1. We are of opinion that according to the Hindu law current in the Lower Provinces of Bengal a brother's daughter's son is a preferable heir to the great-great-great-grandfather's great-great-great-grandson.
2. In the Full Bench decision in Guru Gobind Shaha Mandal v. Anund Lal Ghose Mazumdar 5 B.L.R. 15; S.C. 13. W.R. F.B. 49 Mr. Justice Dwarkanath Mitter, J. was of opinion that a cognate of this description is a sapinda as defined in the Dayabhaga. A brother's daughter's son offers two pindas or undivided oblations to the father and the grand father of the deceased in which he participates. 'Whereas the great-great-great-grandfather's great-great-great-grandson is not connected with the deceased through the medium of undivided oblations. He is a sakulya or an agnate, connected with the deceased through the medium of divided oblations. Therefore, the competition in this case is between a cognate who is a sapinda and an agnate who is a sakulya. According to the Dayabhaga, it does not admit of any doubt, that a sapinda, though a cognate, is a preferable heir to a sakulya agnate. The following passages of the Dayabhaga are clear upon this point:
3. 'The order of succession then must be understood in this manner: On failure of the father's daughter's son or other person who is a giver of three oblations (presented to the father, etc.), which the deceased shares or which he was bound to offer, the succession devolves in the next place on the maternal uncle and others, (namely, his son and grandson)'--Chap. XV, Section 6, para. 20.
4. But on failure of kin in this degree, the distant kinsman (sakulya) is successor. For Manu says: 'Then, on failure of such kindred the distant kinsman shall be the heir, or the spiritual preceptor or the pupil.' The distant kinsman (sakulya) is one who shares a divided oblation (Section 1, 37) as the grandson's grandson or other descendant within three degrees reckoned from him, or as the offspring of the grandfather's grandfather or other remote ancestor,' paragraph 21.
5. But it has been contended that the question referred to the Full Bench in the case cited above being whether a father's brother's daughter's son is entitled to be recognized as an heir according to the Hindu law current in the. Bengal school, it is binding upon us upon that question only; that we are not concluded by the grounds upon which it was based; and that we are competent to reconsider them. But this contention is not sound. The Full Bench decided that a father's brother's daughter's son is an heir because he is a sapinda. If we are to follow this decision, we must hold that a father's brother's daughter's son or any other cognate conferring similar spiritual benefits upon the deceased is a sapinda. It is to be further borne in mind that the heritable rights, of such cognates either must be based upon their sapinda relationship, or they would not be in the line of heirs at all.
If the right of the father's son, and of the maternal uncle and the rest,' says the author of the Dayabhaga in para. 28, Section 6, Chap. XI, be not considered as intended by the text, 'To three must libations of water be made, etc.,' they would have no right of succession since they have not a place among distant kinsmen and others whose order of succession is specified.
6. Therefore, unless we decline to follow the Full Bench decision in Guru Gobind Shaha Mandal v. Anund Lal Ghose Mazumdar 5 B.L.R. 15; s.c. 13 W.R. F.B. 49 we must hold that a brother's daughter's son is a sapinda, and therefore a preferable heir to the great-great-great-grandfather's great-great-great-grandson.
7. The learned Judges who have referred this question to a Full Bench are also of this opinion. The reference was made in consequence of a contrary ruling in Kashee Mohun Roy. Raj Gobind Chuckerbutty 24 W.R., 229. It appears to us that in that case the learned Judges held that a sakulya relative was a preferable heir to a cognate sapinda. That decision is therefore clearly opposed to the rule of law laid down by the author of the Dayabhaga in the passages cited above.
8. The result is that this appeal fails. It is accordingly dismissed with costs.