1. Both parties to this suit are agnatic kinsmen of one Sarabharaju and they claim against each other the properties which his widow enjoyed till her death in 1926. A genealogical table is appended to the plaint, showing the relationship of the various parties. It is not necessary to refer to it here in more detail then to say that the plaintiff is the father's brother's grandson of Sarabharaju and that the defendants are the brother's great grandsons of Sarabharaju. The only other portion of the pedigree to be borne in mind in dealing with the evidence, is that Sarabharaju had two step-brothers Lakshimikantham and Naghabushanam, that Nagabhushanam left only a widow surviving him and that Lakshmikantham had a son Papahari, who pre-deceased him leaving a son Naghabhushanam, the father of defendants Nos. 1 and 2. The plaintiff claimed that the properties in the possession of the widow were held by her as a widow's estate, she having succeeded to the same on Sarabharaju's death somewhere between 1860 and 1865. The defendants on the other hand contended that Sarabharaju and Nagabhushanam (their father) were undivided, that Nagabushanam succeeded to all the family properties on Sarabharaju's death but put Sarabharaju's widow Lakshmayamma in possession of certain properties for the purpose of her maintenance. Alternatively, the defendants contended that even if the properties enjoyed by the widow should be found to have been held by her for a widow's estate, they were the preferable heirs as being descended from a nearer line.
2. The learned Subordinate Judge held in favour of the plaintiff on both the points and gave him a decree as regards some of the items claimed and disallowed his claim in respect of certain items on the ground that they have not been shown to have ever been in the possession of the widow.
3. The plaintiff has preferred a memorandum of objections in respect of the items disallowed to him; but the memo, of objections can hardly be seriously pressed, because there Is very little evidence to show that the widow was in possession of those items. The memorandum of objections, therefore, fails and is dismissed with costs.
4. In the appeal by the defendants both the points raised by them in the Court below have been pressed. First as to the question of fact it is not easy on the evidence to decide when and between whom the division, if any, actually took place. Mr. Satyanarayana Rao lays some stress on the fact, that the plaintiff set up a division between Sarabharaju and his brothers, whereas the learned Subordinate Judge holds that the division must have taken place between Sarabharaju and Nagabhushanam, i. e., his grand-nephew. Seeing that all the parties are speaking of events which must have happened long ago and undoubtedly even before the plaintiff who is the oldest man now alive amongst the parties came of ago, we are not disposed to attach undue importance to this particular statement in the pleadings. Nor does it seem to us necessary to come to any definite, conclusion as to the division or its exact date. In view of the decisions of the Privy Council in Satgur Prasad v. Raj Kishore Lal : (1920)22BOMLR451 and Lajwanti v. Safachand : (1924)26BOMLR1117 the plaintiff will be entitled to claim rights of inheritance to Sarabharaju's widow if the evidence clearly establishes that for more than the prescriptive period the widow had been enjoying these properties claiming to hold them in her own right, whether absolutely or for a widow's estate and not merely as a maintenance holder. If the defendants could make out that Nagabhushanam put the widow in possession of certain properties under a maintenance arrangement, the widow may not by a mere claim of a larger right in those properties convert her possession into adverse possession for a widow's estate. But the onus of proving that the widow was thus let into possession will undoubtedly be upon the defendants and we agree with the Court below that the defendants have not discharged that onus.
5. Mr. Satyanarayana Rao admitted before us that at any rate after 1884, the widow had been in possession of the properties found to be in her possession, in assertion of a claim as heir to her husband. In that view, it is not necessary to make more than a brief reference to some of the documents in the case. The Subordinate Judge rightly relies upon Exs. D, E and E-l in support of his conclusion that the widow was the widow of a divided co-parcener and not a mere maintenance holder. Mr. Satyanarayana Rao is no doubt able to show that some of the documents in the case are inconsistent with the statement. in Ex. D that the Wuyyur lands had been divided into two equal shares. He is also able to argue with some force that the subsequent enjoyment is not quite in accordance with the arrangement laid down by the arbitrator in Ex. E and E-l though Mr. Somayya contends that on another possible reading of Ex. E-l it is possible to bring the subsequent enjoyment into line with Ex. E-l. The documents subsequent to 1880 show that while the widow has consistently been asserting her rights on foot of Exs. E-1, Nagabhushanam has, as far as possible, rebelled against it and questioned the widow's title at every time. So far, however, as the result of his attempts is concerned, he has never succeeded and that is a fact which is of significance in dealing with the question of the interest which the widow must be deemed to have acquired at least by prescription if not on a finding of fact that the two branches of the family had become divided. The award was passed in 1880 and the widow's acts immediately following the award are significant. Under Ex. IX she insisted upon taking possession of all the lands which Akkayya, the tenant, held at the time. This will certainly be in conformity with the terms of the award. Under Ex. F she is found leasing the properties in Guruzada. There are no doubt certain statements in Exs. II, XI and XXXIV which led some support to the theory of maintenance arrangement; but the widow was not a party to any of those documents: and as long as her possession or the possession of tenants continued, it will not be fair to attach undue importance to recitals in documents for which Nagabhushanam was solely responsible. On the other hand, the conduct of the widow, whenever opportunity arose in asserting her rights, is more significant.
