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Chinnasami Pillai Alias Subramania Pillai Vs. Kunju Pillai Alias Muthusami Pillai and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1912)ILR35Mad152; (1911)21MLJ856
AppellantChinnasami Pillai Alias Subramania Pillai
RespondentKunju Pillai Alias Muthusami Pillai and ors.
DispositionAppeal Dismissed
Cases ReferredBhyah Ram Singh v. Bhyah Ugur Singh
.....among unenumerated heirs is not spiritual efficacy but nearness of relationship--brother's great grandson succeeds in preference to uncle's grandson. - - sundara aiyar who appeared in support of chinnasami's claim-argued that in the passages in the mitakshara where vijnanes-wara enumerates the heirs in the assending line or among the collaterals he moans to include in the word 'sons 'the grandsons as well, whether of the brother, the paternal uncle or the great uncle. the learned author in the passages referred to was laying down the order of succession and it is not to be presumed, especially in such connection, that he would use the word 'sons 'in its secondary sense rather than in its primary sense unless there are good reasons for holding the contrary. cole-brook's..........or from his adoptive father, siva subramaaia pillai. it will be observed that avadia pillai is the great-grandson of a brother of siva subramania, while chinnasami pillai is the grandson of a paternal uncle of siva subramania, the common ancestor of all being karpugam pillai, the grandfather of siva subramania. both avadia pillai and chinnasami pillai are, therefore, removed from siva subramatia by an equal number of steps, and while avadia pillai belongs to a nearer line chinnasami pillai is entitled to offer full oblations to the common ancestor of himself and siva subramania while avadia pillai is entitled to offer only divided oblations to the common ancestor of siva subramannia and himself. mr. p.r. sundara aiyar who appeared in support of chinnasami's claim-argued that in the.....

1. The question involved in these appeals is one relating to succession under the Hindu Law and has arisen among certain sapindas of one Samia Pillai alleged to have been adopted by one Siva Subramania Pillai. There are several claimants to the properties which originally belonged to Siva Subramania Pillai who died in 1844, but the dispute arose only on the death of the widow of Samia Pillai in 1900. The genealogical tree, exhibit A, shows in full the relationship of the parties in all the suits to the daceased, but if the claim of Avadia Pillai, the plaintiff in Original Suit No. 16, is entitled to 'preference, as held by the. Subordinate Judge, over the claim of Chinnasatni Pillai the plaintiff in Original Suit No. 31 and the appellant in Appeal No 68, then, it is conceded, the plaintiffs in the other suits would have no right to the properties. We have come to the conclusion that Avadia Pillai's claim is preferable to that of Chinnasanai Pillai, and on this view the following table shows the relationship of the parties sufficiently for the purposes of these appeals:

Karpugam Pillai|__________________________________________| |Avadia Pillai Somasundaram Pillai(by 1st wife), (by 2nd wife).| |____________________________ || | |Chendra Sekhara Pillai Siva Subramania Pillai Manikam Pillai.(by 1st wife). (by 3rd wife). || | || | |Appavu Pillai (alleged adopted son), Chinnasami Pillai| Samia, Pillai. (Plaintiff in Original| Suit No. 81, andChockivlingarn Pillai. appellant in Appeal| Suit No. 68).Avadia Pillai (Plaintiff in Original Suit No 16).

