1. The only question to be decided in this Second Appeal is one of succession to the properties of one C. Subbayya, who died in 1906 or 1907 leaving a widow Narakka who died in October 1918. The plaintiff is a vendee (under a sale deed, dated 14th October 1919) from A. Venkata Reddi and Bali Reddi, who are the mother's sister's sons of Subbayya. The District Munsif found that Subbayya has also left his mother's brother's sons but held, relying on Appandai Vathiyar v. Bagubali Mudaliyar I.L.R., (1910) Mad., 439 that the plaintiff was entitled to succeed. The Subordinate Judge confirmed his judgment. The defendants file this Second Appeal and contend that the mother's brother's son is entitled to priority over the mother's sister's son under the Hindu Law. They point out that the decision in Appandai Vathiyar v. Bagubali Mudaliyar I.L.R., (1910) Mad., 439 has been dissented from in Ram Chadan Lal v. Rahim Baksh I.L.R., (1916) All., 416 and it must be regarded as shaken if not overruled by the decision in Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753
2. The question is one relating to the succession of bandhus. It is desirable to clear the ground by stating the principles of succession among bandhus, at least such of them as may help to solve the question.
3. There is no doubt as to the meaning of the term 'bandhu' for purposes of succession. Though only some bandhus are enumerated in the well-known ancient smrithi text (attributed variously to Vridha Satatapa and Baudhayana), it has been laid down that the enumeration is not exhaustive and that it includes all bhinnagotra sapindas (see Gridhari Lal Roy v. The Bengal Government (1808) 12 M.I.A., 448 and Ramchandra Martand Waikar v. Vinayek Venkatesh Kothekar I.L.R., (1915) Calc., 384
4. Relying on this definition, Sarvadhikari (Tagore Law. Lectures, 1882) attempts to construct exhaustive tables of bandhus. Ho restricted the bandhus to four families : (1) the family of the agnates of the propositus, (2) the family of the agnates of his mother's father, (3) the family of the agnates of his father's mother's father, and (4) the family of agnates of his mother's mother's father. Whether the bandhus ought to be limited to these four families, though they otherwise satisfy the definition of bhinnagotra sapindas, has not arisen for judicial decision and does not arise in this case. With the said limitation and also excluding the so-called sapindas by 'frog's leap' (see Sarvadhikari, 2nd edition, pp'. 592, 597 and 600) and remembering that sapindaship is mutual he tabulated the possible bandhus in four tables (facing pages 606, 607). Some of his views as to priority of succession (as expounded in the 1st edition) based on the separation into four families were not accepted by the Privy Council in E. O. Muthusami Mudaliyar v. Simambedu Muthukumaraswami Mudaliyar I.L.R., (1896) Mad., 405 ; 23 I.A., 83. All these bandhus can be grouped in one table. Such a table is shown in the ninth edition of Mayne's Hindu Law facing page 852. The table is exhaustive and accurate subject to the limitation mentioned above. The order of succession among the persons in the table has to be determined.
5. Now, apart from any texts of Hindu Law, the bandhus so enumerated will naturally fall into the following groups depending on the nearness of the ancestor:
(1) Descendants of the propositus whom I indicate hereafter by the letter P. They are numbers 1 to 7 in the table in Mayne's Hindu Law and in the annexed table
P__________________|_________________________| |S D________|_______ _________|_______| | | |S D S D| _________|________ | |D | | S(2) S(3)| S(1) DS(4) | || S(5) S(6)S(7)(2) Descendants of P's father, collateral to P, i.e., excluding group 1. They are numbers 1 to 8 in the annexed table and Nos. 8 to 15 in the table in Mayne.
F__________________|_________________________| | |S P D________|_______ _________|_______| | | |S D S1 D| _________|________ | |D | | S3 S4| S2 DS5 | || S6 S7S8(3) Descendants of P's grandfathers (paternal and maternal) collateral to P's father, i.e., excluding groups 1 and 2. They correspond to Nos. 1 to 20 in the table annexed and are Nos. 16 to 35 in the table in Mayne.
F1 mF(1)_____|______________________ _________|________________| | | _ | |S D F m M S2 D_____|_____ ____|______ __ ______|_____ ____|_____| | | | | | | | |S D S3 D | S4 D S5 D| ___|____ | | | ___|____ ________ | |D | | | | P | | | | | || S6 D | | S9 D S10 D S11 S12| | | S7 S8 | | |813 | | | | || S14 815 S16 S17 S19S20 (4) Descendants of P's father's grandfathers (paternal and maternal) collateral to P's grandfather (F1) (i e., excluding groups 1 and 2 and left half of group 3). They are Nos. 36 to 55 in the table in Mayne.
F2 fmF_________________|____________ __________|___________| | | | |Descendants F1(m) M Descendants|||F||P The descendants are formed exactly as in the table for group 3.
(5) Descendants of P's mother's grandfathers (paternal and maternal) collateral to P's mother's father (i.e., excluding groups 1 and 2 and right of group 3). They are Nos. 81 to 104 in the table in Mayne.
mF1 mmF_________________|____________ __________|___________| | __ | | |Descendants mF1(m) mM Descendants__|__|M|P The descendants are formed exactly as in table for groups 3 and 4.
