1. This second appeal raises an important question of Hindu Law. The plaintiff, claiming to be the reversioner to the estate of one Shanmuga, filed a suit for a declaration that an alienation made by the first defendant, the mother of Shanmuga, in favour of the second defendant was not binding on the reversion. The first issue in the case raises the question whether the plaintiff is the nearest reversioner entitled to succeed after the death of the first defendant. The decision of this question turns upon the following facts.
2. Shanmuga, the last male owner, was the son of one Palaniyandi, whose father Kunjan was in turn the son of another Palaniyandi who may be referred to as Palaniyandi the senior. Palaniyandi the senior had a brother Muthu who was the plaintiff's father. The case has proceeded on the footing that the plaintiff is a legitimate son of Muthu and that the descendants of Palaniyandi the senior were also his legitimate descendants. But, as between Muthu and Palaniyandi the senior, the finding is that they were the sons of the same mother Valliammal but that their paternity is not known, as Valliammal was not a married woman nor the permanent concubine of any known person. It was alleged by the defendants and not disputed that Kunjan had two daughters one of whom has left one or more sons who are alive. On these facts two questions are comprised in the first issue, namely, (1) whether the plaintiff can at all claim to be an heir to Shanmuga, and (2) whether he is the nearest presumptive heir, i.e., one entitled to succeed in preference to the son or sons of Kunjan's daughter.
3. The District Munsiff in paragraph 7 of his judgment expressed himself in a way which does not make it quite clear whether he thought that the plaintiff was not an heir at all or he thought that the plaintiff must in any event be postponed to Kunjan's daughter's sons. On appeal, the learned District Judge has held that the decision in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 has decided that the plaintiff is an heir and also in effect that he is a preferable heir to any one who can only claim to be only a bandhu. He understood that decision to lay down that the legitimate descendants of the two brothers can claim all the adjuncts of heritability which in the Hindu Law applied to persons who are the legitimate descendants of two legitimate brothers, that is, brothers born of a lawful marriage. In second appeal the question for determination is whether the decision in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 lays down both the above propositions.
4. I confine myself for the moment to the second of the above questions, namely, whether assuming that Muthu and Palaniyandi the senior could claim to be heirs to each other and assuming further that the plaintiff could claim to be an heir to the legitimate male descendants of Palaniyandi the senior, the plaintiff can also claim to succeed in preference to Kunjan's daughter's sons. The language employed by the learned Judges in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 is no doubt very general and I have therefore examined the papers in that case to see whether any question of preference was raised and argued in that case. The parties in that case were not agreed as to the geneology. The defendants no doubt pleaded that Murugesa who was the last male holder had a grand aunt by name Sivabagiam and that Sivabagiam had a son who was alive who, according to them, would be a reversioner. But neither in the judgments of the Courts below nor in the judgment of this Court am I able to find any reference to this aspect of the case and all that I can infer is that the alleged existence of a reversioner nearer than the plaintiff in that case was not established, by proving the relationship alleged in the written statement and that therefore no further notice was taken of that point. The judgment of the trial Court merely discussed the question whether the plaintiff was an heir at all and the appellate Court took the question of the plaintiff's right to maintain the suit to have been finally decided, once it determined that the plaintiff could claim to be an heir. It was the order of remand based on this view that was confirmed by the learned Judges in this Court.
5. The existence of Kunjan's daughter's son or sons not being disputed in this case, the position here is different. I quite agree that in-deference to the decision in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 , I must hold that the plaintiff can claim to be an heir to the deceased Shanmuga. If I were free to deal with that question, I should have something to say in respect of certain parts of the reasoning in that judgment, as for instance, the extension of the principle of 'representation' to obstructed heritage; but as it is not necessary for the purpose of this case to deal with that question, I am content to assume that that decision is correct and confine myself to the question whether the plaintiff can claim to be a preferential heir even as against Kunjan's daughter's son.
6. It will be noticed that Kunjan's daughter's son will be in the position of a paternal aunt's son to Shanmuga the propositus. That means he is an Atmabandhu about whose heirship in general there can be no question. It is no doubt the law that bandhus can succeed only after sagotra-sapindas. The point for determination therefore is whether the plaintiff can claim to be not merely a sapinda of Shanmuga but also a gotraja or sagotra-sapinda. Here again, I shall assume for the purpose of the argument that even sagotra relationship is capable of being postulated outside the marriage relationship. But the least that is required to constitute sagotra-sapindaship is descent in an unbroken male line from a common male ancestor. In this respect the conception corresponds to the notion of agnatic relationship. I am unable to see how such a connection can be postulated as between two persons of whom we cannot predicate whether they were born of the same father or of different fathers. As shown by the enumeration in placitum 5 of Section 5 of Chapter II of the Mitakshara, we have to start with the great-grandfather or the great-great-grandfather and then bring in his descendants in the male line. It being impossible in the present case to say that the plaintiff and Shanmuga were descendants of common male ancestor, 1 must hold that the only possible ground on which the plaintiff can succeed in preference to Shanmuga's paternal aunt's sons has not been made out.
7. The decision in Narayan Pundlik v. Laxman Daji I.L.R.(1927) 51 Bom. 784 cannot help the respondent. The learned Judges had not to consider any question of preference in that case. They only hold that a sister of a prostitute has sufficient sapinda relationship or blood relationship to the prostitute to be able to defeat an escheat of the prostitute's property to the Crown. I must add that no analogy can be drawn in the present case from decisions relating to the succession of property as between dancing girls. The rules of customary law applied in that connection come into operation only when the Court has to deal with succession to property belonging to a dancing woman. It is not the law that male members of that community, who have entered into marriage relationship and lived like ordinary house-holders, are governed by the rules of the customary law. I must accordingly hold that the plaintiff is not the nearest presumptive reversionary heir.
8. It was next argued on behalf of the plaintiff that even if he is not the nearest reversionary heir, the declaratory decree granted by the lower appellate Court must be maintained for the benefit of the reversion generally, and reliance was placed in this connection on the decision in Govinda Pillai v. Thayammal : (1904)14MLJ209 . It is not disputed that the general principle is that laid down by the Judicial Committee in Rani Anand Kunwar v. The Court of Wards . If allegations had been made in the plaint as to the circumstances under which the nearer reversioners had precluded themselves from maintaining the suit, it might have been possible to consider those allegations on their merits. In Govinda Pillai v. Thayammal : (1904)14MLJ209 . It happened that the nearer reversioners had in fact been made party defendants and proper allegations made against them. Without going so far as to say that the nearer reversioners should be impleaded in a suit brought by the distant reversioner for the benefit of the reversion, I may say it is at least clear that materials must be placed before the Court that can reasonably lead to the inference that the nearer reversioners are colluding or have precluded themselves from suing. The mere fact that the lower appellate Court had granted a declaratory decree is not by itself a ground for maintaining it, when this aspect of the matter was not present to its mind at all. Further, in view of the decisions of the Judicial Committee dealing with the effect of the consent of the nearer reversioner to a widow's transactions, the mere fact that the nearest reversioner had consented to the alienation or was supporting the alienation cannot by itself prove that his conduct was improper. This is an additional reason for insisting upon allegations in the plaint against the presumptive reversioner. The Court will then have an opportunity to consider the effect of the reversioner's consent upon the validity of the alienation itself. The earned Counsel for the respondent drew my attention to the fact that a note has been made by the trial Court that one of the paternal aunt's sons was present in Court helping the second defendant and his counsel. For reasons above stated, I am not prepared to draw an inference therefrom that his conduct was improper in the sense contemplated by the Privy Council in Rani Anand Kunivar v. The Court of Wards .
9. The result is that the decree of the lower appellate Court must be set aside and that of the trial Court restored with costs here and in the lower appellate Court payable by the plaintiff to the second defendant.
10. Leave to appeal is granted.