Norman Macleod, Kt., C.J.
1. The plaintiffs in this suit sued for the possession and income of certain property, claiming to be the heirs as the paternal aunt's sons of one Shankar Balkrishna who died in 1918 unmarried; the defendant resisted the claim on the ground that as the maternal uncle of the deceased, he was the nearest heir.
2. The following pedigree shows the relationship of the parties and their ancestors:
Maternal great grandfather Paternal great grandfather
Maternal grandfather Paternal grandfather
| | | |
Balkrishna Mother = Father Paternal aunt
(defendant) | |
Shankar Narayan and two
(Propositus) others (plaintiffs).
3. The trial Judge without giving any reasons said that the plaintiffs were the preferential heirs of the deceased and passed a decree in their favour.
4. The defendant appealed.
5. The Joint Judge said .- 'The appellant as well as the respondents are sapindas to the deceased Shankar. Unquestionably the maternal uncle stands nearer to Shankar by sapinda relationship than the respondents. This is one of the grounds on which the maternal uncle should be preferred to the respondents. The other ground, viz., the doctrine of spiritual benefit proceeds upon the right to perform the parvana shraddha,' He then considered, as the maternal uncle offered the pinda to the maternal grandfather and great grandfather of Shankar, while the plaintiff offered the pinda to the paternal grandfather and great grandfather of Shankar, and as Shankar was bound to offer the pinda to both his paternal and maternal ancestors that it would be difficult to determine the question who would confer the greater spiritual benefit on the deceased Shankar. He decided in favour of the maternal uncle as Shankar would be under the obligation to offer the pinda to his maternal uncle while there was no obligation to offer the pinda to the paternal aunt's sons.
6. Accordingly the appeal was allowed and the plaintiffs' suit dismissed with costs throughout.
7. The plaintiffs have appealed to this Court.
8. The plaintiffs and defendant are atmabandhus of the deceased. The question to which of two contesting atmabandhus preference should be given is always arising, and though there is no dispute as to the texts which are applicable it has been found impossible by the Courts to lay down any common rules of inheritance which would enable the dispute between any possible pair of claimants to be decided,
9. Mr. Mulla in his principles of Hindu Law gives' a list of forty-two male atmabandhus besides female bandhus and has endeavoured to state the rules which govern succession amongst them, but these rules, as he points out in his latest edition, are subject to alterations as the result of judicial decisions.
10. In Saguna v. Sadashiv I.L.R(1902). 26 Bom. 710 : 4 Bom. L.R. 527 there was a contest between the father's half-sister and the maternal brother. The case came from Katnagiri where the Mitakshara prevails.
11. According to the Vyavahara Mayukha the father's sister is a gotraja sapinda, but it is not clear whether under the Mitakshara as interpreted in the Bombay Presidency she is a gotraja sapinda or a bandhu. Sir Lawrence Jenkins considered it unnecessary to decide this question as it was sufficient to say she was not more remote than a bandhu. He then dealt with the argument, based on the decision in Narasimma v. Mangammal I.L.R(1881) . 13 Mad. 10 that except where females were specially mentioned priority was given to male heirs, It was conceded that as between heirs of the same line preference was given to males but that as between different lines of heirs sex had no place as a determining factor. The fact that the mother was given preference to the father in heirship to the son was not considered as influencing succession where the contest lay between those claiming through the father and those claiming through the mother. If there had to be a choice between the analogy furnished by the order of succession as between father and mother directly on the one hand, and by the order of succession as between pitrubandhua and matrubandhus on the other, the choice would fall on the latter as being the closer, and for what it was worth the conclusion to which that led was in correspondence with the orders on which those internal lines were enumerated in the text cited by