Kumaraswami Sastri, J.
1. This is a suit by the plaintiffs claiming to be trustees of the charities founded by one Calve Sadasiva Chetti by his will, dated the 25th of July, 1889, and Codicil, dated the 20th of May, 1891, for a declaration that the first three plaintiffs are absolutely entitled to the properties mentioned in the plaint and that the defendants have no manner of right thereto, and other reliefs.
2. The case for the plaintiffs is that Item 1 of the plaint schedule property belonged to Vasavambammal, widow of Calve Sadasiva Chetti, that she died issueless and intestate, that the 4th plaintiff succeeded to the properties as the next reversioner, that he by a deed transferred the properties to the trustees constituted by the will of Sadasiva Chetti and that the plaintiffs are thus entitled to the properties.
3. Various defences have been raised by the defendants. They deny that Sadasiva Chetti left : a will and codicil. They say that even if he lelft a will and codicil, they are invalid and inoperative. They also deny that the plaintiffs are the duly constituted trustees.
4. The 3rd defendant claims the properties as the next reversioner to Vasavambammal and Sadasiva Chetti. His case is that Calve Sadasiva Chetti was adopted to Chinnapapu Chetti and that consequently the 4th plaintiff is riot a reversioner to Sadasiva Chetti or Vasavambammal.
5. The 1st and 2nd defendants claim under a transfer from the 3rd defendant to them of the properties claimed in the plaint. They also claim to be the illegitimate sons of Calve Sadasiva Chetti and entitled to succeed to the properties apart from the deed of gift.
6. The 6th defendant claims to be the adopted son of Vasavambammal and entitled to the properties.
7. It is pleaded that the adoption was upheld by French Courts and that it is, therefore, binding on all the parties as Sadasiva Chetti and Vasavambammal were French subjects resident in Pondicherry.
8. The 8th defendant claims to be a lossee from the 2nd defendant, and entitled to the return of Rs. 2,000 paid as advance.
9. The 7th defendant is said to be in possession of Item 2 of the plaint schedule, namely, a choultry known as Komatti Chathram.
10. As the suit against the 5th defendant's firm has been dismissed it is not necessary to consider their defence.
11. The 4th defendant, who is a brother of Vasavambammal, is made a formal party to the suit as it is alleged he has no interest in the properties.
12. The following issues were settled:
(1) Did Calve Sadasiva Chetti leave a will and codicil as mentioned in paragraph 4 of the plaint and are they invalid and inoperative ?
(2) Are the defendants 1, 2, 3 and 6 estopped from denying the validity of the said will?
(3) Did Calve Vasavambammal leave an oral will at Pondicherry and, if so, is it valid?
(4) Did Calve Vasavambammal by the said will make a gift of the said property and, if so, is it valid?
(5) Was Calve Sadasiva Chetti adopted by Chinnapapu Chetti and, if so, is it valid?
(6) Is Calve Sankara Chetti, the 3rd defendant, the nearest reversionary heir of Calve Vasavambammal or Calve Subbaraya Chetti, the 4th plaintiff?
(7) Is the deed of gift executed by the 3rd defendant in favour of the 1st and 2nd defendants valid and binding?
(8) Was Calve Sadasiva Chetti a sudra and are the 1st and 2nd defendants as his illegitimate sons entitled to the said plaint mentioned immoveable properties?
(9) Is the claim of the 1st and 2nd defendants to plaint properties as heirs of Sadasiva Chetti barred by limitation?
(10) Was the 6th defendant adopted by Calve VasavamIbammal? If so, is the adoption valid?
(11) Was the said adoption homologated in Pondicherry ac-cording to law, and, if so, does it render the adoption valid and binding upon the parties?
(12) Was the said adoption upheld by the French Courts and, if so, is the decision conclusive and binding with reference to immoveable property in British India?
(13) Is the 6th defendant the sole heir of the deceased Calve Sadasiva Chetti and Calve Vasavambammal as claimed by him?
(14) Is the decree in C.S. No. 226 of 1920 not binding on the 6th defendant for the reasons set out in paras. 10 to 14 of his written statement?
(15) Is the 6th defendant entitled to go behind the decree in C.S. No. 226 of 1920 without setting it aside by appropriate proceedings ?
