclusion:
1. The cognate descendant of each of these classes is excluded from inheritance when (i) the deceased or (ii) the deceased’s ancestor does not belong to–
(a) His maternal grandfather’s line.
(b) His father’s ditto.
(c) His mother’s ditto.
2. The cognate ascendant of the deceased is excluded from inheritance when he does not belong to:
(a) The deceased’s maternal grandfather’s line.
(b) The deceased’s father’s ditto,
(c) The deceased’s mother’s ditto.
22. The learned Professor proceeding upon these rules classifies Atma Bandhus into Atma Bandhus ex parte paterna, namely, the sons of the daughters of the family, sons of the daughters’ sons of the family, sons of the daughters’ daughters of the family; next into Atma Bandhus ex parte materna beginning from mother’s father; next into Atma Bandhus ex parte paterna to whom the deceased was Atma Bandhu ex parte paterna; next into Atma Bandhus ex parte materna to whom the deceased was Atma Bandhu ex parte materna; next into Atma Bandhus ex parte paterna to whom the deceased was Pitri Bandhu; and finally into Atma Bandhus ex parte materna to whom the deceased was Matri Bandhu. He adopts the same method for Pitri Bandhus and Matri Bandhus.
23. Now it is to be observed that the learned Professor’s two rules of exclusion are inconsistent with the text which includes within the circle of Bandhu heirs all who claiming through the mother are within five degrees of the common ancestor. Mr. Mayne in his work on Hindu Law would seem to partially accept Professor Sarbadhikari’s view, for he does not seem to give the heritable right to the heirs of the maternal grandfather’s grandfather though he gives him the 27th place in his chart. In the case of Ramchandra Martand Waiker v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A.L.J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.) to which I have referred above, Mr. Lowndes in his address to their Lordships of the Privy Council noticed this inconsistency between the text on marriage and the rule adopted by Professor Saibadhikari, but it became unnecessary for their Lordships to decide the point. Following Professor Sarbadhikari, Professor Jogendra Nath Bhattacharya and Professor Trevelyan would seem to base their conclusion on that part of Vridha Satatappa’s text which appears to limit Pitri and Matri Bandhavas to those descended from the mother’s or father’s grandfather. This conclusion might perhaps be justified if, as was thought by Mitter, J., in Omrit Kumaree’s case 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592, the term Bandhavas in Satatappa’s text were synonymous with Bandhava, the plural of Bandhu; but Professor Jogendra Nath Bhattacharya has clearly demonstrated that this is not the case and that Bandhavas is not the plural of Bandhu and signifies what is known among Hindus as cognate brother or first cousin. Speaking with the greatest respect I think this is the correct rendering of the term and that Professor Sarbadhikari’s rules of exclusion are not warranted by the text. I think also that I am supported in this view by Professors Golap Chandra Sarkar and Jogendra Nath Ghose, whose works on Hindu Law have often been referred to by their Lordships of the Privy Council.
24. In my opinion Satatappa in enumerating the nine Alma, Pitri and Matri Bandhavas did not intend to limit heritable right – to the descendants of the mother’s and father’s grandfather within five degrees. Nor is there anything to show that Vijnaneswara was of a different view to that which I have ventured to take.
25. If this is the correct interpretation of Satatappa’s text, then it follows that the classification given in the text into Atma, Pitri and Matri Bandhus applies only to the nine Bandhavas specially enumerated therein. All other Bandhus are subject to one and only one limitation, namely, that given in the text on marriage.
26. In support of the view I take, it is to be noticed that neither Professor Sarbadhikari, nor Professor Bhattacharya, nor Mr. Mayne are agreed as to the classes within which certain heirs should be grouped. Indeed it has been said that Professor Sarbadhikari has been guilty of reading into the text words which do not occur therein, so as to give the status of Atma Bandhus to persons who would otherwise be classed as Pitri Bandhus.
27. Similarly is it to be noticed that their Lordships of the Calcutta High Court in Omrit Koomaree’s case 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592 have classed a sister’s son as a Pitri Bandhu, though the learned Vakil for the plaintiff before us relying on Professor Sarbadhikari’s view strenuously contends that he is an Atma Bandhu.
28. In this state of doubt and uncertainty it would, in my opinion, be unsafe to insist on the classification within the group of Atma, Pitri and Matri Bandhu of heirs other than the nine specifically enumerated in the text. In my opinion the son of one of these nine is not entitled to claim member-ship in the class to which his father belongs and I think the doubt thrown out by Chamier, C.J., in Adit Narayan Singh v. Mahabir Prosad Tewari 35 Ind. Cas. 687 : 1 P.L.J. 324 : (1917) Pat 12 : 2 P.L.W. 317, which is binding on this Court till overruled, was well grounded. In that case the learned Judges gave effect to their doubt by preferring one who would be a Matri Bandhu according to Professor Sarbadhikari’s classification to ope who would be a Pitri Bandhu, because he was nearer in degree counting from the common ancestors in their respective lines, and also on the ground of religions merit. It follows from the above view that when there is a contest between Bandhus other than the nine Bandhavas or between one of the former and one of the latter, the principle of numerical propinquity alone will determine the heritable right, supplemented in case of doubt by the rule of religious benefit and such other rules derived from the succession of agnates as may be appropriate.
29. Let us next consider what is the position of the claimants in the case now before us.
30. Both parties seem to be agreed that the plaintiff and Raghunandan are Attna Bandhus. If Atma Bandhu is the same thing as Atma Bandhava and if Bandhava has not the special meaning of cousin brother or first cousin, then if a maternal grandfather’s son’s son is an Atma Bandhu in the sense of one specially near to the propositus, it would be reasonable to class the grandfather’s son also as an Atma Bandhu. But is the sister’s daughter’s son also an Atma Bandhu? I think not, although he has been classed as such by Professor Sarbadhikari. Their Lordships of the Calcutta High Court observed in Omrit Koomaree’s case that the sister’s son was both an Atma and Pitri Bandhu, but they seem to have classed him as a Pitri Bandhu on the ground that he was nearer in degree to the father of the propositus than to the propositus.
31. But as I have already observed, the Mitakshara does not warrant the inference that all Bandhus must be classified into the three classes assigned to the nine enumerated Bandhavas and I respectfully venture to differ from those decisions of the Madras Court which hold that every descendant of an Atma Bandhu within the requisite limits is entitled to claim the status of his ancestor.
32. The difficulty in following out this classification logically in the case of the descendants of the daughters of the family compelled Professor Sarbadhikari to alter the text to an extent which has been pronounced unwarrantable by other textbook writers. I think, therefore, that Bandhus other than the nine Bandavas named in the text cannot appropriately be placed in the three groups reserved for the latter.
33. Assuming, however, that the three classes are exhaustive on the point of classification and that there can be no heritable right without membership within one of these three classes, then I think Raghunandan being an Atma Bandhu and the plaintiff Pitri Bandhu, the former is entitled to preference.
34. Let us assume next that both are Atma Bandhus as has been held by Professor Sarbadhikari.
35. If the principle of nearness by particles of the body is applied, how is the calculation to be made? We have no means of ascertaining how much the plaintiff has in common’ physiologically with the deceased as compared with the maternal uncle. We can only estimate through the common ancestor through whom they respectively claim and if that test is applied, then obviously the maternal uncle and the deceased have greater community of blood than the plaintiff and the deceased.
36. Let us take next the mode of counting sanctioned by the Hindu Law. The Indian Succession Act, following the principle of the civil law, prescribes that counting is to be made from the propositus upwards to a common ancestor, each ancestor representing one degree, and then downwards till the claimant is reached. The Mistakshara prescribes that counting is to be made from the common ancestor, from whom the branch divides beginning with such common ancestor as the first degree. Adopting this mode of counting Raghunandan is two degrees removed while the plaintiff is four degrees removed. In the absence of any detailed order of succession for cognate Sapindas, I think Raghunandan is entitled to priority.
37. But then it is said that the rule of the Mitakshara is that the nearer line excludes the more remote and, therefore, the line of the father of which the plaintiff is a member must be exhausted before the line of the maternal grandfather can come in. Now this rule is not based upon any text. It is derived from the order of succession as given in the Mitakshara relating to certain named agnates, but even in that connection the rule is not of general and universal application. In the earlier decisions in Upper India the limit was placed on the authority of Colebrooke at the seventh lineal descendant, according to later decisions, in Madras [it was fixed at the second degree, while their Lordships of the Privy Council have now definitely held that the limit of collateral descent is three degrees in each line. Thus the grandson’s grandson, though a lineal and nearer descendant, is excluded by descendants within three degrees in the lines of the father and the grandfather. The Mitakshara in this respect is not singular, for we find that in other systems too the law has recognised the propriety of preferring some collaterals to lineal descendants of the fourth and the fifth degree. If, therefore, the rule is limited in application with regard to agnates, I see no reason why it should be applied without restraint and restriction in the case of cognates. Upon the admitted mode of counting, a maternal uncle is nearer in degree than a father’s daughter’s daughter’s son and I cannot find any equity in defeating his rights by a resort to analogy and by the arbitrary extension of a rule applicable to another class.
38. I am unable, therefore, to exclude Raghunandan on the ground that he claims descent through a more distant line than the plaintiff. If the principle is to apply at all, it must apply to oases where the respective candidates are numerically of the same degree. In such an event this test as well as other tests may be taken into account for the purpose of determining the preferential right.
39. Next it is said that the Mitakshara favours the male against the female heir, and, therefore, the plaintiff, who is connected through the father, is preferable to Raghunandan who is connected through the mother. Here again the rule is derived not from an express text in the Mitakshara but from the order of succession given by the sages as regards agnates. But even among the latter the preference for males is not rigorously enforced and female relatives, such as a mother, daughter, and sister and a male relative descended through a female, namely, the daughter’s son, have been accorded high places within the circle of agnatic heirs, the last named being even preferred to one nearer in degree on the male side, namely, the father’s son. Here again the question arises whether the preference for males shown by the Hindu Law in the case of agnates generally, and in particular in Satatappa’s text as regards Bandhavas, is to be applied regardless of numerical nearness in degree. It may be noticed that Satatappa and Vijnaneswara seem to limit the preference to cases where the degree of relationship is equal, as for instance when they give precedence to Pitri Bandhavas over Matri Bandhavas. Even in Madras where their Lordships of the High Court have applied the rules of agnatic succession to the case of Bandhus more freely than other Courts in favour of claimants who would be otherwise excluded,’ the decisions have not been uniform and we find that inspite of the superiority ascribed by analogy to males a mother’s sister’s son has been preferred to a mother’s brother’s son.
40. I think, therefore, that the correct rule in regard to these analogies has been laid down by Professor Golap Chandra Sarkar as follows:
(1) The nearer in degree on either side ‘ must be preferred to one more remote.
(2) Of those equal in degree the one related on the father’s side is to be preferred to the one related on the mother’s side.
(3) When the side is the same, the circumstance of one being related through a male and another through a female makes no difference.
41. Applying these rules I do not consider that the fact of plaintiff’s being connected through a nearer branch or through a male’ can operate in his favour.
42. On the other hand if the latter fact operates in this case at all, then the circumstance that he claims through two females must also be taken into account as a counterpoise. At the same time it must in fairness be remembered in this connection that although their Lordships of the Madras High Court in Appandai Vathiyar v. Ragubali Mudaliar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203 preferred the mother’s sister’s son to the mother’s brother’s son, their Lordships of the Allahabad High Court in Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538 were of a contrary opinion, holding that the mother’s sister’s son being removed by two females the principle of preference in favour of males rendered the mother’s brother’s son nearer in affinity.
43. Being, however, clearly of opinion that Raghunandan is nearer in affinity than the plaintiff from every point of view, I do not think the interposition of two females affects the present case.
44. For the same reason the question of spiritual benefit also does not arise. In this respect the position, as I have already said, appears to be this, that while the Dayabhaga recognizes the principle of affinity as well as the principle of spiritual benefit for the purpose of creating the heritable right and admits into the circle of heirs persons by reason of their capacity to confer spiritual benefit alone, the Mitakshara makes affinity the sole test of the heritable right, leaving the preferential right to be regulated by the doctrine of spiritual benefit. This position has been repeatedly affirmed by their Lordships of the Privy Council in a long line of decisions beginning from Gridhari Lall Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28 and ending with Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.), and it could not have been more emphatically recognised by their Lordships of the Calcutta High Court than it was in Gunesh Chunder Roy v. Nil Kamul Roy 22 W.R. 264, where a father’s daughter’s son was preferred to a mother’s sister’s son on the ground of spiritual benefit. Applying this principle to the case under consideration, it is immaterial whether the plaintiff and Raghunandan are both ordinary Bandhus or both Atma Bandhus; in either event Raghunandan is clearly entitled to preference because he can offer spiritual benefit upon the maternal grandfather of the propositus, while the plaintiff can confer no spiritual benefit upon the propositus of any kind whatsoever.
45. In the various Courts in India the strongest resistance to the application of the doctrine of spiritual benefit has perhaps come from their Lordships of the Madras High Court and particular reliance’ has been placed by the plaintiff’ on Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243, where a maternal uncle was defeated by a sister’s son’s son on the ground that the nearer line must exclude the more remote, and also on the ground that an Atma Bandhu ex parte paterna excludes an Atma Bandhu ex parte materna. Their Lordships’ declined to consider the principle of religious efficacy at all but with great respect, I venture to say that this view is not in accordance with that of other Judges of the same Court and is certainly in direct conflict with the latest pronouncement of the Privy Council.