(6a) Descendants of P's paternal grandfather's (F1) paternal grandfather (collateral to P's paternal great grandfather (F2), i.e., excluding groups 1, 2, left half of group 3, and left half of group 4; and descendants of P's paternal grandmother's (fM) paternal grandfather, collateral to her father (fmF), i.e., excluding groups 1, 2 and right half of group 4. These are Nos. 56 to 75 in .the table in Mayne.
F3 mmF_________________|____________ __________|___________| | | | |Descendants F2 fmF Descendants| || ___ |F1 _M__ || fM|F||P The descendants are .formed as before.
(6b) Descendants of P's mother's father's (mF) paternal grandfather collateral to mother's father's father (mF1), i.e., excluding groups 1, 2, right half of group 3 and left half of group 5 ; and descendants of P's mother's mother's (mM) paterna1 grandfather, collateral to mother's mother's father (mmf), i.e., excluding groups 1, 2, right half of group 3 and right half of group 5. They are Nos. 105 to 128 in Mayne.
mF2 mmF1_________________|____________ __________|___________| | | | |Descendants mF1 mmF Descendants| || ___ |mF _M__ mM| fM|M||P The descendants are formed as before.
(7) Descendants of P's paternal grandmother's (fm) great grandfather, collateral to her grandfather (fm F1). These are Nos. 76 to 80 in the table in Mayne and are Nos. 1 to 5 in the annexed table. Fm F2_________________|____________| || |S1 Fm F1| || |S2 Fm F| || __ |S3 F1 _m_ FM| || |S4 F| || |S5 P
6. There is no doubt that all the persons in the above seven groups are bandhus. Groups 1, 2, left halves of groups 3, 4, 6a constitute Sarvadhikari's Table I (a). Right half of group 3, left half of group 5, and left half of group 6b constitute his Table I (ft). Eight half of group 4, right half of group 6a and group 7, constitute his Table II. The right half of group 5 and right half of group 6b constitute his Table III.
7. I now come to the expressions 'Atma Bandhus,' 'Pitru Bandhus' and 'Matru Bandhus' used in the ancient Sanskrit Text. It is evident that the word 'bandhu' in these expressions has a narrower significance than ' bhinnagotra sapinda.' The question that naturally arises is--are bandhus other than those enumerated, included in each of these three expressions and if so, who The three persons enumerated as atma bandhus are in group 3 being Nos. 18, 19 and 20 in Mayne's Table. The Privy Council held No. 17 to be atma bandhu in E. O. Muthusami Mudaliyar v. Simam-bedu Muthukumaraswami Mudaliyar I.L.R., (1896) Mad., 405 ; 23 I.A., 83 and Vedachela Mudaliar v. Subramania Mudaliar I.L.R, (1921) Mad., 758 No. 22 to be an atma bandhu in Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 and No. 26 to be an atma bandhu in Adit Narain Singh v. Mahabir Prasad Tiwari(2). Therefore it follows that Nos. 21, 23 to 25 and 27 who are in the same degree as Nos. 22 and 26 should be regarded as atma bandhus. Similarly, not only Nos. 38, 39 and 40 who are enumerated as pitru bandhus but also Nos. 41 to 47 (on the analogy of Vedaohela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 and Adit Narain Singh v. Mahabir Prasad Tiwari (1921) 6 Pat. L.J., 140; 48 I.A., S6 should be regarded as pitru bandhus. Similarly not only Nos. 8(3, 87 and 88 who are expressly enumerated but also 85 who is in the same line and (on the analogy of E. O. Muthusami Mudaliyar v. Simambedu Muthukumaraswami Mudaliyar I.L.R., (1896) Mad., 405; 23 I.A., 83 and Adit Narain Singh v. Mahabir Prasad Tiwari (1921) 6 Pat. L.J., 140 ; 48 I.A., S6 Nos. 89 to 96 should be regarded as matru bandhus But, beyond these, it is not clear to me how the bandhus should be classified. For instance, it is not clear to me bow Nos. 36, 81 and 82 who are the ancestors should be classified. I doubt, if the expressions 'Atma Bandhu,' etc., were ever intended to be the basis for a scientific classification and share in the 'doubts of Mullick and Jwala Prasad, JJ., in Umashankar Prasad Parasari v. Mussamat Nageswari Koer (1918) 3 Pat. L.J., 663 If we assume that the expression 'Atma Bandhu' includes all the persons in my third group, the expression 'Pitru Bandhu' includes all the persons in my fourth group and the expression 'Matru Bandhus' includes all the persons in my fifth group, even then the question arises in what class should groups 1, 2, 6 and 7 be placed. That is, the first question is whether there are only these classes or more If groups 1 and 2 are to be classified under the named classes, they should obviously be classed as 'Atma Baudhus,' For if it is said that the expression 'Atma Bandhu' is not quite appropriate for these, the other expressions are still less appropriate. This is the view taken in Balusami Pandithar v. Narayana Rau I.L.R., (1897) Mad., 342 and Sham Dei v. Birbhadra Prasad I.L.R. (1921) All,, 463 (where persons in group 2 were held to be atma bandhus) and by Dawson Miller, C.J., and Imam, J., in Umashankar v. Mussamat Nageswari Koer (1918) 3 Pat. L.J., 663 (as to a person in group 2). But Mulliok and Jwala Prasad, JJ., doubted the propriety of attempting to class the unnamed bandhus under the expressions ' Atma Bandhus, etc.' a view which has much to commend itself In Ajudhia v. Ram Sumer Misir I.L.R., (1909) All., 454 and Bam Phaul Thakur v. Pan Mali Padain I.L.R., (1910) All., 640 a rarson in group 1 was regarded as an atma bandhu though no question of priority and hence no question of classification arose in the case. If the connotation of the term ' Atma Bandhu' is extended as in Balusami Pandithar v. Narayana, Rau I.L.R., (1897) Mad., 342 and Sham Dei v. Birbhadra Prasad I.L.R., (1921) All., 463 so as to include group 2 for satisfying the requirement that all bandhus should be divided into three classes, we are landed in anomalies as to the similar connotation of the expressions 'Pitru Bandhus' and 'Matru Bandhus' Again how should groups 6 and 7 be classified If they are classed as pitru bandhus, groups 6a and 7 take priority over group 5 and group 7 takes priority over group 6b a result as to the equity of which I have considerable doubts. The doubts indicated by mo above do not arise in this case and have not got to be solved by us. Such as relate to groups 6 and 7 have never arisen and may never arise.
