Pramada Charan Banerji and Piggott, JJ.
1. The question raised in this appeal is whether under the Benares School of the Mitakshara law, by which the parties to this case are governed, the mother's brother's son succeeds as a bandhu in preference to the mother's sister's son. The question arises out of the following facts. One Hori Lal, who is said to have originally owned the property in dispute, died many years ago leaving him surviving his mother Musammat Jhumma, who succeeded him and remained in possession till her death, 7 or 8 years ago. Musammat Jhumma had two brothers, Kishun Das and Jhanjhan Rai,and two sisters, Musammats Lachminia and Behia. Narayan Das, son of Behia, is admittedly alive but is not a party to this suit. Three of the sons of Kishun Das sold three-fourths of what they alleged to be their interest in the property to the plaintiff appellant. On the strength of the sale deed executed in his favour the plaintiff brought the present suit for partition of a 9/20th share, for possession of that share and for other reliefs. The respondent to this appeal and the connected appeal No. 1387, contended that the vendors of the plaintiff did not succeed to the estate of Hori Lal in preference to Narayan Das, the son of Hori Lal's mother's sister, and that the plaintiff has consequently acquired no title under his purchase and has no right to sue. They thus set up the jus tertii of Narayan Das. They put forward other pleas also with which we are not concerned in this appeal. The court of first instance held that the mother's brother's son had precedence over the mother's sister's son and over-ruling the other pleas raised by the defendants decreed the claim. This decision was reversed by the lower appellate court on the sole ground that in its opinion the mother's sister's son was a preferential heir. It has followed the recent ruling of the Madras High Court in Appandai Vathiyar v. Bagubali Madaliyar (1903) I.L.R. 33 Mad. 439. The question is by no means free from difficulty and except the ruling to which we have referred there is, as far as we are aware, no case in which the point was directly raised and decided. And we have not been referred to any text, authoritative in the Benares School, in which the order of succession among bandhus of each class has been clearly laid down. According to the Mitakshara, bandhus who succeed on failure of gentiles or gotrajas, are of three classes: (1) related to the person himself (2) to his father and (3) to his mother. The author them refers to the following text which is attributed to Satatapa or Baudhayana: 'The sons of his own father's sisters, the sons of his own mother's sister, and the sons of his own maternal uncle, must be considered as his own cognate kindred' (atma bandhus). The same relations of his father and mother are mentioned as his father's bandhus (pitri bandhus) and his mother's bandhus (nvxtri bandhus) respectively (Mitakshara chapter II, Section 6, paragraph 1). In the following paragraph it is stated that 'by reason of mere affinity, the cognate kindred of the deceased himself are his successors in the first instance, on failure of them his father's cognate kindred, or if there be none, his mother's cognate kindred. This must be understood to be the order of succession here intended.' The order of priority among cognate bandhus of each of the three classes mentioned is thus clearly laid down; but not among persons constituting cognate bandhus of each class. Had the enumeration of each class of bandhus been exhaustive it might with much force be contended that the son of the mother's sister having been mentioned before the maternal uncle's son would take priority over the latter. But it has been held by their Lordships of the Privy Council in Girdhari Lal v. The Bengal Government (1868) 12 Moo. I.A. 448, that the enumeration of bandhus in the Mitakahara is not exhaustive but only illustrative of the proposition that there are only three classes of bandhus among whom one's own bandhus must be exhausted before those of other classes can come in. The enumeration not being exhaustive it can not be said that the three persons named as one's own bandhus (atraa bandhus) take in the order in which they are named. In addition to the nine persons mentioned in the Mitakahara many others have been held to be bandhus and their place in the order of succession has to be determined otherwise than by reference to the list in the Mitakshara itself. The order of succession is not set forth in any of the commentaries on the Mitakahara. The learned Judges of the Madras High Court, who decided the case mentioned in an earlier part of this judgement, relied on the Smriti Chandrika and the Saraswati Vilas, which arc of high authority in the Madras Presidency but not in these Provinces, and the Vyavahara Mayukha, which is a high authority in the Western Presidency; but a reference to these authorities shows that in them also no order of succession was prescribed as between persons who came within each of the three categories of bandhus. All that they declare is that as between each class of bandhus one's atma bandhus take precedence over pitri bandhus and the latter over matri bandhus. In chapter XI, Section 5, paragraph 13, of the Smriti Chandraka, what the learned author, Devananda Bhat, says, quoting Brihaspati, is that when there are many cognate kindred (Bandhewak) 'whoever is nearest of kin takes the wealth of him who dies without male issue.' He then gives the same description of the bandhavas as is contained in the Mitakahara; but does not lay down any order of precedence among bandhus of each class inter se. It is in the summary given at the end of the section that the translator, T. Kristnasawmy Iyer, gives, among the nine bandhus mentioned in the Mitakshara lists, the mother's sister's son a higher place than the maternal uncle's son. It may be pointed out that this translation was first published in 1866, before their Lordships of the Privy Council decided the case of Girdhari Lal Roy v. The Bengal Government (1868) 12 Moo. I.A. 448 in 1868. The learned translator apparently considers the list to be exhaustive. As for the Saraswati Vilas the learned Judges themselves point out, as strange, that 'though in this treatise there is a discussion and a decision in placita 597 and 598 as to the precedence of atma bandhus over pitri bandhus and of the latter over matri bandhus, there is none as to the order amongst the bandhus of each class.'