46. As an illustration of this divergence of opinion I need only cite the case of Muttusami v. Muttukumarasami 16 M. 23 : 2 M.L.J. 296 : 5 Ind. Dec. (N.S.) 724, where their Lordships of the Madras High Court decided in favour of the maternal uncle of the half blood against the son of the father’s paternal aunt and laid down the rule that as between Bandhus of the same class the spiritual benefit conferred upon the propositus is, as stated in the Viramitrodaya, a ground of preference. That decision was affirmed by their Lordships of the Privy Council in Muthusami Mudaliyar v. Simambedu Muthukumaraswami Mudaliyar 23 I.A. 83 : 19 M. 405 : 6 M.L.J. 113 : 7 Sar P.C.J. 45 : 6 Ind. Dec. (N.S.) 987 and no exception was taken to the above statement of the law. The unsatisfactory condition produced by subsequent conflicting decisions has been somewhat sharply commented upon in a recent judgment by Sadasiva Aiyar, J., in Subramania Mudaliar v. Ranganathan Chettyar 18 Ind. Cas. 506 : 24 M.L.J. 301 : 13 M.L.T. 213 : (1913) M.W.N. 202. His Lordship there, although approving of the claim of the father’s sister’s son as against a maternal uncle on the ground that the former is an Atma Bandhu ex parte paterna, characterizes Satatappa’s text as illogical, incomplete and inconsistent, but feels himself bound to accept the law as settled by the Courts even though based on less authoritative treatises than the ancient authoritative Shastras, He points out that a mother’s sister’s son need not necessarily be always a Bhinna Gotra Sapinda, as sometimes the mother of the propositus and her sister might marry husbands of the same Gotra. He is nevertheless of opinion that the rule as to religions benefit laid down in Muttusami v. Muttukumarasami 16 M. 23 : 2 M.L.J. 296 : 5 Ind. Dec. (N.S.) 724 is not supported by the law and custom within the Presidency of Madras, where the question of spiritual benefit or of death pollution or of the right of performance of obsequial ceremonies does not operate in determining the preferential right. He considers that Mr. Mayne’s classification is inaccurate and misleading as he gives the maternal uncle the 9th place and the maternal grandfather the 17th place, and does not carry the class of Bandhus to the fifth degree. He agrees with the decision of Aikman, J., sitting as a single Judge in Ram Bharos v. Ram Parshad 3 A.L.J. 461 : A.W.N. (1906) 197, where preference is given to a father’s brother’s daughter’s daughter’s son as against a mother’s brother’s son on the ground that the former is an Atma Bandhu ex parte paterna, but he feels that this position is really contrary to the Hindu Shastras and that legislation should intervene to alter the current of judicial decisions. The learned Judge’s findings are admittedly -limited to the Madras Presidency where the Smriti Chandrika and other later commentaries have acquired special predominance, but his observations are of general application in so far as they indicate the possibility of a different mode of interpretation of the texts.
47. So far as concerns the Province to which the parties before us belong and the territories which are now subject to the authority of the High Court at Patna, I am quite satisfied that the test of religious and spiritual benefit can and should be applied to determine the preferential right, that is to say, where the principle of affinity by blood relationship does not clearly indicate with which claimant the preference lies.
48. The result is that I would answer the reference in favour of the defendant.
49. This result is in conflict with the lists prepared by Professors Sarbadhikari and Bhattacharya, while Mr. Mayne, who gives precedence to the sister’s son as against the maternal uncle, does not consider at all the claim of a sister’s daughter’s son.
50. On the other hand Professors Golap Chandra Sarkar and Jogendra Nath Ghose would seem to support the claim of the maternal uncle on the rule of nearness laid down by them.
51. In my opinion as the texts do not expressly declare the order of priority between the rival claimants we are entitled to apply the principles, of affinity and spiritual benefit, both of which have been pronounced by sages and commentators to be of universal application and here operate to establish Raghunandan’s claim. Other principles, inferred from the order of succession for agnates who have been specially mentioned by name in the texts, cannot be invoked in this case as the claimants are not numerically of the same degree of nearness.
Jwala Prasad, J.
52. The question for determination is whether Uma Shanker or Raghunandan is the preferential heir of one Chaman Lal Upadhaya. Uma Shanker is the sister’s daughter’s son of Chaman Lal. Raghunandan is the mother’s brother, or maternal unole of Chaman Lal. The competition, therefore, is between a maternal uncle and a sister’s daughter’s son. The former bases his claim for preference over the latter on the following grounds:
(1). That he is nearer in degree to the propositus than the sister’s daughter’s “son inasmuch as he is 4 degrees removed from the propositus and 2 degrees from the common ancestor of the propositus (the maternal grandfather) and himself, whereas the sister’s daughter’s son is 5 degrees removed from the propositus and 4 degrees from the common ancestor of the propositus (the father) and himself.
(2). That the maternal uncle offers Pindas or funeral oblations to two ancestors of the propositus, namely, the maternal grandfather and the great-grandfather, to whom also the propositus offers Pindas, whereas the sister’s daughter’s son offers no Pinda to any of the ancestors of the propositus, and thus the maternal uncle confers spiritual benefit to the propositus, whereas the sister’s daughter’s son confers none.
(3). That the maternal uncle is related to the propositus through one female only, namely, the propositus’s mother, whereas the sister’s daughter’s son is related to him through two females, namely, the sister and the daughter.
(4). That the texts of the Mitakshara and Viramitrodaya give to the maternal uncle a high position among heirs. Reference has been made to the Mitakshara, Chapter II, Section 6, clause 1, where the maternal uncle’s son is enumerated as an’ Atma Bandhu, to another part of the Mitakshara (page 322, 3rd Edition, 1829) where be has been expressly mentioned as a principal heir of a trader dying abroad, to Acharkanda, Chapter I, verse 52, where the maternal uncle has been mentioned as a prominent Sapinda, and to Viramitrodaya, Chapter III, part VII, section V, where the maternal uncle has been mentioned as an heir superior to the three classes of Bandhus. Sister’s daughter’s son or any of his ancestors, sister or sister’s daughter, is not mentioned anywhere.
53. The above facts are not disputed, but it is contended that the sister’s daughter’s son should be preferred to the maternal uncle on the following grounds:
(1). That he is related to the propositus through his father, whereas the maternal uncle is related to the propositus through his mother; and
(2). That he traces his descent, through a nearer ancestor of the propositus, namely, his father, whereas the maternal uncle traces his descent through a remoter ancestor, namely, the maternal grandfather of the propositus.
54. The parties are governed by the Benares school of the Hindu Law. The remoter sources of the Hindu Law are the Institutes of Manu and of Yajnavalkya and other Bishis, who gave different Smritis. These ancient texts are common to all the schools. The authority of a commentator was received in one and rejected in another part of India. Hence schools with conflicting doctrines arose. The Mitakshara, which is a commentary on the Institutes of Yajnavalkya by Vignaneswara Bhutta, is universally accepted by all the schools except that of Bengal where also it is received as of high authority, yielding only to Dayabhaga in those parts where they differ. In like manner there are glosses and commentaries upon the Mitakshara-which are received by some of the schools that acknowledge the supreme authority of that treatise but are not received by all [Collector of Madura v. Moottoo Ramalinga Sathupathy 1 B.L.R.P.C. 1 : 12 M.I.A. 397 at pp. 435, 438 : 10 W.R.P.C. 17 : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389,3 Mad. Jur. 298 : 1 Ind. Dec (N.S.) 1].
55. Smriti Chandrika by Deonand Bhutta and Subodhani by Visheshwar Bhutta are generally followed in Southern India (Madras Presidency) and Vivahar Mayukha by Nil Kantha Bhutta in Western India (Bombay Presidency). They differ in essential rules of law from those followed in the Benares school [Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.)].
56. In the Benares school, which is said by their Lordships in Bhyah Ram Singh v. Bhyah Ugur Singh 13 M.I.A. 373 at pp. 380, 390 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 E.R. 591 (P.C) to be the most orthodox of the different schools, Viramitrodaya by Mitter Misser is followed con-currently with the Mitakshara [Omrit Koomaree Dabee v. Luckhee Narain Chuckerbutty 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592]. Their Lordships of the Judicial Committee as well as all the Courts, in India from the earliest times up to the present moment have recognized Viramitrodaya as an authoritative commentary on the Mitakshara and as governing the Benares school [vide Collector of Madura v. Moottoo Ramalinga Sathupathy 1 B.L.R.P.C. 1 : 12 M.I.A. 397 at pp. 435, 438 : 10 W.R.P.C. 17 : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 3 Mad. Jur. 298 : 1 Ind. Dec (N.S.) 1, Gridhari Lall Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28, Bhyah Ram Singh v. Bhyah Ugur Singh 13 M.I.A. 373 at pp. 380, 390 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 E.R. 591 (P.C), Lallubhai Bapubhai v. Oassibai 5 B. 110 : 7 I.A. 212 at pp. 233, 234 : 4 Sar P.C.J. 164 : 3 Suth. P.C.J. 795 : 4 Ind. Jur. 533 : 3 Shome L.R. 245 : 7 C.L.R. 445 : 3 Ind. Dec. (N.S.) 75, Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.), Narasimma v. Mangammal 13 M. 10 : 4 Ind. Dec. (N.S.) 717, Muttusami v. Muttukumarasimi 16 M. 23 : 2 M.L.J. 296 : 5 Ind. Dec. (N.S.) 724, Appandai Vathiyar v. Ragubali Mudaliar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203, Janki v. Nand Ram 11 A. 191 : A.W.N. (1889) 30 : 13 Ind. Jur. 347 : 6 Ind. Dec. (N.S.) 552 (F.B.), Suba Singh v. Sarafraz Kunwar 19 A. 215 : A.W.N. (1897) 53 : 9 Ind. Dec. (N.S.) 142, Buddha Singh v. Laltu Singh 16 Ind. Cas. 529 : 31 A. 663 : 10 A.L.J. 303, Lallubhai v. Manukvarbai 2 B. 388 at p. 421 : 1 Ind Dec. (N.S.) 682 and Mohandas v. Krishnabai 5 B. 597 : 3 Ind. Dec. (N.S.) 393].
57. In Collector of Madura v. Moottoo Ramalinga Sathupathy 1 B.L.R.P.C. 1 : 12 M.I.A. 397 at pp. 435, 438 : 10 W.R.P.C. 17 : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389,3 Mad. Jur. 298 : 1 Ind. Dec (N.S.) 1 their Lordships point out that in administering Hindu Law, the duty is, not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal and has there been sanctioned by usage. This has been emphasised in Bhyah Ram Singh v. Bhyah Ugur Singh 13 M.I.A. 373 at pp. 380, 390 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 E.R. 591 (P.C) and recently in Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A. L. J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.) in the following words: “Questions arising under the Hindu Law cannot be determined by abstract reasoning or analogies borrowed from other systems of law, but must depend for their decision on the rules and doctrines enunciated by its own lawgivers, and recognised expounders.”
58. The question whether a maternal uncle or a sister’s daughter’s son will have a preferential right to succeed to the properties of the propositus will, therefore, be determined by the rules laid down in the Mitakshara by Vijnaneswara and in Viramitrodaya by Mitter Missir.
59. The text of Manu upon which all the rules of inheritance in the Hindu Law are founded consists of two Slokas 186 and 187, Chapter IX–* * * * *
Translation : 186. “Let a man do the water rite and offer oblations to his three ancestors (i. e., father, grandfather and great-grandfather); no Sapinda relationship ‘ exists between the offerer of such Oblations and his fifth ancestor (i. e., great-great grandfather).
187. Of the Sapinda relations one nearest to the deceased shall inherit the property (in exclusion of one more remote); in the absence of one’s Sapindas one’s Sakulyas shall inherit his property, and in the absence of a Sakulya his preceptor, and in the absence of a preceptor his disciple (shall inherit his property).
60. It is clear from the above that Manu, whose antiquity is not unknown, prescribed oblations to the three ancestors and held that no Sapinda relationship exists between the offerer and the fifth ancestor–great-greatgrandfather, the offerer being the 4th. Manu does not mention of any oblation to the maternal ancestors and does not expressly mention Bandhus among the heirs. As held by their Lordships in Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A. L. J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.), Yajnyavalkya, who lived in the 2nd century of the Christian era, was the first to’ introduce Bandhus or distant kinsmen related to the deceased through females, as heirs and he was also the first to mention the offering of a cake to maternal ancestors–* ‘ * * [Translation:.–Thus (he should give rice balls) even to the manes on the maternal side (Chapter I, Section 10, Sloka 242, Yajnyavalka, Acharkanda), (Mandalik, page 190.)]. Consequently it became necessary to allow those who could offer Pindas to inherit and ” this let the Bandhus in. The cake offered to maternal ancestors was offered to 3 ascendants of the mother and no lapa was offered to higher ascendants and no water offerings. So the right of inheritance was confined to 5 degrees, counting the offerer, which is the exact-limit allowed to persons claiming relations through mother.
61. By the time that Vijnaneswara flourished in the 11th or the 12th century, the right of inheritance came to depend upon blood connections -and not upon, the right to offer funeral oblations. But there can be no doubt that the latter had still great influence upon the right of inheritance and the two were still regarded as going together.
62. In verse 135, Yajnyavalkya has enumerated the heirs of a sonless man and in verse 136 has said that on failure of the first among those enumerated, the next in order is the heir of the deceased and that this rule extends to all parsons and classes. Bandhus have been mentioned to succeed after the Gotrajas or gentiles.
63. The Mitakshara, commenting upon the aforesaid verses, has defined Gotrajas to mean Sapindas and Samanodakas and has given the rules and the, order of their succession in Chapter II, Section 5. In clause 3, Section 5, it says that by the word ‘Bandhu,’ must be understood a Sapinda relation belonging to a different Gotra or ‘family–(connected with the propositus through females) * * * *
64. In Mitakshara, Section 6, Chapter II, the following rules, have been laid down regarding the succession of Bandhus:
Clause 1.–“On failure of Gotrajas or gentiles the Bandhug are heirs. The Bandbas are of three kinds–the Bandhus of the man himself, the Bandhus of the father and the Bhandhus of the mother, as is declared by the following text: The sons of his own father’s sister, the sons of his own mother’s sister, and the son’s of his own maternal uncle must be considered as his own Bandhus.
