Krishnaswami Ayyangar, J.
1. A question of importance relating to bandhu succession under the Mitakshara system of inheritance has been the subject of two conflicting decisions in this Court and it is for the purpose of resolving the conflict that this second appeal has been placed before the Full Bench. The conflicting decisions are those to be found in Chinna Pichu Aiyangar v. Padmanabha Aiyangar : (1920)39MLJ417 and Kesar Singh v. Secretary of State for India : AIR1926Mad881 .
2. The last male owner of the estate involved in this second appeal was one M. Chenchi Reddi, who died long ago leaving a widow Chennamma. She took the estate as his heir, and died on 24th October, 1935. On her death, the estate devolved on the nearest reversioner. Who among the several claimants is the nearest, is the question which the Court has to determine. The competition was between three sets of claimants. Plaintiffs 1 to 3 claimed to be M. Chenchi Reddi's father's father's son's sons, that is to say, the father's paternal aunt's son's grandsons. The second defendant claims to be M. Chenchi Reddi's mother's father's son's son's son, that is, the maternal uncle's grandson. The fifth plaintiff is M. Chenchi Reddi's father's daughter's son's daughter's son, that is, the sister's son's daughter's son. While the relationship of the fifth plaintiff stands admitted, the relationship of plaintiffs 1 to 3, and that of the second defendant was only assumed for the purpose of the decision. Both the Courts below have concurred in holding that even if the relationship set up by them is true, they are remoter reversioners than the fifth plaintiff and must accordingly be postponed to him.
3. There are two appellants in this second appeal. The first appellant was the first defendant, but she admittedly has no manner of right, to the estate. The second appellant was the second defendant in the suit. Of the two respondents the first was the fourth plaintiff in the suit. She is the mother of the fifth plaintiff; but being a female, she can come in only after all the male bandhus of the propositus are exhausted. The second respondent is the fifth plaintiff. His admitted relationship to M. Chenchi Reddi is that indicated in table I, while that of the second defendant will appear from table II, hereunder. The common ancestor is indicated by the letters CA in the, duplicate table, while the propositus and the claimant are indicated by the letters P and C respectively. In the intermediate links D represents a female and S a male. The contest now, as indeed it was in the Courts below, is between the fifth plaintiff and the second defendant. Plaintiffs 1 to 3 were 'eliminated in the Courts below as they are the pitru bandhus of the last owner, whereas the fifth plaintiff and the second defendant are both his atma bandhus.
TABLE I. DUPLICATE.
M. Nagireddi CA
| | | |
| | | |
Macha Chenchi Nagamma P D
Reddi (Propositus). | |
V. Nagireddi S
(4th plaintiff) D
R. Linga Reddi |
(5th plaintiff) C
TABLE II. DUPLICATE.
K. Narasimha Reddi CA
| | | |
Thimmakka K. Nagireddi D S
| | | |
Macha Chenchi K. Chenchireddi P S
Reddi (Propositus) | | |
K. Nagireddi C
4. Before us it was conceded--and rightly so--that if the fifth plaintiff is a heritable bandhu, he would be the preferential heir as he belongs to a nearer line than the second defendant. The question then is whether the fifth plaintiff is a heritable bandhu at all. If he is, he would, it is admitted, exclude the second defendant.
5. The law of bandhu succession under the Mitakshara has always been a thorny subject, mainly on account of the incomplete and fragmentary way in whichVijnanes-wara had dealt with it. Much of the doubts and difficulties have, however, been cleared up by the decisions of the Privy Council, more particularly those reported as Ramachandra Martand Walker v. Vinayak Venkatesh Kolhekar (1914) 27 M.L.J. 333 : L.R. 41 IndAp 290 : I.L.R. 42 Cal. 384 (P.C.) and Adit Narayan Singh v. Mahabir Prasad Tiwari (1920) 40 M.L.J. 270 : L.R. 48 IndAp 86 . These decisions have now finally settled that in order that a person may inherit as a bandhu, that is, as a bhinna gotra sapinda he must satisfy two tests. The first is the test of degree laid down by Yajnavalkya in Chapter I, 53 which may be literally rendered as follows:
After the fifth (ancestor) from the mother, and after the seventh (ancestor) from the father.
