1. Both parties to this suit are agnatic kinsmen of one Sarabharaju and they claim, against each other, the properties which his widow enjoyed till her death in 1926. A genealogical table is appended to the plaint, showing the relationship of the various parties. It is not necessary to refer to it here in more detail than to say that the plaintiff is the father's brother's grandson of Sarabharaju and that the defendants are the brother's great grandsons of Sarabharaju. The only other portion of the pedigree, to be borne in mind in dealing with the evidence, is that Sarabharaju had two step-brothers Lakshmikantham and Nagabhushanam, that Nagabushanam left only a widow surviving him and that Lakshmikantham had a son Papahari' who predeceased him, leaving a son Nagabhushanam the father of the defendants 1 and 2. The plaintiff claimed that the properties in the possession of the widow were held by her as a widow's estate, she having succeeded to the same on Sarabharaju's death somewhere between 1860 and 1865. The defendants on the other hand contended that Sarabharaju and Nagabhushanam (their father) were undivided, that Naghabhushanam succeeded to all the family properties on Sarabharaju's death but put Sara-baraju's widow Lakshmayamma in possession of certain properties for the purpose of her maintenance. Alternatively, the defendants contended, that even if the properties enjoyed by the widow should be found to have been held by her for a widow's estate, they were the preferable heirs as being descended from a nearer line.
2. The learned Subordinate Judge held in favour of the plaintiff on both the points and gave him a decree as regards some of the items claimed and disallowed his claim in respect of certain items on the ground that they have not been shown to have ever been in the possession of the widow.
3. The plaintiff has preferred a memorandum of objections in respect of the items disallowed to him; but the memorandum of objections can hardly be seriously pressed, because there is very little evidence to show that the widow was in possession of those items. The memorandum of objections therefore fails and is dismissed with costs.
4. In the appeal by the defendants, both the points raised by them in the Court below have been pressed. First as to the question of fact, it is not easy on the evidence to decide when and between whom the division, if any, actually took place. Mr. Satyanarayana Rao lays some stress on the fact that the plaintiff set up a division between Sarabharaju and his brothers whereas the learned Subordinate Judge holds that the division must have taken place between Sarabharaju and Nagabhushanam, i.e., his grand-nephew. Seeing that all the parties are speaking of events which must have happened long ago and undoubtedly even before the plaintiff (who is the oldest man now alive amongst the parties) came of age, we are not disposed to attach undue importance to this particular statement in the pleadings. Nor does it seem to us necessary to come to any definite conclusion as to the division or its exact date. In view of the decisions of the Privy Council in Satgur Prashad v. Kishore Lal (1919) 46 I.A. 197 : I.L.R. 42 All. 152 : 38 M.L.J. 259 and Lajwanti v. Safa Chand (1924) 51 I.A. 171 : I.L.R. 5 Lah. 192 : 47 M.L.J. 935 the plaintiff will be entitled to claim rights of inheritance to Sarabharaju's widow if the evidence clearly establishes that for more than the prescriptive period the widow had been enjoying these properties claiming to hold them in her own right, whether absolutely or for a widow's estate, and not merely as a maintenance holder. If the defendants could make out that Naghabhushanam put the widow in possession of certain properties under a maintenance arrangement, the widow may not by a mere claim of a larger right in those properties convert her possession into adverse possession for a widow's estate. But the onus of proving that the widow was thus let into possession will undoubtedly be upon the defendants and we agree with the Court below that the defendants have not discharged that onus.
5. Mr. Satyanarayana Rao admitted before us that, at any rate after 1884, the widow had been in possession of the properties found to be in her possession, in assertion of a claim as heir to her husband. In that view, it is not necessary to make more than a brief reference to some of the documents in the case.
6. His Lordship then dealt with the evidence and proceeded.
7. The result of the evidence therefore is to leave the undisputed possession of Lakshmayamma unexplained on the maintenance hypothesis put forward by the defendants. In this view, as already indicated, either on the finding of a division inferred from this course of enjoyment or on the footing of prescriptive title acquired by the widow, whether for an absolute estate or for a widow's estate, the plaintiff will be entitled to claim a right of inheritance as heir.
