Skip to content


Nucherla Chengiah and anr. Vs. Parasaram Subbaroya Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1930Mad555; (1930)58MLJ562
AppellantNucherla Chengiah and anr.
RespondentParasaram Subbaroya Aiyar and ors.
Cases ReferredSakharam Narayan v. Balkrishna Sadashiv I.L.R.
Excerpt:
.....to the sapinda descent to the nearest sapinda, the inheritance next belongs. 30. having regard to the facts, clearly rule 2 applies to the present case as basayya is removed from the common ancestor by four degrees, while the plaintiffs and the 5th defendant are removed by five degrees......that nearness in degree is the paramount or overriding test, but when the claimants are equal in degree the rules they formulate vary. this is brought out most clearly in the passages extracted -in the judgments of their lordships at page 364. applying this principle, there can be no question that basayya, being nearer in degree, is the preferential heir and excludes the plaintiffs.13. in this connection, two cases may be usefully cited. in pedda rami reddi v. gangi reddi i.l.r.(1924) m. 722 decided by ramesam, j., and myself, the contest was between a maternal uncle's. son and maternal aunt's son. this is what i said in my judgment:the mother's sister's son as well as the mother's brother's son are both atma bandhus and are both expressly mentioned in the mitakshara. they are both.....
Judgment:

Venkatasubba Rao, J.

1. This appeal raises a question of some importance relating to bandhu succession--a difficult branch of Hindu Law; but we do not think that on that account we need reserve our judgment. The following pedigree sets forth the relationship of the parties;--

Sitaram Bhotlu

|

______________________________________________________________________

| | | | |

Krishnam Bhotlu Kondn Bhotlu Kasi Bhotlu Sesham Bhotlu (Daughter)

(Son) (Son) (Son) |

| | |

Pedda Subbiah (S) Achamma (D) Sailam

| | Bhotlu

Busayya Sankariah (Son)

| (propositus) |

Plaintiffs. Kamakshamma. Basayya

(now alive).

2. Sankariah was the last male holder. He died leaving his widow Kamakshi. She is said to have made certain alienations in favour of the defendants. In this suit the plaintiffs impeach those alienations and seek to recover the properties so alienated. The defendants contest the plaintiffs' right and assert that Basayya, shown in the pedigree, is the preferential heir whose existence bars the plaintiffs' rights.

3. The question to be decided is, who is entitled to succeed to the propositus, the plaintiffs or Basayya?

4. I may state at once that there are certain rules relating to bandhu succession, in regard to which there can be no controversy at present. They may be thus shortly stated:

1. Bandhus are bhinnagotra sapindas and they fall into three groups:

(1) atma bandhus,

(2) pitru bandhus, and

(3) matru bandhus.

2. The enumeration in the text ascribed to Vridha Satatapa, of the bandhus belonging to each of these three categories, is illustrative and not exhaustive.

3. The right of succession among these three classes is governed by the propinquity of the class, in other words, a pitru bandhu does not succeed until the class of atma bandhus is exhausted and a matru bandhu not until the class of atma bhandus and the class of pitru bandhus are both exhausted.

5. It follows, then, that although a claimant in the first group happens to be remoter in degree than a claimant in the second, the former succeeds in preference to the latter. The observations of Sadasiva Aiyar, J., in Subramania Mudaliar v. Ranganatham Chettiar : (1913)24MLJ301 at top of page 119 illustrate this point. This rule may be compendiously described as the principle of class propinquity as distinguished from individual propinquity. See Adit Narayan Singh v. Mahabir Prasad Tiwari .

6. The question in this appeal arises in a different form. It is conceded by Mr. Somayya (the learned Advocate for the plaintiff, the appellant) and the Lower Courts have proceeded upon the footing that both the rival claimants in this case belong to the group of matru bandhus. It is on that hypothesis that I proceed to deal with the question. What is the rule to be adopted in the case of competition between bandhus belonging to the same class? The defendants urge that Basayya is fourth in descent from the common ancestor and has, therefore, to be preferred to the plaintiffs who are fifth in descent; in other words, they contend that affinity or propinquity is the governing test. The plaintiffs urge, on the other hand, that, though they are more remote, they are entitled to succeed on the ground of superior efficacy of oblations. This is their primary argument. They also rely on a further ground of preference, that in the case of their opponent, a female intervenes between him and the common ancestor, whereas in their case, there is no female so intervening. The point we have to decide is, which of these rival contentions is sound?

