1. After hearing arguments on both sides in this case, we have come to the conclusion that the question referred to the Full Bench should be answered in the negative.
2. I shall state my reasons for this conclusion briefly. So far as this Court is concerned this very question was considered very fully in Vithalrao v. Ramrao. I.L.R. (1900) 24 Bom. 317 Jenkins C.J. and Ranade J., who decided the case, came to the conclusion that the opinion expressed by Westropp C.J. in the earlier decision of Samat v. Amra I.L.R. (1882) 6 Bom. 394 should be accepted, and that the preference of the whole blood over the half-blood should be confined to the brothers and their sons as expressly mentioned by Vijnaneshvara in the Mitakshara and by Nilakantha in the Vyavahara Mayukha and could not be extended to the case of uncles and more distant gotraja sapindas. They had before them the view taken by the Full Bench of the Allahabad High Court with reference to a similar point in Suba Singh v. Sarafraz Kunwar. I.L.R. (1890) 19 All 19 The learned Judges differed from the view taken by the Full Bench of the Allahabad High Court, and came to the conclusion that the distinction between the whole blood and half-blood was confined to brothers and their sons, and did not extend to uncles and more distant gotraja sapindas.
3. Since then their Lordships of the Privy Council have hold in Ganga Sahai v. Kesri which went up to the Privy Council by way of appeal from the High Court of Allahabad, that 'Under the Mitakshara law a paternal uncle of the half-blood is entitled to inherit in preference) to the son of a paternal uncle of the whole blood.' Their Lordships observed in the judgment that 'the preference given to the whole blood over the half-blood is confined to sapindas of the same degrees of descent from the common ancestor.'
4. The question has been referred to the Full Bench in this case in consequence of the contention of the appellant that the observations in the judgment in Ganga Sahai v. Kesri are to the effect that so far as the gotrajas of the same degrees of relationship are concerned, the rule as to preference of whole blood over half-blood should be given effect to. It is contended that the decision in Ganga Sahai's case has the effect of overruling the view taken by this Court in Vithalrao v. Ramrao. It is further contended in Support of the view that the uncles of the whole blood should be preferred to uncles of the half-blood, that the reason given by Vijnaneshvara for preferring brothers of whole blood over brothers of half-blood would equally apply to the more distant agnates of the same degrees of descent from the common ancestor.
5. As regards the first point it must be remembered that in Ganga Sahai v. Kesri the competition was between an uncle of the half-blood and sons of an uncle of the whole blood. That is clearly pointed out in the following passage at page 183 of the report :-
The question then arises who among the two sets of plaintiffs are entitled to the inheritance of Bahadur Singh. At the time of his 'widow's death in 1804, when the succession passed to the collaterals, Rajaram, his uncle by the half-blood, was alive ; and he claimed the properties in preferenre to Kalka Pershad and Jian Lal, the sons of a full paternal uncle named Gunga Pershad. Rajaram has since died and is now represented by his sons and. grandsons who are plaintiffs in ono of the suits and respondents before this Board. Jian Lal has also died, and his son, Munshi Lal, now stands in his place. Kalka Pershad and Munshi Lal were the plaintiffs in the second suit, and they claimed in opposition to Rajaram to be the heirs of Bahadur Singh by virtue of their relationship to him being of the whole blood.
6. With, reference to the argument that was advanced before them their Lordships observe as follows at p. 184 of the report :-
This argument, in their Lordships' opinion, would apply with equal force to the case of half-brothers and the sons of brothers of the whole blood. But it is conceded that the author of the Mitakshara has expressly declared that brothers of the half-blood come before nephews of the whole blood, and in principle they see no reason to differentiate between the brother's of the propositus and the brothers of his father. Having regard to the general scheme of the Mitakshara, their Lordships think that the preference of the whole blood to the half-blood is confined to members of the same class, or, to use the language of the Judges of the High Court in Suba Singh v. Sarafraz Kunwar I.L.R. (1836) 19 All. 215 to 'sapindas of the same degrees of descent from the common ancestor ', and that, therefore, on the death of Lachman Koer, Rajaram as uncle of the half-blood became entitled to the inheritance of Bahadur Singh to the exclusion of Ms cousins.
