1. This appeal raises an important question as to the order in which, according to the Benares school of the Mitakshara law, gotraja sapindas succeed. The first plaintiff claims the estate of Sahib Sahai as his next heir under the following pedigree:
Nainsukh Mal._______________________|___________________________| |Narpat Singh. Kanji Mal.______|_____________ || | Buddha SinghPran Singh. Raja Gur Sahai. alias| Rani Kishori Kuar. Chaturi Singh,Buddha Singh. | Plaintiff.| Sahib Sahai.Laltu Singh,defendant No. 1.
2. The correctness of this pedigree is not admitted on behalf of the defendants; but the case has been decided by the court below on the assumption that it is correct, and the appeal before us has been argued on the same assumption.
3. The last male owner of the property in dispute was Sahib Sahai. After his death his mother, Rani Kishori Kunwari, was in possession till her death in 1907. It is claimed on behalf of the plaintiff Buddha Singh, alias Chaturi Singh, that he being the grandson of the great-grandfather of Sahib Sahai, the last owner, has a preferential right of inheritance as against Laltu Singh, the great-grandson of Sahib Sahai's grandfather. The other plaintiffs are purchasers of part of the property from Buddha Singh and are apparently financing the litigation.
4. The question to be determined is whether under the Hindu law as prevailing in these provinces, the great-grandfather's grandson succeeds in preference to the grandfather's great-grandson. The question is not free from difficulty and the authorities are to some extent conflicting.
5. The Mitakshara bases the order of succession on failure of sons and their descendants on the following text of Yajnavalkya : 'The wife, and the daughters also, both parents, brothers likewise and their sons, gotraja (gentiles), bandhu (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' (Aputrasya) (chap. II, S.I., Section 1).
6. In Section IV of chapter II the author of the Mitakshara deals with the rights of brothers, and Section V lays down the rule of 'succession of kindred of the same family name, termed gotraja or gentiles. 'In Section 1 it is stated that the gotraja (gentiles) are the paternal grandmother and relations connected by funeral oblations of food and libations of water (sapinda and samanodaka). Paragraphs 4 and 5 are as follows:
4. * * Here on failure of the father's descendants (santan) the heirs are successively the paternal grandmother, the paternal grandfather, the uncles and their sons.
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 general family till the seventh degree among the sapindas.
7. The above is the translation of the original given in Setlur's Hindu Law Books on Inheritance and is more accurate than Mr. Colebrook's translation.
8. Relying on the above text the learned advocate for the appellant contends that in the ascending line of heirs the paternal grandfather and his son and grandson succeed after the father, his son and grandson, and that after the paternal grandfathers' descendants mentioned above, the paternal great-grandfather, his son and grandson come in ; that is to say, the heirs are the paternal grandfather and his two descendants, and after them the great-grandfather and his two descendants and the grandson of the paternal grandfather only comes in as a gotraja sapinda under the last., clause of Section 5. On the other hand it is urged that the word ' son' in the above texts includes the grandson and great-grandson, that the word santan must be taken to include three descendants, and that in computing the heirs in the ascending line three descendants of each ancestor should be computed. The former contention has for its support, besides the literal words of the texts of the Mitakshara, the opinion of Biseswar Bhatt, the author of the Subodhini and the Madan Parijat among commentators and of Mr. Mandlik and Mr. Golap Chandra Sarkar among modern writers, whilst the latter contention is favoured by the authority of Apararka and Vaijayanti among commentators and of Dr. Jolly, Mr. Mayne, Professor Sarbadhikari and other modern writers to whom I shall presently refer in detail. I leave out of consideration the commentators who are of high authority in the Maharashtra and Dravidh schools of the Mitakshara law but do not carry much weight in these provinces. The Viramitrodaya, which, next to the Mitakshara, is of paramount authority in the Benares school, does not discuss the question but simply repeats the words of the Mitakshara.
9. The question thus turns on the interpretation of the words santan and putra in plaoita 4 and 5 of the Mitakshara cited above; that is to say, whether by santan in plaoita 4 and 5 is meant the descendants specifically mentioned in the preceding paragraphs and the word putra is to be taken in the narrow sense of 'son' and does not include the grandson. The appellant contends that the enumeration of heirs given in the above paragraphs should be 'strictly followed and that after the son of the paternal uncle comes the line of the paternal great-grandfather, He says, as stated above, that the paternal uncle's grandson is a gotraja only under the last portion of paragraph 5.
10. It may be taken as settled that the enumeration of heirs in the Mitakshara is not exhaustive. We have therefore to consider whether the word 'son' is to be understood in the narrow sense contended for, and whether in the case of each ancestor in the ascending line, only two descendants are to be computed.
