Rampini and Mookerjee, JJ.
1. The subject-matter of the litigation, which has given rise to this appeal, is the estate of one Haradhan Singh, who died on the 8th January 1896, leaving two first cousins--Ram Nath, the father of the plaintiffs, and Jadu Nath, the father of the defendants. It is not disputed that the three cousins originally formed a joint Hindu family governed by the law as expounded in the Mitakshara and that they subsequently separated. The plaintiffs allege that upon the death of Haradhan his estate was inherited in equal shares by Jadu Nath and Ram Nath, and that they, as the sons of Ram Nath, are entitled to a half share of the properties. The defendants allege, on the other hand, that alter the separation there was a reunion between Haradhan and Jadu Nath, and that consequently under the Hindu law, upon the death of Haradhan, Jadu Nath, his reunited cousin, became entitled to the whole of his estate in preference to his separated cousin Ram Nath. The substantial question of law, therefore, which calls for decision is whether under the Hindu Law as laid down in the Mitakshara, there may be a valid reunion between two first cousins, who were originally joint, but had subsequently separated. The Courts below have concurrently answered this question in the negative, and the defendants have appealed to this Court.
2. The decision of the question whether there may be a valid reunion between two first cousins depends upon the interpretation of a passage, in the Mitakshara, Chapter II, Section 9, paragraphs 2 and 3 which has been thus translated by Colebrooke:
2. Effects, which have been divided and which are again mixed together, are termed reunited. He to whom such appertain is a reunited parcener.
3. That cannot take place with any person indifferently, but only with a father, a brother or a paternal uncle as Brihaspati declares.' He who being once separated dwells again through affection with his father, brother or paternal uncle is termed reunited.
3. This translation is slightly inaccurate in two particulars, namely, there is no word in the original Sanskrit corresponding to the word 'only,' and secondly the original, which is rendered 'is termed reunited,' literally means 'is termed reunited with him.' The third paragraph therefore should stand as follows: That cannot take place with any person indifferently, but with a father, brother orja paternalluncle as Brihaspati declares. 'He who being once separated dwells again through affection with his father, a brother or a paternal uncle is called reunited with him. '
4. We think it is quite clear from this passage that according to the Mitakshara reunion is restricted to three classes of cases, namely, (1) between father and son, (2) between brothers and (3) between paternal uncle and nephews. The learned vakil for the appellant suggested that the author of the Mitakshara treated the text of Brihaspati as illustrative and not restrictive. In our opinion this interpretation is wholly inadmissible, and we find that this passage is interpreted as we interpret it in the Subodhini, which is an authoritative commentary upon the Mitakshara. The learned vakil for the appellant next contended that the text of Brihaspati [XXV, 72, Sacred Books of the East, Vol. XXXIII, page. 381], has been differently interpreted in the Viramitrodaya (Sastri Golap Chandra Sarkar's translation, page 168) where the enumeration is regarded as merely illustrative and not intended to exclude reunion amongst other coparceners, and he urged that this view ought to be accepted instead of the rule as laid down in the Mitakshara. In support of this view he placed reliance upon the observations of the Judicial Committee in Gridhari Lall Roy v. The Bengal Government (1868) 12 Moo. I.A. 448, 466.
5. In our opinion the observations referred to are wholly inapplicable to the case before us. Their Lordships no doubt kid down that the Viramitrodaya, which is stated by Colebrooke and others to be a treatise of high authority at Benares, is properly receivable as an exposition of what may have been left doubtful by the Mitaksbara and declaratory of the law of the Benares School. Here, however, the Mitakshara lays down the law in clear and unambiguous terms, and we are aware of no authority for the proposition that the Viramitrodaya supersedes the Mitakshara, except in places where the former is accepted as the binding authority. See the observation of the Judicial Committee in Bhugwandeen Doobey v. Myna Baee (1867) 11 Moo. I.A. 487, 507.