(16) Did the 4th plaintiff give the undertaking referred to in paragraph 1 of the 6th defendant's additional written statement and, if so, is he thereby estopped from claiming the plaint properties by inheritance from Calve Vasavambammal?
(17) Is the lease of the house and ground No. 1, Jaffer Serang Street, Madras, by the 2nd defendant to the 8th defendant true and valid and, if so, is the 8th defendant entitled to occupy the same for any, and, if so, what period, for what rent and on what terms ?
(18) if the lease is held not valid, is the 8th defendant entitled to repayment of Rs. 2,000 or any part hereby from the plaintiffs or any of the defendants?
(19) To what mesne profits are the plaintiffs entitled and, if so, against which of the defendants?
(20) To what relief, if any, are the parties entitled?
13. It is admitted by all the parties that Sadasiva Chetti was a French subject living in Pondicherry and that he had extensive properties in Pondicherry and also properties in Madras and Government promissory notes and other securities.
14. The following genealogical table sets out the relationship between the parties:
Calve Lingi Chetti|_____________________________________________________| | Singaima Chetti Munusami Chetti| |________________________ Muthialu Chetti | | |Subroya Chetti Chinnapapu Chetti Sankara Chetti (3rd defendant)| |_____________________________________________| | |Sambasiva Chetti Sadasiva Chetti Balakrishnammal| (Testator) married SeallyKrishnaswami Chetti married Krishuaswami Chetti| Vasavambal, |Subroya Chetti sister of Seally Sriramulu Chetti(4th plaintiff). Chockalingam Chetti |(4th defendant) Seally Subroya Chetti| Krishnaveni Animal (married) (sixth defendant).
15. Before the plaintiffs can prove their title to the properties they must show that Subbaraya Chetti, the 4th plaintiff, is die next reversioner and entitled to succeed to the properties of Sadasiva Chetti and Vasavambammal. Having regard to the relationship set out in the genealogical table, which is not disputed, Subbaraya Chetti would be the next reversioner, if Sadasiva. was not adopted to Chinnapapu Chetti as alleged by the defendants. It is further argued by the plaintiffs that even if the adoption is proved, Subbaraya Chetti would still be the next reversioner.
16. Before dealing with the evidence and the questions of law involved in the case I think it is necessary to set out the previous litigation as regards Sadasiva Chetti's estate.
17. [The learned Judge after dealing with the evidence relating to adoption proceeds as follows:]
18. I am of opinion that the adoption has been clearly proved by Exhibit B series and is corroborated by the other Exhibits (I and II) and receives support from the clause in the will where he gives an allowance to his mother of money and paddy.
19. The next question is, whether the fourth plaintiff would still be the next reversioner. I have already set out in the genealogical table the relationship between the parties and the competition is between Subbaraya Chetti, the fourth plaintiff, on the one side, and Sankara Chetti, the 3rd defendant, on the other.
20. There can be little doubt that both of them are sapindas to Sadasiva. The contention of the plaintiffs is, you must exhaust the direct descendants of his father to the seventh degree before you go to collaterals, and that Subbaraya Chetti would, therefore, be the nearer sapinda- entitled to succeed. The contention for the 1st defendant is that, under Hindu Law, in determining which of two sapindas is the nearer heir, you have to go three degrees in each branch, and after the third degree, you must go three degrees to the next collateral branch, and so on, and that applying this test, the third defendant would be the nearer sapinda.
21. I can find little authority for the contention of Mr. Raghunatha Sastri for the plaintiffs that you must exhaust the sapindas to the seventh degree in the nearest branch before you can go to any other branch.
22. The text of Manu which forms the basis of sapinda succession to collaterals is found in verses 186 and 187. Verse 186 runs as follows:
To three (ancestors) water must be offered, to three the funeral cake is given, the fourth (descendant) is the giver of these oblations, the fifth has no connection with them.
23. Verse 187 says:
Always to that relative (within three degrees) who is nearest to the (deceased) sapinda, the estate shall belong; afterwards, a sakulya shall be the heir, then the spiritual teacher, or the pupil.