12. The word putra has, it seems to me, been understood in a wide sense. In the text of Yajnavalkya beginning with patni (wife), &c.;, cited above, the word at the end is aputrasya. That the word putra is used by him in an extended sense and is not limited to the son but also includes the son's son and the son's grandson is manifest. This is admitted by Mr. Mandlik on p. 222 of his work on Hindu law. In the translation of the text itself he has retained the word putra and in the note relating to it he says:--' The word putra in this verse stands for son, son's son, son's son's son.' He refers to the Viramitrodaya and Balambhatta as authorities for this interpretation. This is also in accordance with what Manu ordains chap. IX, v. 187 Sacred Books of the East, vol. XXV, p. 366 in the following text: ' 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.' So that the participation of the body extends to the fourth descendant, including the propositus. To the same effect is the following text of Devala:--'Up to the third degree the members of the family are of the same body.' (Ghose's Hindu law, 2nd edition, p. 97). Parasara says that 'the separation of the body accrues to the fifth person born of one's family.' (Ghose, p. 57). Jimutavahana, quoting Manu, Vishnu, Harita, Yajnavalkya, Sankha, and Likhita, says that 'the term putra stands for descendants up to the son's son's son.' Mandlik's Hindu law, p. 381. Vijnaneswara, the author of the Mitakshara, has also used the word putra in the same sense. In chapter I, S.I, paragraph 3, treating of obstructed and unobstructed inheritance, he says, with reference to sons and grandsons, &c;, that the rule should be ' inferred in respect of their sons.' Both Balambhatta and the author of the Subodhini are of opinion that the word their (tat) in the above passage (sic) the grandson, &c.;, so that the grandson includes the great grandson. Again, chap. II, Section I, of the Mitakshara is headed 'Right of the widow to inherit the estate of one who leaves no putra (aputrasya).' There can be 'no doubt that the word putrt here also includes the grandson and the great-grandson. Similarly, in Section 4 of the same chapter the word seems to have an extended meaning. So that the author of the Mitakshara has generally used the word putra, wherever it occurs, in the sense of including the two immediate descendants of the son in the direct line. There is apparently no reason for holding that he has used the same word in a restricted sense in Section V, paragraphs 4 and 5. It seems that having used the word putra in other places in an extended sense he considered it unnecessary to state that he used it in the same sense in the chapter in question also. The view contended for will, it seems to me, militate against the general scheme of succession Laid down in the Mitakshara. In the case of the owner himself, his son, grandson and great-grandson succeed one after another, that is, down to the third degree. They take before the parents, and therefore it is reasonable to conclude that the same rule applies to the descendants of the father and the grandfather. There is apparently no reason to limit the line of descent to two descendants only in the case of the father and the grandfather, and it does not seem that the author of the Mitakshara intended to do so. If such was his intention one would expect that he would state some reason for putting a restricted meaning on the word putra in the case of the father, the grandfather and other ascendants, although that word had been elsewhere used by him in the sense of including the grandson. Under the Mitakshara sapinda relationship depends on participation in particles of the same body and propinquity is the rule of inheritance.' It is to the nearest sapinda that the inheritance goes. Therefore the three descendants of the father-being nearer sapindas than the three descendants of the grandfather, and the three descendants of the latter being nearer than the three descendants of the great grandfather, the three descendants the father inherit before the descendants of the grandfather, and his three descendants inherit before those of the great-grandfather. This is perfectly consistent with the rule of the Mitakshara. If Vijnaneswara intended to lay down a different rule he would not have used the word santan in paragraphs 4 and 5 of Section V. That word has a wide meaning, and in the English translation of Amarkosh its equivalent is 'lineage,' 'race.' The use of that word may fairly be regarded as an indication of the idea that the descendants of the father and the grandfather, &c.;, are not to be limitted to two degrees only but should include the great-grandson who is the last man in the series of those who are of the same body, according to Manu and other ancient Hindu lawgivers.
12. The learned advocate for the appellant chiefly relies on the position which he contends is given in the Mitakshara to the grandmother, that is, immediately after the brother's son, and he urges that the persons mentioned by name are indicated as the heirs who would come in after the paternal grandmother. As to this it seems to be extremely doubtful whether the author of the Mitakshara intended to bring in the paternal grandmother after the brother's son and before his grandson. In paragraph 2 of Section V he was considering the question whether the grandmother would come in immediately after the mother. He expressed the opinion that she does not do so, that her place in the order of inheritance is after the compact series of heirs from the father to the brother's son and 'that the highest place which can be assigned to her (utkarshe) was after the brother's son. 'If this placitum be read with the general context and be considered in connection with the whole scheme of succession according to the Mitakshara and with the meaning of the word 'putra' as understood in other chapters, it would not, in my opinion, support the appellants' argument to the extent contended for, and the grandmother would inherit after the brother's descendants and just before the paternal grandfather. The expression 'compact series of heirs' in Section 2 apparently refers to the series of heirs mentioned in Yajnavalkya's text quoted above and not to the heirs mentioned in chapter V of the Mitakshara.
13. It is also urged that if son includes the grandson, the daughter's grandson would succeed after the daughter's son. The answer to this is that the daughter's son succeeds because he is assigned a particular place by Yajnavalkya in the text quoted above, otherwise he would have succeeded as bandhu. This cannot be said of the daughter's grandson, who 'is not mentioned in the text,
14. The learned advocate also relied upon the Subodhini and the Madanparijat as supporting his contention that the great-grandfather and his descendants succeed after the grandfather's grand-son, i.e. the paternal uncle's son. The latter of the two authorities only recites the words of the Mitakshara literally. The Subodhini, no doubt, at one place, says that the brother's grandson does not succeed after the brother's son, but in the case of unobstructed and obstructed inheritance it would include the son of the grandson in the line of heirs. (Mandlik's Hindu Law, p. 382.) Besides, the author of that work would include females among gotraja heirs, which is admittedly not the law in the Benares school.