Vijnanesvara, '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.' That was supported by the opinion attributed to Balambhatta, who contended that the father should have precedence over the mother 'upon the analogy of more distant kindred, where the paternal line has invariably the preference before maternal kindred.' It was, therefore, held[.that as between the deceased's own bandhus, those connected through the father were, to be preferred, to those connected through the mother. It will be noted that no mention was made of the question whether the spiritual benefit conferred upon the propositus by rival bandhus was to be considered as a ground of preference,
12. In Vedchela Mudaliar v. Subramania. Mudaliar the contest was between the maternal uncle and the paternal aunt's grandson. The appeal came from the Madras High Court and their lordships reviewed in an exhaustive manner the whole question of the order of succession amongst bandhus. The head-note to the report does not seem to be absolutely correct aa it can only be inferred from their lordships' judgment that they disapproved of the decisions in Sundrammal v. Rangaaami Mwlaliar I.L.R(1894) . Mad. 193 and tialuaami Pandithar v. Narayana Rau I.L.R(1897) Mad. 312 so far as they held that among baudhus of the same class those ex parte paterna are to be preferred to those ex parts materna. Their lordships said (p. 359): 'Recent writers on Hindu law have divided each class of bandhus into two sub-classes respectively designated as cognates ex parte paterna, and cognates ex parte materna. This sub-division is evidently based on an inference from the order in which the several bandhus are mentioned in the illustrative enumeration. For instance, among the atma-bandhus enumerated, the name of the father's sister's son is first given; then comes the mother's sister's son; and after him, the son of the mother's brother...,From this it has been inferred that the expounder of the rule in question intended that each class should be divided into two sub-classes according to the side of relationship, and that in every case preference should be given to the father's side. Their lordships, again, in the view they take of the rights of the parties in the present case, do not think it necessary to express an opinion how far this proposition is in conformity with the express rule that in each class propinquity should be the governing factor.' Their lordships then considered various Madras decisions: Narasimma v. Mangammal I.L.R(1889) Mad. 10 where the maternal uncle was preferred to the father's sister; Chinnammal v. Venkataohala I.L.R.(1891) Mad. 421 where the maternal grandfather was preferred to the father's sister; Muttusami v. Muttukumwasami I.L.R(1892) . 16 Mad. 23 where the mother's half-brother was preferred to the father's paternal aunt; Sundrammal v. Rangasami Mudaliar I.L.R(1804) Mad. 193 where the paternal uncle's daughter's son was preferred to the sister's daughter and the mother's sister's sons and Balusami Pandithar v. Narayana Rau I.L.R.(1897) Mad. 342 where the sister's son's son was preferred to the maternal uncle's son Among other reasons for the conclusion in that case it was stated at the end of the judgment (p. 349): ' Another fundamental principle of the law in favour of the third defendant's preferable right is that among bandhus of a class those who are ex parte paterna take before bandhus ex parte materna.' The learned Judges relied on this division of atinabandhus into those two Hub-classes in para 598 of the Sarawvati Vilasa (Setlur's Collection of Hindu Law Book on Inheritance, p. 184): 'Nor could it be urged here that the mother being nearer than the father, the matru-bandhus take the wealth before the pitru-bandhus, From the text, ' of these the mother is more important than the father, ' (2) the mother's precedence alone is stated and not that of the mother's bandhus. Therefore, we think it sound that the matrix bandhus should take the wealth only after the pitru-bandhus.' Their lordships of the Privy Council remarked that a very small consideration would show that that passage had nothing to do with the members of the same class inter se. It only explained why pitrivbandhus were to be preferred to matru-bandhus, the mother's position being special to herself under an express rule.
