Charles A. Turner, Kt., C.J.
1. Sabapathi Mudali, the last male owner of the property in dispute in this suit, died in 1846 without issue, but leaving a widow, a mother and three sisters. His widow died in 1861 and his mother in 1871, having successively enjoyed the property. After the death of the latter a dispute arose as to the succession between the respondent, a son of one of the sisters, and the appellants, the other sisters of the deceased. The appellants intermeddled with the property, and the respondent thereupon instituted this suit to vindicate his title and obtained a decree in the Court of First Instance. Although other objections were raised in the memorandum of appeal at the hearing, the argument was confined to the objection that the sister is a nearer heir than a. sister's son.
2. In this Presidency, and in the north of India where the inheritance was governed by the law of the Mitakshara, English commentators and Judges for sometime refused to allow any right of succession alike to the sister and to the sister's sons.
3. The claim of the latter rests on the ground that he is a bhinnagotra, sapinda, and therefore succeeds as a bandhu. So long as it was held that the persons specially mentioned in the Mitakshara, Chap. II, Section VI, were the only persons who could be recognized as included in the class of bandhus, the right of the sister's son was ignored.
4. In Thakoorain Sahiba v. Mohun Loll 11 M.I.A. 386 his right was treated as non-existent, but it has been pointed out that in that case his counsel abandoned the tenable ground that he was a bandhu and endeavoured to show he was entitled to a place in the highest class of sagotra sapindas. The ruling of the Judicial Committee in Girdhari Lall Roy v. The Bengal Government 12 M.I.A. 448 that Chap. II, Section VI, of the Mitakshara does not purport to contain an exhaustive enumeration of all bandhus,who are capable of inheriting, and the consequent admission by their Lordships of the father's maternal uncle to rank as a bandhu, was construed by a Full Bench of the Calcutta High Court in Amrita Kumari Debi v. Lakhinarayan Chucherbutty 2 B.L.R. 28 as authorizing them to reconsider claims which had been rejected on a narrower construction of the language of the Mitakshara, and to give effect to a conclusion to which, independently of the ruling of the Committee, they had felt themselves compelled, that a sister's son was as a bandhu capable of inheriting.
5. A decision to the same effect was pronounced by this Court in Rayaningaru v. Vencata Gopala Narasimha Rau 6 M.H.C.R. 278 and it has since been regarded as settled law in this Presidency that the sister's son succeeds in default of heirs entitled to the succession in priority to bandhus.
6. To support the claim of the sister to inherit, the commentators Nanda Pandita and Balambhatta read the term brothers 'in the text But of him who leaves no issue, the father shall take the inheritance or the brothers' (Manu, Chap. IX, v. 185, cited in Mitakshara, Chap. II, Section IV, v. 1) as including sisters.
7. Other Hindu commentators have, however, expressly dissented from this construction, and although it has the support of Mr. Justice Holloway 6 M.H.C.R. 286 it was rejected by the Sadr Court (M.S.D., 1858, p. 175) and by the Privy Council 11 M.I.A. 403 as a correct exposition of the law of the Mitakshara.
8. The text of Manu, Chap. IX, v. 211, 212, which declares a sister entitled to share with uterine brothers and reunited half-brothers in the share which, on a second partition, would have fallen to a reunited parcener had he not been incapacitated from taking, has been much pressed as authority for the recognition of the right of succession in a sister.
9. The text is quoted by Vijnaneswara as having the force of law then still subsisting, and is expounded by him in Mitakshara, Chap. II, Section IX, v. 12 and 13.
10. There is also a text of Vrihaspati to the same effect as the text of Manu, save that it declares the right of the sister to take in succession to, and not in competition with, the uterine brother. Dig., Bk. 5, v. 407: 'But she who is his sister is next (i.e., after the uterine brother) entitled to take the share.' Citing this text, the author of the Madhaviya declares that where there is neither wife, brother, nor mother, 'a sister takes the share of a reunited childless parcener.' He admits that some read 'she who is his daughter,' but he goes on to say that 'in default of daughters and sisters, all the sapindas, &c.;, succeed.' Burnell's Translation, page 37, Section 47.
