1. The only question for consideration in this case is whether the mother's sister's son or the maternal uncle's son is the preferential heir to the estate of a deceased Hindu. The matter is involved in considerable obscurity and no clear pronouncement can be gathered from the texts of the Hindu Law. The commentators are also mostly silent upon the subject. The well-known text, cited as that of Vriddha Satatapa or sometimes that of Baudhayana, divides bandhus into three classes, namely Atmabandhus, Pitribandhus and Matribandhus. The Mitakshara is explicit that these three classes succeed in the order in which they are named; see Mitakshara, Ch. II, Section 6, PI. 2. And the Privy Council accepting the decision of this Court in Muthuswami v. Muthukumaraswami I.L.R. (1892) M. 23 has approved of this order in Muthusami Mudaliar v. Simambedu Muthukumarasawmi Mudaliar I.L.R. (1896) M. 405. The question of the order of succession of the three classes of bandhus being thus settled, the further question arises as to the order of succession inter se of the bandhus comprised in each class. The maternal uncle's son and the mother's sister's son are both expressly named in the class Atmabandhus. But there is no indication in the Mitakshara, unless the order in which they are placed is such an indication, as to their respective priority. Mr. Mayne observes in Section 579 : 'Perhaps the order of enumeration is not intended to convey any right of precedence.' The Smirithi Chandrika, which is the next best authority after the Mitakshara in Southern India, before giving the list of nine bandhus quoting the same text of Vriddha Satatapa, says in Ch. XI, Section 5, PL 13 : 'Cognate kindred. A description of these is given as follows in a different Smrithi according to their order of relationship.' The learned translator in his summary at the end of the section gives the 24th place to the son of the mother's sister and the 25th to the son of the maternal uncle, thus recognising the order in which bandhus are named as indicating the order of succession. The Sarasvati Vilasa which is also a recognised authority in Southern India says in PL 595 : ' The bandhus are exhibited in another law code in the order of their greater propinquity' and proceeds to quote the same text of Vriddha Satatapa which names the maternal aunt's son before the maternal uncle's son amongst Atmabandhus. It is strange, however, that, though there is a discussion and a decision in Placita 597 and 598 as to the precedence of Atmabandhus over Pitribandhus and of the latter over Matribandhus, there is none as to the order amongst the bandhus of each class. Again in the Vyavahara Mayuka which is an authority in the Mitakshara School, though of special value only in the Presidency of Bombay, it is stated, after citing the text of Vriddha Satatapa : ' Here i.e., (among these) the order of succession is that stated in the text.' Mr. Mandlik adds a note that this order applies to the three classes as well as to the several members of these classes. These are the only references that we have been able to find on the question of the order of succession among the bandhus of each class. There is, of course, the circumstance that the text of the ancient law giver, whoever he was, has named the mother's sister's son before the maternal uncle's son. There is a rule of the Mimamsa that effect should be given to the order in which persons and things are named unless the sense requires a different order; see Jayminia Nyayamala Ch. V, Adhikarana 4. In the absence of any decisive principle dictating a different order the duty of the interpreter of the law is to accept the order in which they are named as based upon some rule which they may be unable to discover or upon the mere ipsi dixit of the law-giver. The three commentaries that have been referred to, viz., the Smrithi Chandrika, the Sarasvati Vilasa and the Vyavahara Mayuka have stated no reason for placing the mother's sister's son before the maternal uncle's son. We cannot accede to the suggestion that the exigencies of metre may have dictated the order. It may not be difficult to speculate and suggest a reason as it was attempted to be done by Mr. Ramachandra Aiyar that the mother's sister's son offers oblations to the same three maternal ancestors to whom the deceased himself offers, while the maternal uncle's son in offering oblations to his three paternal ancestors, offers only to two who are common to himself and the deceased. To this it may be answered that the offerings of the maternal uncle's son are superior because they are offered to paternal ancestors while those that are offered by the mother's sister's son are offered to maternal ancestors. It may also be on the theory of propinquity which is the guiding principle in determining the order of succession according to the Mitakshara School the mother's sister's son is to be deemed to be nearer than the mother's brother's son, for while custom sanctions the marriage of the mother's brother's daughter it has not countenanced the marriage of the mother's sister's daughter. But we cannot regard such speculation as the above as a basis for judicial decisions, for the logical application of such theories is sure to land us in difficulties from which it will be impossible to escape.
2. Among the English text writers on the Hindu Law, WEST and Buhler in Vol. I p. 134 say: ' The rule as to nine specified bandhus may be expressed thus. A man's own bandhus are the sons of his own paternal aunt and of his maternal aunt and uncle. The same relatives of his father are his bandhus. The same relatives of his mother are her bandhus. They succeed in the order in which they have been enumerated. 'There can be no doubt that the order of succession referred to is in relation to the nine specified bandhus. Golap Chandra Sirkar Sastri lays down three rules as governing cases of competition between bandhus.
(1) The nearer in degree on whichever side is to be preferred to one more remote.
(2) Of those equal in degree one related on the father's side is to be preferred to one related in the mother's side.
