1. The question which has been referred to us for decision is thus set out in the referring order of the 26th of February 1895.
2. Does the distinction between the whole blood and the half blood observed in the case of brothers and their sons extend to the descendants of the grandfathers and of remoter ascendants; and, if so, how far
3. The distinction referred to is a preferential right to succeed to the inheritance of property left by a deceased member of the family, that member being at the time of his death not a member of a joint undivided family, but separate and apart from the disputants.
4. In the case before us the property in dispute is the property of one Nageshar. The appellants and respondents both derive their title to the present claim from their descent from one Ganga Bakhsh, the common ancestor alike of Nageshar deceased, of the present appellants and of the present respondents.
5. Nageshar was the great-great-grandson of Ganga Bakhsh by Ganga Bakhsh's son Anand. The appellants are great-grandsons of the same Ganga Bakhsh through another son Ahlad.
6. The respondent Jawahir is also great-grandson of Ganga Bakhsh by a son Bhagwant.
7. The question we have to decide is whether Jawahir is entitled to exclude all the descendants of Ahlad from inheritance to the property of the deceased Nageshar.
8. So far as remoteness of relationship from Nageshar is concerned, Jawahir and the appellants stand on a common basis; but Jawahir, who claims preference, rests his claim on the fact that Bhagwant, his grandfather, and Anand, the great-grandfather of Nageshar, were sons of Ganga Bakhsh, by one and the same mother. The appellants' grandfather, while also son of Ganga Bakhsh, was his son by another wife. He claims on this ground to have more particles of the common ancestor of himself and Nageshar than the appellants can be deemed to have, and therefore to be so far nearer of kin as to exclude the appellants.
9. The family is one subject to that School of Hindu Law known as the Mitakshara School, and the guiding principle in that School is by the learned advocate who appears for Jawahir laid down to be, not the amount of spiritual benefit which according to Hindu theology will accrue to the deceased from the funeral oblations offered by the rival claimants, but nearness of blood to the deceased as evinced by the possession of a greater or smaller quantity of corporal particles common to the claimant and the deceased.
10. To narrow the dispute down to a point. Is the word as used in the Mitakshara to be interpreted as though the latter half of this Sanskrit compound word related only to particles of common materiality, or to the cake which a Hindu presents at stated intervals to his deceased ancestors
11. The portion of the Mitakshara which bears on the question is the chapter which relates to Inheritance and Partition, the, and our particular attention was directed to the passages which are to be found at page 203 of the Yajnavalkya Smriti by the late Babu Shastri Mogbe, 3rd Edition, Bombay, 1892. A translation of this passage will be found at pp. 353--358 of the Mitaksbara translated by Sir W.H. Macnaghten and H.T. Colebrooke (Calcutta Edition, 1870). This translation is on the whole accurate, (at any rate for the purposes of this appeal its accuracy was not challenged by counsel on either side), with one important exception, namely, the translation attached at p. 356, line 2, to the word, sapinda. With this translation I propose to deal later. The passage runs as follows:
3. Besides, the father is a common parent to other sons, but the mother is not so: and, since her propinquity is consequently greatest, it is fit that she should take the estate in the first instance conformably with the text--'To the nearest sapinda the inheritance next belongs.'
4. Nor is the claim in virtue of propinquity restricted to (sapindas), kinsmen allied by funeral oblations; but on the contrary it appears from this very text (Section 3) that the rule of propinquity is effectual, without any exception, in the case of (samanodacas) kindred connected by libations of water, as well as other relatives, when they appear to have a claim to the succession.
5. Therefore, since the mother is the nearest of the two parents, it is most fit that she should take the estate. But on failure of her the father is successor to the property.
12. This passage lays down that the claim to inheritance is guided by propinquity, not only in the case of sapindas but also in that of samanodacas and that, in the case of brothers, 'such as are of the whole blood take the inheritance in the first instance under the text before cited--'To the nearest sapinda the inheritance next belongs'--since those of the half blood are remote through the difference of their mothers.' According to the Mitakshara, then, there is no room left for doubt that-
(i) to the nearest sapinda the inheritance belongs,-
(ii) a brother of the Full blood is nearer than a brother of the half blood,-
(iii) that this principle of propinquity, whatever it may be, is to be found in, and is to govern the right to, succession in the case of relations so remote as samanodacas.
13. If propinquity depends, as the learned advocate for Jawahir contends, upon community of particles of the body of an ancestor, there can be no question that Jawhir's right to inherit prevails over that of the appellants and to their exclusion.