6. Mr. Satyanarayana Rao drew our attention to fee fact that in 1875 maintenance arrangements were made for two other widows in the family, viz., the widows of Lahshmikantham and Nagabhushanam, the elder. But the very fact that these two arrangements were embodied in formal documents whereas no such formal documents came into existence in respect of the arrangement said to have been made in favour of Lakshmayamma, is itself a circumstance militating against the maintenance theory so far as Lakshmayamma is concerned.
7. There was no doubt a finding in one litigation against a decision in the family set up by Nagabhuskanam's widow and a finding against Lakshmayamma herself in another litigation, but in the latter litigation the suit itself was ultimately dismissed, and to (hat extent, the decision was in Lakshmayamma's favour. On the third occasion when this question of division again came before the Court, i. e. in 1894, Ex. D was produced before the Court and the Court found in favour of the division. In these circumstances it is not possible to draw any inference one way or other from these pronouncements of Courts on the question of status.
8. The result of the evidence, therefore, is to leave the undisputed possession of Lakshmayamma unexplained on the maintenance hypothesis put forward by the defendants. In this view, as already indicated, either on the finding of a division inferred from this course of enjoyment or on the footing of prescriptive title acquired by the widow, whether for an absolute estate or for a widow's estate, the plaintiff will be entitled to claim a right of inheritance as heir.
9. The next question relates to the preferential right of succession as between the plaintiff and the defendants. The learned Subordinate Judge decided this question in favour of the plaintiff mainly on the authority of the decision of Kumaraswami Sastriar, J. in Subramania Chetty v. Nataraja Pillai : (1930)58MLJ468 . That decision covers only one aspect of the question argued before us. Mr. Satyanarayana Rao has put forward certain other arguments which were either not available in that case, or at any rate, were not placed before the learned Judge. As the matter has been argued before us at some length, it is better that we deal with the contentions put forward on behalf of the appellants.
10. At the outset we must point out that the genealogical table printed on p. 62 Page of 53 M.--[Ed.] of the report in Subramania Chetty v. Nataraja Pillai : (1930)58MLJ468 is somewhat misleading, because, us it appears in the print, the question need not have been discussed by the learned Judge at all. The printed genealogical table does not bring out the finding of the learned Judge on the question of Sadasiva Chetti's adoption by Chinnappu Chetti. The result of that adoption was that the 4th plaintiff in that suit stood in the position of the grandfather's great great grandson of the propositus while the 3rd defendant became the great grandfather's great grandson. That decision is relevant to the present case in so far as the learned Judge held that for the purpose of determining which of two gothraja sapindas is the preferential heir, only three and not seven degrees in each branch have to be reckoned, and after the third degree in one branch, three degrees in the next collateral branch must be considered. Mr. Satyanarayana Rao has attacked that conclusion. But before dealing with that, we may as well deal with another point raised by him which arises out of the facts of this case.