15. On the other hand, Apararka and Vaijayanti clearly support the view that the grandson of the paternal uncle succeeds before the line of the great-grandfather comes in.
16. Mr. Mandlik and Mr. Golap Chandra Sarkar adopt the list of heirs specifically mentioned in the Mitakshara and would not extend the line of the father and the grandfather to three degrees of descendants but would limit them to two.
17. On the other hand Professor Sarbadhikari (Tagore Law Lectures, 1880) would extend the list of heirs to three degrees of descendants in each case. He points out that there are fourteen classes of sapinda heirs, four of whom are propinquous sapindas. The first of these are the three immediate descendants of the deceased. The next class consists of the mother, the father and their three immediate descendants. In the third class are the grandmother, the grandfather and their three immediate descendants. The fourth class consists of the paternal great-grandmother and the great grandfather with their three immediate descendants (p. 654). He gives a complete table of sagotra sapinda heirs on p. 656, assigning in the ascending line the order of succession to each ancestor and his three immediate descendants. In this respect he differs, from Mr. Mandlik, who gives the right of succession to two descendants only. (See table on p. 378.) Dr. Jolly adopts the same view as Mr. Sarbadhikari (Hindu Law, pp. 210 and 212). The table of heirs given by him is on the same lines as that of Mr. Sarbadhikari, and he gives to the grandfather's great-grandson the 17th place, while he assigns the 21st place to the great-grandfather's grandson. Mr. Mayne in his well-known work (7th edition, p. 777) mentions the grandfather's successors as being 'issue to the third-degree inclusive.'
18. In the Vyavastha Chandrika, vol. I, p. 183, the great-grandson of the paternal grandfather, that is, the grandson of the paternal uncle, is included. Messrs. West and Buhler also think (p. 124) that the descendants of the grandfather must be exhausted before the great-grandfather's line can come in. The opinion of Mr. Bhattacharya (2nd edition, pp. 444 to 448) is that the three immediate descendants of the grandfather succeed before the great-grandfather. Referring to his opinion and that of Professor Sarbadhikari, Mr. J.C. Ghose in his work on Hindu Law, (2nd edition, p. 148) says: 'This rule is in accordance with the later theory of sapinda-ship and probably more consistent with the principle of propinquity.' The weight of the authority of commentators and text writers is thus in favour of the respondent. It is said in regard to Apararka's opinion that it is based on the theory of spiritual benefit, which is inconsistent with the Mitakshara theory of sapindaship. The Viramitrodaya, however, which, next after the Mitakshara, is of great authority in the Benares school, regards superior spiritual benefit as a determining factor in cases of competition, and this seems to have been the opinion of Their Lordships of the Privy Council. Bhyah Ram Singh v. Bhyah Ugur Singh (1870) 13 Moo. I.A. 873. However, it is not necessary to go into that question, because, as observed by Mr. Ghosh (p. 147), sapinda relationship is 'based on the identity of the body of the father, son, grandson and great-grandson.'
19. The preponderance of the case law on the subject is also in favour of the respondents. In Kalian Rai v. Ram Chandar (1901) I.L.R. 24 All. 128. a bench of this Court held that the word 'son' in the Mitakshara includes 'grandson,' and therefore the brother's grandson is a nearer sapinda than the son of the paternal uncle. The exact question now before us was not decided in that case, but the principle Laid down applies equally to the present case. The authorities were referred to and discussed and the conclusion arrived at was that the 'Mitakshara was not to be understood in a restricted sense when using the words putra and santan, and that those words include the grandson also. The opinion of Mr. Harrington in the case of Rutcheputty Dutt Iha v. Rajunder Narain Rae (1839) 2 Moo. I A. 133 was considered and approved. That opinion has been adversely criticized by Mr. Mandlik (pages 380-383). With much of this criticism I am unable to agree. The weight of authority, as pointed out above, is in favour of the view that the line of each ancestor down to the three immediate descendants must be exhausted before the next ancestor and his descendants can come in. In so far as Mr. Harrington extends the line to six degrees, he has apparently gone too far, but that is no reason for rejecting the theory he enunciates, the principle of which is, in my opinion, fully borne out by authority.
20. The decision of this Court, in the case mentioned above, appears to have met with the approval of the Bombay High Court in Kashibai Ganesh v. Sitabai Ragunath Shivram : (1911)13BOMLR552 In Rachara v. Kalingapa (l892) I.L.R. 16 Bom. 716. Mr. Justice Telang, referring to the Mitakshara, chapter II, Section V, placita 4 and 5, observed that it was Laid down that 'the propinquity of gotrajas is to be determined by lines of descent, that is to say, the inheritance is to go first in the line (the word in the original is eantana, literally 'continuation') of the paternal grandfather, then, in default of any one in that line, of the paternal great-grandfather and so forth.' The learned Judge understood the word santana in an extended sense and in his opinion the line of the grandfather was to be exhausted before the great-grandfather and his line came in; so that this decision may be regarded as an authority supporting the case of the respondent.
