1. The following genealogical tree shows the relationship of the plaintiff and Grish Chunder as heirs to the deceased Roghu Nath:
Ram Nath Kali Kant
____________________________ A daughter
| | |
Ram Mohun Roghu Nath |
| Pran Nath (plaintiff)
2. The defendant belongs to another branch of the family, but defends his possession of the land in suit against the claim of Pran Nath by asserting that Grish Chunder, and not Pran Nath, is the proper heir.
3. This case raises a question of Hindu law as current in the Bengal school. The question is--Who is the preferential heir to Roghu Nath, deceased proprietor--his uncle's daughter's son, namely, Pran Nath, or his brother's son's daughter's son, namely, Grish Chunder
4. The District Judge of Mymensingh, in appeal from the judgment of the Subordinate Judge, has held, in an elaborate and well considered judgment, that Grish Chunder, offering oblations to the immediate ancestor, viz., the father of the deceased proprietor, should be preferred to Pran Nath, who offers oblations to his grandfather and great grandfather.
5. In second appeal, it is contended on behalf of Pran Nath, that the District Judge's view of the law is not correct; that the Dayabhaga does not mention the brother's son's daughter's son as an heir; that the Dayakrama Sangraha expressly gives a position to the plaintiff, namely, to the uncle's daughter's son, as an heir, but does not give any to a brother's son's daughter's son; that the dictum of Jagannath Tarkapanchanun, that the latter has a position in the line of heirs, because he offers oblations to the ancestor of the deceased proprietor, is no authority on the subject. Again it is contended, that, if instead of the daughter's son Grish Chunder had been the son's son of the brother's son of the deceased, then he would not have been a sapinda, because he would occupy the position of a fifth in descent. Ultimately it is urged, that even if it be conceded that Grish Chunder is an heir, he, as offering oblations to one paternal ancestor of the deceased, cannot have preference over Pran Nath, who offers oblations to two such ancestors.
6. We are of opinion that the District Judge's view of the law is correct. Grish Chunder is undoubtedly an heir, when he offers one oblation to the father of the deceased in which the deceased participates. He satisfies the principle of the Bengal law, that inheritance goes to him who offers oblations to the deceased, or to an ancestor of the deceased, in which oblation deceased would participate. He may not be expressly mentioned as an heir either in the Dayabhaga or Dayakrama, but the list of heirs set forth in those treatises is not exhaustive, as has been held in Guru Gobind Shaha Mandal v. Anand Lal Ghose 5. B.L.R. 15. He clearly comes within the principle upon which that list has been prepared, and which must be applied to complete it. The Dayabhaga does not mention the brother's daughter's son as an heir, but, on the principle enunciated therein, the author of the Dayakrama has included him in the list of heirs. Again, the brother's son's daughter's son is not mentioned either in the Dayabhaga or Dayakrama, but he is noticed by Jagannath as an heir. He says: 'It should be here remarked that the son of a son's and of a grandson's daughter, and the son of a brother's and of a nephew's daughter,' and so forth, 'claim succession in the order of proximity before the maternal grandfather; for they also confer benefits by the oblation of funeral cakes' (3 Colebrooke's Digest, 530). It seems that both these commentators, in elaborating the line of succession, have proceeded on the text of the Dayabhaga, chap. xi sec. 6 v. 20. That text is, 'that 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, &c;), 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).' It is upon this authority, as I take it, that the author of the Dayakrama Sangraha has given the brother's son's daughter's son a position in the line of succession. When Jagannath's opinion is supported by this text of the Dayabhaga, it is entitled to the highest respect. We, therefore, hold Grish Chunder to be an heir on the authority of the Dayabhaga as interpreted by Jagannath. The contention that if the line of descent had not been through a female (his mother), but had been in equal degrees through males,--that is to say, if instead of his mother as daughter of the brother's son the descent had been through a male, then, as being fifth in descent, he would have no place in the list of sapindas, has no force in our estimation, because the daughter's son presents the oblation which his mother would have offered, but for her incompetency, and as such he might be said to stand in the place of the mother, and therefore within the fourth degree. This may seem somewhat an anomaly, but it is in accordance with Hindu law. The objection, if tenable, would have excluded many persons whom our Courts have always admitted.
7. Girsh Chunder and Pran Nath are both heirs according to the principle of oblation laid down in the Dayabhaga. They are both sapindas of the deceased proprietor. The question next for consideration is--Who has the preference in regard to the succession? Grish, as being the nephew's daughter's son offers one oblation, and that to the father of the deceased proprietor. Pran Nath, as being the uncle's daughter's son, offers two oblations, and that to the grandfather and great grandfather. It is contended that, as the oblations are of the same kind, being both in the paternal line of the deceased, Pran Nath, offering two such oblations, should be preferred to Grish Chunder, who offers only one. But here we have an express text of the Dayabhaga to guide us in the solution of the question. In vv. 5 and 6, chap. xi, sec. 6, the author of the Dayabhaga has given preference, in such a case, to the one who offers oblation to the father. He has given preference to the brother's son and grandson over the paternal uncle, because they are 'a giver of oblations to the deceased owner's father, who is the person principally considered.' Applying the same reasoning, Grish Chunder precedes Pran Nath in the order of succession, because the former offers oblations to the father of the deceased, who is the person to be principally considered.
8. I am of the same opinion. The judgment of the Full Bench in the case of Guru Gobind Shaha Mandal v. Anand Lal Ghose 5 B.L.R. 15 which has long been accepted as settled law, merely lays down what is known as the principle of the efficacy of oblations in determining questions of disputed succession among Hindus. I agree with my learned colleague, that, in applying this principle, regard must be had, not merely to the number of such oblations, but to their propinquity to the deceased. In the present case, Grish Chunder, who offers oblations to the father of the deceased, stands higher in the order of succession than Pran Nath, who offers oblations only to the grandfather and great grandfather.
9. The appeal must, therefore, be dismissed with costs.