7. The Lower Courts have upheld the contention that Basayya is the preferential heir. In my opinion, that view is correct. It seems to follow logically from the observations of the Judicial Committee in Vedachela Mudaliar v. Subramania Mudaliar .

8. In that case, the contest was between the maternal uncle and the paternal aunt's grandson (son's son). Both belong to the group of atma bandhus and the question was, which of the two was preferentially entitled to the inheritance? The Madras High Court, applying the rule that a claimant ex parte paterna should be preferred to one ex parte materna, decided in favour of the paternal aunt's grandson. The Judicial Committee reversed this decision, holding that the rule relied on by the learned Judges can in any event have no application when the contest is between two members of the same degree. In my opinion, this is undoubtedly the effect of that decision. On the further point whether the rule is universally applicable or not, the observations of their Lordships are no doubt of somewhat doubtful import. It is this that has led to some difficulty in some subsequent cases. There are two sets of passages in the judgment which have been treated as being somewhat inconsistent, first, the passage at page 359 which begins with the words 'From this it has been inferred' and next, the passage at bottom of page 363 which reads thus:

A very small consideration would show that that passage has nothing to do with the members of the same class inter se. It only explains why pitru bandhus are to be preferred to matru bandhus, the mother's position being special to herself under an express rule.

9. The Judicial Committee rejecting the rule in question in its application to the facts of the case, preferred the maternal uncle to the rival contestant. On what grounds? The answer is furnished by the last paragraph of the judgment. Two grounds are specified : first, that the maternal uncle is nearer in degree; secondly, that he is entitled to preference even on the ground of efficacy of offerings. But it is significant that they place the ground of propinquity in the forefront and give the further ground a secondary place by saying:

He also offers oblations to his father, etc.

10. A perusal of the judgment makes it clear that the ground that is emphasised throughout is that of affinity or nearness of blood. It is sufficient to quote only two passages:

Their Lordships, again, in the view they take of the rights of the parties in the present case, do not think it necessary to express an opinion how far this proposition is in conformity with the express rule that in each class propinquity should be the governing factor.

Again,

Among modern writers, both Golap Chandar Shastri and Rajcoomar Sarvadhikari affirm that nearness of blood is the governing principle in the succession of bandhus.

11. The fact is, that in that case, either of the two tests (that of propinquity or that of spiritual benefit) whichever was adopted, led to the same result, namely, the preferring of the maternal uncle. But which of the two was the decisive or the governing factor? Their Lordships themselves say that nearness of blood is.

12. If the two claimants are of the same degree, then and then alone, other considerations may arise, one of such being the question of efficacy of oblations. On this point, Golap Chandar Shastri and Rajcoomar Sarvadhikari, quoted by their Lordships, take different views. Both assert that nearness in degree is the paramount or overriding test, but when the claimants are equal in degree the rules they formulate vary. This is brought out most clearly in the passages extracted -in the judgments of their Lordships at page 364. Applying this principle, there can be no question that Basayya, being nearer in degree, is the preferential heir and excludes the plaintiffs.

13. In this connection, two cases may be usefully cited. In Pedda Rami Reddi v. Gangi Reddi I.L.R.(1924) M. 722 decided by Ramesam, J., and myself, the contest was between a maternal uncle's. son and maternal aunt's son. This is what I said in my judgment:

The mother's sister's son as well as the mother's brother's son are both atma bandhus and are both expressly mentioned in the Mitakshara. They are both related on the mother's side and they are both equally removed from the propositus.

14. In those circumstances, I applied the test of superior religious efficacy and preferred the, maternal uncle's son. In other words, the test of spiritual benefit was applied only when it was found that both the claimants were equal in degree. Ramesam, J., is even more explicit on the point. He observed at page 733:

Accordingly I infer from Vedachela Mudaliar v. Subramania Mudaliar that the rules to be applied to the atma bandhus for determining priority are--

(1) Propinquity should be the governing factor.

(2) If both are equal in degree, the spiritual benefit conferred may be used as a test for preference.

The first of these rules does not help us in the present case, as both the claimants are of the same degree.