The sons of his father’s paternal aunt, the sons of his father’s maternal aunt and the sons of his father’s maternal uncle must be deemed to be his father’s Bandhus. The sons of his mother’s paternal aunt, the sons of his mother’s maternal aunt and the sons of his mother’s maternal uncle must be regarded as his mother’s ‘cognates kindred.
Clause 2.–“Here by reason of nearness the cognate kindred of the deceased himself are his successors in the first instance; on failure of them his father’s cognate kindred, or if there be none, his mother’s cognate kindred. This must be understood to be the order of succession here indicated.
65. Viramitrodaya, Chapter III, part VII, Section 5, quoting the above passages from the Mitakshara, adds the following:
In the text of Manu, namely,–In their default, a Sakulya, or the preceptor, or a pupil (becomes heir),’–the term Sakulya includes the Sagotras (Sapindas) and Samanodakas, the maternal uncle and the like, and the three classes of cognates. Also in the text of Yogiswara the term cognate’ or Bandhu comprises also the maternal uncle. Otherwise the exclusion of the maternal uncle and the like would be the result. And it would be extremely improper that their sons are heirs, but they themselves though nearer are not heirs” [quoted in Gridhari Lall Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28, Omrit Koomarie Dabee v. Luchhee Narain Chuckerbutty 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592].
66. Viramitrodaya, therefore, recognised that the above quoted text of the Mitakshara is not an exhaustive enumeration of all the Bandhus who are capable of inheriting,” but is only in illustration of the proposition that there are three kinds of Bandhus, as is held by their Lordships of the Privy Council in Gridhari Lall Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28. This is now a settled proposition of Hindu Law.
67. In addition to the 9 persons mentioned in the Mitakshara, many other persons have been let in as heritable Bandhus and their place in the order of succession has to be determined.
68. According to the definition of Bandhu as Bhinna Gotra Sapinda given in the Mitakshara, it is obvious that a heritable Bandhu must be a Sapinda of the propositus, and according to the text of Manu (Chapter IX, Section 187)–“The property of a near Sapinda shall be that of a near Sapinda,” the Sapinda relationship must be mutual. Among agnates the Sapinda relationship is always mutual but amongst cognates it is not in a few cases. In order, therefore, to determine whether any persons are heritable Bandhus, it is necessary to see “whether they are Sapindas to each other–Ramchandra Martand Waikar v. Venayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A.L.J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.).
69. Chapter II, Section 6, clause 2, no doubt clearly lays down the order of priority among Bandhus’ of each of the three classes. But no special rule has been laid down by,, the Mitakshara, or Sanskrit text writers’ and commentators as to the order in which the heritable Band-hus of each class should take preference amongst themselves, as pointed out in Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538 and Gridhari Lall Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28.
70. According to the Mitakshara the rule given for the preference of Atma Bandhus to those of Pitri Bandhus and so on is said to be “by reason of nearness;” (Chapter If, verse 6, clause 2). The Sanskrit words used are literally meaning “by reason of nearness or proximity” (vide Monier William’s Sanskrit English Dictionary). The reason “of nearness” assigned by the Mitakshara for the preference of one class of Bandhus to the other class is in accordance with the text of Manu itself “to the nearest Sapinda the inheritance belongs.” This,’ therefore, is the only rule prescribed by Manu, and the Mitakshara for determining the claims of rival Bandhus–the nearest of the Bhinna Gotra Sapindas or Bandhus will exclude the others.
71. The question then is now to determine the nearness or proximity among the Bhinna Gotra Sapindas of a propositus.
72. Manu in Chapter III,’ verse 5, recommends for marriage a girl not related to one’s mother by the tie of Sapinda relationship nor to one’s father as Sagotra and has limited the Sapinda relationship to seven degrees on the paternal side, Chapter V, Sloka 60. Yajnavalkya in Chapter I, verse 52 (Acharkunda), says, “a Sapinda should not be married.” Commenting upon this verse Vijnaneswara in Mitakshara defined a Sapinda relationship and declared that definition to apply to the word ‘Sapinda’ used elsewhere in the Mitakshara, namely, in Chapters on Sradha and Inheritance.
73. Verse 52, Chapter I, runs as follows:
He should marry a girl who is a non-Sapinda (with himself). She is called his Sapinda who has particles of the body (of some ancestor, etc.) in common (with him). Non Sapinda means not his Sapinda. Such a one he should marry. Sapinda relationship arises between two people -through their being connected by particles of one body.
Thus the son stands in Sapinda relationship to his father because ‘of particles of his father’s body having entered (his). In like (manner stands the grandson in Sapinda relationship) to his paternal grandfather and the rest, because through his father particles of his grandfather’s body have entered into (his own). Just so is (the son) a Sapinda relation of his mother, because particles of the mother’s body have entered into (his). Likewise (the grandson stands in Sapinda relationship) to his maternal grandfather and the rest through his mother. So also is (the nephew) a Sapinda relation of his maternal aunts and uncles and the rest; because particles of the same body, the paternal grandfather, have entered into (his) and (theirs). Likewise does he stand in Sapinda relationship with paternal uncles and aunts and the rest, so also the wife and the husband are Sapinda relations to each other, because they beget one body. Likewise brothers’ wives are in Sapinda relationship to each other. They produce one body, the son, with those (severally) who have sprung from one body (that is, because they bring forth sons by their union with the offspring of one person and thus their husbands father is the common, bond which connects them). Therefore, one ought to know that whenever the word Sapinda it used there exists (between the persons to whom it is applied) a connection with one body either immediately or by descent” The Sapinda relationship is limited in verse 53 as follows : ‘After the fifth ancestor on the mother’s side,” and “after the seventh on the father’s side”–“on the mother’s side in the mother’s line after the fifth, on the father’s side in the father’s line after the 7th (ancestor) the Sapinda relationship ceases; these latter two words must be understood, and, therefore, the word Sapinda, which on account of its etymological import (connected by having in common) particles (of the body) would apply to all men, is restricted in its signification, just as the word Pankaja (which etymologically means growing in the mud, and, therefore, would apply to all’ plants growing in the mud) designates the lotus only, and the like : and thus the 6th defendant beginning with the son and one’s self counted as the 7th in each case are Sapinda relations. In the case of a division of a line also the enumeration should be until the 11th degree commencing from whence the direction of the line changes. This rule should be applied in every case.
74. The above translation is to be found in the Digest of Hindu Law of West and Buhler, page 120, and also in the judgment: of the Bombay High Court in Lallubhai v. Mankuvarbai 2 B. 388 at p. 421 : 1 Ind Dec. (N.S.) 682 and in Lallubhai Bapubhai v. Cassibai 5 B. 110 : 7 I.A. 212 at pp. 233, 234 : 4 Sar P.C.J. 164 : 3 Suth. P.C.J. 795 : 4 Ind. Jur. 533 : 3 Shome L.R. 245 : 7 C.L.R. 445 : 3 Ind. Dec. (N.S.) 75 and recently in the case of Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A. L. J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.). The rest of the verse 53 runs as follows:
It has thus been translated by Pandit Rajkumar Sarvadhikari, pages 604 and 605 (Tagore Law Lectures, 1880): “A girl is said to be related to a given person through his mother if in reckoning upwards from the mother to the common stock (e.g., the maternal grandfather, the great-grandfather and the rest), she is found to stand in the 5th degree of the kindred in the mother’s line. Similarly, a girl is said to be related to a given person in the 7th degree through his father if in reckoning upwards from the father to the common stock (e.g., the paternal grandfather and the rest) she is found to stand in the 7th degree of kindred to the common ancestor in the father’s line.
75. In Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A. L. J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.) their Lordships held that the limitation prescribed in verse 53 regarding Sapindas, connected through females, applies only to Bhinna Gotra Sapindas and that the right of a Bhinna Gotra Sapinda or a Bandhu ceases with the 5th degree from the pro-positus not merely for the purpose of marriage but generally, and, therefore, for the purposes of inheritance also.
76. The limits of Sapinda relationship prescribed by Manu in Chapter V, Sloka 60, and those prescribed by Yajnavalkya and Mitakshara on marriage apply to Sradha, impurity and inheritance (vide Mitakshara, Chapter I, verse 253, Chapter IT, verses 135 to 137, and Chapter III, verse 18),
77. In Soorendronath Roy v. Musammat Heeramcnep 1 B.L.R.P.C. 26 : 3 Mad. Jur. 434 : 2 Suth. P.C.J. 147 : 2 Sar. P.C.J. 372 : 20 E.R. 271 : 12 M.I.A. 81 at p. 96 : 10 W.R.P.C. 35 : 1 Ind. Dec. (N.S.) 17 their Lordships observe: “Still there is in the Hindu Law so close a connection between their religion and their succession to property that the preferable right to perform the Sradha is commonly viewed as governing also the question of the preferable right to succession of property, and as a general rule they would be expected to be found in union.” According to Manu the near Sapinda is enjoined to perform the funeral rights and he is also entitled to inherit the property of the deceased.
78. For the purpose of inheritance and Sradha, the Mitakahara, therefore, in the aforesaid verses 52 and 53, Chapter I, lays down the rule for ascertaining in what degree of kindred a Bandhu or Sapinda belonging to a different Gotra stands to the deceased both in the direct line as well, as when the line or lineage diverges. This rule of counting the number of degrees that a person is removed from the propositus is for the purpose of determining his nearness or propinquity with the propositus, and is, therefore, also the rule for the order of preference among several Bandhus for the purposes of inheritance’ and Sradha. Referring to the aforesaid verses 52 and 53 the learned Judges of the Sadr Dawani Adaulat, Agra, in their judgment quoted in Bhyah Ram Singh v. Bhyah Ugur Singh 13 M.I.A. 373 at pp. 380, 390 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 E.R. 591 (P.C.), bold: ‘ We have thus furnished to us a rule for computing the order of succession in, regard not only to Sapindas but to Samanodakas.” That was a case of Gotrajas, but the above remarks would apply to the case of Bandhus as well.
79. It must, therefore, be held the Mitakshara in the said verse has laid down the rule that the nearest in the degree ascertained by the mode of calculation indicated there exclude those more remote. The mode of calculating in what degree a person stands to the pro-positus has been clearly laid down in the said verse both when the line is direct as well as when the lineage diverges. For the latter it is said: .”Should the line diverge the enumeration should be made until the 5th degree commencing from whence the line varies. This should be applied in every case,” that is, among collateral Bandhus the degrees of propinquity are counted from the ancestor from whence the line diverges (vide Mayne’s Hindu Law, 8th Edition, page 712 and illustration, and Ramchandra Martand Waikar v. Vinayak Venkatesh Kothehar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A. L. J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.), where the collateral Bandhus, per genealogy given therein, beyond 5 degrees from the propositus were held not to be heritable). According to Sarvadhikari’s Tagore Law Lectures, 1880, pages 633, 635, the degree in which a Bandhu-stands to the deceased is ascertained by counting from the deceased himself to the Bandhu in question allowing a degree for each person, and among collaterals the counting commences from the common ancestor from whence the line diverges. At page 728, the same author says: “Within a well-defined range the degrees of Sapinda relationship are allowed to be heritable and the distance from the common ancestor is the test of propinquity.”
80. This is also the method of determining nearness or propinquity adopted in the Indian Succession Act, Part III, Section 22, where it is laid down that–“for the purpose of ascertaining in what degree any collateral relative stands to a parson deceased, it is proper to reckon upwards from the person deceased to the common stock and then downwards to the collateral relative allowing a degree for each person both ascending and descending.”
81. The table annexed to that section illustrates the method of determining the nearness of degree. The nearest in degree of kindred to the propositus thus ascertained excludes remoter degrees : (vide Section 44).
82. Adopting the method of computation laid down in the Mitakshara, the sister’s daughter’s son is 5 degrees removed from the propositus, whereas the maternal uncle is only 4 degrees removed from the pro-positus. Again the former is 4th in descent from the common ancestor of him self and the propositus, whereas the letter is only 2nd in descent from the common ancestor of himself and the propositus. According to the English method of counting (vide Table to the Succession Act, Section 22, mutatis mutandis} the former is 4 degrees removed and the latter 3 degrees removed from the propositus. Thus if the nearness or propinquity of Sapinda relationship depended upon the number of degrees removed either from the propositus or the common ancestor, there can hardly be any doubt that the maternal uncle is nearer than the sister’s daughter’s son, whatever mode of counting be adopted. In Sradha also where preference is given to the Sapindas on the ground of nearness, the method of determining the nearness is by counting the number of degrees removed from the common ancestor of the propositus. There is no reason, therefore, why this should not be the mode for determining the nearness or propinquity for the purpose of succession, particularly where there is no other rule mentioned expressly in the text or in the commentaries.
83. Brahaspati–‘Where there are many jnati, Sakulyas and Bandhavas, ‘ among them whoever is the nearest he shall take the property of the childless” [quoted in Lallubhai v. Mankuvarbai 2 B. 388 at p. 421 : 1 Ind Dec. (N.S.) 682 and also in Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538]. This is strictly in accordance with the text of Manu “to the nearest Sapinda the inheritance shall belong,” and the Mitakshara, verses 52 and 53, Chapter I, as well as the Chapter on Bandhu where the only test is that of nearness. This again is the test applied in the Indian Succession Act.
84. Sarvadhikari has clearly laid down at page 728 that among the heritable Bandhus “the distance from the common ancestor is the test of propinquity:” and at page 711 that the “nearer excludes the more remote.”
85. So does Golap Chandra Sastri in his Hindu Law, 4th Edition, at page 294 lay down–‘the nearer in degree on which-ever side is to be preferred to one more remote”, as the foremast principle for determining the rival claims of Bandhus. Both of them have laid down other rules for selection among those equal in degree.