11. The defendants are the brother's great grandsons of the propositus. Mr. Satyanarayana Rao, therefore, wishes to invoke the rule that those who are included in what is generally referred to as the compact set of heirs must first be exhausted before those who are mentioned in Sanskrit texts only by way of a generic description, viz. gothrajas, can cone in. Taking Yajnavalkya's text, the compact heirs go up to brother's son of the propositus, and it is common ground that it is only after the brother's son that all persons who come under the category of gothrajas can be considered. If the word 'son' in that expression 'brother's son' (Tatsuta in Sanskrit) is taken literally, it would not help Mr. Satyanarayana Rao's present argument; but if by the analogy of the reasoning of the Privy Council in the case in Buddah Singh v. Laltu Singh : (1915)17BOMLR1022 the word 'son' even in the expression 'brother's son' could be taken to stand for a son, grandson and great grandson, the result would be that 'brother's great grandson' would be brought within the category of compact heirs. Mr, Satyanarayana Rao urges that we ought not to think of the rule of calculating three degrees from the common ancestor but merely take the word 'son' in the expression 'brother's son' and carry the calculation three degrees down from the brother himself. He recognises that this will put the brother's line in a better position than the descendants of the propositus himself, because as regards the propositus, it is well established that only descendants up to three degrees can succeed. But, he urges that whatever may be the reason with reference to which the descendants of the propositus are limited to three degrees, the reasoning of the Privy Council in the 37 Allahabad case [Buddah Singh v. Laltu Singh : (1915)17BOMLR1022 will justify him in claiming that in the case of the brother's line the word 'son' (in the expression brother's son) should be taken to extend to three degrees from the brother.
12. We are unable to accede to the above argument. The Privy Council in the 37 Allahabad case [Buddah Singh v. Laltu Singh : (1915)17BOMLR1022 were dealing not with that portion of Yajnavalkya's text which refers to the brother's son but with the commentary of Mitakshara relating to the next group of heirs, viz. gothrajas. In indicating the order of succession among gothrajas the Mitakshara deals with the grandfather's line and then with the great grandfather's line. There is nothing whatever in their Lordships' judgment to show that as regards those lines they intended to go down more than three degrees from the common ancestor. What they lay down is that in those passages where the Mitakshara uses the word 'son' it is used not in the 'literal' sense but in what is spoken of as the 'extended' or 'generic' sense. Once we reach the conclusion a word is used in a generic or extended sense, the question immediately arises, how to fix the limits of that generic or extended sense. It is not by any etymological significance that it has to be fixed but only with reference to other principles of law; and, if as clearly indicated in their Lordships' judgment, the limiting principle is to be gathered from the text of Manu which refers to the offering of oblations by three degrees of descendants, it will follow that the proper interpretation of their Lordships' pronouncement is not that the three degrees ought to be calculated even after allowing for a further link from the common ancestor but only from the common ancestor. In this view the analogy of the pronouncement of the Privy Council in the 37 Allahabad case [Buddah Singh v. Laltu Singh : (1915)17BOMLR1022 will not really help Mr. Satyanarayana Rao's argument. That this must really have been their Lordships' opinion is made clear by the way in which they refer to the passage from Nanda Panditha and also to the passage from Vyavastha Chandrika including the foot-note. In both of them the passages quoted by their Lordships specifically refer to the brother's son's case as well and to the fact that the calculation should be taken only to the brother's grandson and not to the brother's great grandson. It is, therefore, not possible to hold that the defendants will come within the compact series of heirs as enumerated by Yajnavalkya.
13. Mr. Satyanarayana Rao's next point is that even if the defendants do not come within the set of compact heirs, there is no reason why, as amongst gothrajas, the principle of the nearer line being preferred to the more remote ought not to be followed or the opinion indicated by Mr. Harrington in the passage cited in Rutcheputty Dutt v. Rajundur Narain Rae 2 M.I.A. 132 : 2 Sutter 1 : 1 Sar. 161 viz , of carrying each line down to the seventh descent before going to the ascending line, ought not to be followed. As regards Mr. Harrington's opinion, it is sufficient to say that he was not there dealing with the question of preferential right of succession at all but merely pointing out who are all the sapindas that ought to be exhausted before the inheritance can go to cognates. There is no doubt that all descendants up to the seventh degree will be comprehended within the term sagothras or sapindas. This is all that Mr. Harrington was laying down and that passage has so far not been understood as indicating the order of succession. No doubt in the 37 Allahabad Case [Buddah Singh v. Laltu Singh : (1915)17BOMLR1022 that passage was brought to their Lordships' notice and they leave its bearing open, because in their opinion, it was not necessary for the purpose of the case before them to decide whether succession in each line should be carried down to the seventh degree or not. But if Mr. Harrington's statement is to be understood as laying down a rule of preferential right of succession amongst agnates, it will be difficult to reconcile it with the whole reasoning on which the judgment in the 37 Allahabad case [Buddah Singh v. Laltu Singh : (1915)17BOMLR1022 rests. There can be no doubt whatever that so far as the propositus is concerned, inheritance descends only to his three descendants and on failure of the third it ascends. There is absolutely no justification whatever for holding that in respect of collateral inheritance, the matter should stand on a different footing. In the 37 Allahabad case [Buddah Singh v. Laltu Singh : (1920)22BOMLR451 itself the Privy Council took pains to point out that the scheme of the Hindu Law of Inheritance is quite logical and capable of logical application; surely no one need go out of the way to make it illogical.