15. Again, in Jatindra Nath v. Nagendra Nath : AIR1928Cal289 the contest was between rival claimants related in the same degree. The test of spiritual benefit was then applied in determining the preferential right. The only case which supports Mr. Somayya is Sakharam Narayan v. Balkrishna Sadashiv I.L.R.(1925) B. 739 (F.B.) I have read the judgments in that case with close attention, but with the greatest respect I am unable to follow how they are reconcilable with the decision of the Judicial Committee in Vedaehela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 LA. 349 : I.L.R. M. 753 : 41 M.L.J. 676 (P.C.).

16. It only remains to add that in my judgment throughout I have assumed without deciding that the plaintiffs have a preferential right on the ground of superior efficacy of offerings. In the view I have taken, it is unnecessary to enquire whether, even if that test be applied, they have or have not such a right.

17. In the result, the second appeal fails and is dismissed with costs.

Madhavan Nair, J.

18. I agree. As the question is of some importance I shall also but briefly record my opinion. The plaintiffs are the appellants. The facts of the case have been set out in my learned brother's judgment and need not, therefore, be recapitulated. The following table shows the relationship of the parties:

Sitaram Bhotlu

___________________________________________________________________

| | | | |

Krishnam Bhotlu Kondu Bhotlu Kasi Bhotlu Sesham Bhotlu (Daughter)

| | |

Pedda Subbiah Daughter |

| Achamma Sailam Bhotlu

| | |

Busayya Sankariah = Kamakshamma Basayya

| (last male owner). (now alive).

Plaintiffs & 5th

defendant.

19. What we have to determine in this case is, as between mother's father's sister's son's son of the last male owner and his mother's father's brother's grandson's sons, who is to be preferred as the heritable bandhu. There is no decision directly bearing on this point. The Lower Courts have found in favour of Basayya, respondent, who is the mother's father's sister's grandson on the ground that he is nearer in relationship to the common ancestor than the appellants who are mother's father's brother's grandson's sons.

20. Admittedly, the parties fall within the group known as 'Matru Bandhus' under the Mitakshara Law. Basayya is removed from the common ancestor by four degrees while the plaintiffs are removed by five degrees. It is argued by Mr. Somayya that since the appellants are entitled to offer pinda libations to the ancestors, the benefit of which will be participated by the propositus, and the respondent is not in that position, preference should be given to the appellants though the respondent is admittedly nearer in relationship to the common ancestor. Mr. Govindarajachari does not admit that the appellants are entitled to offer such libations but, for the purpose of this case, we assume that they have the right to do so. The question then is, whether preference should be given to the appellants on the ground of the 'religious efficacy of their oblations' as against the respondent who bases his claim on 'the nearness of blood' (propinquity).

21. In my opinion the principle of the decision in Vedachela Mudaliar v. Subramania Mudaliar supports the respondent's contention. In that case the contesting claimants were atma bandhus and the contest was between the paternal aunt's grandson (son's son) and the maternal uncle. Though the High Court held that the former should be preferred on the ground that he was a claimant ex parte paterna while the latter was one ex parte materna, the Judicial Committee held that the maternal uncle should be preferred to the other claimants. The maternal uncle in that case was related to the common ancestor in greater nearness than the paternal aunt's grandson and further, he was entitled to offer libations as well. So, it is true that, strictly speaking, their Lordships were not called upon to consider the relative merits of these two tests (viz., test of 'nearness of blood' as against 'the superior efficacy of oblations') in coming to the conclusion as to who was the preferable heir. In their judgment their Lordships refer to various passages in Viramitrodaya, Smriti Chandrika as well as to the four propositions laid down in the well-known case, Muthuswami v. Muthukumaraswami (1892) I.L.R. 16 M. 23 : 2 M.L.J. 296 for determining the rules relating to the preference of bandhus. Mr. Somayya relying on these argues that propinquity is to be tested with reference to the doctrine of spiritual efficacy in offering libations. There is a certain amount of force in this argument, for it is clear that the attention of the learned Judges was drawn to this aspect of the case. But a careful perusal of the judgment reveals the fact that their Lordships, deciding the case as they did, were influenced primarily by the consideration that the maternal uncle was related in greater nearness to the common ancestor than the other claimants. After referring to the passage in the Mitakshara which lays down the rule relating to bandhu succession they., expressly state their opinion in the following passage:

Their Lordships, again, in the view they take of the rights of the parties in the present case, do not think it necessary to express an opinion how far this proposition is in conformity with the express rule that in each class propinquity should be the governing factor.