2. For the purpose of this enquiry it would make no difference whether succession is reckoned from Samia Pillai or from his adoptive father, Siva Subramaaia Pillai. It will be observed that Avadia Pillai is the great-grandson of a brother of Siva Subramania, while Chinnasami Pillai is the grandson of a paternal uncle of Siva Subramania, the common ancestor of all being Karpugam Pillai, the grandfather of Siva Subramania. Both Avadia Pillai and Chinnasami Pillai are, therefore, removed from Siva Subramatia by an equal number of steps, and while Avadia Pillai belongs to a nearer line Chinnasami Pillai is entitled to offer full oblations to the common ancestor of himself and Siva Subramania while Avadia Pillai is entitled to offer only divided oblations to the common ancestor of Siva Subramannia and himself. Mr. P.R. Sundara Aiyar who appeared in support of Chinnasami's claim-argued that in the passages in the Mitakshara where Vijnanes-wara enumerates the heirs in the assending line or among the collaterals he moans to include in the word ' sons ' the grandsons as well, whether of the brother, the paternal uncle or the great uncle. If this interpretation be accepted, then Chinnasami would be included within the list of enumerated heirs and as such would have precedence over Avadia Pillai. The learned vakil for Chinnasami, besides relying upon the language of the text of the Mitakshara, also relies upon the superior benefit of oblations and the analogy to the case of great-grandson?. The learned Advocate-General who appeared to support Avadia Pillai's case disputes C the correctness of the interpretation which the appellant seeks to put on the text, and argues that spiritual benefit aflords no test according to Vijnaneswara, either of heirship or of preference among persons who are within the category of heirs. He con-tends that where the text is silent the nearness of sapindahip in the sense of the author of the Mitakshara is determined by the nearness of the line of descent from the common ancestor.

3. The question as to what is the proper construction of the texts of the Mitakshara relating to this matter was very fully considered by this Court in Suraya v. Lakshminirasarma and Lakshminara' samma v. Jaganadham I.L.R. (1883) Mad. 291 per Turner, C.J., and Kindersley, J., and recently by the Allahabad High Court in Kalian Rai v. Ram Chander I.L.R (1902). All 128 per Burkitt and Chamier, JJ. According to the former the expression brothers' sons does not include brothers grandsons, while the learned Judges in the Allahabad case hold the opposite view, Of the modern writers on Hindu Law Mr V. N. Mandlik of Bombay (see his Hindu Law,' pages 360, 361 and 378); Mr. G. 0. Sirkar (see his 'Hindu Law,' 3rd edition, page 260); Messrs. Wast and Bubler (see their 'Digest of the Hindu Law of Inheritance' at page 124); Dr. Jolly (see his ' Hindu Law of Partition and Inheritance,' page 208); Mr. Battaeharya (see his ' Commentaries on Hindu Law,' page 444); Mr. Sar-vadhikari {see his ' Principles of the Hindu Law of Inheritance,' page 422, and ' Table of Succession No 1, appended to section X); and Mr. Mayne (see his ' Hindu Law,' 7th edition, page 775); all are of opinion, though some are more emphatic and clear on the point than the others, that the brother's grandson is not one of the heirs enumerated in the Mitakshara, while Shyama Churn Sircar alone (see ' Vyavastha Chandrika,' page 178) can perhaps be said to hold the opposite view. Some of these learned authors, however, would place the brother's grandson next after the nephew on other grounds.

4. Among the commentaries which are regarded as authoritative in Southern India or in the Mitakshara school generally, other than the Mitakahara itself, the Saraswafci Yilaaa (see Translation of the Rev. Thomas Foulkes, ylacita 581--589, pages 116 -117), the Madhaviya see Translation by Mr. A. C. Burnell, pains, 40 and 41, pages 27 and 28), the Smrithi Chandrika (see Translation by Mr, T. Krishnaswarny Iyer, chapter XI, Section Y, pl. S. pages 209-210), the Subhodhini by Visveswara (see Mandlik's 'Hindu Law,' pages 360 and 361) do not assign to the brother's grand-eon a place after the brother's son, while Apararka (see Mr. Sarva-dbikary's Principles of the Hindu Law of Inheritance, pages 427--428), Nanda Pandta (see ibid page 481) and Varadaraja (see his Vyvahara Nirnaya translated by Burnell, page 36) place the brother's grandson immediately after the brother's son,