By this statement is meant that where the claimant traces his relationship to the propositus through the latter's mother, he (the claimant) must be within five degrees of descent from the common ancestor, who must also be within five degrees of ascent from the propositus himself. But if he traces his relationship through the father of the propositus, the degrees are to be taken as seven instead of five. . Relations beyond the degrees specified are not recognised as sapindas at all and are accordingly not heirs. Perhaps there may be room still left for a controversy as to whether the degrees are to be taken as five in all cases of bandhu succession irrespective of the relationship being traced through the mother or the father. (Mayne's Hindu Law, 10th edn., 113, et seq.) But it is not necessary for us to go into this question, as both claimants in the present appeal are within the lower limit of five degrees.
6. The second test which has also been recognised by the Privy Council is the test of mutuality. By this is meant that the claimant and the propositus must be related to each other in such a way that each is a sapinda of the other, that is, within the degrees limited by the first test. This qualification is not mentioned in the Mitalcshara, but it has been derived from a text of Manu, whose authority is supreme. These two tests have been so fully explained in the decided cases and in the text books that it is needless to devote further space to elucidate either of them here. The only question which we have to decide is whether there is in addition, a third test which a claimant must satisfy before he can be recognised as a heritable bandhu. On the answer to this question depends the decision of the appeal.
7. The test in question is based upon what may conveniently be described as the line theory propounded for the first time by Dr. Sarvadhikari in his Tagore Law Lectures of the year 1880. If the doctrine is well founded, the obvious result will be to exclude from heirship a number of blood relations who would be sapindas judged alone by the two tests accepted by the Privy Council. It is worthwhile to point out at the outset, that there is no mention of the doctrine, at any rate in express terms, either in the ancient smrithis, or in any of the numerous commentaries. It was only by a process of deductive reasoning that Dr. Sarvadhikari sought to formulate his theory, getting his clue, as he calls it, from the threefold classification of bandhus contained in the Mitakshara. The classification was not of Vijnaneswara's making; it was there already in the shape of a fragmentary verse of Vriddhasatatapa which stated:
The sons of his own father's sister, the sons of his own mother's sister and the sons of his own maternal uncle must be considered as his own cognate kindred; the sons of his father's paternal aunt, the sons of his father's maternal aunt and the sons of his father's maternal uncle must be deemed his father' cognates kindred the sons of his mother's paternal aunt, the sons of his mother's maternal aunt, and the sons of his mother's maternal uncle must be reckoned the mother's cognate kindred.
As observed by Vijnaneswara, the test divides the bandhus (cognates) into three classes, namely, atma bandhavah, those related to the person himself, pitru bandhavah, those related to his father, and matru bandhavah, those related to his mother. All of them are bandhus of the owner, but the division is made use of by Vijnaneswara only for the purpose of establishing the order of priority as between the three classes and he makes this quite clear in Chapter II (vi) (2) by stating:
Here, 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. This must be understood to be the order of succession here intended.
The succession of bandhus (cognates) is dealt with in Chapter II, section (vi) which is devoted to an explanation of the word ' bandhu ' occurring in the text of Yajnavalkya, immediately after and in contradistinction to ' gotrajas '. The place of the gotrajas in the scheme of succession is prior to that of the bandhus and is accordingly first dealt with in section (v), placitum I where he states that the gotrajas (agnates) are the paternal grandmother, sapindas and samanodakas. In placitum 3 he states:
On failure of the paternal grandmother, those sprung from the same family with the deceased (sapindas), namely, the paternal grandfather and the rest, inherit the estate.