21. In Kureem Chand Gurain v. Oodung Gurain (1866) 6 W.R. 158 which was a Mitakshara case, the Calcutta High Court approved of Mr. Harrington's opinion and recognized the right of the brother's grandson. The Madras High Court has held the contrary view. The most recent case on the point is that of Chinnasami Pillai v. Kunju Pillai (1911) I.L.R. 35 Mad. 152 where it was held that the word 'son' in the Mitakshara, chapter II, does not include the grandson. The learned Judges seem to have based their decision on what they regarded as 'the consensus of opinion among lawyers dealing with the Mitakshara school of law as prevalent in this (Madras) presidency.' For the reasons already stated I am unable to agree with the learned Judges and to dissent from the view taken in this Court in Kalian Rai v. Ram Chandar. In my opinion on principle and on the authorities the view adopted in that case is correct.
22. Upon a true interpretation of the text of the Mitakshara and on the authorities referred to above, I hold that the three immediate descendants of the grandfather succeed in preference to the great grand father and his descendants and that the great-grandson of the grandfather is a preferential heir as against the grandson of the great-grandfather. The defendant, Laltu Singh, is therefore the next heir to Sahib Sahai and the plaintiff's claim has been rightly dismissed. I would dismiss the appeal with costs.
23. This is a suit for possession in respect of property, both movable and immovable, of very considerable value of which the last full owner was one Sahib Sahai, who died in July, 1873. Possession has since been with his mother Rani Kishori Kunwar, and the succession opened on the death of that lady in the month of August, 1907. The suit is based upon a pedigree, according to which the first plaintiff, Buddha Singh alias Chaturi Singh, is the grandson in the male line of one Nainsukh Mal, who was the paternal grandfather of Raja Gur Sahai (or Gauri Sahai), husband of Rani Kishori Kunwar and father of Sahib Sahai. The plaintiffs own pedigree shows that Laltu Singh (defendant No. 1) is the grandson in the male line of Puran Singh, own brother of Raja Gur Sahai. The defendants did not admit the plaintiff Buddha Singh to be in fact the son's son of Nainsukh Mal ; but this issue of fact has not at present been tried out. The learned Subordinate Judge has held in effect that, whatever doubt may exist elsewhere on the question of Hindu law involved, the decision of this Court in the case of Kalian Rai v. Ram Chandar (1901) I.L.R. 24 All p 128 was binding upon him and was sufficient authority for the proposition that Laltu Singh as the grandfather's great-grandson of Sahib Sahai was a nearer heir to that gentleman under the Hindu law of the Mitakshara school than Buddha Singh alias Chaturi Singh, even supposing the latter to be able to prove himself to be the grandson of Sahib Sahai's great-grandfather, all the relationships referred to being of course in the direct male line. There was some little discussion before us at the commencement of the hearing as to the convenience of the course thus adopted by the court below, but it is to be noticed that the plaintiffs have not made it a plea in their memorandum of appeal that they desired an issue to be remitted upon the question of fact, and it seems clear that the learned Subordinate Judge acted as he did with the acquiescence, if not with the express consent, of both parties. We thought it best therefore 'to accept the position as it stood, and we have had the advantage of hearing the question of law argued out at length with the assistance of an array of counsel on both sides exceptionally well qualified, if I may take the liberty of saying so, to assist the Court in arriving at a correct conclusion.
24. Much of the argument centered round Mr. V.N. Mandlik's exposition of the Hindu Law of Succession contained in his commentary on the 'Vyavahara Mayukha,' and I find it convenient to turn at once to the table given by that learned author at page 378 of his work, quoting from the edition of 1880. We have exhausted in this case the line of the propositus himself and that of his father, and the question is as to the steps to be followed in order to arrive at the next heir amongst the gotraja sapindas. There is no grandmother or great-grandmother to be considered in this case, and I need not complicate the question at this stage by considering the position assigned to these ladies, or to other female heirs of the same class. Broadly speaking Mr. Mandlik's principle as applied to the facts of the present case is to ascend to the line of the grandfather, to follow this downward for two generations only, that is to say, as far as the grandfather's son's son (that is to say, the first cousin of the propositus), and then to ascend to the next generation and take the line of the great-grandfather. This is similarly followed for two generations only before ascending to the line of the grandfather's grandfather, and the process is continued to the sixth in ascent from the propositus (the great-grandfather's great-grandfather), after which Mr. Mandlik returns once more to the lower generations, continuing each line in turn until he reaches the sixth in descent, either from the propositus himself or from the common ancestor in each case. It is this table, together with the authorities upon which it purports to rest, which forms the basis of the appellant's case. It places the plaintiff, Buddha Singh, as great grand father's grandson, eighteenth in the order of succession, while the defendant, Lattu Singh, as grandfather's great-grandson, stands only thirty-eighth. He is postponed, not merely to Buddha Singh, but to such hypothetical heirs as grandfather's first cousins, as well as to the practically inconceivable heirs arrived at by ascending two generations higher still, who appear as numbers 24 to 32 inclusive in Mr. Mandlik's table.