7. These observations, no doubt, if read without reference to the point which came up for decision before their Lordships would appear to support the contention of the appellant that their Lordships decided that the preference of the whole blood over the half-blood under the Mitakshara was not confined to brothers and their sons, but extended to more distant agnates who come under the term gotrajas as used in Yajnavalkya's text or the expression samangotraja sapindas used by Vijnaneshvara in his commentary.
8. It may bo noted that, though the case of Vithalrao v. Ramrao was referred to in the argument before their Lordships, there is no reference to that case in the judgment, and it is not unreasonable to assume that if their Lordships intended to decide the question as to whether among gotraja sapindas of the same degrees the relations of the whole blood should be preferred to relations of the half-blood under the Mitakshara generally, they would have referred to this case in terms to express their dissent from it. As, however, their Lordships were not concerned to decide that question, even taking the general scheme of the Mitakshara to be as stated in that judgment, their Lordships hold that it could not apply to relations who were more distant in degrees but would apply to relations of the same degrees of descent from the common ancestor. No doubt, the observations are general, and they are capable of being read in the sense in which the learned pleader for the appellant has asked us to read them. But it seems to me that these observations must be read with reference to the facts of that case and the point which was before their Lordships for decision. Their Lordships did not state whether, in the case of gotraja sapindas of the half-blood and whole blood of equal degrees, the view taken by this Court was or was not correct according to the true reading of the Mitakshara and the Vyavahara Mayukha, which would be the prevailing authorities in this Presidency on questions of Hindu law. As that case is not referred to in the judgment and that was not the point before their Lordships, it seems to me that we cannot allow the appellant's contention that that view is dissented from or overruled by their Lordships of the Privy Council.
9. It is urged, however, that, apart from the decisions, the view taken by the Full Bench of the Allahabad High Court is to be preferred to the view taken by this Court in Vithalrao v. Ramrao, and that, as the matter is before us as a Full Bench, we should reconsider the view taken by this Court in Vithalrao v. Ramrao. Taking that argument at its best, it really comes to this, that because in the Mitakshara Vijnaneshvara in dealing with the ease of brothers has made this distinction between brothers of the whole blood and brothers of the half-blood, and as he has given as a reason that 'to the nearest sapinda, the inheritance next belongs ', which is a quotation from the verse of Manu (Chap. IX, Verse 187) the same reasoning should be applied to uncles and more distant agnates and uncles of the whole blood should, be preferred to uncles of the half-blood. The argument involves. this that the distinction which Vijnaneshvara makes as regards brothers explicitly should be read as applying to all the gotraja sapindas of the same degree referred to as heirs under the general term 'gotraja sapindas'. Considering this argument, with reference to the texts quite apart from the decisions, it seems to me that, after referring to the compact series of heirs, Vijnaneshvara proceeds to lay down the general order of succession; and after referring to the grandmother he proceeds to lay down by way of commentary on the text of Yajnavalkya as follows :--
On failure of the paternal grandmother, the (gotraja) kinsmen sprung' from the same family with the deceased and, (sapinda) connected by funeral oblations, namely the paternal grandfather and the rest, inherit the estate....
Here, on failure of the father's descendants, the heirs are successively the paternal grandmother, the paternal grandfather, the uncles and, their sons.
On failure of the paternal grandfather's line, the paternal great-grandmother, the great grandfather, his sons and their issue, inherit.
[See Mitakshara, Ch. II, Section V, paragraphs 3, 4 and 5]-Stokes Hindu Law Books, pp. 446-447.