8. The next question relates to the preferential right of succession as between the plaintiff and the defendants. The learned Subordinate Judge decided this question in favour of the plaintiff mainly on the authority of the decision of Kumaraswami Sastriar, J. in Subramiah Chetty v. Nataraja Pillai I.L.R. (1928) 53 Mad. 61 : 58 M.L.J. 468. That decision covers only one aspect of the question argued before us. Mr. Satyanarayana Rao has put forward certain other documents which were either not available in that case or at any rate were not placed before the learned Judge. As the matter has been argued before us at some length, it is better that we deal with the contentions put forward on behalf of the appellants.
9. At the outset we must point out that the genealogical table printed on page 62, of the report in Subramiah Chetty v. Nataraja Pillai I.L.R. (1928) 53 Mad. 61 : 58 M.L.J. 468 is somewhat misleading, because, as it appears in the print, the question need not have been discussed by the learned judge at all. The printed genealogical table does not bring out the finding of the learned Judge on the question of Sadasiva Chetti's adoption by Chinnappa Chetti. The result of that adoption was that the fourth plaintiff in that suit stood in the position of the grandfather's great grandson of the propositus while the third defendant became the great grandfather's great grandson. That decision is relevant to the present case in so far as the learned Judge held that for the purpose of determining which of two Gothraja Sapindas is the preferential heir, only three and not seven degrees in each branch have to be reckoned, and after the third degree in one branch, three degrees in the next collateral branch must be considered. Mr. Satyanarayana Rao has attacked that conclusion. But before dealing with that, we may as well deal with another point raised by him which arises out of the facts of this case.
10. The defendants are the brother's great grandsons of the propositus. Mr. Satyanarayana Rao therefore wishes to invoke the rule that those who are included in what is generally referred to as the compact set of heirs must first be exhausted before those who are mentioned in the Sanskrit texts only by way of a generic description, viz., Gotharajas, can come in. Taking Yajnavalkya's text, the compact heirs go up to brother's son of the propositus, and it is common ground that it is only after brother's son that all persons who come under the category of Gotrajas can be considered. If the word 'son' in that expression 'brother's son' (Tatsuta in Sanskrit) is taken literally, it would not help Mr. Satyanarayana Rao's present argument; but if by the analogy of the reasoning of the Privy Council in the case in Budda Singh v. Laltu Singh Laltu Singh will justify him in claiming that in the case of the brother's line the word 'son' (in the expression brother's son) should be taken to extend to three degrees from the brother.
11. We are unable to accede to the above argument. The Privy Council in Budda Singh v. Laltu Singh were dealing not with that portion of Yajnavalkya's text which refers to the brother's son but with the commentary of Mitakshara relating to the next group of heirs, Gotrajas. In indicating the order of succession among Gotrajas the Mitakshara deals with the grandfather's line and then with the great grandfather's line. There is nothing whatever in their Lordships' judgment to show that as regards those lines they intended to go down more than three degrees from the common ancestor. What they lay down is that in those passages where the Mitakshara uses the word 'son' it is used not in the 'literal' sense but in what is spoken of as the 'extended' or 'generic sense'. Once we reach the conclusion a word is used in a generic or extended sense, the question immediately arises, how to fix the limits of that generic or extended sense. It is not by any etymological significance that it has to be fixed but only with reference to other principles of law; and, if as clearly indicated in their Lordships' judgment, the limiting principle is to be gathered from the text of Manu which refers to the offering of oblations by three degrees of descendants, it will follow that the proper interpretation of their Lordships' pronouncement is not that the three degrees ought to be calculated even after allowing for a further link from the common ancestor but only from the common ancestor. In this view the analogy of the pronouncement of the Privy Council in Budda Singh v. Laltu Singh (1839) 2 M.I.A. 132, viz., of carrying each line down to the seventh descent before going to the ascending line, ought not to be followed. As regards Mr. Harrington's opinion, it is sufficient to say that he was not there dealing with the question of preferential right of succession at all but merely pointing out who are all the sapindas that ought to be exhausted before the inheritance can go to cognates. There is no doubt that all descendants up to the seventh degree will be comprehended within the term Sagothras or Sapindas. This is all that Mr. Harrington was laying down and that passage has so far not been understood as indicating the order of succession. No doubt in Budda Singh v. Laltu Singh that passage was-brought to their Lordships' notice and they leave its bearing open because in their opinion it was not necessary for the purpose of the case before them to decide whether succession in each line should be carried down to the seventh degree or not. But if Mr. Harrington's statement is to be understood as laying down a rule of preferential right of succession amongst agnates, it will be difficult to reconcile it with the whole reasoning on which the judgment in Budda Singh v. Laltu Singh rests. There can be no doubt whatever that so far as the propositus is concerned, inheritance descends only to his three descendants and on failure of the third it ascends. There is absolutely no justification whatever for holding that in respect of collateral inheritance the matter should stand on a different footing. In Budda Singh v. Laltu Singh : I.L.R. 37 All. 604 : 29 M.L.J. 434 , itself the Privy Council took pains to point out that the scheme of the Hindu Law of inheritance is quite logical and capable of logical application; surely no one need go out of the way to make it illogical.