11. The explanation of the text of Manu suggested by the compiler of the Digest that it secures to sisters who have not already accepted it their one-fourth share for their nuptials, is hardly consistent with the language of the Mitakshara, the text of Vrihaspati, and the commentary in the Madhaviya. The last part of the text of Sancha and Lichita--the daughter shall take the female property and she alone is heir to the wealth of her mother's son (Dig., Bk. 5, v. 225)--is explained by Jagannadha as referring to the appointed daughter, while Mr. Mayne suggests it may possibly refer to stridhanam which had passed from the mother to the son; but the wide difference in these suggested explanations prevents either from being received with confidence. In Chinnasamier v. K. Chinna Narainen M.S.D. 1859, p. 247 the last male owner had died leaving two sisters and paternal uncles. The Sadr Court upheld the concurrent decisions of the Courts below and declared the paternal uncles entitled to the succession. Referring to the texts of Manu above quoted, and to arguments founded on them, it was observed: 'The Judges of the Sadr Adalat, while admitting that the arguments of the special appellant have much force, and that the texts relative to division after reunion show that, under such circumstances, a sister has a right of inheritance--from which a presumption might perhaps be drawn that the spirit of the law may not have originally contemplated the exclusion which now prevails--are of opinion that the law is not only too ill-defined to admit of such construction in opposition to existing usage, but must, even if speaking more clearly, be regarded as obsolete and  virtually changed, and modified by practice extending beyond memory and acquiesced in by all parties concerned.'
12. In the following year it was held by the Sadr Court in Nagalinga Pillai v. Vaidelinga Pillai 1859 M.S.D. 247 that a sister having no place in the line of heirs had no locus standi to dispute the right of a stranger to possession. In a case before cited 6 M.H.C.R. 286 Mr. Justice Holloway expressed a strong opinion that in the view of the author of the Mitakshara the sister came in after the brother in the absence of preferable heirs, though he appears to admit that in this Presidency her right was not allowed. At length it was held by Sir Walter Morgan, C.J., and Mr. Justice Innes in Kutti Ammal v. Radakristna Ayian 8 M.H.C.R. 88 that a sister is an heir, and entitled to possession of her brother's estate in preference to a stranger.
13. The learned Judges admitted that the sister was not a sapinda, meaning by that term, as is apparent from the context, a person entitled to succeed in the class of gotraja sapindas, to which class priority is given over the class of bandhus. 'The argument by which her claim to that character was supported, namely, the ' construction of the term 'brothers' in the text of Manu adopted by Balam-bhatta, would, they considered, place her on the same footing as a brother, and be, in consequence, repugnant to the law generally accepted in this Presidency. But they advert to the ruling of the Judicial Committee that the enumeration of bandhus in Mitakshara, Chap. II, Section VI, is illustrative and not exhaustive; to the passage in Mitakshara, Chap. II, Section III, v. 4, which declares 'the claim in virtue of propinquity is not restricted to sapindas,' but is effectual without any exception in the case of samanodakas, 'Adi' (rendered by Colebrooke 'as well as other relations') when they appear to have a claim on the succession; and to the passage in Mitakshara, Chap. II, Section VII, v. I: 'If there be no bandhus (rendered by Colebrooke 'relatives') of the deceased, the preceptor, &c.;, according to the text of Apastamba. If there be no male issue, the nearest sapinda inherits, or, in default of sapindas, the preceptor;' and they considered it followed not only that in the case of cognates is there no expression expressed in the law, or to be inferred from it, of limiting the right of inheritance to certain specified relationships of that nature, but that in regard to other relationships also there is free admission to the inheritance in the order of succession prescribed by law for the several classes, and that all relatives, however remote, must be exhausted before the estate can fall to persons who have no connection with the family.'
14. It will be noticed that the learned Judges do not assign to the sister any special place in the line of heirs, nor express any intention of disturbing the order of succession among cognates as it is understood to be regulated by law. They concede to her--and for the purpose of the case before them it was not necessary they should go further, nor indeed so far--a right to succession superior to that of strangers in blood.
15. The propriety of this decision has been questioned by an eminent author. It is objected that the first passage cited simply declares a rule which regulates the rival claims of relatives, who, in virtue of other rules, appear to have a claim on the succession, and that it implies the existence of relatives who have no such claim; that the term 'Adi'-'the like,' &c.;, following the term samanodaka, cannot, according to the ordinary principles of construction, be construed as introducing a completely different class.
16. It is objected to the argument deduced from the second passage cited that it is improbable we should find in a few general words in a section introducing the rule respecting the succession of strangers, a rule bringing in an entirely new set of heirs who are not defined, and of whose existence there is no previous hint. It is also objected that the term translated 'relation' is bandhus, and the term translated ' kinsmen' and kindred' in the text of Apastamba is sapinda; that Section V treats of gotrajas, Section VI of bandhus, and Section VII of those who come in when there is no bandhu; and that there is no third class, who, being neither gotrajas nor bandhus, are still relations entitled to succession; that it has been expressly declared by the High Court in the decision under discussion that the sister is not a gotraja sapinda, and that to include her as a bandhu, the idea of funeral offerings must be excluded from the definition of a bandhu; and that her inclusion as a bandhu would contravene a* construction of the Mitakshara accepted and acted upon in Southern India. which recognizes no females who are not denoted by special texts. (Mayne, H. L., Section 458).
