1. This is a suit for a declaration that certain alienations made by the first defendant, the widow of one Vasudeva Pandithar, are not binding upon the plaintiff (respondent) as the nearest reversionary heir of Vasudeva. The third defendant (appellant) also claims to be Vasudeva's nearest reversionary heir. There is no dispute in this Court as to the actual relationship of those parties to Vasudeva. The plaintiff is the son of the maternal uncle of Vasudeva, and the third 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, viz., his own or athma bandhus, his father's or pitru bandhus and his mother's or matru bandhus, inasmuch as the plaintiff is a relation of the exact description specifically mentioned by ' Vijna neswara' as an athma bandhu (Mitakshara, Chapter II, Section VI, V. 1.) As to the third defendant, the learned Vakil for the plaintiff urges that he is not Vasudeva's athma 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 athma bandhu. How then can a bandhu, like the third 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 athma bandhu? The laintiff's objection on this point is, consequently, untenable.
3. The substantial question for determination is which of the two athma 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 athma bandhu of the plaintiff while he was only the pitru bandhu of the third defendant; and the plaintiff's propinquity to Vasudeva should, therefore, be held to be greater than that which subsisted between Vasudeva and the third 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, consequently, cannot be held to confer on the plaintiff a right to succeed in preference to the third defendant.
5. The second argument on behalf of the plaintiff was that the third 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 had 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 his 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 first of the above mentioned 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, repectively, 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 third defendant and Vasudeva, there was no possibility of similar participation, since none of the persons to whom the third defendant has to makeofferings were entitled to like dues from Vasudeva.
8. Next, with reference to the second 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 was cited. But on behalf of the third defendant, a text quoted in Kamalakara's work on 'Ceremonial law' the Nirnaya Sindhu to the effect that a man's sister's son's son is eligible to perform the exequial rites of that man was relied on. The Subordinate Judge suggested that 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 lay 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 9 and 468 to 478 and Suba Singh v. Sarafraz Kunwar I.L.R. 19 All. 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 even under the Mitakshara system (Chapter II, Part I, Section 2, page 158). ('Golap Chander 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 (pages 226--7), but Bannerji, J., is not inclined to go that length (page 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. 16 Mad. 23 in P.C. I.L.R. Mad. 405. 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 and 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 whatever in saying that the doctrine ought not to be resorted to in derogation of the great principles pervading the Law of Inheritance under the Mitakshara system. The first of such principles is that the nearer line excludes the more remote. Applying it here, the plaintiff must doubtless fail, since he traces his right as a bandhu through Vasudeva's grandfather (maternal), while the third 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 third 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 question under consideration. For, the competition here is not between persons descended from the same man, but between those who are seeking to establish their right 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 father than the latter is from the grandfather of the propositus, the father and the grandfather being, of course, the respective common ancestors through whom the nephew and the uncle must respectively trace their right to inherit.
11. Another fundamental principle of the law in favour of the third 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 the Saraswathi Vilasa 'the greater eligibility belongs to the mother alone, and not to the mother's bhandhavas' (Paragraphs 598, 'Foulkes's Translation') and this Court's ruling on the point in Sundrammal v. Rangasami Mvdaliar I.L.R. Mad. 193 renders it superfluous to cite other authorities respecting it.
12. On both the above grounds, therefore, it is perfectly clear that the third 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 third defendant in this and in the lower Court.