14. As authorities for such being the meaning of the word sapinda we were referred to Lallubhai Bapubhai v. Mankuvarbai I.L.R. 2 Bom. 388. See specially page 423, where a passage from the Achara Kanda of the Mitakshara is given, which not only specially enunciates the doctrine that 'the person is called a sapinda (who has particles) of the body (of some ancestor, &c.;) in common (with him)' but also adds that 'therefore one ought to know that wherever the word sapinda is used, there exists (between the persons to whom it is applied) a connection with one body either immediately or by descent.' From this the learned Chief Justice Sir M.R. Westropp goes on to point out that 'this shows that Vijnyanesvara abandoned the doctrine that the right to offer funeral oblations alone constituted sapinda-ship, and adopted, in lieu of it, the theory that sapinda-ship is based upon community of corporeal particles, or, in other words, upon consanguinity, and that he maintained that there is such a community between the wives of collaterals.' This meaning of the word sapinda and the proposition that the meaning is the same throughout the Mitakshara, whether it occurs in the Achara Kanda or in the Dayavibhag, is fully endorsed and accepted by their Lordships of the Privy Council in Lallubhai Bapubhai v. Cassibai I.L.R. 5 Bom. 110, at pp. 118, 121, and they declare themselves 'prepared to assent to the conclusion to which the Judges of the High Court, upon consideration of the authorities, arrived, that by the Law of the Mitakshara, as interpreted and accepted in Western India, the preferential right to inherit in the classes of sapindas is to be determined by family relationship or the community of corporeal particles; and not alone by the capacity of performing funeral rites. lb may happen that, in some instances, the same person would be the preferential heir, whichever of these lists was adopted.'
15. It is, however, pointed out to us that in Samat v. Amra I.L.R. 6 Bom. 394, Sir M.R. Westropp and Mr. Justice Pinhey held that, as there was not any special provision in the Mitakshara or the Mayukha in respect of persons of the half blood other than brothers and their sons, the general rule applies that the nearest sapinda succeeds. But this view must be read in the light of the facts of the case with which they were dealing. That was a case in which the competing candidates were descendants of different and not the same degree.
16. So far as Western India is concerned the interpretation to be put upon the word sapinda must be considered as finally determined by the ruling of their Lordships above quoted, and it only remains to be seen if there is any reason or authority for holding that the same word is to receive in Northern India any other interpretation. It is clear that this interpretation of the word sapinda divorces it in toto from the meaning assigned to it by Colebrooke in the passage given at page 350 in the translation of the Mitakshara above alluded to. The Calcutta High Court have no doubt in the matter. A Full Bench of that Court in Umaid Bahadur v. Udoi Chand I.L.R. 6 Cal. 119, and much more recently a Division Bench in Babu Lal v. Nanku Ram I.L.R. 22 Cal. 339, (Norris and Banerji, JJ.) unhesitatingly aver that Colebrooke's translation is inaccurate, and refuse to follow it, accepting in its stead the meaning given to it by Sir M.R. Westropp and their Lordships of the Privy Council in the cases above cited.
17. In Madras the same view is apparently entertained in Nallanna v. Ponnal I.L.R. 14 Mad. 149; Ramappa Udayan v. Arumugath Udayan I.L.R. 17 Mad. 182, and in Sabramnnya Pandya Chokka Talavar v. Siva Subramanya Pillai I.L.R. 17 Mad. 316.
18. The learned vakil for the appellants in a very careful and learned argument, for which we are much indebted to him, laboured hard to get rid of these precedents by falling back upon the Viramitrodaya. Prefacing his remarks by a citation from Gridhari Loll Roy v. The Bengal Government 12 Moo. I.A. 448, in which the Lords of the Privy Council have formulated the doctrine that the Viramitrodaya is properly receivable as an exposition of what may have been left doubtful by the Mitakshara, he drew our attention to the arguments by which the learned author Mitra Misra first lays down that propinquity by benefit is consistent with reason, and by means of it claims to reconcile all conflicting texts with regard to the order of succession. He adopts what may be, and has been somewhere, termed the common-sense view that the Mitakshara rule would make all the world kin and cannot therefore be accepted. Preference to inherit according to him must and does depend upon the superior efficacy of oblations offered, and not upon any question of the presence in greater or smaller measure of corporeal particles of a common ancestor.
19. It would be interesting, but in no way profitable, to follow up this discussion, as the matter is really concluded by the view which has been adopted by their Lordships of the Privy Council, a view we cannot depart from, unless something far stronger be brought before us than what is after all only the dictum of a text-book, of great authority undoubtedly, but a dictum against the Mitakshara, and one not supported by any proof of custom or authority in its favour.