24. The words in Manu are Anantaraha sapindath. (See, Manu--Sacred Books of the East.) The Mitakshara in dealing with sapratibandha succession in Chapter II, Section 5, does not specifically state to what degree each line should be exhausted, before going to the next line. The words putrak and sunavah have, however, been held to mean the three descendants by their Lordships of the Privy Council in Buddha Singh v. Laltu Singh . It is admitted by the plaintiffs' vakil, that, unless by the words putrah or sons, you must exhaust seven lineal descendants before you go to the next ascending line, the fourth plaintiff will not be a nearer heir than the 3rd defendant. It is clear that if Sadasiva Chetti was adopted to Chinnapapu Chetti and if by 'son' you only include three degrees of descendants, the fourth plaintiff will be excluded by the 3rd defendant.
25. The consensus of opinion seems to be that you must break off when you come to the third degree, in determining the question who is the nearer sapinda, and go to the next collateral line.
26. The line of succession is dealt with by Mayne in paragraphs 570 (a), 571, 572, and it will be seen from the table of Agnatic Sapindad that it is only three degrees that are taken in each branch. It will be seen from the table that the son, grandson and the great-grandson succeed in order, in their absence the estate goes to the widow, daughter and daughter's son, then to the mother, then to the father, then to the brother, nephew, grand-nephew : in their absence, it goes to the grandmother, then to the grandfather : and then to the three descendants and so on.
27. Professor Jolly in his Tagore Lectures on Hindu Law gives a table at page 212 which is substantially the same as that given by Mayne. He points out that the first part of this table is in accordance with the systems of Apararka and Nanda Panditha.
28. Jogendra Chunder Ghose in his Principles of Hindu Law adopts a similar rule (pages 118 and 119).
29. The same view is taken by Sarvadhikari in Lecture 13, where he refers to the order of succession under the Mitakshara Law, and in the table of succession which he gives in that Lecture. In Lecture 10, he gives the views of the commentators.
30. West and Buhler, however, incline to a different view, but, so far as I can see, the preponderance of authority, both as regards text writers and commentators, is the other way.
31. Turning to the decided cases, the question was considered by their Lordships of the Privy Council in Buddha Singh v. Laltu Singh and it was held that the great-grandson of the grandfather of the deceased, who was also the grandson of his paternal uncle, was the preferential heir as against the grandson Of the deceased's great-grandfather. Their Lordships, after an exhaustive review of the authorities and the texts, observe at page 620:
Dr. Raj Kumar Sarvadhikari's construction appears to them to rest on a logical foundation, and his views seem to be consistent and clear. In effect, he says that the Mitakshara propounds a definite scheme of succession; lineal male descendants of the deceased owner down to and including the third degree, who constitute the first class of propinquous relations (the nearest sapindas) inherit in succession in the first instance. In their default, the widow and daughter take by express provision of the law. The daughter's son comes in similarly. In their absence, the inheritance ascends; each ascending line begins with a female, and each has to be exhausted in accordance with the rule of propinquous sapinda relationship before the next in order can take; so that the parents and 'their three successive descendants' take first; then the paternal grandmother and the paternal grandfather and 'their three successive descendants' come next, and so on.
32. Their Lordships then refer to the fact that the view of Dr. Jolly is in substantial agreement with the view of Dr. Raj Kumar Sarvadhikari.
33. The view taken in Madras, which was based upon a narrower construction propounded by the, Smriti Chandrika and the Subodhini, was that instead of three descendants you must take only two, and their Lordships refer to Suraya v. Lakshminarasamma I.L.R. (1882) M. 291 and Chinnasami Pillai v. Kunju Pillai : (1911)21MLJ856 and disapprove of the narrower construction, and observe:
However, the two Madras decisions have received the respectful consideration of their Lordships. They have already given reasons for holding that in the Mitakshara as expounded in the Benares school, the word putra and its synonym employed by Vijnaneswara in connexion with brothers and uncles must be understood in a generic sense, as in the case of the deceased owner, and that the descendants in each ascending line, up to the fixed limit, should be exhausted at any rate to the third degree, before making the ascent to the line next in order of succession.
