1. These appeals raise a very important question of Hindu law as to whether when applying the test of propinquity in determining who is the bandhu to succeed to a propositus, the females are to be excluded and the males are to be preferred even though the male may be lower in degree of relationship to the female.
2. Before reviewing the authorities which have been cited at the bar, it would be perhaps better to lay down certain principles which are now well established. Mitakshara lays down three classes of bandhus, atma bandhus, pitru bandhus and matru bandhus, and the line of succession is laid down in order of preference of each class. Atma bandhus come first, then come the pitru bandhus, and finally come the matru bandhus. It is also well settled that in deciding who is to be preferred in each class, the test that must he applied is propinquity, the proximity of blood relationship. It is immaterial as to whether a particular bandhu is descended ex parte paterna or ex parte materna. It is only when the bandhus are of the same nearness of degree in relationship that the question as to whether the particular bandhu is ex parte paterna or ex parte materna is to be considered, and in that case a bandhu ex parte paterna is to be preferred to a bandhu ex parte materna, and that preference is given because of religious efficacy and the fact that a particular bandhu is in a position to confer higher spiritual benefit upon the propositus than another. Therefore, when one has to consider bandhus in a particular class, the main and the primary test must be the test of propinquity of relationship. It is only if that test fails that the test of religious efficacy is to be applied. So far, as I shall presently point out, there is no dispute as to the position in law. The only question that arises for our determination is whether, when we apply that test and when we find that a female bandhu is nearer in relationship than a male bandhu, we should exclude the female bandhu and prefer the male bandhu solely on the ground that the former is a female and the latter is a male. If I may put it in a different language, whether we are justified on the state of the authorities to discard the test of propinquity merely because the result of that test is to prefer a female to a male. In our opinion, the recent decisions of the Privy Council make it perfectly clear that the only test that has to be applied is the task of propinquity and that test should not be qualified in any way and certainly not because the result of applying that test in a particular case may be the preference of a female to a male.
3. Now, first turning to the authorities of our own Court, we have in the first place the case of Saguna v. Sadashiv 26 Bom. 710: 4 Bom L. R. 527. In that case the father's half sister was preferred to the mother's brother and the principle on which the case was decided, as appears from the judgment of the learned Chief Justice Sir Lawrence Jenkins, was that as between the deceased's own bandhus those connected through the father are to be preferred to those connected through the mother. It will be noticed that the two competing bandhus were of the same degree of relationship and of the same class and therefore on the facts of that case, with respect, the decision was correct. But we must point out that the principle as laid down by the learned Chief Justice is rather wide and does not contain the necessary qualification or limitation. If the principle is qualified by the statement that when we have bandhus of the same degree in the same class, those connected through the father are to be preferred to those connected through the mother, then the principle is incontrovertible and has been accepted as correct by the later Privy Council decisions. Then we come to two decisions in Balkrishna v. Ramkrishna 45 Bom. 853; A. I. R 1921 Bom. 189 and Girimallappa v. Kenchava 45 Bom. 768: A. I. R 1921 Bom. 270. In both those cases, it was laid down that a male bandhu is entitled to preference over a female bandhu even though the latter is nearer in degree, and Sir Norman Macleod made it clear in his judgment at p. 359 that the female bandhus were excluded by the nine classes of bandhus mentioned in the Mitakshara. What he was really referring to is the three classes, nine being the illustrations given of the three classes. Therefore, according to Sir Norman Macleod, till all the male bandhus in the three classes were excluded, a female bandhu could not be contemplated at all, and this decision was based on a judgment of the Madras High Court in Rajah Venkata Narasimha v. Rajah Surenani Venkata Purushothama 31 Mad. 321: 18 M. L. J. 409. That judgment merely states what was the settled law in that Presidency, viz. that a male bandhu was entitled to preference over a female bandhu even though the latter was nearer in degree. It is clear that this principle can only be supported on the basis that religious efficacy and spiritual benefit is to be preferred as a test to that of mere propinquity.