13. In the end their lordships, after considering the texts, the commentaries, the judicial decisions and the view of modern writers, fell back on the four propositions ia Mutiusami v, Muttukumarasami, which aa a matter of fact give one very little assistance in deciding in a particular case which of two rival atmabandhus is to be preferred The third propobition is as follows: 'The examples given in the text of Vridha Satatapa or Boudhayana are intended to show the mode in which nearness of affinity is to be ascertained.' That proposition was useful in the case before the Court as showing that the maternal uncle's son was an atmabandhu while the father's paternal aunt's son was a pitru-bandhu; but it does not help to decide whether the maternal uncle is to be preferred to the father's sister's son. The fourth proposition was as follows, ' That as between bandhus of the same class, the spiritual benefit they confer upon the propositus is, as stated in the Viramitrodaya, a ground of preference,' But how is spiritual benefit to be measured, and how far as a ground of preference will it prevail against propinquity There would certainly appear to be some foundation for the opinion expressed by Sadasiva Ayyar J., though their lordships were not prepared to accept it, that the introduction of such questions as spiritual benefit or of death pollution, or of the right of performance of obsequial ceremonies would only lead to inextricable confusion. In many cases who is the nearest heir can easily be decided without any consideration of such questions, but when the rival merits of the claimants are fairly equally balanced we have no guide as to the extent to which the answer to these questions can avail as a ground of preference. Their lordships approved the express rule that in succession amongst bandhus to the nearest wapinda the inheritance belonged, and so far that would appear to conflict with the rule laid down in Saguna v. Sadashiv, but the test of nearness of affinity to the deceased had also to be regulated by the test of spiritual benefit. To what extent spiritual benefit is to be considered a ground of preference so as to overcome nearness of affinity still remains to be decided in each contest amongst bandhus. In the contest between the maternal uncle and the paternal aunt's grandson there was no difficulty, the former was the nearer heir and offered oblations to the maternal grandfather and great grandfather of the propositus, while the latter offered no oblations to the ancestors of the propositus.
14. In Balkrishna v. Ramkrishna I.L.R(1920) . 45 Bom. 353 : 21 Bom. L.R. 1442 it was held by this Court, following Narasimma v. Mangammal I.L.R(1889) Mad. 10 : S.C. 26 Bom. L.R. 779 and Rajah Venkata Narasimha Appa Rao Bahadur v. Rajah Surenani Venkata Purushothama Jogannadha Oopala Row Bahadur I.L.R.(1908) Mad. 321 that male bandhus should be preferred to females so that a mother's sister's son was preferred to a brother's daughter, but, as pointed out in Kenohava v. QirimaUappa Channappa (1921) L.R. 51 IndAp 368 Saguna v. Sudashiv was not cited, so that whenever 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, had to be weighed the Court which weighed them would have to choose between the two . decisions.
15. Now, if the bamlhus on the father's side had to be preferred to those on the mother's side the paternal aunt's grandson would have been preferred to the maternal uncle in Vedaahela v. Subramania, and the decision of the Privy Council in that case must no doubt be treated as preventing the rule in tiaguna v, Sadanhiv being considered as a rule of universal application.
16. In the present case if we follow Saguna v. Sadashiv undoubtedly the plaintiffs succeed. If we consider propinquity, together with the doctrine of spiritual benefit, the defendant is nearer to the propositus while the oblations offered by the plaintiffs to the paternal ancestors are more efficacious, since we cannot agree with the Joint 'fudge that the oblations offered to maternal ancestors are of equal value. Nor can we agree with the final test suggested by him with regard to the pindas to be offered by the propositus to the rival claimants. We are then confronted with the impossible task of expressing an uncertain measure of supariority of spiritual benefit in terms of propinquity or vise versa,, Propinquity can be expressed in degrees of relationship to the propositus. Spiritual benefit can only be said to be greater, equal or less. Can the greater efficacy of the oblations offered by the plaintiffs to the paternal ancestors of the propositus overcome the fact that the defendant is one degree nearer the propoaitus than the plaintiff, and can the paternal relationship of the plaintiffs be counted in their favour.... Perhaps it will be sufficient to say that in my opinion weighing all these consideration? preference should be given to the plaintiffs.
17. The appeal is allowed and the decree of the trial Court restored. The plaintiffs will get their costs in this Court and in the lower appellate Court.