25. As against this scheme of inheritance, which I may refer to for convenience sake as Mr. Mandlik's, there have been Laid before us two other schemes or theories, which I propose to speak of as Mr. Harrington's and Mr. Sarvadhikari's. The former was expounded by Mr. Harrington of the Sudder Dewani Adalat in the case of Rutcheputty Dutt Jha v. Rajunder Narain Rae as long ago as 1839 vide 2 Moore's Indian Appeals, p. 133. It goes on the principle of exhausting the line of each ascendant down to the sixth person in direct male descent before taking another step in the upward line. As applied to the facts of the present case, this principle would exhaust the line of Sahib Sahai's grandfather, not merely down as far as his great-grandson, the defendant Laltu Singh, but if necessary, three generations further, before seeking for an heir in the line of Sahib Sahai's great-grandfather. The principle Laid down by Mr. Sarvadhikari, and arrived at independently by Dr. Jolly in his 'History of Hindu Law' (at p 212), lies between these two. It would follow Mr. Mandlik's plan in its general outline, but would carry the descent in each case one step further, namely, to the great-grandson of the common ancestor concerned. Thus in the present case the line of Sahib's grandfather would have to be carried down to that gentleman's great-grandsons, and would thus reach the defendant Laltu Singh, before any attempt was made to search for other possible heirs by ascending to the line of the great-grandfather in order to reach the plaintiff Buddha Singh.
26. The defendants of course stand to win this case if the court will accept either Mr. Sarvadhikari's or Mr. Harrington's scheme of succession, but their learned advocate was inclined to press the former upon our acceptance rather than the latter. For purposes of argument, however I prefer to consider Mr. Harrington's first. I do not propose to transcribe the ancient texts on which the argument turns, the most important of them have been set forth in the judgment of the lower court. The essential point is the interpretation to be placed on the fifth Section of the second chapter of the (sic) We must go back, however, to the beginning of the chapter in order to remind ourselves that we are dealing with the estate of one who departed for heaven leaving' no male issue,' vide Yajnyavalkya, chapter II, Section V, 137, as quoted in the Mitakshara itself. The word used here is 'aputrasya,' and it is common ground that as used in the particular place and in this particular context, the word does not mean a man who has left no sons surviving him, but means at least a man who has left no son, grandson or great-grandson in the male line. Mr. Harrington would take it broadly as meaning a man who has left no lineal descendants in the direct male line. The first four Section s of the chapter deal with the succession of the estate of such a man as far as the exhaustion of his father's line : we then come to the fifth Section introduced by the words ' if there be not even brothers sons, gentiles share the estate.' Amongst these the ancient author proceeds to put the paternal grandmother first and he diverges into a curious exposition of his reasons for so doing. He then explains the general distinction which he draws between gentiles (sapindas) and cognates (bandhus) and finally returns to his table of succession at the fourth sub-division of the Section . Thus, he says, on failure of the father's line (santan), the succession goes to the paternal grandmother, the paternal grandfather, the uncles and their sons. The next sub-division gives the succession 'on failure of the paternal grandfather's line' to the paternal great-grandmother, the great-grandfather, his sons and their issue and provides further that this is the way in which the succession of gotraja sapindas is to be reckoned ' up to the seventh degree.' After this we are to make a fresh start in search of kindred connected by libations of water, and the principle laid down appears to be that we are to resume the same process and carry it to the seventh degree beyond that already reached,' or else as far as the limits of knowledge as to birth and name extend.' The great point in favour of Mr. Harrington's scheme of succession is that it avoids making a fresh start until the necessity for so doing is clearly indicated by the ancient text itself. It carries out one single and consistent process up to the dividing stage marked by the end of pl. 5, and it then proceeds to follow the directions of pl. 6 by carrying a precisely similar process six degrees further. It rests upon the contention that the word 'son' or 'issue' wherever they occur in this section must be interpreted in accordance with the general context,and must be governed by the use of the word 'santan' at the beginning of pl. 4 and pl. 5, as well as by the general direction to carry the entire process 'up to the seventh degree.' That there is authority for the use of the word 'sons' in other parts of the Mitakshara so as to include at least the sons and grandsons of such sons is not denied; the contention for the appellants is that this use is only to be accepted where there are express words in the text itself to authorize such an interpretation. The argument in favour of Mr. Harrington's scheme I would state as being that the interpretation of such words as 'sony' and 'issue' should be governed in each case by the context as a whole, and that the context in the present case is such as to justify, if not to necessitate, an interpretation which will carry the direct line of descent downwards to the limit of the 'seventh degree' prescribed by pl. 5. I understand that Mr. Harrington, in order to give symmetry and completeness to his scheme of inheritance, would propose formally to place the lineal descendants of the propositus in the main line down to the seventh degree (i.e., down to the great-grandson of the great-grandson) first in order, before ascending to the line of the father at all, and would similarly exhaust the line of the father down to the grandson of a great-grandson of a brother of the propositus before ascending to the grandfather's line. This has been made a matter of serious objection against the entire scheme by Mr. Mandlik and other Hindu critics. They contend that on the ancient texts themselves there can be no doubt that the ascent to the father's line (I am passing over for purposes of argument the rights of the wife, the daughter, the daughter's son and the mother) commences as soon as the line of the propositus has been carried down to his great-grandson. Moreover they lay particular stress on the position of the grandmother, contending (and this is an argument used both against Mr. Harrington's scheme and against that of Mr. Sarvadhikari) that it is quite clear from Section V, pl. 2, of the second chapter of the Mitakshara that the