10. It is to bo noted that in this section where he deals with the order of succession among the agnates, Vijnaneshvara does not say a word with reference to the distinction between the whole blood and the half-blood. In this original text the expression used is that in the absence of the grandmother 'samana gotraja sapindas' will inherit. Then he refers to uncles and their sons, and the word used is 'kramena' (sic) 'in order' i. e., in the order mentioned there. It means that the grandfather excludes the uncles and the uncles exclude the sons of the uncles. This indicates nearness or propinquity by degrees of relationship without any reference to the distinction of the whole blood and half-blood in anyone of these groups. If Vijnaneshvara really was of opinion that the distinction which he had made as regards brothers was to be extended to distant agnates of the same degrees, it seems to me that ho would have expressly said so. In interpreting the Mitakshara it is rather an unsafe and treacherous ground to take, that because the reason given with reference to the distinction between brothers of the whole blood and brothers of the half-blood is generally stated, it should generally apply to other relations also. At least it seems to me, that that is not the scheme of the Mitakshara, and with respect I agree on this point with the view taken by Mr. Justice. Ranade in his judgment where 'this point has been dealt with, and where other reasons also are given for adopting that view. It is perfectly accurate to say, as Westropp C.J. said in Samat v. Amra, that neither in the Mitakshara nor in the Vyavahara Mayukha there is any reference to the distinction between the whole blood and the half-blood as regards the succession among gotraja sapindas. Mr. Limaye for the appellant has not been able to find anything in any other original work on Hindu law having any authority in this Presidency in which the distinction, which has been made expressly as between brothers of the whole blood and brothers of the half-blood has been made with reference to uncles or more distant agnates. In the absence of any such distinction made in any such book, it seems to mo that the view taken by this Court in Vithalrao v. Ramrao affirming the opinion of Westropp C.J. in Samat v. Amra is the correct view to be adopted at least so far as this Presidency is concerned.
11. Then there is the further consideration that this rule of inheritance as interpreted in Vithalrao v, Ramrao has boon in force in this Presidency for over forty years ever since 1882 when the case of Samat v. Amra was decided. It is quite true that in that case the competing heirs wore more distant agnates, and not of the same degree. But the opinion was definitely expressed and in Vithalrao v. Ramrao the competition was between uncles of the whole blood and uncles of the half-blood just as in the present case.
12. I am conscious of the divergence of judicial opinion on this point as also of the weighty opinions in favour of the other view. In Allahabad; Bengal and Madras, the Mitakshara has been interpreted in the sense that the distinction between the whole blood and the half-blood expressly accepted by Vijnaneshvara with reference to brothers applies to all gotraja sapindas of the same degree. The Allahabad case is already referred to and the decisions in Sham Singh v. Kishun Sahai (1907) 6 C.L.J. 190 and Nachiappa Gounden v. Rangasami Gounden (1914) 28 M.L.J.1. represent the Bengal and Madras views.
13. I may add that in the Madras case which wont up to the Privy Council (see Rangasami Gounden v. Nachiappa Gounden this particular point did not arise before the Privy Council. In fact the dispute in that case between defendant No. 3 and. the other contending parties, which related to the preference of the whole blood over the half-blood, was finally settled by the judgment of the High Court in the appeal under the Letters Patent reported in 28 Madras Law Journal and defendant No. 3 or this legal representative was not a party to the appeal before the Privy Council. That is why it is said at p. 76 of the report that the decision as to the preference of the whole blood over the half-blood was acquiesced in by defendant No. 3.
14. Anyhow the fact remains that the concurrent opinions on this point of the two Judges, who heard the appeal and of the three other Judges, who heard the appeal under the Letters Patent in that case, were in favour of that view. Seshagiri Ayyar J. has dealt with this point in detail.
15. In the Calcutta case Mr. Justice Mookerjee has dealt with it at length, and in Ganga sahai's case this point may be said to be included in the reference to the general scheme of the Mitakshara. This makes a very formidable weight of judicial authority against the view that has prevailed in this Presidency during these years, In face of opinions of Knox and Banerjee JJ. of the Allahabad High Court, of Mookerjee J. of the Calcutta High Court and the considered and concurrent opinions of the Madras High Court in Nachiappa Gounden's case, one must pause to see whether after all the view accepted in this Presidency may not be mistaken. I have considered the Mitakshara, the Vyavahara Mayukha and the Virmitrodaya on this point. There is not a single reference in terms to the distinction of the whole blood and half-blood as regards the descendants of grandfather or more distant agnates. The references in the Mayukha are limited to brothers and sons of brothers of the whole blood and half-blood. There is no reference to this distinction while speaking of uncles (sic) (pitrivyah) and other distant relations. There is no such distinction in Nirnaya Sindhu or Dharma Sindhu. In Subodhini, which is a commentary on the Mitakshara, there is a more detailed list of the agnates (gotraja sapindas) given : but in that passage no reference is made to such a distinction as regards the agnates. Nor is there any such reference in the Balambhatti. I recognise that in the Madana Parijata, there is a reference as pointed out by Mookerjee J. in his judgment.