18. The question of Hindu law that arises in this second appeal is as to who is the preferential heir between the father's sister's son and the maternal uncle of the deceased. The plaintiffs are the sons of the sister of the father of the deceased and the defendant is the maternal uncle of the deceased. The trial Court found in favour of the plaintiffs without giving any reasons and apparently without any doubt or difficulty about the point.
19. The learned Joint Judge who heard the appeal held in favour of the maternal uncle, and dismissed the plaintiffs' suit The reasoning of the learned Judge briefly is that applying the teat of religious efficacy the maternal uncle is nearer than the father's sister's son,
20. It is urged on behalf of the plaintiffs-appellants before us that in the text relating to bandhus the father's sister's son is mentioned while the maternal uncle is not mentioned and that therefore he should be preferred. Further, it is urged that both being atmabandhus the bandhu ex parte paterna should be preferred to the bandhu ex parts materna among bandhus of the same class, that on the ground of propinquity the father's sister's son is nearer than the maternal uncle, and that the mere calculation of degrees in the case of one on the father's side and in the case of the other on the mother's side cannot help the Court in deciding the question of propinquity as the consideration of degrees from two different sides involves an element of difference which renders the mere number of degrees an unsafe guide. It is also urged that even if the test of religious efficacy be applied, the father's sister's son, who can offer oblations to his three maternal ancestors, who would include the paternal grand-father and great-grand-father of the deceased, should be preferred to the maternal uncle, who can offer oblations to his father, paternal grand-father and great grand-father who would be the three maternal ancestors of the deceased.
21. On the other hand on behalf of the defendant-respondent it is urged that propinquity is the only test for determining the question of preference among bandhus of the same class, that the maternal uncle being nearer from the mother's side than the father's sister's sons from the father's side the former should be preferred to the latter on the ground of nearer affinity. It is urged that in Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 IndAp : 24 Bom. L.R. 649 the test really adopted is one of propinquity and that the test of spiritual benefit to the propositus cannot be considered as affording any safe guide in a case where one bandhu can offer oblations to the maternal ancestors of the deceased and the other can offer oblations to two paternal ancestors to whom the deceased could have offered oblations. Mr. Shingne did not argue-at least I did not understand him to argue-that the spiritual benefit conferred by the maternal uncle is greater than that conferred by the father's sister's son. Several decisions have been referred to in the course of the argument: but there is none directly bearing on the competition between the two particular bandhus, whose claims we have to consider.
22. On a careful consideration of the arguments I am of opinion that the father's sister's son should be preferred to the maternal uncle as a nearer bandhu, I shall briefly state my reasons for this conclusion.
23. At the outset it may be mentioned that both are atmabandhus, both are males and one is expressly mentioned in the well-known text relating to bandhus referred to in the Mitakshara and the Vyavahara Mayukha. It is expressly pointed out in the Mitakshara and the Vyavahara Mayukha that the atmabandhus exclude the pitrubandhus and that the pitrubandhus are to be preferred to matrubandhus on account of their near affinity. It has also been held that the particular bandhus expressly mentioned in each class in the text are illustrative of the class and that the enumeration is not exhaustive. It has also been held that those expressly mentioned are not necessary to be preferred to those not mentioned simply because they are mentioned. This position was accepted by this Court in Mohandas v. Krishnabai I.L.R(1851) . 5 Bom. 597 24 Bom. L.R. 789 where the maternal uncle, not expressly mentioned, was preferred to mother's sister's son expressly mentioned, and in Rajeppa v. Gangappa I.L.R(1922) . 47 Bom. 48 where the question of the relative rights of two male atmabandhus related on the mother's side and expressly mentioned was considered independently of this consideration. In spite of the argument of Diwan Bahadur Kao based upon the foot-note No. 3 in Mandlik's Hindu Law at p. 82 of the translation which in its terms is baaed upon the rule quoted in the foot-note (No 7) in the Sanskrit text of the Vyavahara Mayukha at p. 54 of the same book, the preference of the father's sister's son to the maternal uncle cannot be based on that ground.
