Govinda Menon, J.
1. The question for decision in this second appeal is. settled from the earliest times and dues not require any reconsideration. It is argued by Mr. D. Ramaswami Aiyangar for the appellant that when a man dies leaving a divided brother and a pre-deceas-ed divided brother's son, the succession should be for the brother and the nephew together and that the brother does not take precedence 'over the nephew.
The basis of this argument is centred round the text of Yanjavalkya which Mr. Ramaswami Aiyangar contends means that the brother's son stands on an equal footing with brother, in which case, the brother cannot exclude the brother's son. He admits that a brother would exclude a brother's son if the son is that of a living brother; but if the son is that of a deceased brother and if there is another living brother, then both of them take together. We do not think that there is any justification for this argument, in Mayue's Hindu law, Edn. 11, at p. 653, the learned author says as follows:
'According to the Mitakshara and Dayabhaga Schools, no nephew can succeed as long as there is any brother capable of taking, the rule being universal that except in the case of a man's own male issue, the nearer sapinda always excludes the more remote.'
The authority ior this statement of the law is contained in Manu Chapter IX, ''Section 3 which is as follows:
'In the case of competition between brothers 'and nephews, the nephews have no title to the succession; for their right of inheritance is declared to be on failure of brothers (both parents, brothers likewise, and their sons)' (See Principles of Hindu Law, by J. C. Ghosh, Vol. 2 page 167).
Again in Hindu Law Books of Inheritance by Sethur, at page 47, in Chapter II, SECTION IV, para 8 we find the following:
'Where there are brothers and nephews, the newphews have no title to the succession; for their right of inheritance is declared to be on the failure of brothers (both parents, brothers, likewise and their sons).''
The case law on the subject is also to the same effect. See - 'Prithee Singh v. Court of Wards', 23 Suth WR 272 (A); - 'Burhum Deo Roy v. Punchoo Roy', 2 Suth WR 123 (1) (B); and - 'Chanlika Bakhsh v. Munna Kunwar', 24 All 273 . In the last case, their Lordships of the Privy Council held that on extinction of the line of one of several brothers, the descendants of all the other brothers take equally without reference to their nearness to their common ancestor and when one of the brothers had already died, his issue would not take with the living brothers.
In 'Nilkanth v. Narayan', AIR 1932 Nag 79 a Full Bench consisting of Subhedar, Niyogi and Staples A. J. Cs. had to consider the same question and the headnote is to the following effect:
''The brother's grandsons are no doubt included in the compact series of heirs, but the inheritance does not devolve upon the brother's sons and brother's grandsons jointly. The brother's son, therefore, though of half blood, excludes the brother's grandson, though of full blood.'
Niyogi J., in considering the meaning of the passage in Yajnavalkya, which we have referred to above adverts to the word 'tatsutah' as contra-distinguished from tatputrah and various authorities as - 'Kureern Chand v. Oodung Gusain', 6 Suth WR 158 , were considered. We have no doubt that the conclusion arrived at by the Full Bench of the Nagpur High Court represents the law which has been existing for centuries in this country.
It may also be useful to refer to a judgment of this Court in - 'Deivanayagam Pillai v. Subbiah Pillat' : AIR1954Mad727 , in which Venkatarama Aiyar J., delivering the judgment of the Bench referred to the fact that when the estate of the propositus devolves on his brothers, they inherit it as ten ants-in-common and not as coparceners and that their issues do not take any interest therein by birth and that the sons by the deceased brothers are not entitled to take along with their uncles on the theory of representation.
2. We do not think there is any doubt involved in the case and the lower appellate Court is right in coming to the conclusion it did. The second appeal is dismissed with costs.
3. I agree. In addition to the authorities pointed out by my learned brother, I would like to mention Trevelyan (Hindu Law of Inheritance, page 425), West and Majid (Digest of Hindu Law of Inheritance, 1919 Edn. page 104), Sarvadhi-kari (Principles of Hindu Law of Inheritance Tagore Law Lectures, page 312), Dr. Gour - Hindu Code, page 947, Sarkar Sastri's Hindu Law, pages 435, 475 and 484, 8th Edn., N. R. Eaghavachari, Hindu Law, Principles and Precedents, Page 488; Mulla, Hindu Law, pages 25 and 43, 44 also all mention that the sons of a deceased brother cannot daim to succeed along with the brothers on the theory of representation.