8. Confining myself to groups 3, 4 and 5 as to the division of which into three classes, there is no difficulty, the first rule to be applied is that atma bandhus take precedence over the rest; E. O. Muthusami Mudaliyar v. Simambedu Muthukumarasami Mudaliyar I.L.R., (1896) Mad., 405 ; 23 I.A., 83. This rule does not help us in this case as both the claimants are in group 3 and are atma bandhus on any view of the expression. We have to find the rules regulating priority among atma bandhus.
9. The only decision of the Privy Council dealing with a case of rival claimants who are both atma bandhus is Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753. The passage from the Mitakshara (II-6-1) was quoted at page 758 and again referred to at page 764. At page 765, the Srnriti Chandrika (XI, 5, 13 to 15) and Sarasvati Vilasa 595-8 were cited. At page 766, the conclusion is thus stated
A very small consideration would show that that passage has nothing to do with the members of the same class inter se.
10. After this conclusion of the Privy Council, I think it is unnecessary for me to deal in detail with the arguments of Mr. Chandrasekhara Ayyar based on (1) the sentence in the Smriti Chandrika and in Sarasvati Vilasa I.L.R., (1921) Mad., 753 Jaimini Mimamsa Sutra Adhikaram and Parthasarathi Misra's Sastra Dipika--a commentary on Nyayamala of Madhwa-charya. I may add as to the passage from Srnriti Chandrika there aro two versions one containing the word the other not containing it, and the version relied on by Mr. Chandrasekhara Ayyar (i.e.. the one containing the word is the one referred to by their Lordships at page 765. I will only add that Dayavibhaga of Madhwacharya (Dr. Burnell's translation), another Madras authority supplemental to Mitakshara says that the enumerated bandhus take according to nearness. In my opinion the basis of the decision in Appandai Vathiyar v. Baguboli Mudaliyar I.L.R., (1910) Mad., 439, has been destroyed by the reasoning of their Lordships in Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 It still remains for us to determine the rules that have to be applied to atma bandhus.
11. At page 762 His Lordship Right Hon'ble Mr. Amir Ali after referring to the proposition that 'each class should be divided into sub-classes according to the side of relationship and that in any case preference should be given to the father's side ' observes
Their Lordships do not think it necessary to express an opinion how far this proposition is in confirmity with the express rule that, in each class, propinquity should be the governing factor.
12. At page 763 the principles laid down by Muttuswami Ayyar, J., in Muttusami v. Muttukumarasami I.L.R., (1893) Mad., 23 were quoted. The second principle refers to the division into three classes and the third runs thus
(3) that the examples given therein are intended to show the mode in which nearness of affinity is to be ascertained.
13. The fourth relates to spiritual benefit. At page 766, His Lordship says
Among modern writers both Golap Chandra Shastri (page 296) and Raj Coomar Sarvadhikary (page 726) affirm that nearness of blood is the governing principle in the succession of bandhus. The Shastri lays down the rule in the following words: '(1) The nearer in degree on whichever side is to be preferred to one more remote.'
14. His Lordship then says that the rules quoted from Muttusami v. Muttukumarasami I.L.R., (1893) Mad., 23 furnish a safer guide (page 767). The conclusion is thus stated
The appellant is undoubtedly nearer in degree to the deceased than Subramania. He also offers oblations to his father and grandfather to whom the deceased was also bound to offer Pindti.
15. Accordingly I infer from Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 that the rules to be applied to the atma bandhus for determining priority are--
(1) Propinquity should be the governing factor.
(2) If both are equal in degree, the spiritual benefit conferred may be used as a test for preference.
16. The first of these rules does not help us in the present case, as both the claimants are of the same degree. I am unable to agree with the statement in Ram Charan Lal v. Rahim Baksh I.L.R., (1916) All., 416.