paternal grandmother succeeds immediately after the brother's son. These arguments are not without real weight, but I conceive that there is much to be said by way of rejoinder. One cannot deal with an ancient text like that oil the Mitakshara precisely as one would with a modern. Act of Parliament. I cannot feel that it is a conclusive argument against a scheme of inheritance which is really intended to apply when one readies the 'gotraja sapindas,' after the exhaustion of the father's line, that it involves by analogy the assigning of a place in the line of succession to such improbable heirs as the great-grandson, or the brother's great-grandson of the propositus, such as does not seem to be strictly warranted by the ancient text. The text relating to the paternal grandmother represents what the author of the Mitakshara felt to be a difficulty, not to say an anomaly, about the older scriptures on which ho was commenting. It is at least open to argument whether on a correct rendering of the original, the author's meaning should not be taken to be that the paternal grandmother can only come in 'at best' or 'at the highest' after the brother's son. In any case the argument, to some extent at least, begs one of the most critical questions in issue, that is to say, whether the expression 'brother's son' in this very passage may not include the descendants of the brother in the direct male line either to the third or to the sixth degree.
27. I now pass on to consider Mr. Sarvadhikari's scheme. In order to the due appreciation of this it is necessary to go right back to the original text of Mann, which is the foundation of the Hindu law on the question. I quote from Manu, III, 216, as translated by Mr. Ghose at p. 66 of his book on Hindu law:--' To the three ancestors water must be offered; to three the funeral cake (pmda) is given; the fourth (descendant) is the giver of these (oblations); the fifth has no concern (with them).'The way in which this text has been understood and applied by subsequent commentators can best be understood if we start with a series of seven descendants in the direct male line in which our propositus occupies the middle place. He offers the mystic 'funeral cake' to three ancestors, i.e., to his own father, paternal grandfather and paternal great-grand-father ; similarly he has three descendants who make the same offering to him, namely, his son, his son's son and his great-grand-son, the son of his son's son. By the 'fifth' who has 'no concern' is to be understood the fifth person in the descending series reckoning the propositus himself as the first, that is to, say, the 'fifth' person would be the great-grandson's son. In the table at page 378 of Mr. Mandlik's book to which I have already referred we find as the be is of the scheme of inheritance a series not of seven, but of thirteen, descendants and ascendants in the direct male line, with the propositus or 'deceased owner' in the centre. This is presumably because of the interpretation which all Hindu lawyers appear to have placed on the expression 'up to the seventh degree' in the Mitakshara, chapter II, Section V, pl. 5. The series itself stands connected with the propositus not only by the offering of water spoken of in the text of Manu, but by the fact that the great-grandfather offers the funeral cake to his own great grandfather, and the great-grandson receives the same offering from his own great-grandson. The general principle has been laid down (vide Mayne's Hindu Law at page 777 of the VII edition) that 'so far as the issue of each ancestor are his sapindas, they are also the sapindas of the person with whom they are connected through that ancestor.' From these considerations Mr. Sarvadhikari deduces a theory of nearer and more remote sapindas, according to which the 'nearer' line comes to an end in each case with the great-grandson of the propositus himself and of each male ancestor in the ascending line in turn; the search for more 'remote' sapindas is then recommenced with the great-grandson's son of the propositus himself and continued as already explained. The theory finds support from a passage from Visves-vara referred to at page 382 of Mr. Mandlik's book, which has evidently puzzled that learned author so much that he can only get away from it by suggesting some misreading in the manuscripts now available, a suggestion which later research has apparently quite failed to bear out. The advantage of this scheme over Mr. Harrington's is that it begins the ascent in strict conformity with the letter of the ancient texts after the great-grandson' of the propositus, and that it can quote more direct authority for understanding the word 'sons' as including the sons and grandsons of such sons than is available in support of Mr. Harrington's theory that the descendants of such sons to the sixth degree should be deemed to be indicated. I do not say that this argument altogether meets, to my mind, the contention that Mr. Harrington's scheme is based upon the general context of the Section of the Mitakshara in question (chapter II, Section V) read and considered as a whole, but it is certainly not without weight. As the matter presents itself to my mind, a very important question is whether this scheme of Mr. Sarvadhikari's is or is not open, equally with Mr. Mandlik's, to an objection which I have already suggested. Does it or does it not involve making a fresh start at a point where no fresh start is indicated by the text of the Mitakshara itself As formulated, or at any rate as presented to us in argument, it seems to me that it does. I venture to throw out the suggestion, however, that this objection as applied to Mr. Sarvadhikari's scheme turns rather upon a question of terminology. Would the learned Hindu lawyers who support this scheme of inheritance be content to admit that the heirs arrived at by making a fresh start after the great-grandson of the great-grandfather's great-'grandfather come in under pl. 6 as 'kindred connected by libations of water ' If this be done, and if we interpret the words ' to the seventh degree ' in pl. 5 as meaning ' up to the seventh degree in the ascending line of ancestors,' it seems to me that we arrive precisely at Mr. Sarvadhikari's scheme or table of succession upon a strict and consistent interpretation of the text of the Mitakshara and subject only to the condition that we bring in the entire line of what Mr. Sarvadhikari calls the 'remote sapindas' by virtue of pl. 6 and not under pl. 5 of the text before us. I leave it to Hindu lawyers to say whether this suggestion is hopelessly unacceptable because doing too great violence to the accepted meaning of the term 'sapindas,' though I cannot refrain from remarking that the arguments before us seemed to disclose abundant instances of varying usage, now stricter and now looser, in respect of this particular term.