24. I also desire to point out that in this case there is no question of a nearer female bandhu being preferred or postponed to a more distant male bandhu : and there is no question here of weighing any conflicting principles of preference of the paternal over the maternal line and the preference of the male over the female sex in this Presidency. That conflict will have to be settled when it arises for consideration, as pointed out by their lordships of the Privy Council in Kenchava v. Oirimallappa Ghannppa (1924) L.R. 51 IndAp 368 : 29 Bom. L.R. 779 .
25. The test of preference is propinquity, The word used in the Mitakshara is antardngatva. In the case of bandhus we have to consider the blood relationship. The method of determining the nearness by calculating the number of degrees from the common ancestor cannot apply to bandhus so effectively as to sapinda sagotras. The maternal uncle, taking the common ancestor on the mother's side, may appear one degree nearer than father's sister's son as taken from the common paternal ancestor. But where there is not one common ancestor either paternal or maternal for the purpose of determining the relative position of the two bandhus, this way of determining the nearness cannot be decisive and the element of differences between the paternal and maternal line necessarily comes in.
26. In this Presidency the preference of the paternal over the maternal line among the same class of 'bandhus was approved in Saguna v. Sadashiv I.L.R.(1902) 26 Bom. 710 : 4 Bom. L.R. 527. That preference has not been totally negatived in any case It is perfectly true that the universal preference given to the paternal over the maternal line has been definitely negatived by their lordships in Vadaohela Mudaliar's case; but in that case their lordships do not go so far as to say that there is no scope for any preference whatever on that ground. Its application as a conclusive test with reference to the consideration of near affinity, has been negatived but its consideration as an element in determining the propinquity or affinity is not excluded. In fact it could not be excluded for in that very case their lordships expressly approve of thy test of religious benefit laid down by Muttusami Ayyar J. in Huttutsami v. Muttukumaranami I.L.R.(1892) Mad. 23 and in applying the test of spiritual benefit the possible superiority of the pindas offered to the paternal ancestors of the deceased over pindas offered to the maternal ancestors does come in for consideration in an apparently different form. But in substance it is the same thing as the preference of the paternal over the maternal line
27. In applying the test of affinity unencumbered by any considerations of spiritual benefit, it must be remembered that the daughter and the daughter's son occupy a very high place in the list of specified heirs. Then the sister (i.e. the father's daughter) is mentioned as an heir in the Vyavahara Mayukha after the specified heirs before the agnates and in this Presidency under the Mitakshara also the sister, though not expressly mentioned, has got an equally high place. The cases with reference to the position of the sister in this Presidency are referred to at p. 554 of the report in Dattatraya Bhimrao v. Gangabai I.L.R.(1921) 46 Bom. 541 : 24 Bom. L.R. 69. In the Madras Presidency the sister would occupy a much lower place even among bandhus.
28. Then when we come to the sister's son though he is not mentioned as a bandhu he would occupy a high place among the atmabandhus, in this Presidency; and certainly he would not be preferred to the sister as in Madras. It is sufficient to refer to the decision in Ichhwram Shumbhoodas v. Prumanund Bhaeechund (1823) 2 Bom. 515 .
29. Then we come to the father's sister, that is the grand-father's daughter. According to the decision in Saguna v. Sadashiv she would be preferred to the maternal uncle. I am willing to treat it as an open question whether on account of her being a female she will be able to retain the place which has been assigned to her by Jenkins C. J. with reference to the maternal uncle, in view of the later decisions in Balkrishna v. Ramkrishna I.L.R.(1921) 45 Bom. 353 : 22 Bom. L.R. 1442 and Kenchava v. Girimallappa Ghannappa (1924) L.R. 51 IndAp 368 : 26 Bom. L.R. 779 . I do not desire to lay any emphasis on the decision in Saguna,'s case, beyond indicating that after consideration the paternal line was given preference over the maternal line, and that if that preference is not to be altogether excluded her son who is mentioned as an atmabandhu would be considered a nearer relation on account of his connection with the paternal line of the propositus. As regards the maternal uncle while he is a very close blood relation on the mother's bide, the idea of preferenee of the paternal over the maternal affinity cannot be altogether excluded. Without, therefore, attempting to generalise beyond the necessity of the case, in my opinion the father's sister's son has closer affinity with the propositus on account of his connection through the paternal grand-father than the maternal uncle who is connected with the deceased through his maternal grand-father.