4. Turning now to the decisions of the Privy Council, we have first the decision in Vedachela Mudaliar v. Subramania Mudaliar 48 I. A. 319 : A. I. R 1922 P. c. 33. In this case the Privy Council disapproved of the Madras cases which laid down that among bandhus of the same class those ex parte paterna were to be preferred to those ex parte materna, and at p. 361 in dealing with rules relating to succession of bandhus and referring to the passage in Mitakshara their Lordships observed: 'The ground on which the rule is based is stated in express terms to be 'nearness' of blood.' They approved of the four rules as laid down in Muthusami v. Muthukumaraswami 16 Mad. 23 : 2 M. L. J. 296 and the fourth rule to which attention may be drawn is, 'that as between bandhus of the same class, the spiritual benefit they confer upon the propositus is as stated in Viramitrodaya, a ground of preference.' And ultimately, towards the end of the judgment they base their decision upon the fact that the bandhu in whose favour they were deciding was nearer in degree to the propositus. The next case to which reference might be made is Kenchava v. Girimallappa 51 I. A. 368: A. I. R 1924 P. C. 209. That was an appeal from the decision of this Court to which we have already referred, viz., Girimallappa v. Kenchava 45 Bom. 768: A. I. R 1921 Bom. 270. Their Lordships point out that the principle that among bandhus the male is entitled to preference over the female--even though the latter is nearer in degree--was accepted as being law for the Bombay Presidency as much as for the Madras Presidency, and they refer to the case of Balkrishna v. Ramkrishna 45 Bom. 353: A. I. R 1921 Bom. 189, and they point out that that decision is in conflict with Saguna v. Sadashiv 26 Bom. 710: 4 Bom, L. R. 527 because it will be noticed that in Saguna v. Sadashiv 26 Bom. 710: 4 Bom. L. R. 527, a female was preferred to a male bandhu. That was, as I have pointed out earlier, on the ground of that particular bandhu being ex parte paterna in preference to the other bandhu who was ex parte materna. Their Lordships realised the conflict that arises between the two views taken in Saguna v. Sadashiv 26 Bom. 710: 4 Bom. L. R. 527 and Balkrishna v. Ramkrishna 45 Bam. 353: A. I. R 1921 Bom 189, because if Balkrishna v. Ramkrishna 45 Bom. 853: A. I. R 1921 Bom. 189 was good law then the female bandhu could not have been preferred as was done in Saguna v. Sadashiv 26 Bom. 710: 4 Bom. L. R. 527, and therefore their Lordships go on to state (p. 376);
'Whenever therefore the two conflicting principles of preference of the paternal over the maternal line and preference of the male over the female sex, in the Presidency of Bombay, have to be weighed, the Court which weighs them will have to choose between these two decisions of the High Court.'
Then they have observed (p. 377):
'But it will be seen from this summary that there is no case in the Bombay Presidency which decides that some preference is not to be given to male bandhus over female. And there is no doubt, indeed the learned counsel for the appellants did not contend that there was any doubt, that throughout the rest of India preference for the male would be certain.'
4. Reliance is placed on this passage for the contention that the Privy Council has taken the view that in Bombay some preference should be given to the male bandhus over the female. In our opinion, their Lordships of the Privy Council have not decided this question but have left it at large. They have merely pointed out the conflict and they have also pointed out that there is no direct decision which takes the contrary view to the view taken in Balkrishna v. Ramkrishna 45 Bom. 853: A. I. R 1921 Bom. 189. With very great respect to their Lordships, they seem to have over-looked the fact that in Saguna v. Sadashiv 26 Bom. 710: 4 Bom. L. R. 527 itself a female bandhu was preferred to a male bandhu, and further their Lordships' attention was not drawn to the fact that in Bombay unlike Madras the position with regard to female heirs is very different and a daughter or a sister can be a full heir, a position very different from the position the females occupy under the Hindu law as interpreted in the Presidency of Madras. In this particular case the respondent was not represented and therefore it may be that the contrary point of view was not properly presented to their Lordships. Then we have the later case in Jatindra Nath v. Nagendra Nath and in this case their Lordships again emphasise the test of propinquity. At p. 379 their Lordships say that propinquity in blood is the primary test and they consider that conferring of spiritual benefit may only be considered when blood relationship furnishes no certain guide. And finally, we come to the most recent pronouncement of the Privy Council, Balasubrahmanya v. Subbayya . There their Lordships lay down in the words of the head-note which correctly gives the effect of the decision that:
'The principle of proximity of blood relationship applies to cognatic succession, and in determining, therefore, which of two atma bandhus is entitled to succeed to the estate of a propositus nearness of degree and not religious efficacy is the proper test to apply. Religious efficacy is an admissible test, but is only applicable when atma bandhus are equal in degree'.