5. As for the text of the Mitakshara itself we agree with the learned Judges who decided Surya v. Lakshminarasamma I.L.R. (1882) Mad. 291 that Vijnanesweara did no mean to inclucde the brother's the paternal uncle's or the great-uncle's grandsons in the list of heirs named by him and that the word 'sons' in the text of the Mitakshara, chapter II, Section I v. 2, see. IV v. 7 and 8, Section V v. 1, should not be given an extended meaning so as to include the grandsons. The learned author in the passages referred to was laying down the order of succession and it is not to be presumed, especially in such connection, that he would use the word ' sons ' in its secondary sense rather than in its primary sense unless there are good reasons for holding the contrary. We find no such reasons. Much reliance has in deed been placed on the analogy of the case of the great-grandson of the propositus, who admittedly has a place in the same category of heirs as the sons and grandsons. But chapter I, section I, pl. 3 ox prissily mentions sons of the grandsons and further the succession in the case of lineal descendants is what is called unobstructed while the succession of collaterals is obstructed, a distinction on which Vijnaneawara himself lays emphasis in the passage last cited. The learned Judges of the Allahabad High Court in dealing with the question of interpretation rely mainly (see Kalian Rai v. Ram Chander I.L.R. (1902) All. 138 on the opinion of Mr. Harrington as set out in Rutcheputty Dutt Iha v. Rajunder Niarain Rai (1839) 2 M.I.A. 132, but the case which Mr. Harrington had to deal with raised only the question whether a man lineally descended in the sixth degree from the ancestor of the deceased in the sixth degree was entitled to succeed at all, his title being denied by the rival claimant, a maternal first cousin of the deceased. Mr. Harrington after an elaborate discussion of the texts came to the conclusion that the paternal kindred were entitled to the inheritance, according to the Mithila school of the Hindu Law, before the maternal kindred who would be bandbus or kinsmen belonging to a different gotra or family, could be admitted. The only proposition which he had to establish was that, according be the Mitakshara, the right of the sapinlas to succeed to the inheritance in preference to persons belonging to the class of bandkus is not confined to the sapindaa specifically named by Vijnaneswara and Mr. Harrington was not called upon to consider any question of preference among the sapiudas themselves. He no doubt (see pages 157 and 158 of the report) says that the term ' putra, ' and the word ' santana ' and ' sunava ' should be understood as generic terms for the male issue or descendants bah all that he wanted to prove was that in the Mitakahara sapindaship is extended to the seventh degree, and, as he himself points out, the provisions of chapter II, Section 5, paragraphs Nos. 5 and 6, expressly confer the rights of succession an all sapindas. We may also observe that Mr. Harrington apparently did not notice that Mr. Cole-brook's translation of the word ' sapinda ' as one connected by funeral oblations is incorrect as has now been clearly proved (Mayne's 'Hindu Law', 7th edition, paragraph 510), Lallubhai Bapubhai v. Marikuvarbai I.L.R. (1878) 2 Bom. 388 and the same ease by the Privy Council, Lalubhai Bapubhai v. Cassibai I.L.R. (1881) 5 Bom. 110 and he further relies in support of his reasoning on Jimuta Vahana and texts which have no authority in the Mitakahara school of law as prevalent in this Presidency. If Mr. Harrington's opinion was to be accepted in its full logical conclusion and not confined to the question he had to consider, the result would be that the descendants of the father up to the 7th degree would exclude the paternal grandmother and grandfather expressly mentioned by Vijnaneswara, and similarly the descendants of the grandfather up to the 7th degree must be exhausted before the claims of the great-grandfather and his sons and grandsons could be admitted and so on. Indeed the learned Judges of the Aliahabal High Court would seem prepared to go as far as that, though it was not necessary for them to deride that point. But it seems to us that such an interpretation would be opposed to the consensus of opinion among lawyers dealing with the Mitakabara school of law as prevalent in this Presidency. We may mention that the learned vakil for the appellant in Appeal No. 63 would not for obvious reasons support such a construction, according be which his client's claim must be postponed to that of Avadia Pillai We may also mention that the other oases relied on in Kalian Rai v. Ram Chander I.L.R. (1902) All. 128 viz. Hureemchand Gurain v. Oodung Gurain (1866) 6 W.R. 158 and Oorhya Koser v. Rajoo Nye Sookool (1870) 14 W.R 308 only decided that a brother's grandson may be an heir, though in the former case Mr. Justice Jackson in arriving at the conclusion relied on Mr, Harrington's view that the word ' sons' in the Mitakhara should have an extended meaning. We are, however, unable to accept that construction and agree with the learned Judges in Suraya v. Lakshminarasamma I.L.R. (1882) Mad. 391, that the word should be understood in its primary and limited sense.