As we hold that the maternal uncle's son is of nearer consanguinity than the maternal aunt's son, the question of funeral oblations need not be considered.
17. It is not clear whether the expression nearer consanguinity is used in a different sense from ' nearness in degree.' If the expressions mean the same, I am not able to see how the maternal uncle's son is nearer in degree than maternal aunt's son To this extent, viz., that both are equal in degree, I agree with the decision in Rajeppa v. Gangappa I.L.R., (1923) Bom., 48.
18. Mr. Chaudrasekhara Ayyar adduced an ingenious argument based on the rules relating to marriage. In Southern India, a man may marry his maternal uncle's daughter but not his mother's sister's daughter. Therefore, he argues, that a maternal aunt's daughter is nearer than maternal uncle's daughter and therefore a maternal aunt's son is nearer than maternal uncle's son for purposes of succession. According to the ancient Sanskrit texts, both maternal uncle's daughter and maternal aunt's daughter are Sapindas and are ineligible for marriage. I believe the rule is strictly observed in Bengal and probably in other parts of Northern India. But a custom has grown up in Southern India (pro-bably a Dravidian custom) by which a mother's sister's daughter is regarded equivalent to a sister and ineligible for marriage, while a mother's brother's daughter or a father's sister's daughter is regarded equivalent to a wife or wife's sister and therefore eligible for marriage. This notion has nothing to do with nearness. Even, the South Indian ancient Sanskrit texts (e.g. Vyavahara Madhaviya--a commentary on Parasara Smrithi by Madhwacharya of which Dayavibhaga translated by Dr. Burnell is a portion) that recognise the marriagiability of a maternal uncle's daughter base the recognition on local custom.
19. We have therefore to resort to the second test enumerated by their Lordships in Vedacliela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 viz., Spiritual Benefit. We have to see which of the two claimants confers higher spiritual benefit on the propositus. There is no doubt both confer some spiritual benefit.
20. In discussing the question of spiritual benefit, we have to remember,
(1) that a claimant offers oblations to his ancestors in which, the propositus participates through his ancestors.
(2) The offering to a paternal ancestor is superior to the offering to a maternal ancestor.
(3) It follows by the principle of mutuality that the participation through a paternal ancestor is superior to the participation through a maternal ancestor. Thus, as between two persons P (propositus) and C (claimant), there are four possible cases:
1. C offers to his paternal ancestors and P participates through paternal ancestors.
2. C offers to maternal ancestors and P participates through paternal ancestors.
3. C offers to paternal ancestors and P participates through maternal ancestors.
4. C offers to maternal ancestors and P participates through maternal ancestors.
21. The first case is a case where C and P are Sagotra Sapindas and does not come under the discussion relating to succession by Bandhus. In the other three cases C is a bandhu of P. Mr. Chandrasekhara Ayyar concedes that C in the second case is superior to C in (3) and (4), e.g., a father's sister's son is superior to mother's sister's son or mother's brother's son, i.e., he concedes that the participation through paternal ancestor is superior to participation through maternal ancestors. (Mayne, p. 736, paragraph 508, Rule 4.) But he does not concede that offering to maternal ancestors is inferior to offering to paternal ancestors. If we remember that all Sapindaship and all Bandhuship is mutual, it seems to me that the same inferiority attaches to offering to maternal ancestors in comparison with offering to paternal ancestors as in. the case of participation. That offering to maternal ancestors is inferior to offering to paternal ancestors is an a fortiori case can be inferred from the following facts :--In all schools of Hindu Law bandhus descended from agnate ancestors are certainly postponed to agnates (subject to a certain exception in Bengal which it is unnecessary to note here). For instance in the four simple cases, mentioned above, a father's brother's son. is superior to a father's sister's son. In this case the participation in each case is through paternal ancestors. So far is the rule recognized that agnates, oven if remote, are preferred to cognates even if near (except in Bengal in the case of daughter's sons of agnate ancestors and in Mitakshara Law in the case of daughter's son). In fact the principle is the very foundation of the whole system of Hindu Law by which agnates are preferred to cognates. If so, among cognates one degree of cognateness is certainly superior to two degrees of cognateness.
22. Divested of the religious, spiritual or ceremonial veil, the same principle of religious efficacy or spiritual superiority may be stated as:
(1) Claimants through father of propositus are superior to claimants through mother of propositus, other circumstances being equal; (2) a claimant through his father is superior to a claimant through his mother. The caution is necessary that these rules should not be applied as they were applied in Sundrammal v. Rangasami Mudaliar I.L.R., (1805) Mad., 193 so as to defeat the rule as to nearness in degree. The case in Sundrammal v. Rangasami Madaliar I.L.R., (1805) Mad., 193 has been overruled by Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753. They should be applied subject to the rule of nearness in degree [see Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753
23. In the above discussion I have attempted to establish the superior spiritual efficacy of the mother's brother's won to mother's sister's son from general principles. As a particular case, the fact has been recognized in Dharma Sindhu:
Tadabhave gotrajali tadabhave matamaha matula tatputradayah matrusapindah anukramena matrusapindabhave svapitrushvasru matrushvasruputrah anukramena matru sapindah.
a book which, though mentioned by West and Buhler as an authority in Western India, is of high authority along with Nirnaya Sind.hu, in the Telugu country (the parties in this case are Telugus) being constantly referred to by pandits and purohits (see translation in Sarvadhikari, pp. 86-89). It is true that the text shows a mother's brother's son should have priority in the performance of Shradha over oven father's sister's son. I do not wish to concede that the order of succession is the same among them. The point does not arise here.