86. It is thus clear, that the first and the foremost rule of preference among several claimants is that the nearest in degree, ascertained by the simple method of counting given in the Mitakshara, exclude those more remote and when the degree is equal only then other considerations might be resorted to for the purpose of preference among the other rival claimants. In the present case the maternal uncle and the sister’s daughter’s son are not equal in degree. The former is nearer in degree than the latter and must on this ground alone be preferred. There is, there-fore, no occasion for applying any other test to the present case and it would have been unnecessary to discuss the other tests for determining the preferential claims of Bandhus but for the great stress laid on them at the Bar during the hearing of this case.
87. It is said that although a sister’s daughter’s son is remoter in degree than the maternal uncle yet the common particles of the body of the propositus in the former are greater than those in the latter. It is difficult to weigh with exactitude the common particles of body or blood, and an attempt to do that would perhaps be futile. The following illustration, suggested, during the hearing of this case, by one of my learned colleagues in this Full Bench (which I quote here with his kind permission) will, however, show that the maternal uncle and the propositus have more particles of body and blood of their common ancestor (the maternal grandfather and the maternal grandmother, of the propositus) than the sister’s daughter’s son and the propositus have of their common ancestor (the father and the mother’ of the propositus). The propositus’s mother and the maternal uncle had each 16 annas of the common particles of body and blood of the maternal grandfather and the maternal grandmother. The propositus had 8 annas of his mother in common with the maternal uncle. Now the propositus and his sister had 16 annas of the common blood of the father and the mother. The sister’s daughter inherited 8 annas and the sister’s daughter’s son only 4 annas of that common blood. The sister’s son or the sister’s daughter maybe said to have equal quantity of common blood or particles of body of the father and the mother as the maternal uncle and the propositus had of the maternal grandfather and the maternal grandmother, but in a descendant further removed, namely, the sister’s daughter’s son the common particles of body and blood became less. Thus the descendant of a remoter ancestor as the maternal uncle will have more common particles of body and blood than one descended from a nearer ancestor but several generations down. The uncertainty of this test is obvious and cannot be the basis of a general rule.
88. It is then contended that the sister’s daughter’s son, being descended from the father or mother, should be preferred to the maternal uncle who traces his descent from a more remote ancestor, namely, the maternal grandfather in other words, the line of the father must be exhausted before that of the grandfather is resorted’ to. This contention is supported by the view expressed in Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243, where a sister’s son’s son was preferred to a maternal uncle’s son [followed in Krishna Ayyangar v. Venkatarama Ayyangar 29 M. 115]. No text or authority was cited in support of the view taken by their Lordships. As an illustration the case of a nephew excluding his uncle was quoted. The analogy does not afford any principle, for the priority of the nephew (brother’s son) over the uncle (paternal grandfather’s son) is by virtue of a special text in the Mitakshara.
89. In Chapter II, placita 135 and 136, Tajnavalkya, the order of succession of (an Aputra) a sonless propositus is as follows: “The wife, the daughter, both parents, brother likewise, and their sons (* *), gentiles: (* *), cognates (* *), a pupil and a fellow-student. On failure of the first among these the next in order, is indeed heir to the estate of one who departed for heaven leaving no male issue.”
90. In accordance with this text of Yajnavaikya, in Chapter II, Section 5, the Mitakshara gives the rules and the order of succession of Gotrajas (Sapindas and Samano-dakas) and in clause 1 declares, that brother’s sons (or * * * * ) succeed before the patnernal grandfather and his sons. In placitum 4, it is expressly laid down “on failure of the father’s descendants (Santan) the heirs are successively the paternal grandmother, the paternal grandfather, the uncles and their sons.”
91. Placitum 5. “On failure of the paternal grandfather’s descendants (Santan) the paternal great grandmother, the great-grandfather, his sons and their sons inherit. In this manner must be understood the succession of kindred belonging to the same Gotra or family till the 7th degree among the Sapindas.”
92. * * ‘Suta’ in verse 136 of Yajnavakya, ‘Santan’ and ‘Putra’ in placita 4 and 5 of the Mitakshara cited above, do not mean only son or descendant in the restricted sense, for in Yajnavalkya the word ‘Putra’ in the verse stands for son, son’s son. and son’s son’s son, as defined by Manu, Vishnu, Harita, Yajnavalkya. Sankha and Lakhita (Mitakshara, Chapter I, Section 11, Sloka 3, Viramitrodaya, Chapter III, Part I, Section 11, page 198),
93. Upon the aforesaid special meaning of the word ‘Putra and Santan,’ the texts, enjoin that the three immediate descendants of an ancestor would succeed before the next ancestor and his 3 descendants can come in. This rule applies only in the case of 3 immediate ancestors of the deceased upon the text of Manu, Chapter IX, verse 187, and is also based upon the theory of religious benefit: “To three ancestors water must be offered, to three funeral cakes must be given, the fourth descendant is the giver of oblations, the fifth has no connection.”
94. The Smriti Chandrika, an authority in Madras, has restricted the meaning of son to include only son’s son and has further laid down that the son and grandson of an ancestor succeed even before the ancestor (vide Smriti Chandrika, Chapter IX, Section 5), This view has been adopted by the Madras Court in Suraya Bhukta v. Lakshminarasamma 5 M. 291: 2 Ind. Dec. (N.S.) 203 and Chinnaswami Pillai v. Kunju Pillai 11 Ind. Cas: 885 : 35 M. 152 : 21 M.L.J. 856 : 10 M.L.T.226. This would show that in Madras, either on the text or on the authority there is no general rule even in the case of Gotraja Sapindas of exhausting all the heirs in the nearer’–line before going up to a higher one. Far less this can be a rule in the case of Bandhus. There is no such rule in the Benares school either.
95. Their Lordships of the Judicial Committee in the case of Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.), affirming the decision of the Allahabad Court, laid down the order of succession among Gotrajas by working it up from the express texts, and not upon the general principle that ‘the nearer line excludes the more remote.’ Indeed if this ware the rule, then the descendants up to the 7th degree of each immediate ancestor would have been exhausted before going up to a higher ancestor and the nephew’s ‘ great-grandson would have excluded the grandfather and the great-grandfather and their three respective immediate descendants.
96. It is noticeable that among Gotrajas the heirs succeed in the order in which they have been named in verses 135 and 136, Yajnavalkya, but the Bandhus do not -succeed in the order in which they have been enumerated in Chapter IT, verse 6, as held in Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538, dissenting from Appandai Vathiyar v. Ragubali Mudaliar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203. Thus the analogy of the principal rule of succession among the Gotrajas is not extended in the Benares school to Bandhus. Why then should the analogy of an uncle succeeding before the nephew apply to the case of Bandhus?
97. As to the contention that, as in the case of Gotrajas so in the case of Bandhus three descendants of nearer line should be exhausted before going to a higher line, or his descendants, it is enough to say that the words and their sons” have not been used against the Bandhus named in Chapter II, Section 6, Sloka 2, as in the case of Gotraja Sapindas. Besides, it would hardly help the sister’s daughter’s son, for Putra means son’s son, and a daughter does not come in.
98. In the recent case of Adit Narayan Singh v. Mahabir Prosai Tewari 35 Ind. Cas. 687 : 1 P.L.J. 324 : (1917) Pat 12 : 2 P.L.W. 317 this Court declined to adopt the rule that a descendant of a nearer ancestor must be preferred to that of a remoter one, and held that a mother’s paternal aunt’s son, who although traced his descent through the mother’s father’s father, was preferable to mother’s sister’s son’s son who traced his descent through–the mother’s father, on the ground that the former was nearer in degree than ‘the latter. Another ground for preference mentioned in that case was that the former offered religious oblations to two ancestors of the deceased whereas the latter offered to none. This principle will be referred to later, but at present the decision of this Court is referred to for the purpose of showing that among Bandhus there is no such rule that the descendant of a nearer ancestor excludes that of a remoter one. Sir Edward Chamier, C.J., observed that if effect be given to this rule, “it may easily happen that an obviously more remote heir will exclude a nearer Sapinda” and will, therefore, override the cardinal principle of Hindu Law that “the inheritance belongs to the next Sapinda.” Sir Edward Chamier was a party to the decision in Kalian Rai v. Ram Chandar 24 A. 128 : A.W.N. (1901) 189, where it was held that the grandson of a brother is preferable to a son of a paternal uncle, and that among the Gotrajas “the father’s line as far as the grandson must be exhausted before the grandfather or his line can come in” and was, therefore, fully alive to the texts regulating-the rule of succession among the Gotrajas; still he would not lay down a general rule that a nearer line excludes the one more remote and would not extend the rule by analogy to apply to the case of Bandhus. His long experience at the Bar and on the Bench in the United Provinces and lately on the Bench of this Court, where the Mitakshara Law of the Benares school prevails, is entitled to great weight, as showing that the Hindu Law, as administered in the United Provinces and here, does not admit of the rule that ‘the nearer line excludes the one more remote.
99. In the Madras cases Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243 and Krishna Ayyangar v. Venkatarama Ayyangar 29 M. 115, relied upon, no text or authority has been quoted. Besides, the rival claimants were equal in degree, and that also makes the ruling inapplicable to the present case, where the one claimant is nearer than the other. Sarvadhikari, at page 712 says, “all other things being equal, the nearer line excludes the one more remote.”
100. It is then contended that the sister’s daughter’s son is a descendant from the father of the propositus, whereas the maternal uncle is connected on the mother’s side of the propositus, and hence the former would exclude the latter on the principle that the heirs ex parte paterna exclude those ex parte materna. In the earlier decisions of the Madras Court the principle does not appear to have been recognised.
101. In Narasimma v. Mangammal 13 M. 10 : 4 Ind. Dec. (N.S.) 717 a maternal uncle was preferred to a father’s sister and thus the above principle relied upon was not followed although in Madras females were heritable Bandhus, vide Nallanna v. Ponnal 14 M. 149 : 1 M.L.J. 46 : 5 Ind. Dec. (N.S.) 105, Ramappa Udayan v. Arumugath Udayan 17 M. 182 : 4 M.L.J. 30 : 6 Ind. Dec. (N.S.) 125.
102. In Muttusami v. Muttukumarasami 16 M. 23 : 2 M.L.J. 296 : 5 Ind. Dec. (N.S.) 724 maternal uncle was preferred to father’s father’s sister’s son, although the former was connected through the mother and the latter through the father and grandfather. This decision was affirmed by the Privy Council in Muthusami Mudaliyar v. Simambedu Muthukumaraswami 23 I.A. 83 : 19 M. 405 : 6 M.L.J. 113 : 7 Sar P.C.J. 45 : 6 Ind. Dec. (N.S.) 987, which is an indication that their Lordships did not give effect to or recognise the principle of preferring ex parte paterna to ex parte materna.
103. For the first time in Sundrammal v. Rangasami Mudaliar 18 M. 193 : 4 M.L.J. 275 : 6 Ind. Dec. (N.S.) 484 it was simply stated, without deciding, that as between the plaintiffs, the daughter’s son of the paternal uncle, and the defendant No. 3 who was mother’s sister’s son, the latter is ex parte materna while the former is ex parte paterna. The point could not be decided as there was no dispute in that case between the defendant No. 3 and the plaintiffs; they compromised the case in the Court below; The appeal was by defendants Nos. 4 and 5, who were the sister’s daughters of the propositus, against the plaintiffs. That ruling, therefore, cannot be any authority for the proposition that a Bandhu ex parte paterna is to be preferred to one ex parte materna’. Yet this was relied on in the case of Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243 for the proposition that the ex parte paterna excludes the ex parte materna and on that ground a sister’s son’s son was preferred to a maternal uncle’s son. Here also no text of the Hindu Law was quoted in support of the general proposition.
104. The later decision in the Madras Court in Subramania Mudaliar v. Ranganathan Chettyar 18 Ind. Cas. 506 : 24 M.L.J. 301 : 13 M.L.T. 213 : (1913) M.W.N. 202 shows that the Judges felt themselves bound to follow the decisions of that Court in Sundrammal v. Rangasami Mudaliar 18 M. 193 : 4 M.L.J. 275 : 6 Ind. Dec. (N.S.) 484 and Balusami Pandithary, Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243. Miller, J., in answer to the argument that the rule is not based on any Smriti or accepted commentary, said that: “It is not a sufficient reason why we should refuse to follow the course of decisions in this Court.” Sadasiva Aiyar, J., went further and said that “It is not the Shastra according to my views.” The learned Judge, however, recognised that the Benares branch of the Hindu Law was different from that administered in that Presidency, as is, expressly said by him within brackets “(and ignoring the Benares Branch of the school).” His Lordship further said that the father’s sister’s son would include father’s sister’s son’s son, as son means son’s son. I have already shown that the Mitakshara ‘ in enumerating the Bandhus does not add the words “and sons” as in the case of Gotrajas, and there is, therefore, no justification for including sons and grandsons of the persons named. Even if it be so, it would not apply to the present case. In the first place, sister or sister’s daughter is not mentioned. In the second place, we are concerned here not with the sister’s son’s son, but with the sister’s daughter’s son, and the word ‘son,’ although it includes son and grandson, does not mean daughter and daughter’s son. ” These Madras cases seem to accept the notion, as expressly held in Appandai Vathiyar v. Ragubali Mudaliyar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203, that amongst the persons inter se named in the text of Mitakshara they succeed in the order in which they have been named. This view was dissented from recently in an elaborate judgment of Banerji and Piggott, JJ., in Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538, where the mother’s brother’s son was preferred to mother’s sister’s son and it was conclusively shown that the Madras authorities were wrong in holding that the order of priority among cognate Bandhus of each of the three classes is not the, order in which those persons have been named in the text. In Madho v. Janki 36 Ind. Cas. 514 : 12 N.L.R. 148 relied upon, it is expressly mentioned that the decision is based upon the law and usage prevalent in the Bombay Presidency, where Mayukha and Smriti Chandrika are the authorities and have been given precedence over the Mitakshara. Mitter, J., said that “unless there were clear and cogent reasons for dissenting from the earlier decisions in Nagpur and in Bombay, where by custom the females are heirs, it would be my duty to follow them.” The case of Ram Bharos v. Ram Parshad 3 A.L.J. 461 : A.W.N. (1906) 197, where father’s brother’s daughter’s son was preferred to mother’s brother’s son, was decided by Aikman, J., sitting singly. The learned Judge did not discuss the point or cite any text. The decision, therefore, is not of any assistance in the case.