34. Their Lordships also state that, even under the Mitakshara, in cases of competition between collaterals, preference is given to one who has the right to confer spiritual benefit, and observe:
It seems to their Lordships that there is another ground on which, the plaintiff must fail. It is admitted that the defendant confers greater benefit on the deceased by the offerings he makes to the manes of the common ancestor. Now, it is absolutely clear that under the Mitakshara, whilst the right of inheritance arises from sapinda relationship, or community of blood, in judging of the nearness of blood relationship or propinquity among the gotraja, the test to be applied to discover the preferential heir is the capacity to offer oblations. Mitra Misra, the author of the Viramitrodaya, an authoritative commentary on the Mitakshara, lays down this doctrine in express terms. He says 'when there are many claimants to the heritage among gotrajas and the like, then the fact of conferring benefits on the proprietor of the wealth by means of the offering of oblations and the like only excludes those that do not confer such benefits.' Dr. Raj Kumar Sarvadhikari renders the last part of this passage thus : 'The benefit conferred on the late owner by the offering of the cake and the water determines the title to inheritance'.
35. In the case of Bhyah Ram Singh v. Bhyah Ugar Singh (1870) 13 M.I.A. 373 the Board affirmed this rule in the following words:
When a question of preference arises, as preference is founded on superior efficacy of oblations, that principle must be applied to the solution of the difficulty.
36. In Suraya v. Lakshminarasamma I.L.R. (1882) M. 291 the learned Judges held that, according to the law of succession current in the Madras Presidency, the term 'sons' used in the Mitakshara, Chapter II, Section 4(7), and Section 5 (1), does not include grandsons.
37. In Chinnasami Pillai v. Kunju Pillai : (1911)21MLJ856 the learned judges were of opinion that the word 'sons' in the Mitakshara, Chapter II, Section 1, verse 2, Section IV-, verses 7 and 8; and in section V, verse 1, should not be given an extended meaning so as to include grandsons, and they approved of Suraya v. Lakshminarasamma I.L.R. (1882) M. 291 and did not follow the decision in Kalian Rai v. Ram Chandar I.L.R. (1901) A. 128.
38. As their Lordships of the Privy Council in Buddha Singh v. Lalti Singh referred to above, followed the view in Kalian Rai v. Ram Chandar I.L.R. (1901) A. 128 and disapproved of the two Madras decisions, it is unnecessary to deal with those decisions at any length.
39. So far as I can see, in the case of competition between goiraja sapindas, the difference of opinion has always been whether to take it to three degrees or two degrees, and there is no case which says that you must exhaust seven degrees in one line before you can go to the next. In fact, such a construction would be contrary to the principles of collateral succession laid down by commentators and text writers. As pointed out in the Madras cases, the construction that you must exhaust seven degrees is against the whole scheme of collateral succession and would postpone the heirs specifically mentioned in the Mitakshara as entitled to preference.
40. Mr. Raghunatha Sastri for the plaintiffs relied on Rutche-putty Dutt v. Rajunder Narain Roe (1839) 2 M.I.A. 133, Bhyah Ram Singh v. Bhyah Ugar Singh (1870) 13 M.I.A. 373 and Kesar Singh v. Secretary of State for India : AIR1926Mad881 . But these cases are not cases of competition between sapindas. In Bhyah Ram Singh v. Byah Ugar Singh (1870) 13 M.I.A. 373 their Lordships of the Privy Council observe at page 392:
This is not a case of priority between two persons claiming as heirs, or between two classes of heirs; it is one of asserted exclusion from inheritance, raised by persons not competitors in the prescribed degrees of heirs. The question of preference is distinct from that of entire exclusion. When a question of preference arises, as preference is founded on a superior efficacy of oblations, that principle, must be applied to the solution of the difficulty.
41. I think it is clear that the 3rd defendant is the preferential heir to the 4th plaintiff. In this view of the case, the plaintiffs' suit fails, as they have to establish that the fourth plaintiff is entitled to succeed to the property of Vasavambammal or Sadasiva Chetti as the next sapinda.
42. It is unnecessary to consider the other issues raised in the case.
43. I decide nothing as between the defendants.
44. This suit fails and is dismissed with costs, two sets--one for defendants 1 and 2, and the other for the 6th defendant.
45. The other defendants will bear their own costs. Plaintiffs will take their taxed costs out of the trust estate.