24. If every step in cognateness, compared to agnateness, denotes a mark of inferiority, it follows that two steps in cognateness are inferior to only one step in cognateness and one in agnateness. The principle has been recognized in this Court in Tirumalackaruir v. Andal Ammal (1907) I.L.R., 30 Mad., 406 . The decision in Appandai Vathiyar v. Bagubali Mudaliyar (1910) I.L.R., 33 Mad., 439 itself recognizes the superior spiritual efficacy of a maternal uncle's son to mother's sister's son. Finally the Bengal School of Law which depends on spiritual efficacy gives preference to mother's brother's son. (See Dayakrama Sangraha Ch. 1-x-14-20. Mayne paragraph 584, p. 859.) A text somewhat in conflict with the passage in Dayakrama Sangraha, viz., the Commentary of its author (Sri Krishna Tarkalankara) on Jimutavahana's Dayabhaga has been cited in Ghose's Hindu Law, Vol. II, page 928, but its authenticity is doubtful arid it is inconsistent with the main work of the author. This is also the view of Sarvadhikari.
25. For all the reasons I would agree with the conclusion in Ram Charan Lal v. Rahim Baksh I.L.R., (1916) All., 416 and regard Appandai Vathiyar v. Bagubali Mudaliyar I.L.R., (1910) Mad., 439 as overruled by Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 and allow the appeal and dismiss the suit with costs only in the first Court. Each party will bear his costs in this and in the lower Appellate Court.
Venkatasubba Rao, J.
26. I agree.
27. The question to be decided in this case has reference to the priority in regard to succession to a deceased Hindu, the competing claimants being his maternal uncle's son and his maternal aunt's son. The rules respecting the succession of Bandhus are involved in considerable obscurity, and the specific point with wihch we have to deal has been the subject of great controversy. The case has been fully and ably argued by Mr. B. Somayya whose contention has been that the maternal uncle's son is to be preferred and by Mr. N. Chandrasekhara Ayyar who has maintained that the maternal aunt's son has the preferential right.
2. I have come to the conclusion that the maternal uncle's son must be preferred. A Bench of this Court held in Appandai Vathiyar v. Bagubali Mudaliyar I.L.R., (1910) Mad., 439 that a mother's sister's son is to be preferred to a maternal uncle's son. But, in my opinion, the reasons given for the decision cannot now be accepted as sound in view of the recent judgment of the Judicial Committee in Vedachela Mudaliar v. Submmania Mudaliar I.L.R., (1921) Mad., 753
28. I shall first examine the texts of Hindu Law on this subject and shall then discuss the case referred to above, namely Appandai Vathiyar v. Bagubali Mudaliyar I.L.R., (1910) Mad., 439.
29. I may preface my remarks on the original texts with the observation that the ancient writers after stating that on failure of agnates, cognates succeed, invariably quote a text that is variously attributed to Vridha Satatapa and Baudhayana. That text merely enumerates the bandhus and has no bearing on the question of succession. Though it has been repeatedly quoted by the exponents of the law, there is nothing to show that the text., whatever may be its origin, had any connexion with any discussion of legal questions, and it is more than probable that the author intended to do no more than merely enumerate the bandhus. The text itself is this:
Te sons of a man's own paternal aunt., the sons of his own maternal aunt, and tlie sons of his own maternal uncle, are recognized, as a man's own bandhavas (atma bandhus). The sons of his father's paternal aunt, the sons of his father's maternal aunt, and the sons of his father's maternal uncle, are recognized as his father's handhavas (pitru bandhus). The sons of his mother's paternal aunt, the sons of his mother's maternal annt, and the sons of his mother's maternal uncle, are recognized as his mother's bandhavas (matru bandhus)
I shall now proceed to examine the texts.
I. Vignaneswara in his Mitakshara says thus:
(1) On failure of agnates, the cognates are heirs. Cognates are of three kinds, related to the person himself (atma bandhus), to his father (pitru bandhus) or to his mother (matru bandhus) as is declared by the following text.Here is quoted the famous text attributed to Vridha Satatapa. Then the Mitakshara continues
(2) Here by reason of near affinity the cognate kindred of the deceased himself (atma bandhus) are his successors in. the first instance. On failure of them, bis father's cognate kindred (pitru bandhus) ; or if there be none his mother's cognate kindred (matru baudhu). This must be understood to be the order of succession, hero intended. See Chapter II, Section 6, Setlur's Hindu Law Books on Inheritance.
The Mitakshara thus prescribed that the atma bandhus are to be preferred to the pitru bandhus and the pitru to the matru. As regards the order of successionamong the bandhus of each class, it says nothing. The Mitakshara, therefore, is not an authority for the proposition that the maternal aunt's son is to be preferred to the maternal uncle's son.
II. Sarasvati Vilasa thus deals with the succession of the Bandhus.
595. The bandhus are exhibited in another Law Code in the order of their greater propinquity
The text of Vridha Satatapa is then quoted.
