John Beaumont, Kt., C.J.
1. The question referred to us is of limited scope, being
Whether the decision of the full bench in Sakharam Narayan v. Balkrishna Sadashiv I.L.R. (1925) 49 Bom. 739 is no longer good law or requires reconsideration in view of the decisions of the Privy Council in Jatindra Nath Roy v. Nagendra Nath Roy and Balasnbrahmamya Pandya Thalaivar v. Subbayya Tevar. (1937) L.R. 65 IndAp 93
2. We have to see whether, in view of the decisions of the Privy Council in Jatindra Nath Roy v. Nagendra Nath Roy and Balasubrahmanya Pandya Thalaivar v. Subbayya Tevar, the decision of the full bench of this Court, which normally would bind us, is still good law. We are not concerned to consider which view of the law we prefer.
3. The question at issue is, whether the mother's brother is to be preferred as heir to the father's sister's son. It is not disputed that both the mother's brother and the father's sister's son are atma bandhus, that is to say, they are bandhus of the same class. In the latest Privy Council case referred to, Balasubrahmanya Pandya Thalaivar v. Subbayya Tevar, the precise question which arises in the present case came before the Privy Council and they held that under the Mitakshara law as interpreted in the Madras Presidency 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. Applying that principle, they held that the mother's brother being one step nearer to the propositus than the father's sister's son, was entitled to succeed as a preferential heir.
4. In the earlier Privy Council case referred to, Jatindra Nath Roy v. Nagendra Nath Roy, both the atma bandhus were of equal degree-the son of the father's half-sister, and the son of the mother's sister-and the Privy Council held that as between bandhus of equal degree the relations ex parte paterna would succeed in preference to the relations ex parts materna on the ground of superior religious efficacy.
5. In the case before the full bench of this Court, Sakharam Narayan v. Balkrishna Sadashiv, again the question was the same as that arising in the present-case, Whether the mother's brother is to be preferred to the father's sister's son, and the Court there held that the father's sister's son was a preferential heir. So that the decision is exactly opposite to that of Privy Council in Balasubrahmanya Pandya Thalaivar] v. Subbayya Tevar, and it is suggested that the decision in Balasubrahmanya Pandya Thalaivar v. Subbayya Tevar must be limited to the application of the Mitakshara law in the 'Presidency of Madras, and that the full bench decision of this Court applying the Mitakshara law in this Presidency remains good law.
6. If the full bench had proceeded on a different principle to that on which the Privy Council proceeded, we should have to consider whether there was any good reason for limiting the principle on which the Privy Council proceeded to the Madras Presidency. But the difficulty I feel in this case is in discovering any intelligible principle underlying the decision of the full bench of this Court. The full bench did not proceed on the principle that as between atma) bandhus the right to succeed should be determined by giving preference to the paternal heirs over the maternal heirs. That I could have understood. But the Court recognised that in view of the earlier Privy Council decision in Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 1. A. 349 they were bound to hold that in the first instance proximity of relationship was the governing principle. In Vedachela Mudaliar v. Subramania the question was between the mother's brother and the father's sister's son's son, and the Privy Council had held on the principle of propinquity that the mother's brother was to be preferred. In face of that decision, the learned Judges constituting the full bench recognised that they could not hold that the right to succeed would depend on relationship ex parte paterna being preferred to relationship ex parte materna. Both the learned Chief Justice and Mr. Justice Shah, who gave the judgments, recognised that the principle of propinquity of relationship must be applied, but they said that where the descent was not traced to a common ancestor, when one party claims from the paternal grandfather and the other from the maternal grandfather, to some extent the preference which Hindu law generally gives to paternal relations would be brought into play. Mr. Justice Shah summarises his decision at the end of his judgment, in these words (p. 758):-
I desire to make it clear that though I 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 over the maternal line within certain limits as indicated by the broad fact that all Pitribandhus are to be preferred to Matribandhus and that in this Presidency the sister is assigned a high place among the heirs.
Then he says expressly that he accepts Vedachela's case. So that he holds that, although on the principle of propinquity the sister's grandson must be postponed to the mother's brother, nevertheless the sister's son must be preferred to the mother's brother, because he traces from the father and not from the mother. With all respect to the Court, they seem to me to be applying two quite inconsistent principles. I can understand heirship being traced on the principle of propinquity, or on the principle of giving preference to paternal descent over maternal descent, but I cannot see how those two inconsistent principles can be applied at one and the same time. When from the point of view of propinquity the parties are on the same footing, then you may no doubt apply the other principle to determine which of them should 'have preference. But it seems to me that this Court in Sakharam Narayan v. Balkrishna Sadashiv attempted to apply two quite inconsistent principles, and their decision was not really reconcilable with the earlier Privy Council decision in Vedachela Mudaliar v. Subramania Mudaliar and is completely inconsistent with Balasubrahmanya Pandya Thalaivar v. Subbayya Tevar. In my opinion that decision applies as much in this Presidency, as in the Presidency of Madras.