105. The rule that the heirs ex parte paterna should be preferred to those ex parte materna is not to be found in the text relating to Bandhus in the Mitakshara and there is no authority for supplying any omission in that test. It was well observed by Hollo-way, J., in Chelikani Tirupati Rayaningaru v. Rajah Suraneni Vencata Gopala Narasimha Rau Bahadur 6 M.H.C.R. 278 at pp. 285, 291: “It is satisfactory to find it at least recognised that the rule of law. is not to be derived…from the positive words of a commentator and still less from his omissions.”
106. According to Mayne, those on the father’s side take precedence over those on the mother’s side “as regards two sets of persons equally near,” and hence the nearer in degree on whichever side will exclude the one more remote (Mayne’s Hindu Law, 8th Edition, page 812, paragraph, 579).
107. Similarly Golap Chandra Sastri lays down among the governing principles of competition among Bandhus first rule–“the nearer in degree on whichever side in to be preferred to one more remote” and the second rule “of those equal in degree one related on the father’s side–is to be preferred to one related on the mother’s side.” In the ‘Madras oases the claimants were equal in degree. Thus the rule that ex parte paterna is to be preferred to ex parte materna becomes inapplicable to the present case where the claimants are not equal in degree, but the maternal uncle is nearer in degree than the sister’s daughter’s son. I do not see how the father’s line should be preferred to the mother’s on the text of the Mitakshara for the Mitakshara as distinguished from Dayabhaga’ prefers mother and grandmother to father and grandfather respectively, on the ground that their propinquity is greater than the father and grand-father (vide Mayne, paragraph 512, page 714; also Mitakshara, Chapter II, placita 3, 4 and 5). According to Smriti Chandrika which governs the Madras Presidency, the father succeeds before the mother and this might be the reason for the decisions in that Province that persons connected through the father are to be preferred to those connected through the mother. There is an absence of direct authority of the Privy Council on the point but as already shown the principle was not given effect to in Mutkusami Mudaliyar v. Simambedu Muthukumarswami Mudaliyar 23 I.A. 83 : 19 M. 405 : 6 M.L.J. 113 : 7 Sar P.C.J. 45 : 6 Ind. Dec. (N.S.) 987.
108. The reason urged for preferring persons related through males to those related through mothers or other females is possibly that in the case of the latter the Gotra becomes different by marriage, and where two females intervene the family becomes much more remote and is disconnected by two different Gotras or families. On this ground also the maternal uncle should be preferred because only one female intervenes between him and the propositus, whereas in the case of the sister’s daughter’s son two females intervene. There is apparently a conflict of decisions in the Madras Court on this point. In Krishna Ayyangar v. Venkatarama Ayyangar 29 M. 115 father’s sister’s daughters son was preferred to paternal grandfather’s sister’s daughter. As regards the intervention of two females in the case of the former, it was said as follows:
Whether having regard to the preponderating influence in the Hindu system of law of relationship through males with reference to the devolution of the heritage of a man, such a circumstance (intervention of females) as that relied on may or may not avail when the competition is between Bandhus of the same category and of the same degree, it is unnecessary to consider.
109. The question, therefore, was left undecided. The question was, however, expressly decided in the case of Tirumalchariar v. Andal Ammal 30 M. 406 : 17 M.L.J. 285 : 2 M.L.T. 357 : where a daughter’s son’s son was preferred to a daughter’s daughter’s son on the grounds stated that “it is legitimate to prefer that claimant between whom’ and the stem there intervenes one female link to that claimant who is separated from the stem by two such links.” It may be noted that in Madras a daughter’s daughter is an heir and Bandhu [Ramappa Udayan v. Arumugath Udayan 17 M. 182 : 4 M.L.J. 30 : 6 Ind. Dec. (N.S.) 125, Nallonna v. Ponnal 14 M. 149 : 1 M.L.J. 46 : 5 Ind. Dec. (N.S.) 105]. With regard to the decision in Tirumalachariar v. Andal Ammal 30 M. 406 : 17 M.L.J. 285 : 2 M.L.T. 357, it was said in the case of Appandai Vathiyar v. Ragubali Mudaliar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203 that the principle of two females intervening would not apply, to the case, because of the important qualification “of all other considerations being equal,” and the mother’s sister’s son was preferred to the maternal uncle’s son on the ground that he was mentioned before the latter in the list of Bandhus given by the Mitakshara in the text, Section 6, Chapter II. This view has been dissented from recently in the case of Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538, where it is held that the mother’s sister’s son, though named before the maternal uncle’s son in the enumeration of Bandhus in the Mitakshara, cannot still be preferred to the latter’ inasmuch as he is separated from the propositus by two females, whereas in the case of the maternal uncle’s son only one female intervenes. So far as the present case is concerned, the Allahabad decision must be preferred to those of the Madras and the Bombay Courts. Apart from the aforesaid decision of the Allahabad Court; I think that the intervention of two females would more diverge the Gotra and family of the person so related from that of the propositus than where only one female intervenes and that there would be less or no possibility of the former classes of relations conferring any spiritual benefit to the propositus or his ancestors. This might possibly be the reason for the rule, if any, of postponing females or relations through females to males and those connected through males. The reason will apply with greater force to exclude persons connected through two females in preference to those connected through one female. This was the reason adopted in Tirumalachariar v. Andal Ammal 30 M. 406 : 17 M.L.J. 285 : 2 M.L.T. 357 and Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538.
110. I have discussed all the tests for deter- mining the rival claims of Bandhu? and I would conclude by saying that none of those tests are mentioned in the text either of the Bishis or by Vijnaneswara in the Mitakshara, ‘ or in the authoritative commentary of Mitakshara, namely, Viramitrodaya received ‘as a treatise of high authority and as exposition of what may have been left doubtful by the Mitakshara. I have also shown that there is no authority for resorting to any of those tests where the claimants are not equal in degree.
111. The claim of the maternal- uncle rests upon a firmer ground, namely, that he offers oblations to the two common ancestors of the propositus and thereby confers spiritual benefit to him, whereas the sister’s daughter’s son offers oblations to none of the ancestors of the propositus and confers, therefore no spiritual benefit at all. It is said that some of the persons named, in the Mitakshara as heritable Bindhus do not confer spiritual benefit and in particular one of the Matri Bandhus, who confers spiritual benefit, is postponed till some of the Pitri Bandhus who confer none, and hence the Mitakshara abandoned the doctrine of spiritual benefit to be applied to the case of Bandhus.
112. We are dealing here with the case of claimants who are not expressly mentioned in the Mitakshara as Bandhus, and there is no reason why their nearness or pro pinquity to the propositus should not be determined by the religious benefit they confer upon the deceased in order to give preference among rival claimants.
113. In the case of Bhyah Ram Singh v. Bhyah Ugur Singh 13 M.I.A. 373 at pp. 380, 390 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 E.R. 591 (P.C) the Board affirmed this ruling in the following words:
When a question of preference arises, as preference is founded on superior efficacy of oblations, the principle must be applied to the solution of the difficulty. It obtains properly when a succession opens to the deceased, when the question mooted is a real one (at least in the contemplation of pious Hindus), viz., who best can confer on the deceased and his ancestors not fully benefited the benefits which the grades of oblations offer in differing degrees.
114. In the recent case of Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.), their Lordships, relying upon the text of Viramitrodaya, Chapter II, Part I, Section 23 (A), observed–“Now it is absolutely clear that under the Mitakshara whilst the right of inheritance arises from Sapinda relationship or community of blood, in judging of the nearness of blood relationship or propinquity among the Gotraja the test to be applied to discover the preferential heir is the capacity to, offer oblations.”
115. Similar was their Lordships’ observation in the case of Soorendronath Roy v. Musammat Heeramonee 1 B.L.R.P.C. 26 : 3 Mad. Jur. 434 : 2 Suth. P.C.J. 147 : 2 Sar. P.C.J. 372 : 20 E.R. 271 : 12 M.I.A. 81 at p. 96 : 10 W.R.P.C. 35 : 1 Ind. Dec. (N.S.) 17, already referred to in the earlier part of this judgment.
116. It is contended that the rule laid down by their Lordships of the Privy Council applies only to the case of Gotraja Sapindas and not to the Bhinna Gotra Sapindas or Bandhus. There does not appear to be any substance in this contention. Their Lordships do not restrict the application and the authorities that will be presently quoted will show that the rule applies also to the case of Bandhus. Besides, if the rule applies to the Sagotra Sapindas, there is no reason why it should not apply to the Bhinna Gotra Sapindas. The passage in Viramitrjdaya relied on by their Lordships occurs in Chapter ‘ II, Part I, Section 23 (A), relating to the Partition of Heritage: “But when there are many claimants to the heritage amongst the gentiles and the other class, then the fact of conferring benefits on the proprietor of the wealth by means of the offering of’ oblations and the like, only excludes those that do not confer such benefits though this is not the criterion here.” The Sanskrit words are:
(vide page 39, Sanskrit Text, and page 91, Translation by Golap Chandra Sastri). The, expression * * *
means ”Gotrajas and other (class)” as rendered by Dr. Sarvadhikari. It clearly lays down the general rule applicable not only to Gotrajas but to all classes of heirs including Bandhus. This is by using the word ‘Gotraja,’ and the other classes.
117. Devala says, Sages declare partition of heritable property to be coordinate with gifts of funeral cakes.” Vishnu and Gautama support the theory of religious oblations as a determining factor in inheritance.
118. Mitter Missir has “conclusively shown that according to Manu, Yajnavalkya and other Rishis as well as the Mitakshara, inheritance is intervoven with capacity to offer funeral oblations. It is needless to quote these passages. They, have been referred to in Viramitrodaya, Chapter III, Part 1, Section 11, pages 134, 155, 157, 186 and, 200. Relying upon those texts, Viramitrodaya says: “the three descendants beginning with the son confer the greatest amount of spiritual benefit on the three ancestors beginning with the father, consequently the estate, conducing as it does to the benefit of the owner himself when taken by the sons, etc., continues as it were the owner’s own by reason of the proximity of benefit. And the nearness on account of the spiritual benefit is consistent with reason: thus it is ordained…. Since, in the Chapter on Partition of Heritage, the conferring of spiritual benefit is by the term ‘therefore’ set out as the reason; hence it is indicated that he alone is entitled to get the estate, on whom the estate being devolved conduces to the greatest amount of spiritual benefit of the deceased owner, and that proximity in this way is to be accepted as a general rule and reasonable.” Indeed Mitter Missir has considered the religious efficacy in discussing the claim of every heir separately and has throughout his work maintained that the degrees of propinquity are determined by religious merit. West and Buhler accept the principle of religious efficacy as propounded in Viramitrodaya. Aparakha, another commentator of great repute, who flourished a century before Mitter Missir, has also upheld the same principle of preference among several claimants. There are passages in the Smriti Chandrika supporting the same view in Chapters on Inheritance of Gotrajas and the last paragraph (15) in Chapter XI regarding the succession of Bandhus
119. I next deal, with the principle of religious efficacy as accepted in the judicial decisions. The Calcutta High Court in the Full Bench case of Omrit Koomaree Dabee v. Luckhee Narain Chuckerbutty 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592, per Mitter, J., applied gifts of funeral cakes.” Vishnu and Gautama (1) Per Mitter applied theory of religious of the doctrine of spiritual benefit for holding that sister’s son and maternal uncle, though not specifically mentioned in the list given by Mitakshara, are heritable Bandhus, and affirmed the views of Sir William Jones that “the doctrine of funeral cakes is the key to the whole Hindu Law of Inheritance. All the schools of Hindu Law that are current in the country are agreed in accepting this principle as their guide, however much they might differ from one another with reference to particular points connected with its application.”
120. In Gunesh Chunder Roy v. Nil Kamul Roy 22 W.R. 264 the principle of spiritual benefit was accepted to be the general principle of Hindu Law and as a general guide in determining the preferential claims of the parties where their respective position is not settled in the Mitakshara itself or by any decided case, the, principle was applied and a sister’s son was preferred to a mother’s sister’s son of the deceased on the ground that the former ‘confers greater spiritual benefit upon the soul of the deceased than the latter.”
121. Similarly the Allahabad High Court in the Full Bench case of Janki v. Nand Ram 11 A. 191 : A.W.N. (1889) 30 : 13 Ind. Jur. 347 : 6 Ind. Dec. (N.S.) 552 (F.B.), upon the authority of Viramitrodaya and the Mitakshara, held that although propinquity is the rule of inheritance and the ‘spiritual benefit cannot create the heritable right, yet it determines with precision the preferable right of Gotrajas and other heirs, where there is more than one claimant to the heritage.
122. Mahmood, J., agreed with the above and went the length of saying: “The Hindu system went further and laid it down as an imperative rule, that the right to inherit a dead man’s property is exactly co-extensive with the duty of performing his obsequies. The devolution of property depends upon the competence to perform the obsequial rites of the deceased.”
123. In the Full Bench case of Suba Singh v. Sarafraz Kunwar 19 A. 215 : A.W.N. (1897) 53 : 9 Ind. Dec. (N.S.) 142 with regard to the passage in Viramitrodaya already referred to, Banarji, J., observed that “It may be that, where two Sapindas stand, with reference to propinquity, in the same degree of nearness to the propositus, the capacity to confer the highest amount of spiritual benefit should be applied as a test to determine the order of priority. But, where the degrees of propinquity are different, the rule of religions efficacy has, according to the Mitakshara, no application.”
124. According to Banerji, J., therefore, even if the maternal uncle and the sister’s daughter’s son were equal in degree, the former would have been preferred and being nearer in degree, his claim is much more preferable.