17. Although we think the grounds on which it was intended the decision should rest have not been altogether accurately stated by the learned writer to whom we have referred, the respect due to his authority would have induced us to remit the point for consideration to a Full Bench had its decision been necessary for the disposal of the claims of the parties to this suit.
18. We have stated we read the grounds of the decisions somewhat differently from the learned author.
19. As we understand the learned Judges, their arguments may be thus-stated. In the Mitakshara, as interpreted by the highest judicial authority, we find no exhaustive enumeration of the relatives entitled to succession. Vijnaneswara recognizes propinquity of blood as conferring a claim to the succession and affecting other rules which regulate it in all classes of heirs. Propinquity of blood implies consanguinity, and therefore, whether within the gotra or without the gotra, gives a title to inheritance preferential to that of any person indicated as an heir who has not this qualification. We do not understand the learned Judges to suggest the existence of a class of heirs who, being relations, are neither gotrajas nor bandhus. The words in regard to cognates 'may be understood as governing the whole of the observations which follow. It is unnecessary, for reasons we shall presently state, that we should express our assent to, or dissent from the ruling, but we may observe there are grounds other than those mentioned by Mr. Mayne which would have to be considered before we could pronounce the ruling erroneous. ' '
20. A leading feature which distinguishes the rules of succession accepted by Vijnaneswara from those adopted by the commentators of Bengal, and which has not escaped Mr. Mayne (Section 433), is the importance he attaches to consanguinity. Although the doctrine of religious efficacy is not altogether ignored by him, this doctrine is unquestionably subordinated by him, to a considerable extent, to the claim of consanguinity. This was a necessary consequence of the sense he attributed to the term sapinda. Of that term be gives the following definition in the Acharakanda: '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.' A recent decision of a Full Bench of the High Court of Bengal has declared that the term should properly be construed in this sense in the Mitakhara, Umaid Bahadur v. Udoi Chand I.L.R. 6 Cal. 119. To the same effect is a decision of a Full Bench of the High Court of Bombay, Lallubhai Bapubhai v. Mankuvarbai I.L.R. 2 Bom. 423 It is unnecessary for us to state at length the grounds on which the learned Judges arrived at that conclusion. It is sufficient to say they appear to us so conclusive that unless a contrary intention be clearly apparent from the context, the definition of Vijnaneswara must be accepted as indicating the true interpretation of the term; and, accepting this sense, the rules of succession indicated by the author appear harmonious. There are two classes of heirs, the samanagotra, or, as the term is abbreviated, Sagotra and the bhinnagotra. The order of succession of the several members of these classes, where not prescribed by express texts nor controlled partially by religious considerations, is regulated by affinity.
21. The sister is a sapinda, and it appears to us to be a reasonable inference from the texts which have been cited in support of her claim to inherit that at one time she had a place in the line of sagotra sapindas, but being capable of losing membership of the gotra in which she was born and acquiring membership, in another gotra by the sacrament of marriage, she came to be regarded as a bhinna sapinda. The author of the Mayukha endeavoured to restore her to the position she had lost, and explained the term sagotra as referring to the status she acquired by birth, and, as was pointed out by Mr. Justice Holloway, this explanation is not inconsistent with the principle of Vijnaneswara that birth is the origin of rights of property 6 M.H.C.R. 286 but it would be inconsistent with the doctrine that the qualification for inheritance must exist when the inheritance devolved in virtue of which the wife, the mother, and female ancestors in the direct line were admitted as sagotra sapindas.