Then follows the important statement,
Bhinna gotranam sapindanam bandhu sabdena. grahanath
meaning that sapindas who belong to a different gotra (family) are indicated by the word bandhu. From this it is reasonably clear that Vijnaneswara divided the sapindas into two classes, namely, the gotrajas (agnates) or those born in the gotra or family of the propositus, and the bandhus (cognates) or those born in a different family. So it is that when he opens his discussion on bandhu succession in section (vi) he starts by saying that on failure of agnates (gotrajabhave) cognates (bandhavah) are heirs. Thus there can be little doubt that Vijnanes-wara has used the terms bandhu and bhinna gotra sapinda as synonymous with each other. The matter is placed beyond controversy by the decision of the Board in Ramachandra Martand, Walker v. Vinayak Venkatesh Kothekar (1914) 27 M.L.J. 333 : L.R. 41 IndAp 290 : I.L.R. 43 Cal. 384 (P.C.) where Mr. Ameer Ali observes at page 413:
Vijnancswara in reality seems to have shaped the rules which govern this branch of the law of inheritance...In paragraph 3, section 5, (Colebrooke's Translation) in describing the gotraja sapinda or consanguineous relations sprung from the same stock, he emphasises the fact'of their being members of the same family by the specific statement that the sapindas belonging to a different family (golra)-the bhinna gotra-are included under the designation of bandhus. This is clearly borne out by the passage of the Viramitrodaya already referred to. Henceforth the word bandhu therefore, has, in the system of the Mitakshara, a distinctive and technical meaning, in other words 'it signifies the bhinna gotra sapindas.
Again at page 415,
Now a bhinna gotra sapinda is a bandhu according to Vijnaneswara. The classification contained insection 6, Chapter II (Colebrooke's Translation) shows clearly who the bandittis are whom Vijnaneswara treats as bhinna gotra sapindas entitled to succession on failure of the gotraja.
Their Lordships then set out the contents of Chapter II, section 6 of the Mitakshara as rendered by Colebrooke and after referring to the division of bandhus into the three classes mentioned above finally state their conclusion in the following words:
Their Lordships have little doubt reading these passages by the light of the comments in Viramitrodaya (at page 200) that Vijnaneswara was using the term bandhu in a restricted and technic^l-' tense, as implying a relation belonging to a different family but united by sapinda relationship. J fact he expressly says so (paragraph 3, section 5, Chapter II).
That the words bhinna gotra sapinda and bandhu are to be understood as synonymous has thus been expressly ruled by the Privy Council. The point has to be stressed because of a somewhat different view expressed by Mukerji, J., in a Full Bench decision of the Allahabad High Court which will be referred to later.
8. The meaning of the words bhinna gotra sapinda next falls to be considered. Bhinna gotra only means born of a different family, and there has never been any uncertainty about its meaning. But such is not the case with the word sapinda. Whatever its ancient, time-honoured meaning, Vijnaneswara gave it a new orientation, involving far-reaching consequences. ' Community in the offering of funeral oblations (pinda)'' was indeed the old meaning. But the word ' pinda ' in Sanskrit occurring in the compound noun sapinda has another meaning also, namely, the body of the corporeal frame of a person. It was this meaning which Vijnaneswara applied to the word as the one most appropriate, expressly rejecting the older sense so long current. Accordingly he defined sapinda relationship as arising between two persons through1 their being connected by particles of one body. The definition was undoubtedly bold and novel, but found wide acceptance not only on account of the eminence of the author, but also because it accorded with the general sense of the community. The consequence was a revolution in the theory underlying the law of succession. The principle of religious efficacy went by the board, giving place to propinquity of blood relationship as the governing factor in determining questions of succession. Vijnaneswara followed up his explanation by the express injunction that wherever the word ' sapinda ' occurs in the Mitakshara it should be understood as only meaning ' a connection with one body either immediately or by descent.' He then took up the subject of degrees and observed, ' In the explanation of the word ' asapindani1 (non-sapinda, verse 52) it has been said that sapinda- relation arises from the circumstances that p'articles of one body have entered (into the bodies of the persons thus related) either immediately or through (transmission by) descent. But inasmuch as this definition would be too wide, since such a relationship exists in the eternal circle of births, in some manner or other, between all men, therefore the author (Yajnavalkya) says : Verse 53, ' After the fifth ancestor on the mother's and after the seventh on the father's side '-' on the mother's side in the mother's line after the fifth, on the father's side in the father's line, after the seventh (ancestor) the sapinda relationship ceases; these latter two words must be understood; and therefore the word sapinda. which on account of its (etymolpgioal) import (connected by having in common) particles (of one body) would apply to all men, is restricted in its signification, just as the word pankaja (which etymologically means 'growing in the mud ', and therefore would apply to air plants growing in the mud, designates the lotus only) and the like; and thus the six descendants, beginning with the son, and one's self (counted) as the seventh (in each case), are sapindas relations ' (West and Buhler, Volume I, page 120). It is significant that the only limitation here recognised, on what would otherwise be too wide a definition is the limitation of degree. If we are to impose a further limitation, we must have the sanction of a superior authority such as we have in the case of mutuality.