20. There is, moreover, great force in the view taken by the eminent and learned writer Dr. J. Jolly in his Tagore Law Lectures, 1883, p. 168, where he points out that ' the right of representation has originated in the patriarchal family system, and it is that system which really lies at the bottom both of the Roman and of the Indian Law of Inheritance. No doubt the Indian rules on inheritance are closely connected with the rules relating to the offering of funeral oblations as well. This is a common characteristic of all early systems of inheritance. But the theory that a spiritual bargain regarding the oblation of the customary offerings to the deceased by the taker of the inheritances the real basis of the whole Indian Law of inheritance is a mistake which has arisen in the early period of the administration of Hindu Law from a too exclusive study of the writers of the Bengal School and from certain terms often recurring in Colebrooke's translation of Indian law books, notably from the term connected by funeral oblations,' the English equivalent chosen by Colebrooke for the well-known Sanskrit term sapinda. This theory has now been given up so far that a difference of doctrine in this respect between the Bengal writers and those of other Schools has been recognized.' This view coincides with my experience, so far as it goes, of the course and current of Hindu Law, especially on the law of inheritance. In patriarchal times when all was one common family there would be practically no distinction between the right to inherit of whole and half blood relations. Manu has no such subtle distinction. It is not until priestly interference predominates that the natural rule is trammelled and confused by questions of religious efficacy.
21. I see no reason to put upon the Mitakshara any construction other than what has been put upon it by their Lordships of the Privy Council in Gridhari Lall Roy v. The Bengal Government 12 Moo. I.A. 448, and, read in this light, we must hold that the distinction between the whole' blood and the half blood observed in the case of brothers and their sons extends to the descendants of the grand-father, it may be, to the fourteenth degree, certainly to the case referred to us. With remoter ascendants the case before us is in no way concerned, and we, therefore, decline to give any answer upon this part of the question.
22. I also would answer in the affirmative that portion of the question referred to us which directly bears on the present case.
23. The facts are so fully set forth in the order of reference that it is unnecessary to recapitulate them except briefly. Nageshwar, whose property is the subject matter of the suit, was a separated Hindu governed by the Mitakshara law. The inheritance to his estate is claimed on the one hand by Jawahir, who is the grandson of Bhagwan, the uterine brother of Nageshwar's great-grandfather Anand; it is claimed on the other hand by the plaintiffs, the grandsons of Anand's half brother Ahlad; and it is contended on behalf of Jawahir that he has a preferential right over the plaintiffs by reason of his being the descendant of a brother of the whole blood of Anand. This contention raises the question referred to us, namely, whether the preference of the whole blood is limited to the case of brothers and their sons or extends to remoter agnates.
24. The question is not covered by the authority of any decided case so far as these Provinces are concerned, and has, therefore, to be answered with reference to the texts of Hindu law. It is conceded that the Mitakshara recognises the distinction of whole blood and half blood in the case of brothers and their sons and gives the preference to the former over the latter. But it is urged that there is no authority in the Mitakshara for carrying this distinction further. That the enumeration of heirs as given in the Mitakshara is not exhaustive, but illustrative only, is no longer open to question. As regards some heirs the Mitakshara mentions them by name. As regards others it lays down rules for determining who they are. We have, therefore, to consider what those rules are and what is the guiding principle which underlies them. That principle is founded on the text of Mama: 'To the nearest sapinda the inheritance next belongs.' (Chapter IX, v. 187.) The whole question thus turns on the meaning attributed by the author of the Mitakshara to the term sapinda, and on the test which he prescribes for determining the degree of nearness among sapindas.
25. It has been held in the cases to which my brother Knox has referred, that Colebrooke's rendering of the word sapinda as 'kinsmen by funeral oblations' is incorrect and that Vijnanesvara meant by it persons connected by particles of the same body. Whatever may have been the signification attached to the word sapinda by the early sages, there cannot beany doubt that Vijnanesvara used it in the sense mentioned above. In the Achar Khan of the Mitakshara he defines the term sapinda, and states that the 'sapinda relationship arises between two people through their being connected by particles of one body.' And he adds that 'one ought to know that wherever the word sapinda is used there exists (between the persons to whom it is applied) a connection with one body either immediately or by descent.' (West and Buhler's Digest of Hindu Law, pp. 120 and 121.) He then combats the theory that the sapinda relationship is founded upon the connection arising from the presentation of exequial cakes and declares that 'the father and the other descendants are six sapindas; and the sin and the other descendants are six; and the man himself is the seventh.' (Sarbadhikari's Tagore Law Lectures, pp. 603 and 604.) No definition of the word sapinda is, it is true, given in the chapter of the Mitakshara relating to inheritance, but, as pointed out in Lallubhai Bapubhai v. Mankuvarbai I.L.R. 2 Bom. 388, at 427, there is no reason to assume that the same word was used in different senses in the same work by the same author. I may observe that in the very able argument which was addressed to us in this case it was not disputed that Vijnanesvara used the word sapinda as denoting persons descended from a common ancestor.