14. As for the theory that the descendants of a nearer line should be preferred to the descendants of a remoter line, this is not a complete or accurate statement of the law. The true rule is that the nearer heir excludes the more remote. It may no doubt often happen that the nearer heir will be found in the nearer line but it would not be safe to paraphrase the one into the other. The nearer heir is to he determined with reference to a number of considerations, one of which no doubt may happen to be his being born in the nearer line. This rule about the 'nearer line' is very much like another rule frequently assumed as the basis of decision in several Madras cases, viz. that Bandhus, ex parte paterna take in preference to Bandhus ex parte materna. The language used by the Judicial Committee in a recent case Jotindra Nath Roy v. Nagendra Nath Roy , when the latter rule was brought to their Lordships' notice may usefully be re-called here.
15. The rule as to the preference of the nearer line is no doubt staled in the judgment of this Court in Chinnasami Pillai v. Kunju Pillai 11 Ind. Cas. 885 : 35 M 152 : 21 M.L.J. 856 : 10 M.L.T. 226 but much of the reasoning in that judgment has been set aside by the judgment of the Privy Council, in Buddah Singh v. Laltu Singh : (1915)17BOMLR1022 . Differing from the opinion of the learned Judges of this Court, the Privy Council specifically approved of the view of Messrs. Sarvadhikari, Jolly and Shama Charan Sarkar and they also approved of the authority of the commentary of Apararka. What is even more important is that their Lordships in the concluding portion of the judgment specifically accept the applicability of the spiritual benefit theory which the learned Judges in the 35 Madras case [Chinnasami Pillai v. Kunju Pillai 11 Ind. Cas. 885 : 35 M 152 : 21 M.L.J. 856 : 10 M.L.T. 226], expressly repudiated. There can be no doubt in the present case that on the application of the spiritual benefit theory the plaintiff will be the nearer heir. Whatever the position might have been at the time when the judgment in the 35 Madras case [Chinnasami Pillai v. Kunju Pillai 11 Ind. Cas. 885 : 35 M 152 : 21 M.L.J. 856 : 10 M.L.T. 226] was pronounced, several pronouncements of the Privy Council have since laid down that even in determining succession under the Mitakshara, the doctrine of spiritual benefit has got a place though only a subordinate place. Both in the 37 Allahabad case [Buddah Singh v. Laltu Singh : (1915)17BOMLR1022 and in Masit Ullah v. Damodar Prasad 98 Ind. Cas. 1031 : 48 I.A. 518; A.I.R. 1926 P.C. 105 : 3 O.W.N. 721 : (1926) M.W.N. 816 : 21 L.W. 551 : 44 C.L.J. 321 : 51 M.L.J. 792 : 1926 23 Bom. L.R. 1402 : 7 P.L.T. 815 : 531 A 204 : 25 A.L.J. 1 (P.C.), the Privy Council have referred with approval to the passage in the Veeramitrodaya dealing with the position of son, grandson and great grandson, their right of inheritance, and their liability to pay debts and also the conferring of spiritual benefit. It is not, therefore, right to say that the Veeramaitrodaya cannot be relied on as an authority in dealing with this question even under the Mitakshara. The matter is put beyond further question by the judgment in Jotindra Nath Roy v. Nagendra Nath Roy , where the doctrine of spiritual benefit is affirmed and- applied by their Lordships as 'a test' of the measure of 'propinquity' in certain circumstances. In their Lordships' opinion, it is:
A mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded in the Mitakshara.
16. For these reasons, we hold that the plaintiff is entitled to succeed to Sarabharaju's estate in preference to the defendants.
17. As regards the direction in the decree of the lower Court in respect of mesne profits, both parties agree that the following order may be substituted therefor:
And do pay the plaintiff mesne profits from Fasli 1344, until delivery of possession or the expiry of three years whichever event first occurs, at the rate of Rs. 371, per year, less any kist and water tax that may be paid by the defendants and that the plaintiff do pay Rs. 51, being the excess recovered by him from the defendants in respect of profits up to the end of Fasli 1343.
18. Subject to this variation the decree of the Court below is confirmed and the appeal dismissed with costs.