16. Thus, at least so far as the texts of authority in this Presidency are concerned, there is no express reference to this distinction as regards uncles and other distant agnates. The manner in which the author of the Vyavahara Mayukha has bracketed brothers of the half-blood and sons of brothers of the half-blood with the grandfather and the great-grandfather appears to me to indicate that he never intended to carry the distinction any further. If I may say so with respect the view accepted in the other Presidencies has been much influenced by the consideration that as Vijnaneshvara accepted this distinction with regard to brothers as indicating nearer sapindaship according to his definition of it, he must be taken to have meant to apply it to all gotraja sapindas of the same degree. It is this step which is sought to be justified by reference to rules of construction by Mookerjee J. in Sham Singh's case and by Seshagiri Ayyar J. in Nachiappa Gounden's case. It is that very step that I find it difficult to take. It seems to me that the historical perspective of these texts affords a safer guide on a point of this nature.
17. The Smriti writers like Manu and Yajnavalkaya have made no such distinction at all even in the case of brothers. When we come to the period of Vijnaneshvara this distinction is made as the practice or custom had grown by that time.
18. This is emphasised more by Nilakantha in the Vyavahara Mayukha by giving the half brothers and their sons a still lower place. But in the general description of heirs from the gotraja sapindas there is no reference to any such distinction. It seems to me that undue emphasis is laid upon the reasons given by Vijnaneshvara for preferring the mother to the father as an heir and for giving preference to brothers of the whole blood over brothers of the half-blood and upon the meaning of the word 'sapindas' as accepted by him in the Acharadhyaya. But sufficient weight is not given to the consideration that the conclusion in each case is the important thing and not necessarily the reasons. For instance, the Vyavahara Mayukha gives preference to the father over the mother and is in conflict with the Mitakshara on tills point.
19. As among brothers of the whole blood and of the half-blood) Nilakantha changes the order and puts in nephews of the whole blood before brothers of the half-blood. Then the Vyavahara Mayukha specially mentions the sister as an heir before the gotraja sapindas but after the grandmother and though the Mitakshara does not mention the sister at all, under the rule accepted in this Presidency that the Mitakshara and the Mayukha may be harmonised as far as possible, the sister has been given the same place in the Districts where the Mitakshara is to be preferred to the Mayukha in case of a conflict, as has been given to her under the Vyavahara Mayukha. It is difficult to apply the reasons logically to all positions and sometimes an apparently logical application or extension of the reason given, for a rule may lead to a conclusion which neither Vijnaneshvara nor Nilakantha may have contemplated.
20. Further, the terms used for indicating the difference between whole blood and the half-blood are (sic) (sodara) and (bhinnodara)-literally 'of the same womb' and 'of the different womb.'
21. Those words are used with reference to the propositus. In their very nature they cannot be applied to uncles and their sons, The uncle would bo a sodara or bhinnodara of the father of the propositus. The relationships are throughout described with reference to the propositus. In extending this distinction to pitrivyah (uncle), the expressions will have to be read with reference to the father and in the case of more distant agnates with reference to the grandfather and higher ancestors. In dealing with the question as to whether the heirship among gotraja sapindas goes par stirpes or per capita, Telang J. has referred to this consideration in Nagesh v. Gururao I.L.R. (1892) 17 Bom. 303 in these terms (p. 305):-
It is to be remarked, that the remoter heirs succeed in their own right, and directly to the propositus. According to the Mitakshara, no doubt, they succeed as belonging to the 'line' of this or that ancestor of the propositus. But that is not material on the present point.
22. I do not desire to lay undue emphasis upon this point. But after giving my bast consideration to the various reasons given in the judgments of the other High Courts to which I have referred above, I am still unable to see my way to think that the view accepted in this Presidency is erroneous or opposed to the texts. On the contrary, I am satisfied that that is the correct interpretation of the Mitakshara and the Mayukha. The propinquity- pratyasatti -contemplated with reference to the, gotraja sapindas is the propinquity to the propositus by degrees through one ancestor or another, as clearly indicated by Vijnaneshvara.