26. The next question we have to consider is--what is the test of determining nearness among sapindas as conferring priority of right to inherit? Is it affinity, that is, the possession of the largest number of corporeal particles, or the ability to confer the highest amount of spiritual benefit by the presentation of funeral oblations? The latter is no doubt the test according to the Dayabhaga School, but the Mitakshara has nowhere adopted it. The rule of propinquity is the guiding principle according to the Mitakshara School. In determining the order of succession among the two parents the Mitakshara says:
Besides, the father is a common parent to other sons, but the mother is not so, and, since her propinquity is consequently greatest, it is fit that she should take the estate in the first instance conformably with the text--'To the nearest sapinda the inheritance next belongs,' (Chapter II, Section iii, v.8).
Nor is the claim in virtue of propinquity restricted to sapindas, but on the contrary it appears from this very text that the rule of propinquity is effectual, without any exception, in the case of samanodacas, as well as other relatives, when they appear to have a claim to the succession, (v. 4).
Therefore, since the mother is nearest of the two parents, it is moat fit that she should take the estate. But, on failure of her, the father is successor to the property, (v. 5).
27. Again, dealing with brothers of the whole blood and the half blood, the author says, in Section iv, v. 5:
Among brothers, such as are of the whole blood take the inheritance in the first instance under the text before cited--'To the nearest sapinda the inheritance next belongs'--since those of the half blood are remote through the difference of the mothers.
28. The passages quoted above leave no room for doubt that propinquity determines the order of succession, and that the rule of propinquity applies not only to sapindas but to samanodacas and all other relatives also. This rule was adopted by Visesvara Bhatta, the author of the Madana Parijata and the Subodhini, and by Balam Bhatta, two of the commentators on the Mitakshara regarded as 'great authorities' in the Benares School (Saibadbikari's Tagore Law Lectures, pp. 411, 439 and 484).
29. The learned vakil for the appellants, whilst conceding that the right to inherit is founded on propinquity, contended that the test of preference was the competency to confer spiritual benefit, and in support of that contention he referred to several passages in the Viramitrodaya, which is recognised as an undoubted authority in the Benares School. No doubt there are passages in that work which favour the appellants' contention, notably one at p. 158 of Golap Chandra Sarkar's Translation, where the author says: 'Hence it is indicated that he alone is entitled to get the estate on whom the estate being devolved conduces to the greatest amount of spiritual benefit of the deceased owner, and that proximity in this way is to be accepted as a general rule and reasonable.' But there are other passages where the author lays down the rule that' where the question concerning the order (of succession) arises, there propinquity determines the order ' (p. 186), and that 'greatness of propinquity is alone the criterion of succession' (p. 194). Upon a careful consideration of the Viramitrodaya it appears that the rule of propinquity is, according to Mitra Misra, the rule of preferable succession, and that the capacity to confer spiritual benefit is, as Dr. Jolly remarks, (Tagore Law Lectures, 1883, p. 209), referred to as an additional reason for the right to succeed. According to the ruling of their Lordships of the Privy Council in Girdhan Lall Roy v. The Bengal Government 12 Moo. I.A. 448, the Viramitrodaya is 'receivable as an exposition of what may have been left doubtful by the Mitakshara,' but, where the Mitakshara itself is clear and its meaning and intention are not open to doubt, the Viramitrodaya cannot be accepted in preference to the Mitakshara. As I have shown above, the Mitakshara enjoins in very distinct terms, in chapter II, Section iii, v. 4, that for the purpose of determining the order of succession among relatives of all descriptions, including samanodacas, the rule of propinquity is to be applied ' without any exception.' It may be that, where two sapindas stand, with reference to propinquity, in the same degree of nearness to the propositus, the capacity to confer the highest amount of spiritual benefit should be applied as a test to determine the order of priority. But, where the degrees of propinquity are different, the rule of religious efficacy has according to the Mitakshara no application. There can be no doubt that, among sapindas of the same degree of descent from a common ancestor, those who are descended from the same mother as the propositus are nearer in propinquity than those descended from a different mother. Such sapindas, therefore, have the preferable right to inherit according to the text of Manu--'To the nearest Sapinda the inheritance next belongs.' The Mitakshara, it is true, gives the preference to a sapinda, who offers funeral cakes, over a samanodaca, who offers libations of water only; but, as Mr. Mayne points out, (Hindu Law and Usage, Section 468, 5th Edition, p. 581) ' the distinction is stated, not as evidencing different degrees of religious merit, but as marking different degrees of propinquity.' I may also observe that in the case of samanodacas it is not possible to apply the test of religious efficacy.