125. The Bombay Court in Lallubhai v. Mankuvarbai 2 B. 388 at p. 421 : 1 Ind. Dec. (N.S.) 682 held that the Mitakshara adopted, in lieu of religious efficacy, the theory that Sapindaship is based upon community of corporal particles, or in other words, upon consanguinity. This was affirmed by their Lordships of the Privy Council in Lallubhai Bapubhai v. Cassibai 5 B. 110 : 7 I.A. 212 at pp. 233, 234 : 4 Sar P.C.J. 164 : 3 Suth. P.C.J. 795 : 4 Ind. Jur. 533 : 3 Shome L.R. 245 : 7 C.L.R. 445 : 3 Ind. Dec. (N.S.) 75. Neither the Bombay Court nor their Lord-ships of the Judicial Committee held that spiritual benefit could not be taken into consideration in determining the preferential right of rival claimants. Their Lord-ships say that by the law of Mitakshara’ as interpreted in Western India, the preferential right to inherit in the classes of Sapindas is to be determined by family relationship or community of corporal particles and not alone by the capacity to perform the funeral rights. Moreover, in that case the right of the widow of a first cousin was upheld upon the local law and usage and upon the Mayukha which has precedence over the Mitakshara in Gujerat and Bombay Presidency. Except for the principle referred to above the authority is not applicable to the Benares school as females, unless specially mentioned, do not succeed in Northern India to the exclusion of male heirs [Gauri Sahai v. Rukko 3 A. 45 : 5 Ind. Jur. 486 : 3 Ind. Dec. (N.S.) 81].
126. Later on in Mohandas v. Krishnabai 5 B. 597 : 3 Ind. Dec. (N.S.) 393 the Bombay Court applied the principle of religious efficacy and preferred the maternal uncle to mother’s sister’s son. It was observed–‘When it is once admitted that the list of Bandhus given in the text is not exhaustive and that other relatives take before some of those specified in the ‘ list, there is no other logical conclusion except that the relative who as the nearest of kin is capable of conferring, the greatest spiritual benefit on the soul of the deceased, mast in all oases be preferred to a more remote Bandhus.”
127. This Bombay case [Mohandas v. Krishnabai 5 B. 597 : 3 Ind. Dec. (N.S.) 393] has been referred to in the later decisions of the same Court in Gajabai v. Shrimant Shahajirao Maloji Raje Bhosle 17 B. 114 : 9 Ind. Dec. (N.S.) 75 and the Privy Council case of Rai Kesserbai v. Hunsraj Morarji 30 B. 431 at p. 449 : 33 I.A. 176 : 10 C.W.N. 802 : 4 C.L.J. 9 : 8 Bom. L.R. 443 : 3 A.L.J. 484 : 1 M.L.T. 211 : 16 M.L.J. 446 (P.C). But the principle laid down there has not been at all dissented from or adversely commented upon. The case of Parot Bapalal Sevakram v. Mehta Harilal Surajram 19 B. 631 : 10 Ind. Dec. (N.S.) 421 has also been referred to, but in that case there were no rival claimants and no question arose as to, preference by religious efficacy.
128. The views of the Madras Court have been conflicting. In Chelikani Tirupati Rayaningaru v. Rajah Suraneni Vencata Gopala Narasimha 6 M.H.C.R. 278 at pp. 285, 291, Innes, J. observed as follows:
Putting the Mitakshara aside for the present, all the treatises on Hindu Law just referred to seem to disclose the intention of including as heirs in the order of propinquity all kindred, however remote, except when propinquity requires to be postponed to the superior benefits which another relationship is capable of conferring in funeral oblations.
129. In Lakshmanammal v. Tiruvengada Mudali 5 M. 241 at p. 250 : 2 Ind. Dec. (N.S.) 169 Turner, C.J., referring to Chelikani Tirupati Rayaningaru v. Rajah Suraneni Vencata Gopala Narasimha 6 M.H.C.R. 278 at pp. 285, 291, said that “that ruling has the support of at least one text, although the right to perform funeral rites is a sequence and not a cause of inheritance and the recognition of the right in a person may fairly be regarded as recognition of the claim of inheritance in the same person.”
130. In Muttusami v. Muttukumarsami 16 M. 23 : 2 M.L.J. 296 : 5 Ind. Dec. (N.S.) 724 a maternal uncle of the half blood was preferred to father’s paternal aunt’s son; the Court, relying on and quoting a passage from the Viramitrodaya, Chapter III, Part I, Section 2, page 158, observed: “This passage indicates that as between Bandhus of the same class, a rule of preference may be found in the quantity of spiritual benefit which they confer…. As between Bandhu of the same class the spiritual benefit they confer upon the propositus is, as stated in Viramitrodaya, a ground of preference.”
131. On appeal to the Privy Council Muthusami Mudaliyar v. Simambedu Muthukumaraswami Mudaliyar 23 I.A. 83 : 19 M. 405 : 6 M.L.J. 113 : 7 Sar P.C.J. 45 : 6 Ind. Dec. (N.S.) 987 their Lordships affirmed this decision but did not take exception to the observation of the Madras High Court. On the other hand, their Lordships expressly recognised the authority of Viramitrodaya.’
132. In Sundrammal v. Rangasami Mudaliar 18 M. 193 : 4 M.L.J. 275 : 6 Ind. Dec. (N.S.) 484 relied upon by the appellant, the decision in Muttusami v. Muttukumarasami 16 M. 23 : 2 M.L.J. 296 : 5 Ind. Dec. (N.S.) 724 was referred to, but the doctrine laid down there regarding the preference to be given by reason of spiritual benefit was not dissented from. On the other hand, the analogy of the sister’s son excluding the sister was quoted with the remark that the sister is a mere relative and being a female, “can offer no funeral oblations.”
133. In Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243 and Apparidai Vathiyar v. Ragubali Mudaliar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203 the doctrine of religions efficacy was not acted upon. In the latter case their Lordships felt themselves more at liberty not to follow the doctrine “by the fact that the parties were Jains and that though’ the Hindu Law is prima facie. held applicable to them, its religious developments should not have unrestricted operations,” The actual decision in the case, that the mother’s sister’s son is preferable to the maternal uncle’s son, has been dissented from recently by the Allahabad Court in Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538. In the former Madras case [Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243] it was held that the doctrine ought not to be resorted to in derogation of the principles (1) the nearer line excluding the more remote, and (2) that persons ex parte materna should be preferred to those ex parte paterna on the ground that these principles are the cardinal principles of the Hindu Law and pervade the law of inheritance under the Mitakshara system. But no text or, authority was, quoted in support of the aforesaid view, or that these principles should override the rule of, religions efficacy for the purpose of giving preference in the case of rival claimants as laid down in the earlier decisions of the same Court. But both the aforesaid Madras decisions in Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243 and Appandai Vathiyar v. Ragubali Mudaliar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203 have admitted that “the Privy Council and the Madras Court have adverted to considerations of religious efficacy of oblations as a factor in determining the relative priority of competing claimants,” particularly “as between Bandhus of the same class.” The doctrine, therefore, has not been wholly abandoned by the Madras Court. Indeed a reference to the Smriti Chandrika itself will show that the doctrine has been referred to in more places than one in Chapters relating to succession of Gotrajas. In Chapter XI, Section 5, paragraph 14, Smriti Chandrika has quoted from the Mitakshara the enumeration of Bandhus. In paragraph 15, it says “of the kinsmen, distant kinsmen, and cognate kindred, in default of one that stands nearest in the order expressly given, he that may be somehow viewed to stand on a par with him, may be selected, it being generally declared by Goutama, ‘let those take the inheritance who give the funeral cake (Pinda), who are the descendants from the same Gotra, or who are sprung from the same Rishi.’ ” I do not know how in face of the above, it can be said that the Smriti Chandrika did not lay down that (1) the nearest in degree should be preferred to those more remote, and (2) that religious efficacy may be resorted to for the purpose of preference of the rival claimants. This exactly agrees with the view in Viramitrodaya and as stated in the rules given in Dr. Sarvadhikari’s Tagore Law Lectures’ and Golap Chandra Sastri’s Hindu Law already referred to. Whatever may have been the view in the other Presidencies, the proposition has been stoutly affirmed and followed in Northern India, where the Mitakshara as interpreted by Viramitrodaya governs the rule of succession.
134. The Privy Council as early as 1868, in Gridhari Lal Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28, observed, after quoting the text of the Mitakshara re the enumeration of Bandhus: “This sub-division of Bandhus into 3 classes is possibly a consequence of that part of the ‘ definition already referred to, which treats them as kinsmen connected by funeral oblations?’ As observed by their Lordships of the Privy Council in Bhyah Ram Singh v. Bhyah Ugur Singh 13 M.I.A. 373 at pp. 380, 390 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 E.R. 591 (P.C), “The compiler of, the Mitakshara is said to have been an ascetic or a devotee and from that source nothing at variance with the religion of the Hindus is likely to have flowed. ” Yajnavalkya was the first to mention the offering of a cake to the maternal ancestors in Chapter I, Sloka 242, and to introduce Bandhus as ‘heritable heirs and could not ignore the religious considerations from inheritance, much less his commentator, Vijnaneswara, the author of the Mitakshara, could do.
135. Mayne on Hindu Law, 8th Edition, Section 516, page 723, dealing with the succession of Bandhus, says: “The Mitakshara recognized the difference between the offerings which A and B were bound to make to X, “tint it used the difference in order to ascertain which of the two was nearer to X in a direct line.”
136. Coming to this Court, in the recent case of Adit Narayan Singh v. Mahabir Prosad Tewari 35 Ind. Cas. 687 : 1 P.L.J. 324 : (1917) Pat 12 : 2 P.L.W. 317 Sir Elward Chamier, C.J., referred to Viramitrodaya and to the Privy Council authorities and gave effect to the religious benefit in determining the claims of the mother’s paternal aunt’s son to that of a mother’s sister’s son’s son, although the latter was the son of an Atma Bandhu’ expressly named in the Mitakshara. Sir Edward Chamier in Kalian Rai v. Ram Chandar 24 A. 128 : A.W.N. (1901) 189 had also referred to Viramitrodaya for the proposition that religious consideration should be resorted to in order to prefer the claims of competitors.
137. In another case, Harihar Charan v. Jang Bahadur 34 Ind. Cas. 183, a Division Bench of this Court per Roe, J., held that although the succession of a Bandhu is based on consanguinity, it must still be supported by the right to offer oblations to a common ancestor. There is no reason why the two decisions of this very Court should not be followed in this case. It appears to me clear that the maternal uncle must exclude the sister’s daughter’s son on the ground that he confers spirituals benefit on the propositus, whereas the latter confers none.
138. There is a difference of opinion among the recent commentators as to the rights of the present claimants. Those who have placed the sister’s daughter’s son above the maternal uncle have apparently done so on the authority of the Madras cases which, as has already been shown, do not apply to the Benares school. They have not supported their views by any text of the ‘ Mitakshara or the Hindu Law. The claims of the parties must ‘ be determined in accordance with the texts. According to Sarvadhikari’s Tagore Law Lectures, page 728, father’s paternal aunt’s son should take precedence over ‘mother’s brother or mother’s sister’s son, but this is obviously contrary to what has been held in Muthusami Mudaliyar v. Simambedu Muthukumarswami Mudaliyar 23 I.A. 83 : 19 M. 405 : 6 M.L.J. 113 : 7 Sar P.C.J. 45 : 6 Ind. Dec. (N.S.) 987. We cannot, therefore, depend upon a commentator’s views but upon the text.
139. The claim of the maternal uncle to succeed ranks high after the Gotrajas under the Mitakshara. In verses 52 and 53, the Mitakshara itself, while enumerating the Sapindas, mentions maternal uncle as occupying a high position.
140. Viramitrodaya, Chapter III, Part VII, Section 5, at page 200 of Golap Chandra Sastri’s Translation, after quoting from the Mitakshara the list of Bandhus, adds–“In the text of Manu, namely–‘in their default, a Sakulya or the preceptor or a pupil (becomes heir)’–the term Sakulya ‘ includes the Sagotras (Sapindas) and Samanodakas, the maternal uncle and the like, and the three classes of cognates. Also in the text of Yogisvara the term cognate’ or Bandhu comprises also the maternal uncle. Otherwise, the exclusion of the maternal uncle and the like would be the result. And it would be extremely improper that their sons are heirs but they themselves Though nearer are not heirs.”
141. Dr. Jolly in the Tagore Law Lectures for 1883 at page 215 is of the same view.
142. According to Viramitrodaya, the maternal uncle would even have precedence over the 3 classes of Bandhus. There is no reason why the authority of Viramitrodaya, right or wrong, which has been accepted for centuries in the Benares school, should be discarded on any strained analogies or on account of its being either unreasonable or even repugnant to the text of Mitakshara, for the Benares school is governed not by the Mitakshara alone, but by the Mitakshara as interpreted, by Mitter Missir in Viramitrodaya. There is another passage in ” the Mitakshara itself, page 322 3rd Edition, 1829, quoted in Gridhari Lall Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28, Omrit Koomaree Dabee v. Luckhee Narain Chuckerbutty 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592: “When one having gone to a foreign country dies, let the descendants, cognates (Bandhus), gentiles, or his companions take the goods. In their default, the King. When of those who are associated in trade, any one ‘having gone to a foreign country dies, then his share shall be taken by his heirs, i.e., the son and other descendants, cognates, Bandhavas.” This passage was relied on by their Lordships of the Privy Council in the aforesaid case at page 466, in the following words: “Here then is a passage written by the author of the Mitakshara himself, which treats the maternal uncle as capable of inheriting. The learned Judges of the Court below meet this authority by suggesting that the heirship of the maternal uncle, as well as that of the co-trader, may be exceptional and confined to the case of the trader dying abroad. Their Lordships however, cannot admit the reasonableness of this hypothesis.” Therefore, the maternal uncle occupies the foremost position among the Bandhus and according to Viramitrodaya is superior to the Bandhus. Sister’s daughter’s son is nowhere mentioned. Besides, it is doubtful whether the sister’s daughter’s son is an Atma Bandhu or a Pitri Bandhu. If he is a Pitri Bandhu, he will clearly be excluded by the maternal uncle. The doubt was also expressed in the case of Umaid Bahadur v. Udoi Chand 6 C. 119 : 6 C.L.R. 500 : 5 Ind. Jur. 585 : 3 Shome L.R. 146 : 3 Ind. Dec. (N.S.) 78 and in fact I am not satisfied that the persons not named in the Mitakshara. should necessarily be classed in one of the three-classes mentioned there.. In the already cited Patha case, Adit Narayan Singh v. Mahabir Prosad Tewari 35 Ind. Cas. 687 : 1 P.L.J. 324 : (1917) Pat 12 : 2 P.L.W. 317, it was not accepted that the descendant of an Atma Bandhu is necessarily an Atma Bandhu, for the reason that then “it may easily happen that an obviously more remote Sapinda’ will exclude a nearer Sapinda.”