23. I desire to add a word with reference to the decision in Jana v. Rakhma. I.L.R. (1918) 43 Bom. 461 It is urged that if a full sister is preferred to a half sister, though nothing is mentioned about this difference in the Mitakshara the difference of the whole blood and the half-blood with reference to brothers is extended to them ; and there is no reason why it should not be extended to the uncles. It is true that in this Presidency a full sister is preferred to a half sister even under the Mitakshara on the ground of propinquity. But, as I have said, there is no good reason to-extend it further to the gotraja sapindas ; neither Vijnanesvara nor Nilakantha refers to this distinction while dealing with the gotraja sapindas as heirs alter the named heirs; and such distinction as is to be found between a sodara sister and a bhinnodara sister in Nirnaya Sindhu and Dharma Sindhu is not to be found with reference to the uncles and other agnates. The position of the sister is peculiar in this Presidency and considerations applicable to her cannot be extended or applied to gotraja sapindas generally.
24. I am, therefore, of opinion that, on a fair reading of the Mitakshara and the Mayukha, the rule accepted in Vithalrao v. Ramrao should be followed and the question should bo answered in the negative.
25. I agree in the answer proposed by my learned brother. I certainly do not think that the Privy Council in Ganga Sahai v. Kesri intended to overrule the decision of this Court in Vithalrao v. Ramrao I.L.R. (1809) 24 Bom. 317; and, as pointed out by my learned brother, the difference of opinion between this Court and the Allahabad High Court on the question discussed in Vithalrao v. Ramrao was not really before the Privy Council. Having regard to the care always taken by the Privy Council to decide only the exact point or points before them, it seems clear that they did not intend to decide on this difference of opinion. Speaking only for myself, I think the utmost that can be said is that the view taken by this Court is to some extent weakened, in so far as the Privy Council have approved the application of a principle, which, if extended to the present question about whole blood and half-blood, would favour the Allahabad view. They have allowed the principle laid down in Chap. II, section IV, placitum 8, of the Mitakshara about a competition between nephews and brothers to bo extended to the case of remoter agnates ; and it can, therefore, be said that the principle laid down in the neighbouring placitum 5 in regard to a competition of whole blood and half-blood in the case of brothers should similarly be extended to the case of remoter heirs, especially as the reason given for the principle applies equally to the case of such remoter heirs. That, I think, is the most that can legitimately be said. But, on the other hand, if the point did come up before the Privy Council, they would have to consider how far the principle of stare decisis should bo given effect to. I also think that the ruling in Vithalrao v. Ramrao should not be dissented from by a Full Bench of this Court except for very strong reasons, and it is preferable that, as was said in that case, any such reversal should have the authority of the Privy Council.
26. The answer to the reference is, in my opinion, in the negative.
27. The case comes from the Ratnagiri District and is governed by the Mitakshara. The exact point now in question, namely, whether the paternal uncles of the whole blood exclude, or whether they only share equally with paternal uncles of the half-blood, arose and was decided by this Court in 1899 in favour of the latter, in Vithalrao v, Ramrao. I.L.R. (1899) 24 Bom. 317 In their elaborate judgments, Jenkins C.J. and Ranade J. considered and adhered to the principle enunciated in 1882 by Westropp C.J. in Samat v. Amra I.L.R. (1882) 6 Bom. 394 that, firstly, as between sapindas generally, the class nearest in propinquity to the common ancestor shares equally among the individuals composing it but excludes the class more remote, irrespective of considerations as to whole blood or half-blood ; secondly, that the only exceptions to this rule are two classes expressly mentioned in the Mitakshara, namely, (a) brothers, and (b) the sons of brothers, each of these two classes of the whole blood excluding respectively the corresponding class of the half-blood; and, thirdly, that this exclusion of half-blood should not be carried further in the case of any other class of sapindas. On the second point, it might be added, the Mayukha goes one step further than the Mitakshara, preferring brothers' sons of the whole blood not merely to brothers' sons of the half-blood but even to brothers of the half-blood.
28. The Bench in the case of Vithalrao v. Ramrao adhered to the view in the earlier case of Samat v. Amra after a detailed consideration, especially by Ranade J., of the contrary view of the Full Bench of the Allahabad High Court in Suba Singh v. Sarafraz Kunwar. I.L.R. (1896) All. 215
29. In that case it was the great-great-grandfather of the deceased, who had married two wives, and the contest was between (1) his great-grandson through the first wife and of the half-blood on the one side, (2) the great-grandson, and (3) the great-great-grandsons through the second wife on the other, both of the full blood. It was held differing from the view in Samat v. Amra that the second, namely, the great-grandson of the full blood, succeeded, excluding both the first as being of the half-blood, and the second as being more distant sapindas.