5. The law could not have been more clearly stated than in these words of the decision of the Privy Council. Therefore, the test of religious efficacy is only permissible when the test of proximity of blood relationship fails or is not available. But if the test of proximity of blood relationship can be applied, then the Court has not to look further to consider the test of religious efficacy at all. It is also important to note that their Lordships have not suggested any qualification or limitation to the test of proximity of blood. It is true that their Lordships were not considering the case of female bandhus, but it is difficult to understand why that test would not be a proper test merely because in a particular case the test was satisfied by a female bandhu being nearer in relationship to the propositus. The only reason why a female can be excluded is because she does not satisfy the test of religious efficacy. But once the Privy Council rules out the test of religious efficacy and considers the test of blood relationship to be the primary test, then no logical ground remains for excluding a female bandhu in preference to a male bandhu.
6. Mr. Shah has argued that a limited application might be made of the principle of religious efficacy so that in a particular class of bandhus males should be preferred to females even though females may be nearer in relationship. This argument cannot be accepted because it neither accepts the one nor the other test. Logically, if the test of blood relationship is accepted, then if the female bandhu is nearer in degree she must be preferred to the male. If, on the other hand, the other test is accepted, then, as rightly held in the two cases, Balkrishna v. Ramkrishna 45 Bom. 353 : A. I. R 1921 Bom. 189, and Girimallappa v. Kenchava 46 Bom. 768 : A. I. R 1921 Bom. 270 the female bandhus must be excluded till all the male bandhus have been considered falling in all the three classes mentioned in the Mitakshara. I do not think that in view of the latest pronouncement of the Privy Council, the Courts have been left any option to consider the rival claims of the test of blood relationship and the test of religious efficacy. As the Privy Council has given the pride of place to the test of blood relationship, we must apply that test even though the result might be that in a particular case a female bandhu might be preferred to a male bandhu. We might refer to the observations of Shah J. in Dattatraya Bhimrao v. Gangabai 46 Bom. 541 : A. I. R 1922 Bom. 821, on this point. Although these observations are obiter, they deserve the respect which any observation of so close a student of Hindu law as Shah J. deserves, and it might be pointed out that Shah J. in 1921 expressed an opinion which ultimately was accepted by the Privy Council in later decisions. These observations are at p. 550. There Shah J. emphasises the fact that the test of propinquity alone must be determinative of the right to inherit in the case of distant blood relations. Having considered that that was the proper test, he then goes on to consider the question of female bandhus in the Province of Bombay, and he points out that in the case of females their rights are recognized in this province to an extent to which they are not recognized in any other part of India governed by the Mitakshara law. Then he deals with the case of a sister who is given a place in the line of heirs in this Presidency which has not been assigned to her in Madras or elsewhere, and he takes the view that as far as this Province is concerned the doctrine of propinquity has so far been applied without giving any general preference to male bandhus over the female bandhus. He also points out the anomaly that would result if the view was accepted that male bandhus should be preferred to female bandhus. The result would be that some of the nearest female relations would be postponed to very distant male relations. We might also point out that as far back as 1880 their Lordships of the Privy Council themselves realized and emphasised the different view of the law that prevailed in this Province with regard to female heirs. In Lulloobhoy Bappoobhoy v. Cassibai 7 I. A. 212 :5 Bom. 110 their Lordships say (p. 231):
'The principle of the general incapacity of women for inheritance, founded on the text just referred to, has not been adopted in Western India, for example, sisters are competent to inherit.'
Therefore, we feel that in the view that we are taking we are being consistent with the view always taken in this Province as to the position of women in the line of heirs under Hindu law.
7. In our opinion, therefore, the principle enunciated in Balkrishna v. Ramkrishna 45 Bom. 853 : A. I. R 1921 Bom. 189 and Girimallappa Channappa v. Kenchava 45 Bom. 768: AIR 1921 Bom. 270, that under Mitakshara Hindu law as applied to this province a male bandhu is entitled to preference over a female bandhu even though the latter is nearer in degree, is not a correct principle of law. In our opinion the proper test to apply is to determine in which particular class a bandhu falls among the three classes enumerated by Mitakshara and preference should be given to the class enumerated first over the classes enumerated subsquently. The next test to apply would be to determine which bandhu is nearer in degree of relationship as coming within a particular class. If a female is nearer in relationship then she should be preferred to a male bandhu. If there are two bandhus of equal relationship to the propositus, then only the test of religious efficacy should be applied and in that case a male bandhu may be preferred to a female bandhu.
8. The result of applying this test would be that 'the second Appeal NO. 446 of 1948 would be dismissed with costs throughout and Letters Patent Appeals Nos 11, 12 and 13 of 1946 will succeed. Suit No 53 of 1939 will be decreed and Suits Nos. 77 of 1939 and 289 of 1939 will be dismissed with costs. The Letters Patent appeals will be allowed with costs and also costs in the second appeal and the parties will bear their own costs of the first appeal Court below.