9. This passage as well as a free rendering of it by Dr. Sarvadhikari were referred to by the Privy Council and then the following emphatic statement was made by their Lordships,
Their Lordships have no manner of doubt that in the passages quoted above, Vijnaneswara was laying down rules for the limitation of sapinda--relationship generally.
Their Lordships concluded the discussion by stating that the right of inheritance is founded on sapinda relationship, which under the Mitakshara means consanguinity in a distinct legal sense clearly explained by the author. After this authoritative pronouncement it is needless to labour the point. It must be taken as established that connection through particles of one body, in other words, blood relationship, but within the degrees specified, is to be the prime consideration; supplemented of course, by the test of mutuality. While on the question of mutuality Sarvadhikari was referred to with approval nowhere in this judgment is there any reference to his line theory. We must therefore take it that the doctrine has been neither approved nor disapproved by the Privy Council so far.
The following tables indicate the bandhus mentioned by Vriddhasatatapa:
I. ATMA BANDHUS.
TABLE 1. TABLE 2.
| | | |
| | | |
S1 D1 D1 | S
| | | | |
P S2 P D2. |
PGF represents the paternal grandfather, MGF the maternal grandfather, S and D, a male and a female descendant respectively. P is the propositus. S2 in table (1) and S1 and S2 in table (2) are the atma bandhus.
II. PITRU BANDHUS.
TABLE 1. TABLE 2.
| | | |
S1 D1 D1 ______________
| | | | |
S2 S3 S1 D2 S3
| | | |
P P S2 S4
FPGF stands for the father's paternal grandfather and FMGF for the father's maternal grandfather. S3 in table (1) and s2 and 84 in table (2) are the pitru bandhus.
III. MATRU BANDHUS.
TABLE 1. TABLE 2.
| | | |
S1 D2 D1 |
| | | ______________
D1 S3 D2 | |
| | D3 S2
P P | |
MPGF stands for the mother's paternal grandfather, and MMGF for the mother's maternal grandfather. S3 in table (1) and S1 and S3 in table (2) are the matru bandhus
10. A glance at these tables of bandhus will show that the atma bandhus are the descendants of the paternal grandfather and of the maternal grandfather of the propositus. The pitru bandhus are the descendants of the father's paternal grandfather and the father's maternal grandfather. The matru bandhus are the descendants of the mother's paternal grandfather and the mother's maternal grandfather. It will be observed that the enumeration of atma bandhus takes in three degrees, only, while the pitru bandkus and the matru bandhus go up to four only and not more. The lists are therefore incomplete not only because the ascendants and the descendants, up to live or seven degrees as the case may be, are not mentioned, but two whole groups, namely, his own and his father's cognate descendants are conspicuous by their absence. Also, nearer relations like the maternal uncle have been omitted, while the maternal uncle's son is mentioned. The enumeration was accordingly held not to be exhaustive, but only illustrative and this was decided so early as 1868 in Gridharilal Roy v. The Government of Bengal (1868) 12 M.I.A. 448. It is, therefore, manifest that the enumeration has to be extended both upwards and downwards, in order to have a complete picture. It is in the making of this extension that the line theory is sought to be introduced. What is said is that the extension can only be made along the agnatic line of the topmost ancestor named in the text and not otherwise. On this theory Dr. Sarvadhikari states the rule as follows:
The heritable right will accrue to a cognate sapinda of the deceased, if (1) the former be in the latter's descending line; (2) if he be in the deceased owner's father's family; (3) if he be in the latter proprietor's maternal grandfather's line; (4) in his father's maternal grandfather's line; (5) in his mother's maternal grandfather's line.