143. I have refrained from quoting any translation from Colebrooke for the reason that the accuracy of his translation has been doubted. On a consideration of the original texts and of such translations as have been accepted by the authorities, particularly of the Privy Council, I have come to the conclusion that the theory of religious efficacy is based upon the original text of the Smritis, the Mitakshara and the Viramitrodaya, the authoritative commentary thereof. The rule has been accepted by all the authorities on the Hindu Law and has been affirmed by judicial decisions, both in this country and of the Judicial Committee of the Privy Council prior to and after Colebrooke’s translation of the word Sapinda was doubted. The rule has nothing to do with the meaning, of the word Sapinda,’ whether it means a connection through the particles of one body or a connection by balls of rice, but is founded upon the fact that the rules of succession and religion are indissolubly blended in the Hindu Law and cannot, by any process of reasoning or analogies, be separated. This has been affirmed recently by the Privy Council, as already adverted to, in Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.) (a case of the Benares school and applicable to the parties in the present case).
144. To conclude, the maternal uncle must be preferred to the sister’s daughter’s son for the reason that 11) he is nearer in degree than the latter, (2) he confers spiritual benefit on the propositus, whereas the latter confers none (3) he is mentioned in certain texts of the Mitakshara as occupying a high position among heirs, whereas the sister’s daughter’s son is not mentioned anywhere, and (4) he is connected with the deceased through one female, whereas the latter is connected with the deceased through two females and is thus much more remote.
145. I do not think that the fact that the sister’s daughter’s son is related to the deceased through his father, whereas the maternal uncle is related through his mother, or that he, is descended from a nearer ancestor, namely, the father, whereas the maternal uncle is descended from a more remote ancestor, namely, the maternal grandfather, does in any way give him any preferential right, for the simple reason that these are not the tests mentioned in tile Smritis, the Mitakshara, or any authoritative commentary.
146. I, therefore, hold that the maternal uncle should be preferred to the sister’s daughter’s, son and would answer the reference accordingly.
Imam, J.
147. The question referred to us for determination by this Full Bench is whether in a family governed by the Mitakshara School of Law a sister’s daughter’s son is to be preferred to the maternal uncle of the last male owner as his heir. The answer to this question depends upon the order of succession among the Bhinna Gotra Sapinda under the Mitakshara as expounded in the Banares school. The Mitakshara has placed Bhinna Gotra Sapindas, that is Band has, into three classes in the order in which they stand to the deceased for the purposes of inheritance. These are Atma Bandhus, who are cognate kindreds of the deceased; Pitri Bandhus, who are cognate kindreds of the father of the deceased, and Matri Bandhus, who are cognate kindreds, of the ‘mother of the deceased. This is evident from the following passage in Chapter II, Section 6, paragraph 1, of the Mitakshara:
On failure of gentiles cognates are heirs. Cognates are of three kinds, related to the person himself, to his father or to his mother as is declared by the following text,–the sons of his own father’s sister, the sons of his own mother’s sister and the sons of his own maternal uncle must be considered as his own cognate kindred’. The sons of his father’s paternal aunt, the sons of his father’s maternal uncle must be deemed his father’s cognate kindred. The sons of his mother’s paternal aunt, ‘ the sops of his mother’s maternal aunt and the sons of his mother’s maternal uncle must be reckoned his mother’s cognate kindred.
148. The passage was relied upon in Omrit Koomaree Dabee v. Luckhee Narain Chuckerbutty 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592. It will be observed that the test of the Mitakshara does not mention sister’s daughter’s son or maternal uncle as heirs, but it has been repeatedly held that the enumeration in the text is only illustrative and not exhaustive [vide Gridhari Lall Roy v. Bengal Government 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28, Mathuswami Mudaliyar v. Simambedu Muthukumaraswami Mudaliyar 23 I.A. 83 : 19 M. 405 : 6 M.L.J. 113 : 7 Sar P.C.J. 45 : 6 Ind. Dec. (N.S.) 987, Umaid Bahadur v. Udai Chand 6 C. 119 : 6 C.L.R. 500 : 5 Ind. Jur. 585 : 3 Shome L.R. 146 : 3 Ind. Dec. (N.S.) 78, Babu Lal v. Nanku Ram 22 C. 339 : 11 Ind. Dec. (N.S.) 228. Taking the text as only illustrative it is clear that sister’s daughter’s son and maternal uncle are Atma Bandhus of the deceased. This is admitted in the argument addressed to us by both sides at the Bar. The question then is, which of these two Atma Bandhus has preference for the purposes of inheritance. They both have a place in the first group of heritable Bandhus,
149. Paragraph 2, Section 6, Chapter II, of the Mitakshara runs as follows:
Here by reason of more affinity the cognate kindreds of the deceased himself are his successors in the first instance: on failure of them his father’s cognate kindred: or if there be none, his mother’s cognate kindred. This must be understood to be the order of succession here intended.
150. The text lays down the order of precedence among the three main classes of Bandhus known as Atma Bandhus, Pitri Bandhus and Matri Bandhus. This is not questioned by the parties before us and is supported by judicial pronouncements [vide Miithuswami Mudaliyar v. Simambedu Muthukumaraswami Mudaliyar 23 I.A. 83 : 19 M. 405 : 6 M.L.J. 113 : 7 Sar P.C.J. 45 : 6 Ind. Dec. (N.S.) 987, Appandai Vathiyar v. Ragubali Mudaliar 22 W.R. 264]. There is no text of the Mitakshara which definitely lays down any rule of ‘ precedence when the competition is between Bandhus of the first class inter se. That a sister’s daughter’s son is a heritable Bandhu received the sanction of judicial authority in the decision of the Calcutta High Court in Umaid Bahadur’s case 6 C. 119 : 6 C.L.R. 500 : 5 Ind. Jur. 585 : 3 Shome L.R. 146 : 3 Ind. Dec. (N.S.) 78.
151. The learned Vakil appearing on behalf of the appellant does not dispute that the mother’s brother is also a heritable Bandhu, nor could this be doubted once the illustrations given in the Mitakshara are accepted to be not exhaustive. We have, therefore, to decide between the rival claims of two cognates who are both admittedly heritable Bandhus. If the test as a determining factor were the efficacy of religious benefit, there is little doubt that the mother’s brother would have preference over a sister’s daughter’s son, for the former admittedly would offer Pindas to the maternal grandfather of the propositus; whereas the latter suffers from complete incapacity to render any religious service whatever to the propositus or his ancestors. One of the cardinal differences between the Dayabhaga of the Bengal school and the Mitakshara of the Benares school is that inheritance under the latter law is regulated by propinquity of relationship as the guiding principle for determining the order of succession [vide Buba Singh v. Sarafraz Kunwar 19 A. 215 : A.W.N. (1897) 53 : 9 Ind. Dec. (N.S.) 142, Parot Bapalal Sevakram v. Mehta Harilal Surajram 19 B. 631 : 10 Ind. Dec. (N.S.) 421, Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243].
152. Indeed the mistake by Colebrooke in translating the word “Sapinda” in the Mitakshara by the phrase “connected by funeral oblations” has become a matter of history in the case-law of India and was discovered so long ago as 1676, when their Lordships of the Bombay High Court gave their decision in the well-known case of Lallubhai v. Mankuvarbai 2 B. 388 at p. 421 : 1 Ind Dec. (N.S.) 682. That religious efficacy is not the determining guide for the purpose of inheritance in the Mitakshara is also evident from the fact that ‘ no less than 4 heritable Bandhus out of the 9 specifically mentioned in the text (Chapter II, Section 6, paragraph 1) can confer no ” religious benefit whatsoever. The proposition that Vijnaneswara, the author of the Mitakshara, construes Sapinda relationship to arise from community of blood is supported by judicial decisions [vide Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 18 C.W.N. 1151 at pp. 1167, 1168, 1173, 1174, 1175 : 42 C. 384 : 27 M.L.J. 333 : 1. L.W. 831 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 10 N.L.R. 112 : 16 Bom. L.R. 863 : 12 A. L. J. 1281 : 20 C.L.J. 573 41 J.A. 290 (P.C.) Appandai Vathiyar v. Ragubali Mudaliar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203, Parot Bapalal Sevakram v. Mehta Harilal Surajram 19 B. 631 : 10 Ind. Dec. (N.S.) 421].
153. I do not, therefore, think that the mother’s brother’s capacity to render religious service can be relied upon in a case governed by the” Mitakshara as a ground of preference Over a sister’s daughter’s son. It was contended by the learned Vakil for the respondent that though propinquity of blood determines the preferable right to succeed, the test to determine propinquity is closeness in religious benefits and not blood particles, No text has been placed before us that the principle enunciated by the learned Vakil is one that has application to succession by Bandhus under the Mitakshara. It has, however, been argued that where the Mitakshara is silent, the authority of Viramitrodaya must be received as an exposition of what has been left in doubt by Vijnaneswara. That Mittra Missir, the author of Viramitrodaya, has a high place in the Benares school is not denied [vide Gridhari Lall Roy v. Government of Bengal 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28]. But no text from Viramitrodaya has been placed ‘before us to establish the proposition that among Bandhus preference must be given to one that renders religious service over another who does not, or that among Bandhus the capacity to offer such service is the test of propinquity of blood. Reliance has been placed upon a passage of Viramitrodaya quoted by their Lordships of the Judicial Committee in Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.). The passage in question is as follows:
When there are many claimants to the heritage among Gotrajas and the like, then the fact of conferring benefits on the proprietor of the wealth by means of the offering of oblations and the like only excludes those that do not confer such benefits.
154. The rival claimants before their Lordships of the Judicial Committee were agnates of the propositus and in dealing with the case their Lordships were pleased to observe as follows:
Now it is absolutely clear that under the Mitakshara whilst the right of inheritance arises from Sapinda relationship, the community of blood, in judging of the nearness of blood relationship or propinquity among the Gotraja the test to be applied to discover the preferential heir is the capacity to offer oblations.
155. So also in the case of Bhyah Ram Singh v. Bhyah Ugur Singh 13 M.I.A. 373 at pp. 380, 390 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 E.R. 591 (P.C.), where the claimant was a Gotraja, the Board made the following observation:
When a question of preference arises, as preference is founded on superior efficacy of oblations that principle must be applied to the solution of the difficulty.
156. The learned Vakil for the respondent has failed to produce any authority except a decision of a Divisional Bench of this Court in support of his contention that the passage of the Viramitrodaya is applicable to a case in which the claimants are not Gotrajas of the propositus but Bhinna Gotrajas. To my mind there is a material difference between the two classes of cases. The Gotrajas are agnates and descendants in the male line from a common ancestor or ancestors of the propositus. In their case the male line of descent is not broken or disturbed by a Gotra springing from a different family as in the case of Bandhus. It is quite evident that in cases where the rival claimants are Gotrajas, greater propinquity of blood is identifiable by greater capacity to render religious rights. But this is not necessarily the case when the rival claimants are Bhinna Gotrajas. The point may be illustrated by a reference to the case of Adit Narayan Singh v. Mahabir Prosad Tewari 35 Ind. Cas. 687 : 1 P.L.J. 324 : (1917) Pat 12 : 2 P.L.W. 317 decided by a Divisional Bench of this Court and relied upon by the learned Vakil for the respondent. In that case the rival Bandhus were an Atma Bandhu and a Matri Bandhu as will appear from the genealogical table given below:
————————————–
| |
Ghenu Misir, A daughter,
| |
------------------------------ Hanuman,
| | | |
1st daughter, 2nd daughter, 3rd daughter Deokinandan and
| | | brothers.
(Propositus) Ram Manohar, ----------------
Dhanukdhari | |
Monakka Kuer. Harihar Jagdeo.
|
Rajendra.
157. The question of preference in this case was between Hanuman and Rajendra. Their Lordships who decided the case applied to the issue before them the test of finding oat the nearest Sapinda by the capacity to offer oblation. As I have said before, that principle will apply to the case of preference among Gotrajas without doing any violence to the Mitakshara rule, which bases succession on community of blood. The same rule, when applied to the case of rival Bandhus, will produce a result which does not seem to ma to be in agreement with the text of the Mitakshara itself. In deciding the case reported as Adit Narayan Singh v. Mahabir Prosad Tewari 35 Ind. Cas. 687 : 1 P.L.J. 324 : (1917) Pat 12 : 2 P.L.W. 317 their Lordships recognized the fact that the test of religious efficacy to determine nearness of blood was a test that had been applied in reported cases with reference to disputes between agnates “With profound respect to their Lordships who decided that case, I have not been able to discover the ground’ upon which the test was applied for deciding the issue between Bhinna Gotras. There can be no question that Hanuman, a Matri Bandhu, could offer oblation to the great-great-grandfather of the propositus. On the other hand Rajender was incapable of offering such religious service. The application of the principle held to be the test among the Gotrajas to a case among Bhinna Gotrajas resulted in the exclusion of an Atma Bandhu by a Matri Bandhu. It appears to me that this is inconsistent with the clear and explicit text of the Mitakshara already quoted (Chapter II, Section 6, paragraph 2). Fully recognizing the high authority of the Viramitrodaya in the Benares school in matters left doubtful by the Mitakshara, I am unable to accept a view which subordinates the Mitakshara to a merely possible interpretation of the text of the Viramitrodaya.