6. The next question is which of the two claimants is the nearer sapioda, according to the principle enunciated in versa 3, section III, chapter II of the Mitakahara--' To the nearest sapinda the inheritancee next belongs.' The author of Mitakshara throws no further light and among the other commentators there is divergence of opinion as to the place to be assigned be the brother's grandson. Apararka, a commentator of the Yagnavalkya Smriti, the same text of which the Mitakahara is a commentary, would hold that among the getrajas nearness is to be reckoned according to the comparative efficacy of spiritual offerings (see Sairvadhikari's 'Hindu Law,' pp. 427--8), Varadaraja lays down that in default of brother sons, brother's grandsons succeed but does not mention the principle on which ho bases this rule (see 'Burnell's Translation,' p. 36). Nanda Pandita holds that the three successive descendants of the father should be exhausted first, then the three descendants of the grandfather and then of the great-grandfather, and so on, relying on the text of Manu, that the fifth has no concern with funeral oblations (see Sarvadhikari's 'Hindu Law,' p. 481). The Smrithi Chamlrika (see Oh, XI, Section V, paragraphs 2 and 8) may be said to support the respondent's claim, while the Saraswati Vilasa, Madhaviya, Subhodini and Viramitrodaya, though they do not place the brother's grandson in the list of cnumerated hairs, do not express any opinion as to what is his proper place among the gotrajas. The learned Advocate-General urges that Apararkas' authority is acknowledged chiefly in Cashmere and that the learned commentator makes no reference at all in his writings to the Mitakshara {see 'Mayne,' p. 28), which is the governing authority in the south, while the Vaijayanti of Nanda Pandita (who lived) in the 17th century) is a commentary on Vishnu Smriti and both writers are saturated with the notion of spiritual benefit which is not adopted in the south. ' As regards the value of the opinion of the author of the Smriti Chandrika oh this point, Mr. P.R Sundara Ayyar urged that his scheme of succession is so substantially at variance with that of Vijnaneswara that he cannot be relied upon as a safe guide in this connection. That the Smriti Chandrika's rule relating to the succession of ascendants and collaterals is in many respects different from that of the Mitakshara is apparent and is not denied by the Advocate-General and that fact must deprive the view expressed in that commentary, in so far as it represents the opinion of its author, of much weight in dealing with the present question, But the statement by that commentator that according to Vijnaneswara the right of the brother's grandsons must be postponed cannot altogether be ignored, As regards Aparacka he is, like Vijnaneawara, a commentator of Yagnavalkya's Smritl and his views are very similar to those of the Mitakshara and we think that his work may be usefully consulted on points on which the Mitakahara is silent, while Varadaraja's Vyavahara Nirnaya is a supplementary authority in southern India (see May no paragraphs 26 and 27 and ''Burnell's Preface to Vyavahara Nirnaya'), But we should not be justified in accepting the opinion of those commentators if such opinion is opposed to a clear principles of succession established by the Mitakshara as interpreted in this Presidency Of the modern writers, Mr. Sarvadhikary would include she great-grandsons of each ancestor as nearer sapindas on the ground mainly of superior spiritual benefits which they can confer and as such having a preferential right over other unenumerated sapindas; Dr, Jolly would place the great-grandson of an ancestor on the list of the compact series of heirs relying on the analogy of a man's own great-grandsons; Mr, Bhattacharya would give him preference apparently both on the analogy of the great-grandson of the propositus himself and on the principle of spiritual benefit. Mr. V.N. Mandlik (see hie 'Hindu Law,' p. 378), Messrs. West and Buhler ('Hindu Law,' p. 114) and Mr. G. Sircar (see his ''Principles of Hindu Law,' pp. 261 and 262), would after the enumerated heirs, first exhaust the man's own descendants from the third to the sixth generation, then the father's line from the third to the sixth descendants then the grand-father's line from the third to the sixth descendants, acting on the principle that the nearer line should exclude the more remote. Mr. Shyama Churn Sircar ('Vyavastha Chandrik,' p. 178) says that though the brother's grandson is not clearly mentioned in the Miatakshara and other digests in Sanskrit, yet it has been determined--referring to the rulings of the Calcutta High Court which have already been noticed--that he succeeds in default of a brother's son, because the term 'brother's son' is inclusive of the brother's grandson. Mr, Mayne cannot be said to have expressed any decided opinion on the point,