The same proposition is echoed by Mukherji, J., in Gajadhar Prasad v. Gouri Shanker I.L.R.(1932) All. 698 where he says:
The bandhu may be one in propositus's father's line, which would include his own line, either ascending or descending, because the descending line also would be his father's line through the propositus himself.
11. The learned Judge here combines groups 1 and 2 into one group,
Secondly, we shall find the bandhus in the propositus's maternal grandfather's line. Thirdly, we shall find a bandhu in propositus's father's maternal grandfather's line; and fourthly, we shall find a bandhu in propositus's mother's maternal grandfather's line.
By line is here meant the agnatic line '' for lineage is traced through the male ancestors and male descendants and nobody else. Mother's father's line would mean maternal grandfather, his father, his father and so on. Maternal grandfather's line or even mother's line would not mean mother's mother, her mother, her mother and so on.' As already observed, if this principle is applied, a great many bandhus who are sapindas within the limits laid down by the Mitakshara will be left out. The following table is a complete list of the bandhus in the several possible chains, each of which is composed of an ancestor and four descendants so as to make up five degrees. Where the degrees are to be seven, two more links have to be added between S1 and the next link immediately below, in the several chains. The chains themselves will then increase in number by a process of permutation and combination. But to understand and appreciate the position it is sufficient to have chains of ascendants or descendants made up of five links only:
(1) (2) (3) (4) (5) (6) (7) (8)
S1 S1 S1 S1 S1 S1 S1 S1
| | | | | | | |
S2 S2 S2 D D D D S2
| | | | | | | |
D S3 D S2 D S2 D S3
| | | | | | | |
D D S3 D S2 S3 D S4
| | | | | | | |
S3 S4 S4 S3 S3 S4 S2 S5
S1 in all the chains is the common ancestor, Chain No. 8 is made up purely of agnates. Any one of the last four links in, this chain can be a bandhu of any one male (S) in the last four in any of the other seven chains and-vice, versa. As between chains 1 to 7 the ascending and the descending lines from the common ancestor can be made up in the manner indicated by any one or more of them. These chains have been constructed without reference to the line theory and will help to show how the theory will work. The enumerated atma bandhus are the descendants of S2 in chains 4 and 6. The pitru bandhus are the descendants of S2 in chains 3 and 8 and' the matru bandhus are among the descendants of S2 in chains 1 and 2. The fourth in ascent in chains 4 to 7 is (D) a female and does not get into the enumeration. In these chains the common ancestor S1 is not an agnatic ascendant of the lowest link representing the propositus or the claimant as the case may be, or of his father; nor is he an agnatic ascendant of the maternal grandfather. He is also not in the line of either the father's paternal grandfather, which is the same thing as the propositus's own line, nor is he in the line of the father's maternal grandfather. He is also not in the line of the mother's paternal or maternal grandfather. None of the last descendants in any of these four lines, can be a heir in the line theory of Dr. Sarvadhikari. The proposition may be stated by saying that in going upwards from the propositus or the claimant, neither the fourth nor any higher link can be a female or in the words of Sulaiman, J., in Gajadhar Prasad v. Gouri Shankar I.L.R.(1932) All. 698 there can only be a male ancestor above the grandparents on both sides.