22. It appears to me that this passage strikes the dominant note of the judgment; then they refer to the well-known ancient rule relating to the sapinda descent

to the nearest sapinda, the inheritance next belongs.

23. Later on, their Lordships draw attention to the passages in the books of Golap Chandar Shastri and Rajcoomar Sarvadhikari, pages 766 and 767, both of which support the position that, unless the competing contestants are of the same degree, the doctrine of spiritual efficacy has very little to do in determining the preference of one contestant over the other. In the last paragraph of the judgment occurs the following passage:

The appellant is undoubtedly nearer in degree to the deceased than Subramania. He also offers oblations to his father and grandfather to whom the deceased was also bound to offer pinda.

24. Obviously, their Lordships put 'nearness of blood' as a ground of decision in the forefront, while they assign only a secondary place to efficacy of oblations.

25. Here it may also be mentioned that the threefold classification of the bandhus with regard to their right to succession is also based upon the doctrine of the propinquity of relationship as recently repeated by the Privy Council in Adit Narayaan Singh v. Mahabir Prasad Tiwari .

26. From the above considerations we may infer that the Privy Council decided in Vedachela Mudaliar v. Subramania Mudaliar that in determining priority among atma bandhus nearness of blood should be considered to be the governing factor unless the contestants are equal in degree in their relationship to the common ancestor in which case efficacy of oblations may be a test for preference. That this is the true inference to be drawn from the; Privy Council decision is made clear by the decision in Pedda Rami Reddi v. Gangi Reddi I.L.R.(1924) M. 722 to which my learned brother was a party. In that case Ramesam, J., at page 733 says thus:

Accordingly I infer from Vedachela Mudaliar v. Subramania Mudaliar that the rules to be applied to the atma bandhus for determining priority are--

(1) Propinquity should be the governing factor.

(2) If both are equal in degree, the spiritual benefit conferred may be used as a test for preference.

27. I respectfully agree with this view. Applying, therefore, the principle that propinquity should be the governing factor, I am of opinion that the Lower Court's judgment should be upheld.

28. The decision in Jatindra Nath v. Nagendra Nath : AIR1928Cal289 may be cited as an instance, where the test of spiritual benefit was applied in determining priority between rival claimants who were related in the same degree.

29. Mr. Mayne's opinion also is in support of the contention of the respondent. In his Hindu Law, 9th Edition, page 849, the following five rules are laid down:

(1) A nearer ancestor and his descendants exclude an ancestor more remote and his descendants.

(2) As between descendants of the same ancestor, or ancestors of an equal degree, the nearer in degree excludes the more remote.

(3) As between ancestors of the same degree, he who is related through the father is preferred to him who is related through the mother.

(4) As between bandhus of the same class, the spiritual benefit they confer on the propositus is, as stated in Viramitrodaya, a ground of preference.

(5) All other considerations being equal, he between whom and the common ancestor no female intervenes will be preferred to one between whom and the common ancestor one female intervenes and the latter will be preferred to him between whom and the deceased two intervene.

30. Having regard to the facts, clearly Rule 2 applies to the present case as Basayya is removed from the common ancestor by four degrees, while the plaintiffs and the 5th defendant are removed by five degrees. Mr. Somayya argued that the appellants are entitled to preference because between them and the propositus only one female intervenes, whereas, so far as Basayya is concerned, two females intervene. Now, this would be so, according to Rule 5 (see also Tirumalachariar v. Andal Ammal I.L.R.(1907) M. 406 : 17 M.L.J. 285 if all other considerations are equal. But the considerations are not equal in this case, as Basayya is nearer in degree than the plaintiffs and the 5th defendant.

31. The decision in Sakharam Narayan v. Balkrishna Sadashiv I.L.R.(1925) 49 Bom. 739 (F.B.) fully supports the appellant. After reading the judgment carefully I have come to the conclusion that that decision is not reconcilable with the decision of the Privy Council in Vedachela Mudaliar v. Subramania Mudaliar . If it follows from the Privy Council decision, as I think, it does, that in deciding the question of succession between bandhus in a case where one of the contestants is related to the common ancestor in a nearer degree than the other, the distinction between ex parte materna and ex parte paterna has no application, then the decision in Sakharam Narayan v. Balkrishna Sadashiv I.L.R.(1925) B. 739 (F.B.) should be different.

32. In the result, I would dismiss this second appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //