(1) This Letters Patent Appeal arises out of a suit (O.S. No. 99 of 1955) filed in the court of the Subordinate Judge, Madurai. The plaintiff in the suit (Vellaichami Pillai) is the appellant before us. The suit was brought for a declaration of the plaintiff's title to the suit properties and for an injunction restraining the defendants from interfering with the plaintiff's possession. The actual contest is between the plaintiff on the one hand and the 3rd defendant on the other. The 3rd defendant's claim of title arises thus: defendants 4 and 5 (Somasundaram Pillai and Chokku Pillai) were adjudicated insolvents in I.P. No. 5 of 1960 on the file of the Subordinate Judge, Madurai, and their estate vested in the Official Receiver. On the footing that the suit properties belonged to defendants 4 and 5, the Official Receiver put up for sale the lease-hold right in them for a period of one year, and the auction purchaser was the 2nd defendant. Later, the interest of the insolvents was put up for sale and the auction purchaser was the 3rd defendant, the price being Rs. 11,000. Thus, the question would be whether the plaintiff is entitled to the properties or whether the properties would belong to defendants 4 and 5 and consequently to the 3rd defendant. Ultimately, before us, only two points were pressed by Sri Gopalaswami Iyengar, the learned counsel for the appellant, which will be indicated in due course. But for coming to a decision on one of the two points, namely, the date of death of Muthuswami Pillai, the father of the plaintiff, it will be necessary to refer briefly to some of the other matters.
(2) The admitted last male owner of the property was Periya Appavoo Pillai, who died in 1909, leaving him surving two widows, Sivayogathammal and Rakkammal. Since the mother of defendants 4 and 5 is also known as Rakkammal, it will be conveninent to refer to Periya Appavoo Pillai's widow as Rakkammal No. 1 and to the mother of defendants 4 and 5 as Rakkammal No. 2. The two widows, Sivayogathammal and Rakkammal No. 1, inherited the property of Periya Appavoo Pillai, of course in the limited estate known to Hindu law as the Hindu Women's Estate. Sivayogathammal died in 1943. The surviving widow, Rakkammal No. 1 died on 15-7-1944. About these facts, there is no dispute. The plaint, when it was filed on 20-6-1962, proceeded on the basis that the plaintiff was the next reversioner to Periya Appavoo Pillai on the death of Rakkammal No. 1. This was the main basis on the plaintiff's claim. There was also a subsidiary basis that the widow had surrendered possession to him in 1921 itself and the plaintiff claimed that he would be entitled to relief on the strength of this possessory title referring to the main basis of the title claimed by the plaintiff. The plaint gives a geneological table, showing how he and defendants 4 and 5 were related to the last male owner, Periya Appavoo Pillai. For our purpose, we may omit some of the names mentioned there, and it is sufficient to exhibit the following genealogical table:
MUTHUKARUPPA PILLAI|---------------------------------| | |Karpurachokku Pillai Ulagayee Vellaichami Pillai(died in 1886) (died in 1921) (died in 1899,issueless| | according to plaintiff)Periya Appavu Pillai Muthuswami Pillai(died in 1909)= (date of death is in dispute)(1) Sivayogthathammal whether 28-4-44 or 28-9-44)(died in 1943) |(2) Rakkammal No. 1 _________|____________________(died on 15-7-1944) | |Vellachami Pillai Kandaswami Pillai(plaintiff) (died on 29-11-1920)=Rakkammal No. 2|_____________|________________| |Somasundaram Pillai Chokku Pillai(4th deft.) (5th deft.)
It will be seen that Periya Appavoo Pillai's father's sister was Ulagayee and the plaintiff is Ulagayee's son's son. That is to say, the plaintiff is Periya Appavoo's father's sister's son's son. Defendants 4 and 5 are the sons of Kandaswami Pillai, the deceased brother of the plaintiff. Thus defendants 4 and 5 would be Periya Appavoo Pillai's father's sister's son's son's sons. The plaint proceeded on the footing that defendants 4 and 5 were not related to the last male owner, Periya Appavoo Pillai, in any other way. The plaint stated that Muthuswami Pillai, the father of the plaintiff, died on 28-4-1944 before Rakammal No. 1 died. On that footing and on the assumption that defendants 4 and 5 were not related to Periya Appavoo Pillai in any other way, undoubtedly, the plaintiff would be the next reversioner to Periya Appavoo Pillai. Both the plaintiff on the one hand and defendants 4 and 5 on the other hand would be athma bandhus of Periya Appavoo Pillai, but the plaintiff would be nearer in degree than defendants 4 and 5. The plaintiff's degree would be 4 counting from the common ancestor Muthukaruppa Pillai and the degree of defendants 4 and 5 would be 5. Referring at this stage to the table in Mullah's Hindu law arranging atma bandhus in the order of preference, the plaintiff would be No. 23 (father's father's daughter's son's son of the propositus) and defendants 4 and 5 would come under category No. 30 (father's father's daughter's son's son's son).
(3) The 3rd defendant in his written statement filed on 14-8-1952, pointed out that the defendants 4 and 5 were related to the last male owner, Periya Appavoo Pillai in another way. It will be seen that, according to the plaint, Vellaichami Pillai, the paternal uncle of Periya Appavoo Pillai, died in 1899 without issue. But according to the 3rd defendant, Vellaichami Pillai had two daughters Rakkammal (Rakkammal No. 2) and Muthuammal and that Rakkammal, one of the daughters is the mother of defendants 4 and 5. The contention of the third defendant was that on this relationship, defendants 4 and 5 would be nearer atma bandhus to the last male owner Periya Appavoo Pillai than the plaintiff. They would be Periya Appavoo Pillai's father's brother's daughter's sons. That on the relationship put forward by the 3rd defendant, defendants 4 and 5 would be nearer heirs than the plaintiff, is a point which can admit of little doubt. But since that was also sought to be doubted at one stage before us, we shall revert to that again later.
(4) The plaintiff or his legal adviser evidently realised at that stage that it would be difficult to deny the relationship of defendants 4 and to Periya Appavoo Pillai through their mother Rakkammal No. 2 as put forward by the 3rd defendant, and that on such a basis of relationship, defendants 4 and 5 would really be nearer heirs than the plaintiff. The plaintiff, therefore, sought to overcome this difficulty by taking a transfer deed dated 18-9-1952, Ex. A-81, from Rakkammal No. 2 and Muthuammal for an alleged consideration of Rs. 500.
(5) The plaintiff was of course still not prepared to admit that Rakkammal No. 2 and Muthuammal were the daughters of Vellaichami Pillai, the paternal uncle of Periya Appavoo Pillai. But he urged that, even on the footing that they were the daughters of Vellaichami Pillai, the plaintiff would be entitled to succeed because of the transfer deed Ex. A-81 which he had obtained. This contention of the plaintiff involved the assumption that Rakkammal No. 2 and Muthuammal would be nearer heirs to Periaya Appavoo Pillai than defendants 4 and 5.
(5a) The plaint was amended by adding paragraph 9-A of the plaint as per order in I.A. 1315 of 1952 dated 19-11-1952. The amendment brought out the contention that even assuming that Rakkammal No. 2 and Muthuammal are the daughters of Vellaichami Pillai, the paternal uncle of Periya Appavoo Pillai, the plaintiff would be entitled to succeed on the footing that Rakkammal and Muthuammal would be nearer heirs to Periya Appavoo Pillai than defendants 4 and 5, and by virtue of the transfer deed Ex. A-81 the plaintiff had a good title.
(6) The 3rd defendant filed an additional written statement on 10-12-1952 pointing out that Rakkammal No. 2 and Muthammal would not be nearer heirs than defendants 4 and 5 and that it was settled law in Madras State that as between a female athma bandhu (like Rakkammal No. 2 and Muthammal) and male athma bandhus (like defendants 4 and 5), the male athma bandhus would be nearer heirs even though the female athma bandhus would be nearer in degree to the last male owner (Periya Appavoo Pillai). The third defendant also pointed out that the transfer deed Ex. A-81 was but another step in the scheme of defendants 4 and 5 to defeat the claims of the 3rd defendant and to secure the property for themselves by setting up the plaintiff who was a mere tool in their hands. The 3rd defendant had set out this plea even in the original written statement. He there pointed out that as early as 27-6-1944, Rakkammal No. 1 had executed a will (Ex. B-4) stating clearly that defendants 4 and 5 were her husband's heir virtually as grandsons and that she was accordingly bequeathing the bulk of the properties to them and was giving a limited interest for life to the plaintiff in respect of two other items.
The reference to defendants 4 and 5 as grandsons could be understood if we remember the case of the 3rd defendant (which has in fact been accepted by the trial Judge and by Basheer Ahmed Sayeed J. in appeal), that Rakkammal No. 2, the mother of defendants 4 and 5, was none other than Peria Appavoo Pillai's paternal uncle's daughter. The 3rd defendant pointed out in his written statement that the plaintiff did not demur to the disposition under the Will till the insolvency proceedings involving defendants 4 and 5 and that the plaintiff was put forward by defendants 4 and 5 as a claimant during those insolvency proceedings. The lease for one year was taken in the name of the 2nd defendant, who was none other than the plaintiff's wife's brother. The plaint was originally filed on the footing that the only way in which defendants 4 and 5 were related to Peria Appavoo Pillai was through their father Kandaswami Pillai, totally suppressing their relationship through their mother and their maternal grandfather Vellaichami Pillai. The transfer deed Ex. A-81 was but another step in the game.
(7) After the additional written statement of 10-12-1952, was filed by the 3rd defendant as explained above, the plaintiff and his legal adviser seem to have realised that it would be difficult to resist the contention of the 3rd defendant that on the basis of the relationship of defendants 4 and 5 to Periya Appavoo Pillai, through their mother and their maternal grandfather, defendants 4 and 5 would be nearer heirs than Rakkammal No. 2 and Muthuammal, and that the transfer deed Ex. A-81 in favour of the plaintiff might not be of much use to the plaintiff, and therefore, they sought to amend the plaint further by application I.A. 101 of 1953 stating for the first time that Muthuswami Pillai, the father of the plaintiff, died on 28-9-1944, after Rakkammal No. 1 had died and that on the death of Rakkammal No. 1, the next reversioner was Muthuswami Pillai, the father of the plaintiff, and after the death of Muthuswami Pillai, the plaintiff, as Muthuswami Pillai's heir, became entitled to the suit properties. This petition for amendment was vehemently opposed by the 3rd defendant, but the amendment was ordered on 17-7-1954. The 3rd defendant filed another additional written statement on 25-8-1954, stating that the date of the death of Muthuswami Pillai as mentioned in the original plaint (28-4-1944) was true, and not the later date, 28-9-1944.
(8) The learned Subordinate Judge who tried the suit curiously enough did not realise how the plaintiff was shifting his case from time to time, and accepted the case in the amended plaint that Muthuswami Pillai died only in 28-9-1944. On that footing, he held that Muthuswami Pillai was the next reversioner on the death of Rakkammal No. 1 and on the death of Muthuswami Pillai, the plaintiff on the one hand and defendants 4 and 5 on the other inherited the properties of Muthuswami Pillai, the plaintiff being entitled to a half and defendants 4 and 5 to the other half. It is on that footing he decreed the plaintiff's suit in respect of his half share. On the other question, he held substantially against the plaintiff. Thus, he found that Rakkammal No. 2, the mother of defendants 4 and 5, was the daughter of Vellaichami Pillai, the paternal uncle of Periya Appavoo Pillai, and he also held against the theory of surrender by the two widows Sivayogathammal and Rakkammal No. 1 in 1921, relied on by the plaintiff.
(9) The 3rd defendant perferred an appeal to this court (A. S. No. 205 of 1955) against the decree of the learned Subordinate Judge in respect of the half share. The plaintiff did not file any cross appeal regarding the other half share. The appeal was heard by Basheer Ahmed Sayeed J. He had no hesitation in rejecting the case of the plaintiff that his father Muthuswami Pillai died only on 28-9-1944. He pointed out that it was impossible to accept the explanation of the plaintiff that on such a vital point, the plaintiff had made a mistake in the original plaint. The learned Judge accepted the finding of the learned Subordinate Judge that Rakkammal No. 2 the mother of defendants 4 and 5, was the daughter of Vellaichami Pillai, the paternal uncle of the last male owner Periya Appavoo Pillai. On that relationship and on the footing that Muthuswami Pillai, the father of the plaintiff, had predeceased Rakkammal No. 1, the learned Judge felt no difficulty in finding that defendants 4 and 5 were the next reversioners on the death of Rakkammal No. 1. He pointed out that they were nearer than the plaintiff Vellaichami Pillai and also nearer than Rakkammal No. 2 and Muthuammal. He was further of the opinion that the transfer deed Ex. A-81 was executed by Rakkammal No. 2 without knowing the nature of the document, and, therefore, ineffective for conveying any title to the plaintiff. On these findings, he dismissed the suit. Hence the present appeal.
(10) The first point argued by Sri Gopalaswami Aiyangar is that the learned Judge erred in reversing the finding of the learned Subordinate Judge that Muthuswami Pillai died on 28-9-1944. We have no hesitation in agreeing with Basheer Ahmed Sayeed J. on that point. We have taken the trouble of setting out the history of the development of the plaintiff's case just to show how he was obliged to shift case realising the weakness of it at every stage. In the plaint as it originally stood it was clearly asserted that Muthuswami Pillai died on 28-4-1944, before Rakkammal No. 1 and it was stated that the plaintiff was the next reversioner on the death of Rakkammal No. 1. In order to sustain that claim the plaintiff felt obliged to sustain that claim the plaintiff felt obliged to suppress the nearer claims of heirship of defendants 4 and 5 by their relationship of Periya Appavoo Pillai through their mother Rakkammal No. 2 and maternal grandfather Vellaichami Pillai. It has been found by the learned Judge, that Rakkammal No. 2, the mother of defendants 4 and 5, is the daughter of Vellaichami Pillai, the paternal uncle of Periya Appavoo Pillai. The finding has been accepted by Basheer Ahmed Sayeed J. and has not been challenged before us. We are also thoroughly satisfied that the finding is correct.
It is sufficient to refer to the fact that it is curious that the plaintiff should plead that he cannot say the name of the father of Rakkammal No. 2, his own brother's widow. Evidently the plaintiff and his legal adviser realised that they would be unable to deny the relationship of defendants 4 and 5 to Periya Appavoo Pillai through their mother and maternal grandfather and that was why the plaintiff resorted to the device of getting the transfer deed Ex. A-81. After sometime it seems to have been realised that even the transfer deed would not be of much avail to the plaintiff in view of the fact that defendants 4 and 5 would be nearer heirs than Rakkammal No. 2 and Muthuammal. We shall have to discuss that point in more detail because that is the other point which was argued before us.
It was only after all this it struck the plaintiff to say that the date of the death of his father had been mentioned by mistake in the original plaint. On a matter like this it is impossible to believe that the plaintiff could have made any mistake. Reliance has been placed by him on Ex. A-1, the extract from the register of births and deaths, the original of which has been marked as Ex. A-80. Ex. A-80 is full of corrections which have been explained in the judgments of the learned Subordinate Judge and Basheer Ahmed Sayeed J. It is unnecessary to refer to them again. It is sufficient to say that the very corrections in Ex. A-80, to say the least, render it unsafe to act on it in a matter like this. We also agree with Basheer Ahmed Sayeed J. in his criticism that it is regrettable that it should be possible for corrections to be made in such a register. We find, agreeing with Basheer Ahmed Sayeed J., that Muthuswami Pillai died on 28-4-1944, prior to Rakkammal No. 1.
(11) Mr. Gopalaswami Aiyangar has argued that even basis, Rakkammal No. 2 and Muthuammal would be nearer heirs than defendants 4 and 5. Defendants 4 and 5 as well as Rakkammal No. 2 and Muthuammal are Athma Bandhus of Periya Appavoo Pillai. Rakkammal No. 2 and Muthuammal are nearer in degree than defendants 4 and 5. The contention of Mr. Gopalaswami Iyengar is that being nearer in degree, Rakkammal No. 2 and Muthuammal would be nearer heirs than defendants 4 and 5. But it is settled law that in this State that the female bandhus like Rakkammal No. 2 and Muthuammal would come in only after all the male bandhus in the athma bandhu class are exhausted. The authorities will be found collected in the leading text books in Mayne's Hindu law, 12th Edn. S. 56 footnote (ii) at page 154.
In Rajah Venkata Narasimha Apparao Bahadur v. Rajah Surenani Venkata Purushottama Jagannadha Gopala Rao Bahadur, ILR Mad 321, the relevant facts were these: There was one Jagannath Lakshman Rao after whom the property was inherited by his widow and later by the daughter Venkata Chinnayya Rao who died in 1902. On her death the property was taken by her husband. The plaintiff's claimed the property on the footing that they were the sons of Jagannath Lakshmana Rao's divided brother Venkata Gopala Narasimha Rao. The claim of the plaintiff's was resisted on the ground firstly that the property was the stridhana property of the daughter Venkata Chinnayya Rao and secondly, that, even if it was property that would pass to the reversioners of Jagannath Lakshman Rao, her father, the plaintiff's were not the nearest heirs to Jagannath Lakshmana Rao, because there were daughters of Venkata Chinnayya Rao and further according to the defendants, the plaintiff's father had been adopted to one Venkataraghava Rao and his wife Sayamma Rao. Sayamma Rao being the paternal aunt of Jagannadha Lakshman Rao, the learned Judges held that even if the adoption was true, the plaintiff's would be nearer athma bandhus than the daughters of Venkata Chinnayya Rao on the rule that all male athma bandhus would have to be preferred to female reversioners, even though the latter may be nearer in degree. They observed thus:
'If the property is property that will pass to the reversioners of Jagannatha Rao, in other words, if the property was not the Stridhana or absolute property of Chinnayya Rao, then the plaintiff's being male or 'regular' bandhus are entitled to it by virtue of their sex in preference to any female reversioners, even though the latter may be nearer in degree, and the plaintiff's are bandhus even if their father was adopted. In that case, they are bandhus as the sons of the (adopted) son of the sister of the father of the deceased Jagannath Lakshman Rao.
This has long been the settled law in this presidency (See Mayne's Hindu law, para 593, 7th Edn.) and the cases there quoted by him.'
(12) Then they went to discuss the other questions and upheld the claim of the plaintiff's.
(13) This decision was quoted with approval by their Lordships of the Privy Council in Kenchawa Sanyellappa v. Girimallappa, 51 Ind App 368: AIR 1924 PC 209 , which was a case from Bombay. The competition in that case was between the plaintiff, who was the father's sister's son of the last male owner, Perappa, and defendants 1 and 2, who were the father's brother's daughters of the last male owner. Thus, all were first cousins of the last male owner and they were athma bandhus and the question was whether any distinction was to be made between them by reason of their sex or the sex of their parents. The Subordinate Judge held that all took equally and he gave to the plaintiff only a third of the property. Both sides appealed to the High Court. The High Court held that as between bandhus of equal nearness to the propositus, male members of the family were preferred to females and gave a judgment that the plaintiff should take the whole.
The defendants appealed to the Privy Council. Their Lordships in upholding the decision of the High Court first referred to the decision of the Madras High Court in Narasimha v. Mangalammal, ILR Mad 10, where a father's sister was postponed to a mother's brother by reason of the general preference given among bandhus to male over female heirs. But, in a case decided by the High Court of Bombay in Saguna v. Sadashiv, ILR 26 Bom 710, the Judges gave preference to the father's half-sister over the mother's brother and did not follow the case of ILR Mad 10 and it was that case which was relied on by the defendants-appellants before the Board. Their Lordships, however, pointed out that that decision merely came to this:
'There may or may not be preference among bandhus of males over females, if they are otherwise in the same position, but there is a prior and paramount inquiry whether they are bandhus on the father's side or on the mother's side--those on the father's side having the precedence.'
Their Lordships then pointed out, referring to Vedachala Mudaliar v. Subramania Mudaliar, ILR Mad 753: AIR 1922 PC 33 that it was no doubt true that as between athma bandhus ex parte paterna and those ex parte materna, the former would have to be preferred. But they went on to point out that in the particular case before them that question did not arise because both sets of claimants were related on the father's side to the propositus. Their Lordships then referred with approval to the decision of this court in ILR Mad 321, as a decision that in this Presidency a male bandhu is entitled to preference over a female bandhu, even though the latter is nearer in degree. Their Lordships then pointed out that even in Bombay, in the case of Balkrishna Bhimaji v. Ramakrishna Gangadhar, ILR 45 Bom 353: AIR 1921 Bom 189(1)) the authority of ILR Mad 321 was followed. They went on to observe:
'The principle that among bandhus the male is entitled to preference over the female--even though the latter is nearer in degree--was accepted as being law for the Bombay Presidency as much as for the Madras Presidency; and preference was given to a mother's sister's son over a brother's daughter. In that particular case, the actual decision would appear to conflict with ILR 26 Bom 710 because it apparently ignored the supposed prior and paramount claim of paternal over maternal bandhus; and it would seem that for some unaccountable reason ILR 26 Bom 710 was not cited to the court. Whenever therefore the two conflicting principles of preference of the paternal over the maternal line and preference of the male over the female sex in the presidency of Bombay have to be weighed, the court which weighs them will have to choose between these two decisions of the High Court.
But it will be seen from this summary that there is no case in the Bombay Presidency which decides that some preference is not to be given to male bandhus over female. And there is no doubt indeed the learned Counsel for the appellants did not contend that there was any doubt, that throughout the rest of India preference for the male would be certain.'
Now it will be seen that there is a clear affirmance by the Privy Council of the law in this Presidency that a male bandhu is entitled to preference over female bandhus, even though the latter is nearer in degree. Incidentally, it may be pointed out that the question reserved by the Board whether in a case of conflict of the two principles of preference of the paternal over the maternal lines and the preference of the male over the female sides in the Presidency of Bombay does not arise in the present case, because both sets of claimants which we are considering at present (Rakkammal No. 2 and Muthuammal on the one hand and defendants 4 and 5 on the other) would be related to the last male owner Periya Appavoo Pillai on the father's side.
(14) The preference of the male athma bandhus to a nearer female athma bandhus was reiterated by Ramesam J. in Avudai Ammal v. Ramalinga Reddiar, AIR 1926 Mad 1163, where brother's daughter's sons were preferred to the son's daughter. It was contended before the learned Judge on behalf of the son's daughter that the rule of preference of male bandhus to female bandhus even nearer in degree must be held to have been superseded by the decision of the Privy Council in 51 Ind App 368: AIR 1924 PC 209 . The learned Judge pointed out that on the contrary the rule must be taken to have been re-affirmed by the Privy Council.
(15) The same view was taken by Rajagopalan J. in Tiruchendur Sivathwaja Matam v. Sami Bhattar, AIR 1949 Mad 779, where the brother's daughter's son was preferred to the brother's daughter. The learned Judge referred to the Hindu law of Inheritance Amendment Act (Act II of 1929) which assigned a rank to the son's daughter, daughter's daughter, sister and sister's son, next after the father's father and before father's brother, and observed:
'It may be that the logic that underlay that statutory change in the order of inheritance may justifiably be extended to provide for propinquity, and not sex, as the deciding factor for establishing rights of inheritance; but the statutory provisions specifically enumerating specified classes of heirs cannot be extended in the manner by courts. It is for the Legislature to decide whether a brother's daughter should be given precedence over a brother's daughter's son.'
Then he says:
'It is well settled law in this presidency that a male bandhu is entitled to preference over a female bandhu, even though the latter is nearer in degree.'
(16) He refers to the decision in ILR Mad 321 as a Bench decision concluding the matter and to the decision of Ramesam J. in : AIR1926Mad1163 .
(17) Notwithstanding all these decisions, Sri Gopalaswami Iyengar contends that a different view has been taken by a Full Bench of the Bombay High Court in Kisan Dhondu v. Sevantabai, : AIR1950Bom254 (FB) and requests us to refer the matter to a Full Bench. In : AIR1950Bom254 (FB), it is observed thus:
'In our opinion, therefore, the principle enunciated in ILR 45 Bom 353: AIR 1921 Bom 189(1)) and 51 Ind App 368: AIR 1924 PC 209 , that under Mitakshara Hindu law, as applied to this province a male bandhu is entitled to preference over a female bandhu even though the latter is nearer in degree is not a correct principle of law. The proper test to apply is to determine in which particular class a Bandhu falls among the three classes enumerated by Mitakshara and preference should be given to the class enumerated first over the classes enumerated subsequently. The next test to apply would be to determine which bandhu is nearer in degree of relationship as coming within a particular class. If a female is nearer in relationship, then she should be preferred to a male bandhu. If there are two bandhus of equal relationship to the propositus, then only the test of religious efficacy should be applied, and, in that case, a male bandhu may be preferred to a female bandhu.'
But it will be seen that even in the Bombay decision it is recognised that the position is different in Madras. In view of the long current of decisions in this State, which has indeed received the approval of the Privy Council in 51 Ind App 368: AIR 1924 PC 209 we do not feel disposed to refer to the matter to a Full Bench. It may appear illogical that defendants 4 and 5 should be held to be nearer heirs than their mother Rakkammal No. 2. But in these matters we cannot proceed by mere logic. In ILR Mad 10 the principle which is extracted is that in the Mitakshara, except where females were specially mentioned, the rule is that priority is given to male heirs; and it is also pointed out that there are numerous cases in which the off-spring of a female parent has rights which that parent would not have.
(18) Following the unbroken current of authorities in this State, we hold that Rakkammal No. 2 and Muthuammal are not the nearest reversioners and would be postponed to defendants 4 and 5 and also to the plaintiff. In that view, the transfer deed Ex. A-81 cannot be of any avail to the plaintiff and it would be unnecessary to consider the other question whether Ex. A-81 would be otherwise valid against the 3rd defendant.
(19) The last question that remains is whether as between the plaintiff and defendants 4 and 5, who are the preferential heirs, defendants 4 and 5 being the father's father's son's daughter's sons of the last male owner Periya Appavoo Pillai and the plaintiff being the father's father's daughter's son's son of last male owner. Thus, both would be equal in degree to the last male owner and the test of propinquity in blood or nearness in degree as between male athma bandhus will not help in deciding their respective claims. We must, therefore, apply the next test of spiritual efficacy. Applying that test, it is clear that defendants 4 and 5 would confer spiritual benefit on Periya Appavoo Pillai, but the plaintiff does not confer any. That is because defendants 4 and 5 will have to offer oblations to their maternal grandfather Vellaichami Pillai, maternal great grandfather Muthukaruppa Pillai, and maternal great great grandfather and of these, the last two (Muthukaruppa Pillai and his father) are persons to whom the last male owner had to offer spiritual oblations, they being his paternal grandfather and paternal great grandfather.
Referring to the table which has been prepared on this basis in Mullah's Hindu law, page 147 of the 12th Edn., para 54, defendants 4 and 5 would come under category 20 (father's father's son's daughter's son) and the plaintiff would be No. 23 (father's father's daughter's son's son). Referring to the table in Mayne's Hindu law in Appendix II (Page 967 of 11th Edn.) defendants 4 and 5 would come under category 26 (paternal uncle's daughter's son) and the plaintiff would come under category 29 (paternal aunt's grandson). This position was not really challenged before us at the time of arguments; but, in the notes of arguments submitted earlier, the position was contested by Sri Gopalaswami Iyengar. It is there stated that the test of spiritual benefit or religious efficacy is not applicable at all in Mitakshara, that it is applicable only in the case of Dayabhaga and that the only way of determining the heirs under the Mitakshara law in a case where the claimants are equal in degree of their relationship to the propositus is by holding that they are equally entitled to inherit the estate of the propositus. It is too late in the day to make such a submission. The position is clearly settled by the decision of the Privy Council and of this court.
Since the whole matter has been lucidly discussed in Mullah's Hindu law in para 51, we may refer to it. As pointed out by the learned author, the matter was settled in Jotindranath Roy v. Nagendranath Roy . The appellant before the Board was a son of a sister of the mother of the propositus, while the respondents were sons of a half sister of his father. Thus it will be seen that both sets of claimants were equal in degree to the propositus. The Subordinate Judge preferred the respondents on the ground that they were relations on the father's side of the propositus whereas the appellant was related on the mother's side. The High Court of Calcutta (though the case was from Calcutta, it was governed by the Benares School of the Mitakshara) confirmed the decision of the Subordinate Judge applying the test of comparative efficacy of the funeral oblations offered by the rival claimants. Their Lordships of the Privy Council, while recognising the ground of preference of the Subordinate Judge, thought it safer to rest their decision on the test of efficacy of the funeral oblations which had been approved in several cases before the Board. Thus, in that case, the appellant offered oblations to the maternal grandfather, maternal great grandfather and the maternal great great grandfather of the propositus, while the respondents offered oblations to the paternal grandfather and the paternal great grandfather of the last male owner, to whom the last male owner was also bound to offer oblations. Though the common oblations offered by the respondents were only two, whereas the appellant offered three oblations in common with the last male owner, the efficacy of the oblations offered by the respondents was superior because they were for the paternal ancestors of the last male owner. In the course of their discussion, their Lordships observed:
'It is, their Lordships think, a mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded by the Mitakshara. No doubt, propinquity in blood is the primary test, but the intimate connexion between inheritance and funeral oblations is shown by various texts of Manu (see for instance, Ch. 9, verses 136 and 142), and the Viramitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood relationship furnishes no certain guide.'
This decision was followed by a Bench of this court (Pandrang Row and Venkataramana Rao JJ.) in Ademma v. Hanuma Reddi, ILR (1938) Mad 260: AIR 1937 Mad 967 where the father's half sister's son was preferred to the maternal uncle's son of the last male owner. Mayne's Hindu law also expresses the same view--see paras 550 and 552. We have accordingly no hesitation in holding that as between the plaintiff and the defendants 4 and 5, defendants 4 and 5 are the nearer heirs.
(20) It follows from the discussion that the appeal fails. It is accordingly dismissed with costs of the contesting respondent--3rd defendant.
(21) I have had the advantage of reading the judgment prepared by my learned brother and I entirely agree with his conclusion that the appeal fails on the two main grounds that arise for our determination in this case. Since the facts have been so fully set forth in the judgment of my learned brother, it is not necessary, that I should recapitulate them. For the reasons set forth in my learned brother's judgment, I would agree that among the atma bandhus concerned upon the present facts, defendants 4 and 5 and the plaintiff would be nearer heirs than Rakkammal No. 2 and Muthuammal, notwithstanding the apparent degree of propinquity in favour of those female heirs; that is upon the principle recognised in a lineage of decisions of this court, that male atma bandhus would exclude female reversioners, though the latter may be nearer in degree. Equally, upon the application of the criterion of spiritual benefit or religious efficacy, I think it is clear that defendants 4 and 5 would have superior rights to preference, as indicated in my learned brother's judgment.
(22) Nevertheless, if I desire to add certain observations of my own, this is for the important reason that the Full Bench decision of the Bombay High Court in : AIR1950Bom254 apparently poses a challenge to the way in which the Mitakshara has always been interpreted by this court, and as applying to this part of the country, that female reversioners of the atma bandhu class come in only after all the male heirs of that class are exhausted. This matter of an apparent conflict in the case-law is in itself, worthy of some study. Apart from this, there are three inter-related Hindu law doctrines here, the true connection between which is also worthy of note.
(23) The first doctrine or principle is that which I have already referred to, namely, as between Atma bandhus, males will always have a preference over and will exclude the female reversioners. The principle is enunciated as early as ILR Mad 10, and was reaffirmed as late as AIR 1949 Mad 779 by Rajagopalan J. The second concept, which is related but is nevertheless distinct, was affirmed by the Judicial Committee in 48 Ind App 349: AIR 1922 PC 33 . As between atma bandhus ex parte paterna and those ex parte materna, the former is entitled to preference. The third principle is the doctrine of spiritual benefit or religious efficacy. It is grounded on a text of Viramitrodaya, a Benares authority, and was expressed by Sadasiva Aiyar J. in Muthusami v. Muthu Kumaraswami, ILR Mad 23, in the following form, as the fourth rule:
'as between bandhus of the same class, the spiritual benefit they confer upon the propositus is, as stated in Viramitrodaya, a ground of preference.'
I shall immediately proceed to consider the catena of decisions with regard to the first principle, and the precise reasoning upon which the Madras view has been doubted in the Full Bench decision of the Bombay High Court earlier referred to.
(24) In ILR Mad 10, a Bench of this Court laid down in explicit terms that according to the interpretation of the Mitakshara current in Madras, there was a priority given to male heirs, as a rule, over female heirs, except where the latter were specially mentioned. In ILR Mad 321, the principle is expressed in the form that the law was settled in Madras that a male bandhu was entitled to preference over a female bandhu, even though the latter might be nearer in degree. This decision was approved and affirmed by the Judicial Committee in 51 Ind App 368: AIR 1924 PC 209 .
(25) But that decision of the Privy Council related to an appeal from Bombay, and, in the meantime, something apparently like a conflict of views upon the question had occurred in the Bombay High Court with reference to the interpretation of the Mitakshara in that area. ILR 26 Bom 710, was a case of that court of the year 1902. The Judges gave preference to the father's half-sister over the mother's brother expressly declining to follow ILR Mad 10. Then came Balakrishna v. Rama, ILR 45 Bom 353: AIR 1921 Bom 189(1)) decided in 1920, and the learned Judges accepted the principle that, as between bandhus, a male was entitled to preference over the female, even though the female might be nearer in degree; the decision followed ILR Mad 321. It is this apparent conflict between the two decisions that came to the notice of the Judicial Committee in 51 Ind App 368: AIR 1924 PC 209 and, on this aspect, the Judicial Committee made the following observations:
'Their Lordships pointed out that ILR 26 Bom 710 was apparently not cited to the court, when ILR 45 Bom 353: AIR 1921 Bom 189(1)) was decided. But ILR 26 Bom 710 really proceeded upon the other principle that I have referred to that bandhus upon the paternal side would exclude bandhus on the maternal side and have precedence. This, as their Lordships pointed out 'is a prior and paramount enquiry'; it precedes the question of preference of male bandhus over females, if they are otherwise of the same class. Their Lordships further observed that ILR 45 Bom 353: AIR 1921 Bom 189(1)) apparently ignored the supposed prior and paramount claim of paternal over maternal bandhus'. In this sense, it conflicted with ILR 26 Bom 710 and the conflict would have to be reconciled. In any event 'there is no case in the Bombay Presidency which decided that some preference is not to be given to male bandhus over female'. Their Lordships then add this significant dictum: 'And there is no doubt, indeed that the learned counsel for the appellants did not contend that there was any doubt that throughout the rest of India reference for the male would be certain.'
That last dictum is sufficient to dispose of this aspect of the appeal for we are not really concerned here with the Hindu law as interpreted in Bombay. In : AIR1926Mad1163 a last and somewhat faint attempt was made before Ramesam J. to press home the argument that the definite preference accorded to male members over females had somewhat lost its force owing to the decision of the Judicial Committee such as ILR 48 Bom 569: AIR 1924 PC 209 . The learned Judge (Ramesam J.) vigorously dissented from any such interpretation, and affirmed the principle of preference of male bandhus as always understood and applied in Madras.
(26) It is against this background that we have to consider the Full Bench decision of the Bombay High Court in : AIR1950Bom254 (FB). In dealing with the Letters Patent Appeal, Chagla C. J, delivering the judgment of the Bench, held that, as far as Bombay was concerned, the Judicial Committee had not really decided the matter in ILR 48 Bom 569: AIR 1924 PC 209 , they had left it at large. The learned Chief Justice also observed:
'With great respect to their Lordships of the Judicial Committee, they seem to have overlooked the fact that in ILR 26 Bom 710, itself a female bandhu was preferred to a male bandhu, and further their Lordships' attention was not drawn to the fact that in Bombay, unlike Madras, the position with regard to female heirs is very different.'
Finally, the Full Bench dissented from the principle enunciated both in ILR 45 Bom 353: AIR 1921 Bom 189(1)) and Girimallappa Channappa v. Kenchava, : AIR1921Bom270 , that, as the Mitakshara was applied to Bombay, a male bandhu is entitled to preference over a female even though the latter was nearer in degree. I may be merely permitted to observe here that upon a careful reading or ILR 48 Bom 569: AIR 1924 PC 209 the text of the judgment of the Judicial Committee does not appear to justify the inference that Chagla C. J, has drawn that the preference of a female bandhu over a male bandhu in ILR 26 Bom 710 was overlooked by the Judicial Committee. On the contrary, ILR 26 Bom 710 was explained by their Lordships upon the 'prior and paramount enquiry' whether the bandhus were on the paternal or maternal side, the former always excluding and having preference over the latter.
(27) Thus far with regard to the apparent conflict of decisions in this matter. In any event, the interpretation of the Mitakshara in Madras has been clear, consistent, and affirmed upon the authority of the Judicial Committee. I hence agree with my learned brother that there is no need to refer this matter to a Full Bench, because of any reasoning of in the Full Bench decision of the Bombay High Court earlier referred to.
(28) Certain observations on the relationship of the doctrine of spiritual or religious efficacy, to the other two concepts may be partinent here. The matter is fully discussed in Balasubrahmania v. Subbayya . That decision came considerably after Jatindranath's case , and their Lordships have discussed the question whether religious efficacy would become any paramount test among bandhus of the same class, because of certain observations of Ameer Ali J. in ILR Mad 753: AIR 1922 PC 33 . Their Lordships affirmed that 'no such change over in the case of cognates was contemplated, and the rule above referred to obviously does not make religious efficacy the only test among bandhus of the same class , laid down that between atma bandhus admittedly of such equal degree, the test of proximity was no guide, religious efficacy came in as a determinent only when the test of proximity failed. It is upon this basis that the doctrine of spiritual benefit stemming from the text of Viramitrodaya has been applied to the facts of the present case with the result, as my learned brother has shown, that the appeal by the plaintiff must necessarily fail. I would, therefore, concur that the appeal has to be dismissed with the costs of the contesting respondent (third defendant).
(29) Appeal dismissed.