12. The soundness of the line test came up for consideration in this Court for the first time in Chinna PichuAiyangar v. Padmanabha Aiyangar : (1920)39MLJ417 . The propositus (P) and the claimant (C) were related to each other through the common ancestor (CA) in the manner shown in the following diagram:
One of the learned Judges who constituted the Division Bench, Napier, J., accepted the line theory of Dr. Sarvadhikari on the ground that it is supported by the decision of the Calcutta High Court in Umaid Bahadur v. Udoi Chand I.L.R.(1880) Cal. 119 where the relationship of the claimant and the propositus was as indicated below:
The Full Bench had observed in that case:
Although F is within six degrees from the common ancestor, yet B (the propositus) not being a descendant of the line of the maternal grandfather, either of F or of his father or mother, they are not sapindas of each other.
This observation was clearly an obiter dictum, but it was accepted by Napier, J., on the ground that the Bench used it 'as axiomatic of the principle governing the relationship between the bandhus '. But Sadasiva Ayyar, J., was not prepared to agree with Napier, J., and he in fact expressed the opinion that the conclusion reached by the Calcutta High Court is fallacious. He also characterised the doctrine of Dr. Sarvadhikari as the result of far-fetched deductions. In the view expressed by the learned Judge he should have logically dissented from Napier, J., but he concurred with him ' on the somewhat curious ground that he is generally against claims by remote relations and that only by legislation the anomalies of the present law could be removed.' The decision exhibits a pronounced difference of opinion on the principle under consideration, Napier, J;, accepting it and Sadasiva Ayyar, J., rejecting it.
13. The doctrine received close and careful attention from Spencer and Venkatasubba Rao, JJ., in Kesar Singh v. Secretary of State for India 1 M.L.J. 16 : I.L.R. Mad. 652. After a full consideration of all the relevant material, the learned Judges unhesitatingly held that it was not well founded. The relationship between the parties may be indicated by the following tables; where CA is the common ancestor, P the propositus and C the claimant, D represents a female and S a male:
It will be seen that the tests of degree as well as mutuality were satisfied in this case and the only question was whether the line theory of Dr. Sarvadhikari was well founded. If well founded, the claimant would not have been a heritable bandhu and the estate would have escheated to the Crown. The leading judgment was that of Venkatasubba Rao, J. His reasons may be summed up as follows : (1) the doctrine does not find support in any ancient text or recognised commentary and is not justified by any authority; (2) the view of the Calcutta High Court in Umaid Bahadur v. Udoi Chand I.L.R.(1880) Cal. 119 favouring the line theory is clearly an obiter dictum; and (3) a rule which has the effect of unduly limiting the bandhus who can inherit, should not be accepted without sufficient support for it in the texts or commentaries. The matter would have rested there but for the decision of the Full Bench of the Allahabad High Court in Gajadhar Prasad v. Gouri Shankar I.L.R.(1932) All. 698 . The learned Judges dissented from Kesar Singh's case : AIR1926Mad881 and gave their adherence to the line theory of Dr. Sarvadhikari supporting it by fresh argument. The relationship of the claimant in the two cases was identical. Mukherji, J., delivered the leading judgment. As before us, the appellant's learned advocate strongly relied on this case, and in fact, derived most of his arguments from this judgment, it is necessary to go over the grounds on which the learned Judge has based his conclusions. The first argument is furnished, it is said, by Vijnaneswara himself in his commentary on Yajnavalkya's verse, I, 53, quoted above, where he enunciates the rule of prohibited degrees of marriage. The relevant passage which was originally translated by West and Buhler, has been quoted in extenso in Ramachandra Martand Walker v. Vinayak Venkatesh Kothekar (1914) 27 M.L.J. 333 : 1914 L.R. 41 IndAp 290 : I.L.R. 42 Cal. 384 (P.C.). The particular portion of it which has been relied on in the present case is the following:
Accordingly it is to be understood that the fifth from the mother is she who is in the line of descent from (any ancestor of the mother) up to the fifth ancestor, beginning with the mother, and counting her father, grandfather and the like.