7. I would, therefore, answer the question submitted to us by saying that the decision of the full bench in Sakharam Narayan v. Balkrishna Sadashiv is no longer good law in view of the Privy Council decisions referred to.
8. I agree. In my referring judgment I have already hinted at my view that the full bench decision of our High Court in Sakharam Narayan v. Balkrishna Sadashiv I.L.R. (1935) 49 Bom. 739 should be taken to have been overruled by the decision of the Privy Council in Balasubrahmanya Pandya Thalaivar v. Subbayya Tevar, (1937) L.R. 65 IndAp 93 and I am now confirmed in that view after hearing further arguments. It is true that that decision was not noticed by their Lordships in their judgment probably because it does not appear to have been relied upon on behalf of the appellant, although it was criticised and dissented from in the judgment of the Madras High Court appealed from. At the same time, their Lordships did not say in their judgment that their view was based upon any peculiarity of the law of Mitakshara as prevailing in Madras, nor is it stated in our full bench decision that it is based on any peculiarity of that law as prevailing in Bombay. Both decisions are based upon the same principles of Mitakshara and Virmitrodaya which are the leading authorities in western as well as in southern India. But while both regard propinquity as the main test to determine rivalry among bandhus under the Mitakshara, the full bench decision applies that test with due regard to the preference of the paternal over the maternal line within certain limits on the ground that pitri bandhus are to be preferred to matri bandhus. In other words, as pitri bandhus are to be preferred to matri bandhus to determine the claims as between these two separate classes, bandhus ex parte paterna are to be preferred to those ex parte materna among the same class of bandhus, e.g. atma bandhus as in the present case. If any principle is deducible from that decision, it would be that a bandhu related through the mother is postponed to a bandhu related through the father, even though the former is nearer in degree.
9. The Privy Council in all its three decisions in Vedachela Mudaliar v. Subramania Mudaliar Jatindra Nath Roy v. Nagendra Nath Roy, and Balasubrahmanya Pandya Thalaivar v. Subbayya Tevar has held that propinquity is the main test and that the test of near affinity or religious efficacy under which a bandhu ex parte paterna is to be preferred to one ex parte materna is to be applied only when the test of propinquity furnishes no certain guide, i.e. when the rival bandhus are equally related in degree. This conclusion is derived from the same texts which are equal authorities in Madras and Bombay and must, therefore, be taken to supersede the line of reasoning adopted in the full bench case. One more reason given in the full bench decision for preferring a bandhu on the paternal side is that in our presidency the sister was assigned a high place among the heirs. That, however, is not because of preference of paternal to maternal line but because it was held in Kessarbai v. Valab Raoji I.L.R. (1879) 4 Bom. 188 which is the leading case on this point, that the term 'brethren' occurring in the Mitakshara, ch. 2, sec. 4, pl. 1, included sisters who are regarded as sapindas having been born in their brother's gotra. But that only means that the sister by virtue of her affinity to the brother was included in the compact series of heirs, while in Madras and other provinces even where the Mitakshara prevailed she was regarded as a bandhu. She is, however, not regarded in Bombay as a preferential 'bandhu on the ground of affinity. It cannot, therefore, be said, in my opinion, that because in our presidency the sister is placed in the compact series of heirs, we have given preference to paternal bandhus' over maternal bandhus of the same class. That being so, it is difficult to say that the full bench case proceeds upon any established departure from the law laid down in the Mitakshara and as now interpreted by the Privy Council, On the other hand, all the three decisions of their Lordships of the Privy Council are based upon the general principles of the Mitakshara and Virmitrodaya, and they are, in my opinion, inconsistent with the reasoning in the full bench case. It is no doubt true that their Lordships have stated that the principle of religious efficacy does come in in some cases under the Mitakshara, but it comes in only where the test of propinquity does not decide the preference. That, however, is not the same thing as to say that the test of propinquity should be modified by the other test of affinity even where the rival bandhus are unequal in degree. I cannot see why the authority of Balasubrahmanyd's case should not be regarded as applicable to our full bench decision. I agree therefore that it must be taken as having been overruled by the latest decision of the Privy Council.
10. I agree.