30. In 1907 both the case of Vithalrao v. Ramrao as well as the Full Bench case of Suba Singh v. Sarafraz Kunwar were considered in the Calcutta High Court by Mookerjee J. in the case of Sham Singh v. Kishun Sahai (1907) 6 C.L.J. 190 In that case, which was from Bihar and was governed by the Mitakshara and not by the Dayabhaga, the High Court of Calcutta preferred the Allahabad view to that which prevailed in this Court.
31. The answer of the Full Bench of the Allahabad High Court was apparently thought to be more far-reaching in its effect than it was meant to be. For, in a later case, Kesri v. Ganga Sahai I.L.R. (1910) 32 All. 541 governed by the Mitakshara alone and not by the Mayukha, where the contest was between an uncle of the half-blood and a son of an uncle of the full blood, the District Court and the Subordinate Court held in favour of the latter, on the authority of the Full Bench case of Suba Singh v. Sarafraz Kunwar. The Full Bench in Kesri v. Ganga Sahai, however, decided in favour of the uncle, explaining that the preference of the whole blood only applied to sapindas of the Name degree of descent from the common ancestor and not to persons of different degrees-a decision and a view uphold in appeal by the Privy Council in Ganga Sahai v. Kesri. Although both the Bombay cases were referred. to in arguments before the Privy Council, the decision did not deal with them. In my opinion, this decision merely affirms the first proposition laid down by Westropp C.J. in Samat v. Amra. And it does not consider or express an opinion on the third proposition stated above, which is the only proposition on which the Bombay view in Samat v. Amra as applied in Vithalrao v. Ramrao differs from the view of the Calcutta and the Allahabad High Courts, at least in regard to the distinction of blood as between. the descendants of the grandfather of the same degree of propinquity.
32. Therefore, in my opinion, the weight of the Bombay decisions is not affected by the decision of the Privy Council. Nor do I understand a single sentence in that decision, namely, 'having regard to the general scheme of the Mitakshara, their Lordships think that the preference of the whole blood to the half-blood is confined to members of the same class,' necessarily implies an extension beyond the two classes of brothers and sons of brothers, which is now under consideration.
33. My learned brother Shah has pointed out that in 1914 a Full Bench of the Madras High Court has, in Nachiappa Gounden v. Rangasami Gounden (1914) 28 M.L.J. 1 accepted the view of the High Courts of Allahabad and Calcutta in preference to the view of this Court but that in the appeal to the Privy Council (Rangasami Gounden v. Nachiappa Gounden the party of the half-blood, original defendant No. 3, was not a party. The point now in question did not arise and the judgment proceeded on the questions of the Hindu widow's power of surrender and estoppel against the plaintiff.
34. On the texts themselves, I do not venture to add anything to the full discussion of Ranade J. on the one hand or of Mookerjee J. on the other, in Vithalrao v. Ramrao I.L.R. (1899) 24 Bom. 317 and Sham Singh v. Kishun Sahai (1907) 6 C.L.J. 190 respectively referred to above. What more needs to be said has already been said by my learned brother Shah.
35. The question appears to revolve round two points. viz., (1) propinquity, and (2) construction of the text. On each, one of two views is possible. Does propinquity, as test of succession, in the. text in question in the Mitakshara, mean merely distance of the class from the common ancestor; or does it further involve complete Mendelism up to particles of blood, such as descent or ascent through whole blood and half-blood And is the text in question as to brothers and their sons, enumerative and exhaustive, as an exception to the former view ; or is it illustrative of the latter view The three other High Courts have accepted the latter view on each point, this Court the former view. Each is, in theory, a tenable view. In practice and custom, as far as I know, the latter prevails -at least in this Presidency,
36. Moreover, accepting as I do both the principle of stare decisis referred to by Jenkins C.J. in Vithalrao v. Ramrao I.L.R. (1899) 24 Bom. 317 and its particular weight in regard to rules of Hindu law as settled by judicial decisions (Brij Narain v. Mangla Prasad and the reasoning and conclusion of Ranade J. in his lucid discussion of the texts, I content myself with a respectful expression of my concurrence with the view of these learned Judges in preference to the view of the other High Courts on the question under reference, which i, therefore, answer in the negative.