It may at once be conceded that Vijnaneswara here refers only to the agnatic line of the mother and this may also be taken to be the ordinary Hindu conception of the sapinda relationship, based on the old spiritual theory of an agnatic group bound together by community of religious offerings. But it does not follow from this that in his scheme of bandhu succession Vijnaneswara intended to lay down that the sapindaship runs only along the agnatic line which is but an application though partial, of the discarded doctrine of spiritual efficacy. Such a meaning is directly opposed to the elaborate explanation which he has given of the word 'sapinda' in his commentary on just the previous verse of Yajnavalkya, where he took great pains to show that it meant a connection through particles of one body and not a connection by oblations offered to ancestors. The following passage of the Mitakshara in Srish Chandra Vidyarnavag translation, at pages 95,97, emphasises the point:
The sapinda relationship is certainly to be described by the entering of the particles of a common body.' Because on account of the Sruti (Aitareya Brahmana, VIII, 13.6):
(In him) the self is born out of self.' Thus also (Tait. Br. 1-5-5-6). ' Thus thou art born again in thy offspring' : so also is the text of Apasthamba (II. 9.24.2) : 'Now it can also be perceived by the senses that the father has been reproduced separately in the son.' So also in the Garbha Upamsnad : ' Of this body consisting of six sheaths, three are from the father, and three from the mother. The bones, the nerves and the marrow are from the father; the skin, the flesh and the blood are from the mother.In all these passages, the entering of the particles of the body is being demonstrated.
But if the sapinda relationship be taken to mean those who are connected through the offering of the same pinda to an ancestor, then there would be no sapinda relationship in the mother's line, or in the brother's sons and the rest.
It is interesting to note how Balambhatta understands the word ' mother's line ' (malm santane) in the above passage. He comments:
In the 'mother's line' : the meaning is, in the fifth female descendant (kanyayam) from one root ancestor, whose line is made up of his daughter, her daughter, her daughter and her daughter. In the mother's line it is said ' fifth' because in his (Vijnaneswara) view it (the sapindaship) extends only up to the fifth (degree) and it ceases thereafter. Though those who really share in the offerings made (by any descendant) up to the fourth female descendant do also share in the offerings made by the others (the remaining three), it (such a sharing) is wholly non-existent in the offerings made by the fifth.
14. This is a literal translation closer to the text than Srish Chandra Vidyarnava's at page 97. The text is this.
Balambhatta's interpretation shows the mistake of understanding the word ' santana ' in the sense in which it is popularly understood, that is, the agnatic line. We feel no doubt that Vijnaneswara's explanation in the passage relied on was only meant to illustrate and not to restrict the sapinda relationship to the agnatic line of the father or the mother, or of the father's maternal grandfather or of the mother's maternal or paternal grandfather. The text of Vriddhasatatapa itself furnishes a decisive answer to the opposite interpretation. The father's maternal aunt's son, the father's maternal uncle's son, the mother's maternal aunt's son and the mother's maternal uncle's son are not in the line of the mother or the father of the owner, and they cannot be his bandhus on the line theory strictly applied. Mukherji, J., perceives the discrepancy, but is satisfied with the answer that the relationship of banahu indicated by the text is an expansion of the definition of sapinda which should of course be taken to be limited by the line theory. The following passage at page 729 of the report sums up his view:
We may now conclude that if the claimant to heirship be a bandhu of the deceased person but if the deceased person be not a sapinda of the claimant, the claim will fail, for Manu says, ' A sapinda's property shall be taken by a sapinda.' But if the deceased be related to the claimant as a bandhu, i.e., if both the deceased and the claimant be each other's bandhu the claim will succeed.
