1. This is a suit fora declaration that certain alienations made by the 1st defendant, the widow of one Vasudeva. Pandithar, are not binding upon the plaintiff (respondent) as the nearest reversionary heir of Vasudeva. The 3rd defendant (appellant) also claims to be Vasudeva's nearest heir. There is no dispute in this Court as to the actual relationship of these parties to Vasudeva. The plaintiff is the son of the maternal uncle of Vasudeva and the 3rd defendant is his sister's adopted son's son.
2. As to the plaintiff, it is not denied that he belongs to the first of the three classes into which bandhus, or cognate kindred entitled to inherit the estate of a deceased man, are divided, vis., his own or atma bandhus, his father's or pitr bandhus and his mother's or matt bandhus, inasmuch as the plaintiff is a relation of the exact description specifically mentioned by Vijnaneswara as an atma bandhu (Mitakshara Chap. II. Section VI, V, I). As to the 3rd defendant, the learned vakil for the plaintiff urges that he is not Vasudeva's atma bandhu. But that he is such a bandhu seems to be necessarily implied by the passage of the Mitakshara cited above. For it lays down that the father's sister's son--that is a descendant of even the paternal grandfather, is an atma, bandhu. How then can a bandhu, like the 3rd defendant, who is able to trace his relationship to the deceased owner through a nearer ancestor, viz., the father, be held to be other than an atma bandhu? The plaintiff's objection on this point is, consequently, untenable.
3. The substantial question for determination is which of the two atma bandhus (whose rights are admittedly not equal) has the preferential title to the estate of Vasudeva?
4. The plaintiff's claim to such title was sought to be supported by two arguments. The first argument was this: Vasudeva was the atma bandhu of the plaintiff while he was only the pitr bandhu of the 3rd defendant; and the plaintiff's propinquity to Vasudeva should, therefore, be held to be greater than that which subsisted between Vasudeva and 3rd defendant. No decision or authoritative text was, however, cited in support of this argument. Since the question here is as to the title of the plaintiff to come in as the heir of Vasudeva, not as to Vasudeva's title to take the estate of the plaintiff had the former been the survivor, the fact so much relied on, on behalf of the plaintiff must be treated as irrelevant to the exact point in issue, and cconsequently, cannot be held to confer on the plaintiff a right to sueceed in preference to the 3rd defendant.
5. The second argument on behalf of the plaintiff was that the 3rd. defendant could not and did not confer any religious benefit on Vasudeva, while the plaintiff could and did confer such benefit, and therefore the plaintiff has the better claim.
6. In the argument this was discussed with reference to Vasudeva's participation in the offerings of cake and water made periodically by the Plaintiff to two of the paternal ancestors and also with reference to the question whether either party or both were competent to perform the obsequies of Vasudeva in the absence of nearer relations.
7. Now with reference to the 1st of the abovementioned matters, the plaintiff's paternal grandfather and great-grandfather, to whom he has to present cake and water at stated times, being Vasudeva's maternal grandfather and great-grandfather respectively, were as such entitled to similar oblations from Vasudeva also, who consequently participated in the offerings made by the plaintiff to those common ancestors. But on the other hand as between the 3rd defendant and Vasudeva, there was no possiblity of similar participation, since none of the persons to whom the 3rd defendant has to make offerings were entitled to like dues from Vasudeva.
8. Next with reference to the 2nd matter viz., eligibility to perform the obsequies of Vasudeva, on behalf of the plaintiff, no text expressly mentioning the son of the maternal uncle of a man as among those competent to celebrate that man's funeral rites were cited. But on behalf of the 3rd defendant, a text quoted in Kamala-kara's Work on Ceremonial Law, the Nirnaya Sindhu, was relied on. The Subordinate Judge suggested there was some mistake in the reading of the quotation in question. This view, however, seems to be scarcely well founded inasmuch as the principal circumstance relied on by the Subordinate Judge in favour of that view, viz., that no other known text refers similarly to the competency of a sister's grandson is rather a slender foundation for the suggestion.