596. If there are no Gothrajas the connexion through property belongs to these.
597. There also the order to be recognized is that a man's own bandhavas first take the property on account of their nearer relationship; if there are none, the father's bandhavas take the property ; if there are none the mother's bandhavas.
(See Translation of Sarasvathi Vilasa by Rev. Thomas Foulkes, page 119.)
A reference to the original Sanskrit text will show that the passage in Sarasvati Vilasa, stanza 597, is identical with paragraph 2 of the above quotation from the Mitakshara.
Now turning to the opening words of Sloka 595
The bandhus are mentioned in another Smriti in the order of their propinquity.I cannot agree with the contention that the learned author intended in this passage to lay down the order of succession in regard to bandhus mentioned in each of the three categories. Sloka 597 puts the matter beyond doubt, because there it is expressly stated that the order prescribed is only as regards the three classes of the bandhus.
III. Smriti Chandrika after stating that after sapin-das, samauodakas take the wealth of a deceased kinsman, says that bandhavas come next in order. Then Section 5, sloka 13, continues
The bandhavas are exhibited in another Law Code in the order of their greater propinquity. Then follows the text of Vridha Satatapa which is numbered sloka 14. So far it will be seen that Smriti Chandrika is in complete agreement with Sarasvati Vilasa. In the original Sanskrit the same words are used in both the treatises to express the idea conveyed by the words
Are exhibited in another Law Code in the order of their propinquity. Then comes sloka 15 which according to one reading is as follows:
Of the kinsmen (Gnatayah or sapindas), distant kinsman (Sakulyah or Samanodakas), and Coguate kindred (bandhavas), in default of one that stands nearest in the order expressly given, he that may be somehow viewed to stand on a par with him may be selected; it being generally declared by Gautama ' Let those take the inheritance who give the funeral cake (pinda). who are the descendants from the same Gotra or who are sprung from the same Rishi. (See Setlur, page 297.)
The other reading is that which is adopted by Ghose and is as follows:
Of the agnates, sakulyas and bandhus, on failure of near heirs, those that may be somehow considered near may no considered as heir from what Gautama says generally thus ' Sapindas, Sagotrasor those connected by descent from the same Rishi' take the estate. (See Principles of Hindu Law, Vol. II, page 471 for the Sanskrit text and page 408 for the English rendering.)
In the first place, whichever reading is adopted, sloka 15 is somewhat obscure and in any event it contains no indication that a different rule was intended to be laid down from what was prescribed in the Mitakshara.
IV. Parasara Madhaviya is even less explicit on the point. It does not set out the priority even in regard to the main three classes. This is how the law is stated:
In default of Gothrajas, bandhavas take the property; and they arc of three kinds as has been shown by Baudhayaua. Here the writer gives as usual the well-known text and then proceeds to say
But he who is nearest among the bandhavas takes first. So Brihaspati says
Where there are many kinsmen Sakulyasand band-havas, he who is nearest to them should take the property of a man who leaves no issue. (See sloka 41 in the translation by Mr. A.C. Burnell page 41). As J have observed, on the point at issue, this passage throws little light.
V. Varadaraja's Vyavahara Nirnaya merely states that bandhavas succeed in default of sagotras and then cites the text of Vridha Satatapa. See Burnell's translation of Vyavahara Nirnaya. page 37.
VI. Vyavahara Mayuka enunciates the law thus:
If no distant kinsmen exist then come the cognate kindred (bandhu) who arc thus specified in another Smriti. The Smriti of Vridha Satatapa is then as usual quoted. Then the author continues Here also the order of succession follows the order of the text.
30. See Section 8, verse 22, page 101 of Burnell's translation.
31. A careful examination of these texts reveals that, so far as the Mitakshara is concerned, it settles priority only in regard to the three main categories of the bandhus and that, excepting a doubtful and obscure passage of the Smriti Chandrika, there is nothing in these authorities which indicates that the order in which the bandhus of each class are enumerated is intended to determine their respective priority.
32. I shall next deal with Appandai Vathiyar v. Bagubali Mudaliyar I.L.R., (1910) Mad., 439 the case to which I have referred. The reasons for holding that a mother's sister's son is to be preferred to maternal uncle's son are, according to the judgment in that case, the following:
(1) The express authority of the Smriti Chandrika, the Sarasvati Vilasa and the Vyavahara Mayukha must be given effect to. Page 445.
With all respect, in my opinion, as I have shown, this reason is not sound. The translator of the Smriti Chandrika who is referred, to in the judgment (Mr. T. Krishnaswarni Ayyar) no doubt gives the twenty-fourth place to the son of the mother's sister and the twenty-fifth to the son of the maternal uncle. This is merely the opinion of the translator and it is not correct to say that the Smriti Chandrika itself supports the view. Again Mr. Mandlik in his translation of the Vyavahara Mayukha adds in a footnote that the order applies to the three classes as well as to the several members of those three classes. Whatever may be Mr. Mandlik's opinion it does not receive any support from the original which he has translated. I have sufficiently shown that the texts of the Hindu Law do not support the view which the learned Judges have taken in this case.