12. As for the theory that the descendants of a nearer line should be preferred to the descendants of a remoter line, this is not a complete or accurate statement of the law. The true rule is that the nearer heir excludes the more remote. It may no doubt often happen that the nearer heir will be found in the nearer line but it would not be safe to paraphrase the one into the other. The nearer heir is to be determined with reference to a number of considerations, one of which no doubt may happen to be his being born in the nearer line. This rule about the 'nearer line' is very much like another rule frequently assumed as the basis of decision in several Madras cases, viz., that Bandhus ex parte paterna take in preference to Bandhus ex parte materna. The language used by the Judicial Committee in a recent case Jotindra Nath Roy v. Nagendra Nath Roy Differing from the opinion of the learned Judges of this Court, the Privy Council specifically approved of the view of Messrs. Sarvadhikari, Jolly and Shama Charan Sarkar and they also approved of the authority of the commentary of Apararka. What is even more important is that their Lordships in the concluding portion of the judgment specifically accept the applicability of the spiritual benefit theory which the learned Judges in Chinnasami Pillai v. Kunju Pillai I.L.R. (1911) 35 Mad. 152 : 21 M.L.J. 856 case expressly repudiated. There can be no doubt in the present case that on the application of the spiritual benefit theory the plaintiff will be the nearer heir. Whatever the position might have been at the time when the judgment in Chinnasami Pillai v. Kunju Pillai I.L.R. (1911) 35 Mad. 152 : 21 M.L.J. 856 was pronounced, several pronouncements of the Privy Council have since Laid down that even in determining succession under the Mitakshara, the doctrine of spiritual benefit has got a place though only a subordinate place. Both in Budda Singh v. Laltu Singh and Masit Ullah v. Damodar Prasad I.L.R. (1926) 48 All. 518 the Privy Council have referred with approval to the passage in the Veeramitrodaya dealing with the position of son, grandson and great grandson, their right of inheritance, and their liability to pay debts and also the conferring of spiritual benefit. It is not therefore right to say that Veeramitrodaya cannot be relied on as an authority in dealing with this question even under the Mitakshara. The matter is put beyond further question by the judgment in Jotindra Nath Roy v. Nagendra Nath Roy where the doctrine of spiritual benefit is affirmed and applied by their Lordships as 'a test of the measure of propinquity' in certain circumstances. In their Lordships' opinion, it is 'a mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded in the Mitakshara'. For these rersons, we hold that the plaintiff is entitled to succeed to Sarabaraju's estate in preference to the defendants.
14. As regards the direction in the decree of the lower Court in respect of mesne profits both parties agree that the following order maybe substituted therefore : 'and do pay the plaintiff mesne profits from fasli 1344, until delivery of possession or the expiry of three years whichever event first occurs, at the rate of Rs. 371, per year, less any cist and water-tax that may be paid by the defendants and that the plaintiff do pay Rs. 54 being the excess recovered by him from the defendants in respect of profits up to the end of fasli 1343.' Subject to this variation the decree of the Court below is confirmed and the appeal dismissed with costs.