22. Having been deprived of her status as a sagotra sapinda, has she lost all status as a bhinngotra sapinda? The answer to this question appears to us to rest on the extent which is conceded to the operation of the rule excluding females from inheritance. Are they to be regarded as altogether excluded, or, where in virtue of other rules they would be entitled to claim, are they excluded only  to admit heirs to whom a preference was conceded? The suggestions of Mr. Mayne (Section 440), as to the history of the origin of the right of inheritance of females in an Aryan family appear not improbable. When the time arrived that a right of inheritance was recognized in females, the claim found itself opposed by considerations of religion or expediency, which postponed it to a greater or less extent to the claims of males. The right of the wife, though a part of the husband's body, was postponed to the claims of the issue for three generations. The right of the daughter may have secured recognition immediately after that of the widow for the reason suggested by Mr. Mayne, that she was at least capable of being an appointed daughter. The right of the sister had no other support than that of her sapindaship and right to maintenance. But these titles might nevertheless be recognized when the classes, of male heirs were exhausted on principles accepted by Mr. Mayne (Section 441); and unless we are prepared to hold that Vijnaneswara accepted to the full the position that women are incompetent to inherit, and that they are admitted only when directed by special texts, if is by no means clear that the sister's claim was absolutely ignored by him. We are not prepared to go so far as Mr. Justice Holloway in the passage already cited 6 M.H.C.R. 286. But we admit the force of the arguments he advances in support of that position. Vijnaneswara did not limit the sister's share on partition to a mere sufficiency for her nuptials (Mitakshara, Chap. I, Section VII, verses 5--14); and his language certainly admits of a yet larger recognition of her rights on the distribution of the share of a reunited parcener (Chap. II, Section IX, verses 1.2, 13). Although these rules may refer only to partition, they indicate that the idea of the enjoyment of property by a sister was not repugnant to the views of the authors. In discussing the right of the widow, Vijnaneswara explains the texts cited in support of the doctrine that women are incompetent to inherit in a sense which would justify the recognition of the claims of female heirs generally. He nowhere expressly accepts the position that the claims of such females only are to be admitted as have the support of express texts. He himself declares that certain female ancestors not denoted in express texts are sagotra heirs, e.g., the great-grandmother. He does not pretend to give an exhaustive list either of the sagotra or bhinnagotra sapindas. He admits it to be a matter of question how far the sagotra heirship extends, though usage may now have limited it to the fourteenth degree. He declares that bhinnagotra sapindas are bandhus, and of bandhus he gives only such illustrations as are necessary to explain the operation of the rule, including the engrafting of the sapindas of the father and the mother.
23. It may, we think, be admitted--and herein is the reason why we consider it unnecessary to pronounce definitively on the sister's claim--that Vijnaneswara recognized the texts excluding females so far as to give priority to males, and he indicates with sufficient clearness the rules which are to be observed in ascertaining the order of succession; but his work does not profess to be a code, but a commentary or law already accepted, and which he assumes to be generally known. There is therefore much force in the observation of Mr, Justice Holloway that the rule of law ought not to be derived from the positive words of such a commentator, much less from his omissions. 6 M.H.C.R. 285.
24. As a bhinnagotra sapinda a sister falls within the definition of bandhu, and, except on the construction of the rule respecting female inheritance, that it absolutely excludes all but certain excepted females, and does not merely postpone their claims, there seems no sufficient reason for refusing her the position to which this Court has declared her entitled.
25. That ruling has the support of at least one text. Although the right to perform the funeral rites is a consequenee and not a cause of inheritance, the recognition of the right in a person may fairly be regarded as a recognition of the claim of inheritance in the same person.
26. The Hindu Law, which showed itself so jealous as to escheat as to prefer the right of the companions of a trader to the right of the king, appears also to have admitted the right of all women whose claims had, on other grounds sustainable, been postponed to male members of the family.
A son, a son's son, the son of a grandson, or like them a brother or his offspring, or a sapinda or his issue, become entitled, O king ! to perform the funeral rites.'
'On failure of these, the offspring of a samanodaka, or after them kinsmen on the mother's side, connected by the funeral cake, or by the oblation of water. But if both families be extinct, the rites, 0  king ! must be performed Bray women, of the obsequies of the deceased must be celebrated by intimate companions. Let the king cause obsequies to be performed for him who leaves Kilo kinsmen nor wealth.' (Vishnupurana. Dig., Bk. VI, verse 514).
27. Jagannada observes on this text:
If both families, that of the father and that of the mother, be extinct, obsequies shall be performed by women, meaning daughters of the family and the rest.
28. The considerations on which the preference of males rested no longer feasting, there appears no reason why the rule of affinity should be refused due recognition. We have stated our opinion that Vijnaneswara recognizes the existence of the rule excluding the females in favour of preferential male heirs. This, we think, is the only reasonable explanation of the sole mention by him of male heirs except in certain 'excepted cases. This rule sanctioning lithe preference of the male heirs has the support of subsequent commentators accepted as of authority in this Presidency. It has also the support of long- recognized usage. In virtue of it we must hold the claim of the sister's son superior as a bandhu to that of the sister, assuming she is entitled to claim in that character.
29. The appeal fails and is dismissed with costs.