30. For the above reasons, I am of opinion that the distinction of whole blood and half blood applies, according to the rule of succession of the Mitakshara, founded on nearness of propinquity, to sapinda relations other than the brother and his sons. As supporting a contrary view the learned vakil for the appellant relied on the case of Samat v. Amra I.L.R. 6 Bom. 394, which is the only reported case which has some bearing on the present question. The learned Judges who decided that case expressed the opinion that 'neither the Mitakshara nor the Mayukha takes any distinction between persons of the whole blood and persons of the half blood, except in the cases of brothers and sons of brothers.' With great deference it seems to me that the learned Judges have overlooked the fact that the enumeration of heirs given in the Mitakshara is not exhaustive, a fact now definitely settled by their Lordships of the Privy Council, and of the rule of the Mitakshara, propounded in v. 4, Section iii of the second chapter, that the succession of all relations, 'without any exception,' is regulated by the rule of nearness of propinquity, that is, the possession of the largest number of particles of one body. The distinction was extended by Visesvar Bhatta to the case of paternal uncles. In his Madana Parijata he states that 'among paternal uncles the succession of uterine and half blood uncles should be regulated in the same manner as in the case of brothers' (Sarbadhikari's Tagore Law Lectures, p. 440). So that the limitation which the learned Judges impose on the distinction between whole blood and half blood relations on what they consider to be the authority of the Mitakshara was not recognized by one of the commentators on the Mitakshara itself whose eminence as an authority in the Benares School is generally recognized. Srikrishna Tarkalankar extended the distinction, in the Bengal School, to the grandson of a brother, I am, therefore, unable to hold that the distinction does not extend beyond brothers and their sons, and I agree in the answer which my learned brother Knox would give to the reference.
31. I concur in the answer which my learned brothers Knox and Banerji propose to give to the reference. The dispute, in the case out of which this reference has arisen, was as regards the succession to the property of one Nageshwar, a separated Hindu, who died without issue and without leaving any near relations. Nageshwar's great-grandfather had a full brother named Bhagwant and a half-brother named Ahlad. The dispute in this case is between the grandsons of the half-brother Ahlad and the grandson of the full-brother Bhagwant. In paragraph 529 of his work on Hindu Law Mayne says that priority on the ground of full blood is limited to the cases of brothers and their issue. Similarly West and Buhler at page 125 of their work on Hindu Law say: 'The distinction between the whole blood and the half blood observed in the case of brothers and their sons does not extend to the descendants of the grandfather and remote ancestors.' If this proposition is correct the answer to the reference should be in the negative. But the only authority which these authors give for the proposition they lay down is a case decided by the Bombay High Court, Samat v. Amra I.L.R. 6 Bom. 394. It is true that the learned Judges who decided that case observed that the Mitakshara does not make any distinction between persons of the whole blood and persons of the half blood except in the case of brothers and sons of brothers, and further on they say that there is no special provision in the Mitakshara in respect of persons of the half blood other than brothers and their sons. If they mean by this that the Mitakshara has not specially referred to cases of the half Wood other than those of brothers and their sons, the learned Judges are right, but, if the meaning was that the author of the Mitakshara restricted the distinction between the whole and the half blood to the case of brothers and their issue, I cannot concur with them. The cases given in paragraphs 5, 6 and 7 of Section 4 of chapter II of the Mitakshara are merely illustrative and not exhaustive. The reason which the author of the Mitakshara gives for the preference of brothers of the whole blood to brothers of the half blood is the text of Manu, who says: 'To the nearest sapinda the inheritance next belongs.' Had the learned Judges who decided the Bombay case considered the effect of paragraph 4 in the preceding section of the Mitakshara, they would have seen that it was never the intention of the author to restrict the application of this rule to brothers and their sons, for in that paragraph the author distinctly says that the rule of propinquity extends without any exception to the case of relatives even so distant as samanodacas. This case is governed by the law of the Mitakshara, and, as that is in my opinion quite clear on the point referred, I concur in the proposed answer to the reference.
32. The appeal being sent back to the Bench which had made the reference was, in accordance with the opinion of the Full Bench, dismissed on the 4th of January 1897.