9. In these circumstances, it is not on the whole easy to law down positively that, in a spiritual point of view, the difference between the two claimants is of a very pronounced character and that the plaintiff's capacity to confer religious benefits upon Vasudeva decidedly preponderates. But, granting as the Subordinate Judge seemed disposed to hold though not very confidently, that the plaintiff's capacity is superior, does that give him a better title? Now, though the doctrine of religious benefit has exercised very much influence upon many of the great writers on Hindu Law, yet it is now rightly recognized that Vijnaneswara as well as most of his followers put their system. on a radically different basis. (See Mayne's Hindu Law, Sections 2 and 468 to 478 and Subba Singh v. Sarafraz Kunwar I.L.R. 19 A. 215.
10. At the same time it must be admitted that a high authority of the same school--the Viramitrodaya--has given countenance to the view that the doctrine of religious benefit is not without its applicability oven under the Mitakshara system (Chapter II, Part I, Section 2, page 158, Golap Chaoder Sircar's Translation). In the Allahabad case just referred to, Knox J., seemed inclined to hold that the doctrine of the Viramitrodaya is not entitled to any weight (pp. 226-7), but Bannerji, J., is not inclined to go that length (p. 229). In this Court the doctrine was, not long ago, referred to and relied on, in support of the proposition that, as between bandhus of the same class, a rule of preference may be found in the spiritual benefit which they confer (Muttusami v. Muttu Kumarasami I.L.R. 15 M. 30). It may, therefore, perhaps be unsafe to hold that the doctrine in question can never be resorted to in dealing with difficult questions arising under the Mitakshara Law for the solution of which no definite rule is stated expressly or by implication in the leading treatises of that school. But be this as it may, there need be no hesitation what-evur in saying that the doctrine ought not to be resorted to in derogation of the great principles pervading the Law of Inheritance under the Mftakshara system. The first of such principles is that the nearer line excludes the more remote. Applying it here, the plaintiff' must don't less fail, since he traces his right as a bandhu through Vasudeva's grandfather (maternal), while the. 3rd defendant makes out his right through a nearer ancestor of Vasudeva. viz., his father. The learned Vakil for the plaintiff laid considerable stress on the fact that the plaintiff is the grandson of Vasudeva's maternal grandfather, whereas the 3rd defendant is the great grandson of Vasudeva's father. But it is not easy to see how this difference in the respective relationship affects the quesr tion under consideration. For the competition here is not between persons descended from the same man, but between those who are seeking to establish their rights through different persons, one of whom is unquestionably a nearer ancestor of the propositus than the other, and whose line consequently must take precedence. If a more familiar illustration in support of so elementary a proposition were necessary, it is sufficient to refer to the case of a man dying' leaving a divided nephew and a divided uncle. The nephew excludes the uncle though the former is more removed from the propositus's father than the latter is from the propositus's grandfather, the father and the grandfather being of course the respective common ancestors through who n the nephew and the uncle must respectively trace their right to inherit.
11. Another fundamental principle of the law in favour of the 3rd defendant's preferable right is that among bandhus of a class those who are ex parte paterna take before bandhus ex parte materna. It is scarcely necessary to point out that though the mother's propinquity to her son is under the Mitakshara greater than that of the father, yet in the language of Saraswathi Vilasa ' the greater eligibility belongs to the mother alone, and not to the mother's banhavas' (paragraph 598, Foulkes' Translation) and this Court's ruling on the point in Stondra-mmall v. Uangasami Mudaliar I.L.R. 18 M. 193 renders it superfluous to cite other authorities respecting it.
12. On both the above grounds, therefore, it is, perfectly clear that the 3rd defendant is a nearer reversionary heir of Vasudeva than the plaintiff; and as there was no allegation or proof of the existence of any circumstances which would entitle the plaintiff to maintain the declaratory suit as a remote reversioner, the suit must fail on this preliminary ground.,
13. The appeal is accordingly allowed, the decree of the Subordinate Judge is therefore reversed and the suit dismissed with costs of the 3rd defendant in this and the lower Court.