(2) The second reason given in support of their judgment may also be stated in the words of the learned Judges:
There is a rule of Mimamsa that effect should be given to the order in which persons and things are named unless the sense requires a different order. In the absence of any decisive principle dictating a different order, the duty of the interpreter of the law is to accept the order in which they are named as based upon some rule which they may be unable to discover or upon the mere ipse dixit of the law-giver. Jaimini in his Mimamsa Sutras refers to what are called Kramas. The three chief Kramas are thus defined:
(I) The order of succession is sometimes declared by express Srutis. This is called Sruti Krama.
(II) In the absence of express Sruti it is in some cases to be determined by the sense of the passage. This is called Artha Krama (determination of order by sense).
(III) It is sometimes indicated by the order in which the texts appear. This is called Patha Krama (succession by reading). See Sircar, Tagore Law Lectures on Mimamsa Rules of Interpretation, page 196.
It is the third rule that is referred to in the passage quoted above from the judgment. The first two Kramas are based on reason. The third Krama is purely arbitrary and cannot be relied on excepting possibly in the last resort. This artificial rule was treated by the learned Judges as the chief canon of construction. The mere accident of enumeration in a certain order was taken as decisive of the point at issue.
Moreover, in the light of decided cases, can any importance be attached to the order of enumeration? In Sundrammal v. Rangasami Mudaliar I.L.R., (1895) Mad., 193 the sons of the daughters of the deceased's paternal uncle were preferred to the deceased's mother's sister's son. Both belonged to the class of atma bandhus, but a cognate not specified in the enumeration was preferred to a cognate specified. In Balusami Pandithar v. Narayana Rau I.L.R., (1897) Mad., 342 the son of the sister's son was preferred to the materal uncle's son. Here again, the contest was between two atma bandhus and a bandhu not mentioned was preferred to a bandhu mentioned. In Gunesh Chunder Roy v. Nil Komul Roy (1874) 22 W.R., 264 a sister's son was given priority over a mother's sister's son and in Mohandas v. Krishnabai I.L.R., (1881) Bom., 597 the maternal uncle was preferred to the mother's sister's son. In each of these two cases again, a bandhu specified among the atma bandhus was rejected in favour of one not specified. In Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 the Judicial Committee preferred a maternal uncle (an atma bandhu ex parte materna) to a son of the paternal aunt's son (an atma bandhu ex parte paterna).
It has been held that the enumeration in the text of Vridha Satatapa is only illustrative and not exhaustive ; and if cognates not included in the enumeration of atma bandhus are to be preferred to the first-named pitru bandhu and if similarly pitru bandhus not in the list are to be preferred to the first-mentioned matru bandhu, where then can priority come by virtue of mere enumeration I am therefore decidedly of the opinion that Patha Krama rule ought not to be applied.
(3). I shall next deal with the third ground on which the judgment in Appandai Vathiyar v. Bagubali Mudaliyar I.L R., (1910) Mad., 439 is based. Referring to Bhattacharya and Sarvadhikari who give precedence to the maternal uncle's son over the mother's sister's son, the learned Judges observe that the view of those writers is not entitled to weight as it is based on the theory of religious efficacy of oblations which has no place in the Mitakshara scheme of succession. The learned Judges sayIt is difficult to decide the question under consideration on any theory of religious efficacy. Page 444.
33. Similarly they dispose of the observation of Mr. Justice Mcttuswami Ayyar in Muthusami v. Muttukumarasami I.L.R., (1893) Mad., 23 that the spiritual benefit conferred on a propositus is a ground of preference. A good portion of the judgment is devoted to showing that the Mitakshara
repudiates the notion of connection by spiritual offerings.
34. There can be little doubt that the learned Judges were disposed to take the view that if the question, had to be decided with reference to the theory of religious efficacy, the maternal uncle's son ought to be preferred to the maternal aunt's son. A very different view on the question of spiritual benefit has now been taken by the Judicial Committee in Vedachela Mndaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 and the value of Appandai Vathiyar v. Bagubali Mudaliar I.L.R., (1910) Mad., 439 as an authority is thus lost.
35. In Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 the contest was between the mother's brother and the father's sister's son's son. The Madras High Court (Miller, and Sadasiva Ayyar, JJ.) held that the latter was the preferential heir. In doing so, one of the learned Judges (Sadasiva Ayyar, J.), refused to recognize the fourth rule laid dowa by Sir T. Muttuswami Ayyar, J., in Muttusami v. Muttukamarasami I.L.R., (1893) Mad., 23 namely:
That as between the bandhus of the same class the spiritual benefit they confer upon the propositus is as stated in Vira Mitrodaya, a ground of preference.
36. Their Lordships of the Judicial Committee point out that the Vira Mitrodaya is regarded as a high authority wherever the Law of the Mitakshara is in force and state their conclusion thus:
Their Lordships think that in the absence of any express authority varying the rule, the propositions enunciated in Muttusami v. Muttnkumaranami I.L.R., (1893) Mad., 23, which on appeal was affirmed by the Judicial Committee, furnish a safe guide.