2. As regards the Vyavahara Mayukha the learned Judges of the Bombay High Court held in Mehudar v. Krishna Bai (1881) I.L.R. 5 Bom. 597 that by the text in the Vyavahara Mayukha that 'the order of succession is even the order of the text' the author intended 'no more than is stated in the Mitakshara (chapter II, Section 11, paragraph 2) viz. that by reason of near affinity the cognate kindred of the deceased himself are his successors in the first instance, on failure of them his father's cognate kindred; or if there be none, his mother's cognate kindred.' It is thus manifest that none of the three authorities relied upon by the learned Judges of the Madras High Court supports their view that the order of succession among bandhus of each class should be that mentioned in the text of Satatapa quoted in the Mitakshara. In the case of Girdhari Lal Roy v. The Bengal Government (1868) 12 Moo. I.A. 448, the Judicial Committee of the Privy Council expressed the opinion v that the Mitakshara only laid down the order of precedence among the three classes of bandhus, and the enumeration of each class of bandhus being only illustrative, the maternal uncle, who was not mentioned by the Mitakshara succeeded as a bandhu In the Bombay case referred to above the maternal uncle was held to take precedence over the mother's sister's son. The learned Vakil for the respondent referred to a passage in the Madanaparijat, which has been translated in Sarvadhicary's Tagore Law Lectures and in Setlur's Hindu law. The two translations differ from one another, but in any view the author of the Madanaparijat seems only to lay down, as the Mitakshara does, the order of priority among bandhus of each of the three classes of atma bandhus, pitri bandhus, and matri bandhus.
3. There being thus an absence of authority among Sanskrit text writers and commentators as to the order in which bandhus of each class should take precedence among themselves we have to follow the text of Manu 'to the nearest sapinda the inheritance next belongs' and determine the order of precedence with reference to that text. The Mitakshara itself assigns the reason for preference to be nearness of affinity (Chapter II, Section vi, sloka 2). We have therefore to see whether the maternal uncle's son is a nearer sapinda than the mother's sister's son. Mr. Mayne places the former before the latter on the ground of nearness of propinquity in the chart on page 810 of the 8th Edition of his well-known work. He points out, as indeed the whole scheme of the Mitakshara shows, that the Mitakshara gives preference to the male over the female line (page 811) and following this preference he assigns the 9th place to the maternal uncle, the 10th to his son, and the 11th to the mother's sister's son. Professor Sarvadhicari, in the Togore Law Lectures on the Hindu Law of Inheritance, gives preference to the maternal uncle and his son over the mother's sister's son (See page 712), and so does Bhattacharya in his Commentaries on Hindu Law (page 460). The Madras High Court in Triumala Chariyar v. Andal Ammal (1905) I.L.R. 30 Mad. 406 expressed the opinion that 'the general preference exhibited by the Mitakshara for the male over the female line...may legitimately be extended so as to prefer, all other considerations being equal, that claimant between whom and the stem there intervenes only one female link, to that claimant who is. separated from the stem by two such links.' In this view the mother's brother's son, who is separated by only one female link is to be preferred to the mother's sister's son who is separated by two such links. The weight of authority, therefore, seems to be in favour of the proposition that the maternal uncle's son is a preferential heir as compared with the mother's sister's son and we are unable to agree with the decision in Appandai Vathiyar v. Bagubali Mudaliyar (1908) I.L.R. 33 Mad. 439. According to Mr. Golap Chandra Shastri (Hindu Law, page 295), these bandhus are of equal degree, but we see no reason to agree with him. Even according to him the plaintiff's vendors would not be totally excluded.
4. We were asked to consider the question of religious efficacy and the recent ruling of the Privy Council in Budha Singh v. Laltu Singh (1915) I.R.L. 37 All. 604, was referred to. As we hold that the maternal uncle's son is of nearer consanguinity than the maternal aunt's son, the question of funeral oblations need not be considered. We may observe that the plea of superior efficacy of oblations was fully answered by the Madras High Court in the case in I.L.R. 33 Mad. 439.
5. As the mother's brother's son is, for the reasons stated above, a preferential heir, as compared with the mother's sister's son, the court below was wrong in dismissing the claim, and its decree must be set aside and the case remanded for trial of other questions which were not determined by that court. We, accordingly, allow the appeal, reverse the decree of the court below and remand the case to that court under Order XLI, Rule 23, of the Code of Civil Procedure, with directions to re-admit it under its original number and try the other questions which arise in the appeal. Costs here and hitherto will be costs in the cause.