7. The real point, therefore, on which the decision of the question depends is whether the superiority of spiritual benefit or the nearness of line is the determining teat as to who should be deemed the nearer sapinda, We have already indicated that mere analogy to the case of the great-grandson cannot be a very satisfactory guide in this connection.

8. That Vijnaneawara laid much stress on the nearness of line in framing his scheme of succession cannot admit of any doubt, and is patent from the order in which he arranges the heirs both in the aseending line and among the collaterals. In fact, as stated in very emphatic terms in Balusami Pandithar v. Narayanct Rau I.L.R. (1897) Mad. 343 the first of the great principles pervading the law of inheritance under the Mitakshara system is that the nearer line excludes the more remote [see also Krishna Ayyangar v. Venkatarama Ayyangar I.L.R. (1906) Mad. 115. Should this clear principle then he outweighed so far as this Presidency is concerned by considerations of the greater or less capacity of rival sapindas to confer spiritual benefit on the deceased? We think not, Nothing is more clearly established than that the author of the Mifcaksbara, which is the supreme authority in this province, would generally allow very little, if any force to the theory of spiritual benefit in his scheme of succession and as far as the succession of sapindas goes, nowhere does he seem be rely upon any such principle, whether in determining who is entitled to succeed as a sapinda or which of the several sapindas C aboold have a preferential right. Ha defines sapindas as men who are connected through particles of the same body and not by funeral oblations and in the whole of the law of inheritance as propounded by him in the Mitakshara, at least according to the interpretation it has received in this Presidency, the test of heirship are consanguinity and propinquity, and not the capacity to confer spiritual benefit. In many cases the two elements are combined in the same person, but, if they are not so combined, the person who is nearer in relationship, as ordinarily understood, is given preference (see the discussion in Mayne's ' Hindu Law,' 7th edition, paras. 509 to 511) Much reliance has been placed on a dictum of their Lordships of the Privy Council in Bhyah Ram Singh v. Bhyah Ugur Singh (1870) 13 M.I.A. 373 to the effect that the question of preference is founded on superior efficacy of oblations, but the observation was made in a case governed by the Benares school of law and their Lordships bad not to consider in that case the question whether the nearness of line or the capacity to confer greater spiritual benefit should determine the preferential right to succession. It may be that, all other tests being equal, the superior, efficacy of oblations would be a legitimate ground for giving preference, though it is difficult to conceive of a case among the sapindas in which the nearness of line would not be present as a determining factor. As pointed out in Muthusami, v. Muthukutnarasami I.L.R. (1893) Mad. 23, the question may arise among bandhus of the same class and then the quality or the quantity of the spiritual benefit which they confer on the propositus may be a good ground for preference. The only rule which we need lay down in the present case is that, where the competition is between two collateral sapindas not included among the enumerated heirs, preference should be given to the sapinda belonging to the nearer line.

9. The judgment of the Subordinate Judge is, therefore, confirmed and Appeals Nos. 68 and 73 are dismissed with costs. The costs will be divided among the respondents in proportion to the intyrests which they claim in the property.

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