30. I have dealt with the question so far without reference to the test of spiritual benefit to the propositus. That test is difficult of application generally speaking as regards bandhus when one is connected through the paternal line and the other through the maternal line It brings into operation the difference between the oblations which it is the duty of a person to offer at different kinds of Shraddhas. I shall refer briefly to Dharmasindhu and Nirnayasindhu as to the obligations to offer oblations to the maternal ancestors. Parvana Shra-dhaa are of three types which are described as Ekaparvanaka, Dwiparvanaka and Triparvanaka in the Dharinasindhu. (The Nirnaya Sagar Press-2nd edition, p. 2-5).(1)) In the latter two kinds of Parvana Shraddhas the deceased in his lifetime would offer oblations to his three paternal ancestors as well as three maternal ancestors, while in the first type of Parvana Shradha he would offer oblations to his three paternal ancestors. In the case of the father's sister's son ha would offer oblations to his three maternal ancestors who would include the paternal grand-father and the great grand-father of the deceased when he performs Shraddha of the Dwiparvana and Triparvana types. In the case of the maternal uncle he would be offering pindas to the paternal ancestors in all the three kinds of Parvana Shraddhas, to whom the propositus would be offering oblations under the Dwiparvanaka and Triparvanaka Shraddhas. And there is a fourth class of Parvana Sraddha in which Mahalaya and Tirtha Shraddhas for maternal ancestors can be performed as a Parvana, It is not without some reluctance that I have referred to these distinctions referred to in Dharmasindhu in the passage an extract wherefrom I have attached as note No. 1 to this judgment for ready reference. In the Nirnaynsiridhu the obligation to offer oblations to the maternal ancestors is referred to at p. 279, Nirnaya Sagar Press; Second edition. I have put up this extract as note No. 2.(1) These references incidentally illustrate the difficulty of applying the test of spiritual benefit.
31. But in the present case to put it in a simple form in which it has been referred to in the decided cases it would be accurate to say that the father's sister's son could offer oblations among others to his three maternal ancestors who would include the paternal grand-father and great grand-father of the deceased, while the maternal uncle would offer oblations to his three paternal ancestors who would be the three maternal ancestors of the deceased. The religious benefit to the propositus would be greater on account of his participation in the offerings to his two paternal ancestors than from his participation in the offerings to his three maternal ancestors. There is no decision so far as I am aware which says that no preference is to be given to offerings to paternal ancestors over those to maternal ancestors: and without pausing to weigh with nicety the relative efficacy of the oblations, which may be or should be offered in different types of Shraddhas and to ancestors in different lines, [ feel no difficulty in saying that judged by the test of religious benefit to the propositus resulting from oblations offered by the two bandhus in question the father's sister's son should he preferred to the maternal uncle.
32. I desire to make it clear that though 1 have considered the question of spiritual benefit to the propositus with reference to the two particular bandhus whose relative rights we have to decide, I rely largely upon the test of propinquity which is to be applied with due regard to the preference of the paternal (sic) over the maternal line within certain limits as indicated by the broad fact that all pitrubandhus are to be preferred to matru-bandhus and that in this Presidency the sister is assigned a high place among the heirs.
33. I need hardly add that I accept Vedachala Mudaliar'a case as a conclusive authority for the proposition that the maternal uncle is to be preferred to the father's sister's son's son. But there is nothing in the judgment to show that the father's sister's son cannot be preferred to the maternal uncle.
34. I, therefore, concur in the order proposed by my Lord the Chief Justice.
35. I concur in the order proposed by my Lord the Chief Justice.