28. I have now said enough to have indicated incidentally the essential basis of Mr. Mandlik's theory and the line of argument upon which it is based. It involves a strict and literal interpretation of the word 'sons' or 'issue' wherever they occur in Section V of chapter II of the Mitakshara. It is as if we were, to presuppose a second series of 'enumerated heirs' given a preferential right amongst the sapindas themselves by virtue of the fact that they are specifically mentioned in the text itself, while the position of others is left to be deduced by inference and analogy. These would be the paternal grandmother, the paternal grandfather, his sons ('the uncles') and his grandsons ('their,' i.e., the uncles' 'sons'); then the 'paternal great-grandmother, the great-grandfather, his sons and their issue'--the latter expression, being understood strictly as being the sons of such sons. The Madras High Court, which is the one modern authority clearly on the side of Mr. Mandlik's theory, has gone the full length of accepting these persons as 'enumerated heirs,' in the same sense apparently in which that expression is used elsewhere of the, ' compact series of heirs from the father to the nephew ' spoken of in the Mitakshara, ch. II, Section V, pl. 2--vide Chinnasami filial v. Kunju Pillai (1911) I.L.R. 35.Mad. 152 It matters not for the purpose of this particular case that the 'enumeration' strictly so called ceases with the line of the great-grandfather, and that Mr. Mandlik himself has to continue his table of inheritance from this point by way of inference and deduction. The fact remains that a son of a great grandfather's son is specifically mentioned in pl. 5, while the place in the line of succession of a grandfather's great-grandson must be determined by analogy upon one or other of the theories before us. If this specific mention is to be accepted as decisive, in spite of any other arguments in favour of Mr. Sarvadhikari's scheme or of Mr. Harrington's, there is undoubtedly an end of the matter, and the decision of the court below on the issue of law involved must be reversed.
29. I pass on now to consider the competing theories before us in the light of authority. It was very strongly urged upon us in the final argument addressed to the Court on behalf of the appellants that we should by no means base our decision upon any interpretation which we might ourselves feel disposed to put upon the text of the Mitakshara, even after considering that text in the light of opinions expressed by the most eminent modern commentators, or in view of analogies drawn from published decisions of English courts. We are asked to decide simply what is the interpretation put upon the text of the Mitakshara by those ancient commentators who are the accepted authorities upon that school of law as prevailing in these provinces. I wish to make it clear that 1 fully appreciate the force of this argument. Had the very learned and able advocate for the appellants succeeded in satisfying me that there was a clear and unmistakable consensus of opinion amongst such commentators upon the particular point in issue, I should undoubtedly have felt it my duty to accept this consideration as decisive. My learned colleague is better qualified than I am to appreciate the precise force of this argument as it was developed in detail, and if it failed to convince him I can feel no scruples on the point myself. It seemed to me that neither clear unanimity nor unmistakable certainty of decision in respect of the particular point before us on the part of the authorities cited was made out. In some cases the commentaries quoted simply reproduced the text of the Mitakshara, with little or no variation and nothing in the way of comment that had any bearing upon the issue we are considering. It did not appear to me that more than one authority, the 'Madana Parijata' (S. Sitarama Sastri's translation) expressed itself with anything approaching' certainty in favour of Mr. Mandlik's view. Nowhere did I find anything like a complete examination of the entire Section of the Mitakshara with a view to deducting therefrom a definite and unambiguous scheme of succession amongst the 'gentiles' I cannot accede to the view that the question before us is concluded by a clear consensus of opinion amongst the most ancient authorities of the Mitakshara school.