Instead of regarding the words ' bkinna gotra sapinda ' and ' bandhu ' as synonymous which is the only correct meaning as laid down by Vijnaneswara and the Privy Council, the learned Judge found himself obliged to take up the somewhat anpmalous position that the word ' sapinda ' is narrowed by the line theory and expanded by the old text. It is, in our opinion, simpler and more in consonance with the express statements of the Mitakshara to take the word in the sense explained, and when that is done it will be found that the text of Vriddhasatatapa creates no difficulty. The enumeration has only to be understood as illustrative of the rule of Mitakshara, and not as a rule in itself.
15. The next argument is that the words pitru 'bandhu and matru bandhu should not have been taken as father's bandhus or mother's bandhus : These expressions are made; use of by Vijnaneswara only for the 'limited purpose of establishing the order of preference among the classes, all of Whom are bandhas of the propositus. It is not necessary to put a strained meaning on these words, for ordinarily, ' santana ' means the agnatic line even as 'tine 'Word ' sapinda ' means agnates. But it is to be observed however that no commentator has interpreted pitru bandhus and matru bandhus as meaning bandhus ' ,by reason of ' or 'through' the father or the mother. On the contrary, the Mayukha definitely supports the possessive sense which is the only sense in which the word atma bandhu occurring in the same collocation can be understood. Mayukha IV, viii, 22, in commenting on Vriddhasatatapa's text says,
It may be said ' Indeed, of the wife and all the rest, the right to take the wealth is derived from their relation to the deceased himself, even so let the right of the bandhavas be; how then can the bandhavas of the father and of the mother have a right to the wealth'.
There is no support for the strained construction which has found favour with the Allahabad High Court in any of the commentaries and the meaning adopted is, we say it with due respect, neither natural nor usual. Nor is there any sufficient justification for drawing a distinction between bandhu and bandhava, for etymologically there is none.
16. Both words are sometimes used in a very wide sense as including all relations, cognates, and agnates; and even friends, as the literal meaning is 'he who binds the mind by love'.
But Vijnaneswara has used the word in the technical sense, and there can be no doubt that he reads the text which uses the long vowel in the same sense.
17. We are again unable to follow how if the words pitru bandhu and matru bandhu are understood as meaning father's bandhu and mother's bandhu respectively, the classification becomes useless or meaningless. So long as the limitation of degrees is operative, there is no scope for the argument that all the relations howsoever remote will come in. It is then asked, what was the necessity for a division of the bandhus into three classes, as it would have been quite sufficient to say that all cognate relations of the owner within five degrees are bandhus? But the text which contains the classification is not Vijnaneswara's and it is not to be forgotten that the classification as already explained is adopted solely for the purpose of fixing the order of priority, the upward limit alone being indicated in the enumeration of the atma bandhus. The degrees laid down can under no circumstances be extended, and it follows that the mention of the pitru bandhus and matru bandhus does not mean that the degrees are to be counted not from the propositus but from the father and the mother, in which event only the degrees will go up to six. The criticism therefore that the possessive sense is inappropriate does not appear to 'be well founded. With all respect therefore to the learned Judges who decided 'Gajadhar's case I.L.R.(1932) All. 698 we are unable to share their opinion that the line theory is well founded. It is not for us to evolve and lay down theories which have the effect of overriding or qualifying the express definitions of the Mitakshara, unless they are necessarily to be implied from the statements of the commentator, or plainly follow from them. Sapindaship has been defined, and to that definition we must adhere without seeking to hedge it in by new formulae. It is true that the test of mutuality is not apparent from what Vijnaneswara has said. But the final word has been pronounced by the Privy Council, and all controversy is now at an end. That Dr. Sarvadhikari is a learned author and that it was he who enunciated the test of mutuality which) has now passed into the law, is no reason for our accepting his line theory also, merely on : his authority. We consider that Kesar Singh's case I.L.R.(1932) All. 698 (the correctness of this decision has been accepted in the latest editions of Mayne, 642, and Mullah, 53, 54), has been correctly decided and that decision governs the present case'.
18. The result is that the second appeal fails and is dismissed with costs.