6. The learned vakil for the appellant further contended that the text of Brihaspati has been misunderstood by the author of the Mitakshara, and that it ought to be interpreted so as to make the right of partition and the right of reunion co-extensive. For this purpose in addition to the arguments contained in the Viramitrodaya he referred to the Vivada Chintamani (Prasanna Kumar Tagore's translation, page 301) and the Vivada Ratnukar (Sastri Grolap Chandra Sarkar and Digamber Chatterjee's translation, page 91), both of which are treated as authorities in Mithila and the Vyavahara Mayukha (Mandalik's translation, page 84, Chapter IV, Section 9, para. 1) which is treated as an authority in parts of the Bombay Presidency. At the same time he admitted that the test of Brihespati has been understood in the sense in which the Mitakshara interprets it by the author of the Dayabhaga (Chapter XII, para. 4), which is the paramount authority in Bengal, by the author of the Smriti Chandrika (Chapter XII, para. 1), which is the recognised authority in Southern India and by the author of the Saraswati Vilasa (Foulkes' translation, p. 139, para. 716), which is recognised as an authority in parts of the Madras Presidency and in Orissa. When therefore we find the text of Brihaspati interpreted in different ways by the different commentators, are we entitled to go behind the Mitakshara and examine the validity of the grounds, upon which its conclusions are based? In our opinion. the course Which the learned Vakil for the appellant has invited us to take is directly contrary to the rule laid down by the Judicial Committee in the case of Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 Moo. I.A. 307, 436 where their Lordships pointed out that the duty of a Judge, who is under the obligation to administer Hindu law, is not so much to enquire whether a disputed doctrine is fairly deducible from the earliest authorities as to ascertain whether it has been received by the particular school, which governs the district with which he has to deal and has there been sanctioned by usage; for under the Hindu system of law clear proof of usage will outweigh the written text of the Jaw.' This is nowhere better illustrated than in the very passage of the Viramitrodaya, upon which reliance is placed, where the author urges as a reason against the acceptance, of the view of the Mitakshara the fact that, if that were so, then reunion with the daughter's son and the like, which is recognised by the practice of all people, would become 'improper.' If, therefore, we were to accede to the suggestion made by the learned Vakil for the appellant, we should really be called upon to examine the foundations of the different schools of Hindu law: the adoption of such a course is obviously impossible.
7. The learned Vakil for the appellant finally suggested that the text of Mitakshara has been construed in several cases in the way that he suggests it should be interpreted, and he referred to the decisions in Vishvanath Gangadhar v. Krishnaji Ganesh (1866) 3 Bom. H.C. (A.C.J.) 69. Lakshmibai v. Ganpat (1867) 4 Bom. H.C. (O.C.J) 150, 166, Abhai Churn Jana v. Mangal Jana (1892) I.L.R. 19 Calc. 634 and Balkishen Das v. Ramnarain Sahu (1903) I.L.R. 30 Calc. 738 : L.R. 30 I.A. 139... In our opinion these cases do not support the contention of the appellant. The case of Vishvanath v. Krishnaji (1866) 3 Bom. H.C. (A.C.J.)69 decided that reunion to be operative in law must be by the parties, who had separated there three brothers had separated, and their sons, first cousins, had reunited; the learned Judges held that the reunion was invalid, because the original separation had taken place between the fathers of those, who reunited; but the Court was not called upon to consider whether the reunion might not be held to be bad upon the additional ground that it had taken place between cousins. The case of Lakshmibai v. Ganpat (1867) 4 Bom. H.C. (O.C.J) 150, 166, does not carry the matter any further. The case of Abhai Churn Jana v. Mangal Jana (1892) I.L.R. 19 Calc. 634 turned upon the construction of certain passages of the Dayabhaga, and we are unable to hold that it supports either directly or indirectly the contention of the appellant. The case before the Judicial Committee, Balkishen Das v. Bamnarain Sahu (1903) I.L.R. 30 Calc. 738 : L.R. 30 I.A. 139., is an authority for the proposition that evidence of some of the separated co-parceners having continued to enjoy their shares in common does not affect their tenure of their separate property or interest in it. It is suggested, however, that the learned Judges of the High Court against whose judgment an appeal was preferred to the Privy Council had decided that there may be a valid reunion under the Mitakshara law between cousins. We have carefully examined that judgment (1897) 7 C.W.N. 581, 585, but we cannot trace the decision of any such point therein.
8. The result, therefore, is that the decree made by the Subordinate Judge must be affirmed and this appeal dismissed.