30. There is no reported decision of their Lordships of the Privy Council which can be regarded as turning upon or finally determining this particular point. It is to be noticed, however, that what I have spoken of as Mr. Harrington's scheme was formulated in a case which went up to their Lordships, and it is scarcely putting the matter too strongly to say that it received their tacit endorsement. Indeed in a subsequent case Bhyah Ram Singh v. Bhyah Ugur Singh (1870) 18 Moore's I.A. p. 373 though here again the actual point for decision was different. Their Lordships seem to have expressed approval of the position that Mr. Harrington's views had received a general endorsement from their authority. The Madras High Court has been on the side of the appellants. The recent case which I have already quoted refers back to an older decision of the Same Court in Suraya Bhukta v. Lakshminarasamma (1881) I.L.R. 5 Mad. p. 291 where Mr. Harrington's opinions in Rutcheputty Dutt Jha v. Rajunder Narain Rae (1839) 2 Moo, I.A. p. 133 are treated as obiter dicta, which in a strict sense they undoubtedly were, and a clear finding is given in favour of the succession of a paternal uncle's son before a brother's grandson. This, however, is precisely and definitely contrary to the decision of two Judges of this Court in the case relied upon by the court below Kalian Rai v. Ram Chandar (1901) I.L.R. 24 All. 128 and we are bound at least to give the decision of our own Court the greater weight. It was contended before us that this decision does not purport to proceed upon the definite adoption of any one principle or scheme of succession and that the learned Judges responsible for the same were careful to limit themselves to the particular issue before them. I think it is true that they refrained from saying that in their view the brother's grandson must necessarily come in under Section IV of chapter II of the Mitakshara, but contented themselves with holding that under Section V he would be a nearer heir than the uncle's son, assuming both to take only as 'gentiles' under that Section. I think it would perhaps be open to us to say that we are not necessarily bound to carry the principle affirmed in Kalian Rai v. Ram Chandar a step further into the next generation in the ascending line, but I do not see any possible line of reasoning upon which we could find for the appellants in the present case which would not involve a finding that Kalian Rai v. Ram Chandar was wrongly decided. Finally I may note that the Bombay High Court is almost as clearly against the appellants as the Madras High Court is in their favour. In the recent case of Kashibai Ganesh v. Sitabai Raghunath Shivram : (1911)13BOMLR552 much of the older case-law on the subject is reviewed, and the great authority of Mr. Justice Telang is quoted for the proposition that--' The inheritance is to go first in the line (the word in the original is santana, literally 'continuation') of the paternal grandfather, then in default of any one in that line of the paternal great-grandfather, then of the paternal great-great-grandfather, and so forth.' Vide Rachava v. Kalingapa (1892) I.L.R. 16 Bom. 716. I come therefore to the conclusion of the whole matter upon a general review of arguments and authorities. It is perhaps difficult for an English judge to clear his mind altogether of some antecedent prejudice in favour of Mr. Harrington's scheme. The English law is clear that in any question of inheritance through males the remoter ancestor and his descendants are excluded by the nearer ancestor or by his descendants how low so ever. One learned author, Mr. Golap Chandar Sirkar Shastri (vide p. 219 of his. work in the IVth edition), in adversely criticizing the decision of this Court in Kalian Rai v. Ram Chandar has been somewhat severe upon our Judges for having (as he seems to suggest; allowed themselves to be influenced by English rather than Hindu ideas of propinquity in relationship. His remarks suggested to my mind the putting of the question actually before us to the test of personal experience. My 'grandfather's great-grandson' sounds a somewhat formidable person when you put him to me in that way ; but coming to disentangle him, I find that I know him well. He is the son of my first cousin, a member of a family which I know well, a lad for whom I feel much natural affection. As for my great-grandfather's grandsons, the sons of my grandfather's brothers, I frankly do not know whether or not any such persons now walk this earth. Is the idea of propinquity involved in the Hindu text that 'to the nearest sapinda the inheritance next belongs,' really different when you come to relations so far removed in degree, from that upon which the English rule of inheritance is based, and which I find to be strikingly illustrated by the case of my own family I take leave to doubt it.
31. Of the schemes of inheritance which we have discussed Mr. Harrington's seems to me the simplest and most consistent. I do not believe that it does any real violence to the ancient text upon which it is based, and it seems to me to have behind it a weight of modern authority beyond that which can be claimed for the other two. On the other hand, Mr. Sarvadhikari's scheme attracts me by the suggestion that it is in closer conformity with essentially Hindu ideas, as going back for its basis to the most ancient authority upon which the Hindu law on the subject is based. Subject to the considerations which I have suggested when discussing it, I think it may claim equally with Mr. Harrington's to satisfy the requirements of Section V, chapter II of the Mitakshara read as a whole. If the suggestion which I have ventured to make regarding it is considered admissible by Hindu lawyers of the modern school, I would prefer Mr. Sarvadhikari's scheme--regarded merely as a system deduced from the text of the Mitakshara to Mr. Harrington's; otherwise I think it open to an objection which would throw back my preference to the older system propounded by the English Judge. I would unhesitatingly prefer either of these schemes to Mr. Mandlik's. With all respect to the earned authors and Judges who accept this last, I would say that the scheme rests upon a pedantically literal interpretation of the words 'sons' and 'issue' which is at variance with the context of the Section read as a whole, and that its logical .development does violence to the great principle that 'to the nearest sapinda the inheritance next belongs.'
32. I would therefore dismiss this appeal with costs.
33. The appeal is dismissed with costs.