(3) When the side is the same the circumstance of one being related to a male and another to a female makes no difference.' Applying the last of these rules to the present case it is difficult to say in whose favor the author would decide the priority--the mother's sister's son or the maternal uncle's son. Perhaps there being no inferiority in consequence of his mother's sex, the author might accept the order in which the mother's sister's son is named as determining his precedence. Two other well-known writers on the Hindu Law, namely BATTACHarya (at p. 460) and Sarvadhicari (at pp.700 and 761) have given precedence to the maternal uncle's son over the mother's sister's son. They have both elaborately discussed the principles determining the order of succession among bandhus. But their views have been strongly criticised by Mr. Golap Chandra Sirkar (pp. 48-54 and 65-76). One obvious criticism of the views of these eminent writers is that they conflict with the explicit pronouncement of the Mitakshara that all Pitribandhus are postponed to the Atmabandhus. Both according to SarvadhiCari and BhaTTACharya, the paternal grandfather's sister's son and the sister's son of even more distant paternal ancestors would come in before the Atmabandhus ex parte materna. It is also to be remembered that the theory of the religious of oblations has colored their judgment in a matter which falls to be determined under the Mitakshara principle of propinquity. The theory of spiritual oblation has really no place in the Mitakshara scheme of succession.
3. The definition of Sapinda in the Acharakanda of the Mitakshara entirely repudiates the notion of connection by spiritual offerings. It is also expressly there stated: 'Wherever the term Sapinda is used there, directly or mediately, connection with parts of one body is to be understood.' See Golap Chandra Sirkar Sastri'S Hindu Law, pp. 58 and 59. Again in Ch. II, Section 3, V. 4, Vignaneswara reiterates his view as to propinquity being the sole governing principle thus:' 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 Samanodhaka as well as other relatives when they appear to have a claim to the succession. 'In the face, therefore, of these distinct pronouncements it is difficult to decide the question under consideration on any theory of superior religious efficacy. In the very text as to the succession of cognate kindred, Ch. II, Section 6, PI. 2, Vignaneswara begins by saying:' By reason of mere affinity the cognate kindred of the deceased are his successors in the first instance.' See also MaynE, Section 579. It is plain on a consideration of the foregoing references that the Mitakshara pays no attention to the theory of funeral oblations. See the remarks of the Privy Council in Lallubhai Bapubhai v. Cassibai I.L.R. (1880) B. 110 and of Knox J. in Suba Singh v. Sarafraz Kunwar I.L.R. (1897) A. 223.
4. The Viramitrodaya which is an authority in the Benares School bases its rule of succession on considerations of propinquity though the capacity to confer spiritual benefit is sometimes referred to as a further ground of support. See Suba Singh v. Sarafraz Kunwar I.L.R. (1897) A. 223 and Sircar's Viramitrodaya, pp. 186 and 194. It must, however, be admitted that the Privy Council and the Madras High Court have occasionally adverted to considerations of the religious efficacy of oblations as a factor in determining the relative priority of competing claimants to succession; see Byah Ram Singh v. Bhyah Ugur (1870) 13 M.I.A. 373; Muthusami v. Muthukumarasami I.L.R. (1892) M. 23; Balusawmi Pandither v. Narayana Rau I.L.R. (1897) M. 342. Indeed Mr. Justice Muthusawmi Iyer in Muthusawmi v. Muthukumarasam I.L.R. (1892) M. 23 formulates his conclusion at p. 30 thus : 'As between bandhus of the same class the spiritual benefit they confer upon propositus is as stated in Viramitrodaya a ground of preference.' As pointed out by us, however, the Viramitrodaya says at p. 104: 'Greatness of propinquity is alone the criterion of succession.' Whatever may be the true position of the Viramitrodaya, it cannot outweigh, so far as the Southern Presidency is concerned, the distinct pronouncement of the Mitakshara itself as to propinquity being the sole test of succession and the express statement of the order contained in the Smriti-Chandrika and the Sarasvati Vilasa. Our attention was drawn to the observations in Balusami Pandither v. Narayana Rau I.L.R. (1897) M. 342 regarding the propriety of introducing considerations of religious benefit in some cases. Assuming they are well founded they are open to the same remarks that we have made as regards Mr. Justice Muthusawmi Aiyar's dictum in Muthusami v. Muthukumaraswami (1892)16 M. 23. Tirumala Chariar v. Andalammal I.L.R. (1907) M. 406 was also relied on for the view 'that all other considerations being equal the claimant between whom and his stem there intervenes only one female link may legitimately be preferred to the claimant who is separated from the stem by two such links'. This observation may no doubt apply to the present case. But the important qualification of 'all other considerations being equal' excludes the operation of the rule, for the express authority of the Smriti Chandrika, the Sarasvati Vilasa, and the Vyavaharamayuka must be given effect to.
5. The question has sometimes been discussed as to the place of bandhus not named in the list of Satatapa. It has been argued that they should all come only after the enumerated bandhus. But this view has been rightly negatived in Gunesh Chunder Roi v. Nilkomal Roy (1874) 22 W.R. 264 in the case of the sister's son as against the mother's sister's son and in Mohan Das v. Kishnabhai I.L.R. (1881) B. 597 in the case of the maternal uncle as against the mother's sister's son. It is obvious that the decision in these cases was in favour of the person of greater propinquity. Whatever might have been the reason for naming only certain of the bandhus, there can be no implication that they have all priority over others' unnamed in the text. But the introduction of the maternal uncle and the sister's son in the list of bandhus so as to effect a breach in the order of persons named is no reason for repudiating the notion of the order amongst the persons inter se who have been named.
6. We are, therefore, inclined to hold that the mother's sister's son should be preferred to the maternal uncle's son. In rejecting the notion of superiority by reason of the religious efficacy of oblations we have felt ourselves more at liberty in this case in consequence of the fact that the parties to the suit are Jains and that though the Hindu Law is prima facie held applicable to them, its religious developments should not have unrestricted operation; see Mayne Section 516.
7. The second appeal is dismissed with costs.