158. I am riot unmindful of the dictum laid down by the Calcutta High Court in the case of Gunesh Chunder Roy v. Nil Kamul Roy 22 W.R. 264. In that case the contest was between a sister’s son and the mother’s sister’s son. Preference was given to the sister’s son as he conferred greater spiritual benefits upon the soul of the deceased than a mother’s sister’s son. In that case the test of spiritual benefits was applied, as it was held that in the Mitakshara itself the respective positions of the parties were not definitely settled and the general principle of the Hindu Law was, therefore, applied to determine the issue. The decision in that case is nonetheless consistent with the general principle of the Mitakshara baaed upon affinity of blood. It is also quite evident that the Mitakshara gives preference to the male line over the female line. The Mitakshara kinsmen ex parte paterna have preference over kinsmen ex parts materna. The text of the Mitakshara already quoted clearly indicates that Bandhus ex parte paterna should be preferred to Bandhus ex parte materna. This is a view that is supported by the order of succession of Atma Bandhns laid down by De. Jogendra Nath Bhattacharya and Pandit Raj Kumar Sarvadhikari. According to these learned authors the first group in order of merit is made up of Bandhus who are sons of the daughters of the family of the propositus. The second group is made up of sons of daughter’s son of the family. The third group is composed of sons of daughter’s daughters of the family, and it is in this group that father’s daughter’s daughter’s son has been placed and is the seventeenth in the list given in Treveiyan’s Hindu Law. On the other hand, mother’s brother’s son is outside these three groups and has the 23rd place in order of merit as an Atma Bandhu. This is evidently due to the Mitakshara preference of the Bandhus of the deceased connected with him through his father over those connected through his mother. The principle of the Mitakshara has been the guide in the decisions given in Saguna v. Sadashiv 26 B. 710 : 4 Bom. L.R. 527 and Ram Bharos v. Ram Parshad 3 A.L.J. 461 : A.W.N. (1906) 197. This is also the view taken in Sundrammal v. Rangosami Mudaliar 18 M. 193 : 4 M.L.J. 275 : 6 Ind. Dec. (N.S.) 484 and was followed in Balusami Pandithar v. Narayana Rau. 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243. In the last case the doctrine of religious efficacy based upon the authority of the Viramitrodaya was dealt with. Their Lordships who decided this case, while unwilling to hold that the doctrine in question could never be resorted to in dealing with difficult questions arising under the Mitakshara and for which no rule was expressly or impliedly stated in the treatise of the Banarea school, did nevertheless emphatically lay down the rule that the doctrine of the Viramitrodaya was not to be resorted to in derogation of the great principles governing the law of inheritance under the Mitakshara. The competition in that case was between a sister’s son’s son of the deceased and his maternal uncle’s son. Their Lordships held that the latter had no preference, inasmuch as one of the pervading principles of the Mitakshara Law of Inheritance was that the nearer line excluded the more remote. The sister’s son’s son, tracing his descent from the father of the propositus, was given preference over the maternal uncle’s son who traced his descent from a more remote ancestor, namely, the maternal grandfather. It is quite evident that the decision in the case turned on the nearness or propinquity of blood, and not religions service. The principle has been applied by the Allahabad and Calcutta Courts to a reversionor of the full blood excluding one of half blood [vide Suba Singh v. Sarafraz Kunwar 19 A. 215 : A.W.N. (1897) 53 : 9 Ind. Dec. (N.S.) 142 and Sham Singh v. Kishun Sahai 6 C.L.J. 190]. It seems to me that these principles governing inheritance under the Mitakshara are clearly deducible from the well-known text of Manu “to the nearest Sapinda the inheritance next belongs.”
159. In the case before us the sister’s daughter’s son seems to have two distinct advantages over the maternal uncle. Firstly, he descends from the father of the propositus, while the other from the maternal grandfather. Descendants of the nearer ancestor exclude those of the more remote. Secondly, though both are Atma Bandhus, the sister’s daughter’s son is ex parte paterna unlike the mother’s brother who is ex parte materna. These advantages are based upon the broad principles of the law of inheritance laid down in the Mitakshara. Can it, therefore, be said that the authority of the Viramitrodaya is sufficient to outweigh the principles of the Mitakshara? I think, not. There is no authority for such a proposition. I am unable to accept the view that on any point on which the principles of the Mitakshara are clear the authority of the Viramitrodaya can have any place [vide Appandai Vathiyar v. Ragubali Mudaliar 5 Ind. Cas. 280 : 33 M. 439 : 20 M.L.T 275 : (1910) M.W.N. 44 : 7 M.L.T. 203, and Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538] I do not, therefore, think that the capacity to offer oblation can be permitted in the present reference to influence the decision. This view is also supported by a decision of the Madras High Court [Subramania Mudeliar v. Ranganathan Chettyar 18 Ind. Cas. 506 : 24 M.L.J. 301 : 13 M.L.T. 213 : (1913) M.W.N. 202]. In this case the rival claimants were sister’s son’s son of the propositus and his maternal uncle. The decision was against the latter and in favour of the former.
160. One of the disqualifications of the sister’s daughter’s son in competition with the maternal uncle was pointed out by the learned, Vakil for the respondent to be the intervention of two females in the case of the former. I do not think there is any substance in this contention. The rival claimants are no doubt both Atma Bandhus, but as has already been pointed out, the sister’s daughter’s son is of a nearer line and is also ex parte paterna. The rule based on the intervention of two females is, therefore, inapplicable to the present case, where the claimants do not stand on the same place [vide Krishna Ayyangar v. Venkatarama Ayyangar 29 M. 115]. It is only when all considerations are equal that the rule applies [vide Tirumalachariar v. Andal Ammal 30 M. 406 : 17 M.L.J. 285 : 2 M.L.T. 357.
161. It was suggested in the course of his address by the learned Vakil for the respondent that the decisions of the Madras Court on points arising in the present case were in the light of the Mitakshara Law as understood in the Madras Presidency and probably influenced by the text of the Smriti Chandrika and the Saraswati Vilas, which are of high authorities in that province but hot here. It is worthy of note that neither of these authorities contains any text laying down any order of precedence among Bandhus of each of the three classes inter se. All that they contain is reproduction of what is laid down in the Mitakshara. This feature of these two books was noticed in Ram Charan Lal v. Rahim Bakhsh 34 Ind. Cas. 108 : 38 A. 416 at pp. 421 to 424 : 14 A.L.J. 538. Nothing has been placed before us to establish the proposition that the decisions of the Madras Court on the issues raised in this case are inconsistent with the principles of the Mitakshara as expounded by such eminent authorities as Mayne, Trevelyan, Golap Chandra Sarkar Sastri, Bhattacharji and Sarvadhikari. Nor has any case law been relied upon to show that the cardinal principles of the Mitakshara have received a provincial interpretation in the Madras decisions.
162. Having given my most careful consideration to the reference, my opinion is that the sister’s daughter’s son has preference over the maternal uncle under the law of inheritance as laid down in the Mitakshara.
Thornhill, J.
163. The appellant, Uma Sankar Prasad, claims to succeed to the estate of Chuman Lall, deceased, on the ground that he, as sister’s daughter’s son of the said deceased, must, under the Mitakshara Law of Inheritance, be preferred to the maternal uncle of the said deceased. Both are Bhinna Gotra Sapindas or Bandhus. It is admitted the sister’s daughter’s son confers no spiritual benefits on the deceased whereas the maternal uncle does.
164. It was on this account the learned Vakil for the appellant devoted a considerable time to the meaning of ‘Sapinda” relationship. He has authoritatively shown that the word “Pinda” as used in the Mitakshara is used in the sense of “body” and not in the sense of funeral cakes” and that Sapindaship is based upon community of corporeal particles, or, in other words, upon consanguinity. The Mitakshara, after enumerating the three classes of Bandhus, that is to say, those related to the person himself, those related to his father and those related to his mother, declares that “by reason of mere affinity, the cognate kindred of the deceased himself are his successors in the first instance, on failure of them his father’s cognate kindred or if there be none, his mother’s cognate kindred. This must be understood to be the order of succession here intended.”
165. Thus it would appear that the order of priority of the three classes of Bandhus is established, but the Mitakshara lays down no rules for our guidance as to the order of succession inter se of the Bandhus comprised in each class, but case-law has made it clear that in the system of inheritance under the Mitakshara school propinquity or nearness of relationship is the guiding principle for determining the inheritance.
166. The Viramitrodaya by Mitra Missir, which is an authority to be looked to of what may have been left doubtful by the Mitakshara [Gridhati Lall Roy v. Government of Bengal 1 B.L.R.P.C. 44 : 12 M.I.A. 448 at pp. 457, 466 : 10 W.R.P.C. 31 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 3 Mad. Jur. 386 : 20 E.R. 408 : 1 Ind. Dec. (N.S.) 28] says at page 194: “Greatness of propinquity is alone the criterion of succession.”
167. The method of counting Sapinda relationship according to the Mitakshara is referred to in Mayne, 8th Edition, page 707, but no matter what method of counting is adopted, the maternal uncle in the present case would be nearer in degree of relationship.
168. It is, however, argued that the appellant’s claim must be postponed in conformity with the two rules which are to be found in Trevelyan’s Hindu Law, Second Edition, page 401:
(1) In each of these classes as between cognates related through the father of the deceased and those connected through his mother, preference is given to those related through his father.
(2) Subject to the above, the nearer line excludes the more remote.
169. The former of these rules appears to be founded on Sundrammal v. Rangasami Mudaliar 18 M. 193 : 4 M.L.J. 275 : 6 Ind. Dec. (N.S.) 484. There the plaintiffs compromised with a number of the defendants and the competition for the decision by the Court rested between the males and’ females. The case does not appear to me to satisfactorily lay down any cardinal rule. In Tirumalachariar v. Andal Ammal 30 M. 406 : 17 M.L.J. 285 : 2 M.L.T. 357 the competition was between Bandhus of equal degree in nearness to the propositus. The learned Judges in their judgment stated: We base our decision on the general preference exhibited by the Mitakshara for the male over the female line. We think that that preference, of which it is unnecessary to give instances, may legitimately be extended so as to prefer, all other considerations being equal, that claimant between whom and the stem there intervenes only one female link, to, that claimant who is separated from the stem by two such links.”
170. This seems to indicate that preference of a male line over female was resorted to because the competition was between Bandhus of the same class and in the same degree of propinquity.
171. There has been one case, however, which has been referred to, Madho v. Janki 36 Ind. Cas. 514 : 12 N.L.R. 148, decided in the Nagpur Judicial Commissioner’s Court, where a competitor connected through the father, though further removed from the propositus by one degree, was preferred to a competitor connected through the mother. There seemed to be a doubt in the mind of the Court as to whether the successful competitor was a Gotraja Sapinda or a Bandhu, and admittedly the law applied was the Mitakshara as interpreted and followed In Western India. It cannot, therefore, be taken as laying down a principle to be followed in the present case.
172. The second rule appears to be based upon the decision in Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.T. 207 : 7 Ind. Dec. (N.S.) 243, where it is said that “the doctrine of religious benefit ought not to be resorted to in derogation of the great principles pervading the law of inheritance under the Mitakshara system. The first of such principles is that the nearer line excludes the more remote.” In this case also the competition was between persons who were removed from the propositus, or deceased owner, by an equal number of degrees of relationship. This was followed in Krishna Ayyangar v. Venkatarama 29 M. 115, where the competitors were also removed from the propositus in an equal number of degrees and where the Court decided that an Atma Bandhu had preference to a Pitri Bandhu. Such rules, if applied in the present case, would seem to me to be completely inconsistent with the principle “Greatness of propinquity is alone the criterion of succession.” It is pointed out in Mohandas v. Krishnabai 5 B. 597 : 3 Ind. Dec. (N.S.) 393 that the maternal uncle occupied amongst Bandhus an important status. The passages from the Mitakshara, quoted at pages 49 and 41 of the judgment in the Calcutta Full Bench case, Omrit Koomaree Dabee v. Luchhee Narain Chuckerbutty 2 B.L.R. (F.B.) 28 : 10 W.R. (F.B.) 76 at p. 6 : Ind. Dec. (N.S.) 592, tend to show that the maternal uncle was regarded by Yajnavalkya as the principal representative Bandhu, while the passage from the Viramitrodaya cited at page 42 is still more clear upon the point.
173. In Upper India, however, where the Viramitrodaya is taken as the greatest authority, Chapter III, Part I, Section 11, pages 157, 158, there is a distinct indication that as between Bandhus of the same class a rule of preference may be found in the quantity of spiritual benefit which they confer. In Buddha Singh v. Laltu Singh 30 Ind. Cas. 629 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 37 A.604 : 42 I.A. 208 (P.C.), where the dispute was between agnates, the Privy Council made it clear that while under the Mitakshara the Sapinda relation ship arises from community of blood and the right to offer oblations, still it does not exclude the right to offer oblations from consideration as a test of propinquity or nearness of blood. No case has been cited showing that the right to offer oblations may not be taken into consideration as a test of propinquity when dealing with the claims of Bandhus of the same class.
174. I would, therefore, hold on the ground of propinquity the maternal uncle has preference over the sister’s daughter’s son.
175. The order of the Full Court is that in a family governed by the Mitakshara school of law the maternal uncle of the last male owner is preferred to the sister’s daughter’s son as next heir to the estate. The case will be returned to the Division Bench for disposal.