37.. The competing claimants, the maternal uncle and the father's sister's son's son, both belong to the class of Atma Bandlms. The maternal uncle was preferred on the ground (1) that he is undoubtedly nearer in degree to the deceased than the rival claimant; (2) that he offers oblations to his father and grandfather to whom the deceased was also bound to offer pinda, whereas the father's sister's son's son offers no pinda to the deceased's ancestors. In the course of their judgment, their Lordships observe that it is not necessary to express any opinion how far the proposition that preference should be given to cognates ex parte puterna over cognates ex pane materna, is in conformity with the express rule that in each class propinquity should be the governing factor, but it is noteworthy that the maternal uncle who was preferred by their Lordships is a cognate ex parte materna and that the sister's son who was rejected in. favour of the maternal uncle, is a cognate ex parte paterna.
38. In Appandai Vathiyar v. Bagubali Mudaliar(l), the learned Judges (White, C.J. and Krishnaswami Ayyar, J.), expressed disapproval, as Mr. Justice Sadasiva Ayyar did in the case that went up to the Privy Council, of the fourth principle enunciated by Sir T. Muthuswami Ayyar, J,, in Muttusami v. Muttukumarasami I.L.R., (1893) Mad., 23. It, therefore, follows that Appandai Vathiyar v. Bagubali Mudaliar I.L.R., (1910) Mad., 439 cannot now be regarded as an authority for the proposition that the maternal aunt's son is to be preferred to the maternal uncle's son.
39. I have so far examined the grounds of the decision in Appandai Vathiyar v. Bagubali Mudaliar I.L.R., (1910) Mad., 439 with a view to show that it cannot be followed. That is the only Madras case that deals with the question of preference between the maternal aunt's son and the maternal uncle's son. The same question arose in two other cases, one of the Allahabad High Court and the other of the Bombay High Court. In Ram Charan Lal v. Rahim Baksh I.L.R., (1916) All., 416 Banerji and Piggott, JJ., held, dissenting from the Madras view, that the maternal uncle's son was the preferential heir. The ground of decision was that precedence was to be determined by propinquity. They quote with approval the passage in Tirumalachariar v. Andal Ammal I.L.R., (1907) Mad., 406 which is to the effect that all other considerations being equal, that claimant between whom and the stem there intervenes only one female link is to be preferred to the claimant who is separated from the stem by two such links. In Rajeppa v. Gangappa I.L.R., (1923) Bom., 48 Macleod, C.J., and SHAH, J., held that the only test, that ought to be applied is propinquity to the deceased, that the argument of relative religious efficacy was not well founded and that the affinity of the maternal uncle's son and the maternal aunt's son is equal and that they being equally near to the propositus they ought to take equally. The peculiar doctrine that prevails in Bombay enabled the learned Judges to treat a female's and a male's descendant as standing on a par and therefore being equally entitled.
40. We are bound by the decision of the Judicial Committee and giving effect to the view adopted in Vedachela Mudaliar v. Subramania Mudaliar I.L.R., (1921) Mad., 753 we must hold that the maternal uncle's son is the preferential heir on the ground of superior efficacy of oblations. The mother's sister's son as well as the mother's brother's sou are both Attna Bandhus and are both. expressly mentioned in the Mitakshara. They are both related on the mother's side and they are both equally removed from the propositus. The Allahabad High Court held that the maternal uncle's son is nearer to the deceased than the maternal aunt's son but the Bombay High Court was of the opinion that both were equally near to the propositus. In my opinion, it is s unnecessary to inquire whether the Allahabad view or the Bombay view is correct. I would prefer to base my judgment on the surer ground referred to by the Privy Council, that of superior religious efficacy.
41. How then does the question of superior religious efficacy stand?
42. Sarvadhikari in classifying the heirs according to the Dayabhagha gives the thirty-fifth place to the maternal uncle's son and the thirty-seventh place to the maternal aunt's son. The doctrine of spiritual benefit, which is the foundation of the order given in the Dayabhagha, is discussed by Sarvadhikari at pages 700 to 710 (See Hindu Law of Inheritance by Saravadhikari, 2nd Edition). Daya Krama Sangraha by Sri Krishna Tharkaalankara similarly prefers maternal uncle's son to maternal aunt's son and superior spiritual efficacy is given as the ground. See Ch. I, Section 10, Pl. 14, 15 and 16. Ghose in his Hindu Law observes that in some copies of Sri Krishna's commentary on the Dayabhagha the maternal aunt's son is given a place higher than that accorded to the maternal uncle's son and the learned author points out that this order of succession is not only opposed to the authority of Daya Krama, Sangraha, but on principle cannot be accepted.
43. I do not propose to discuss the theory of the relative superiority of the piridas. It is sufficient to say that Jurists of the Bengal School whose system of the Law of Inheritance is permeated by considerations of religious efficacy, recognize that the maternal uncle's son has precedence over the maternal aunt's son. It is also worthy of note that the learned Judges in Appandai Vathiyar v. Bagubuli Mudaliyar I.L.R., (1910) Mad., 439 as also in Ram Charan Lal v. Rahim Baksh I.L.R., (1916) All., 416 were disposed to take the view that if the question was to be decided with reference to the ground of superior spiritual efficacy the maternal uncle's son would be the preferential heir.
44. I therefore agree in the order proposed by my learned brother.