Ghose and Rampini, JJ.
1. Both the Courts below have held, following certain decisions of this Court, that the defendant is entitled to the property in preference to the plaintiff, and they have accordingly dismissed the suit. The present appeal is by the plaintiff; and it has been contended by the learned vakil for the appellant that upon a correct reading of the Hindu law as it obtains in Bengal, the plaintiff is entitled to share equally with the defendant the property left by Panchu Jana.
2. The argument on behalf of the plaintiff, if we have understood it correctly is that, according to the Bengal school of law, as expounded by Jimutavahana, re-union can take place only between a person and his father, brother, or paternal uncle, and, therefore, although there was re-union between Haru Jana and Nakoari Jana, still Mangal Jana and Panchu Jana could not be regarded as re-united parceners within the meaning of the Hindu law, so as to entitle Mangal Jana, upon Saki Dassi's death, to the estate of Panchu Jana, to the exclusion of the plaintiff.
3. What is re-union according to Hindu law is to be gathered from a text of Brihasbpati, and it is this: He who once separated dwells again through affection with his father, brother, or paternal uncle, is termed re-united.' (See Colebrooke's Dayabhaga, chapter XI, Section I, verse 30). The Dayabhaga in chapter XI, Section I, verse 30, after referring to the text of Brihasbpati, says as follows: 'He thus shows that persons who by birth have common rights in the wealth acquired by the father and grandfather, as fathers (and sons), brothers, uncle (and nephew), are re-united when, after having made a partition, they live together, through mutual affection, as inhabitants of the same house, annulling the previous partition and stipulating that 'the property which is mine is thine, and that which is thine is mine,''and so on.
4. If re-union could take place between persons who by birth have common rights to the wealth acquired by the father and grandfather, it would seem that the mention of father, brothers, and uncles is but illustrative, and not exhaustive, and that seems to have been the view taken by the Mithila school, and by the Viramitradaya, a book of authority in the Benares school; but, so far as the Dayabhaga is concerned, a book which is of paramount authority in the Bengal school, it is laid down in chapter XII, verse 4, that a special association among persons other than the relations here enumerated is not to he acknowledged as a re-union of parceners: for the enumeration would be unmeaning.'
5. The enumeration is in the preceding verse 3, which gives the text of Brihasbpati already referred to.
6. If we had to decide whether there could be a re-union between Panchu Jana and Mangal Jana, we should perhaps have to hold that there could be no such re-union according to the Bengal school of law; but that is not the question we have to consider in this case; for the re-union had taken place between persons who are expressly enumerated in the text of Brihasbpati. The question we have to determine really is whether Mangal Jana and Panchu Jana having, since the death of their respective fathers, continued to live as members of the re-united family, the same rule of succession which applies in the case of persons expressly enumerated in the text of Brihasbpati also applies to their descendants supposing they continue to live as members of the re-united family.
7. In the Dayabhaga, chapter XI, Section I, verse 4, the author says: 'In like manner, Yajnyawalcya says--'The wife and the daughters also with both parents brothers likewise and their sons, gentiles, cognates, a pupil and fellow student: on failure of the first among these the next in order is indeed heir to the estate of one who departed for heaven, leaving no male issue. This rule extends to all persons and classes.' Thus affirming the right of the last mentioned on failure of the preceding, the sage propounds the succession of the widow in preference to all the other heirs.'
8. The author, then, in chapter XI, Section V, verse 9, says that the brother of the whole blood has 'the first title according to a text of Yajnyawalcya.' That text (see verse 10, Section V, chapter XI, Colebrooke's Dayabhaga) is as follows: 'A re-united (brother) shall keep the share of his re-united (co-heir) who is deceased: or shall deliver it to a son (subsequently) born. But an uterine brother (shall thus retain or deliver the allotment) of his uterine relation.' Verse 37 of the same chapter runs as follows: 'Accordingly, the plural number is employed in the term 'brothers' (section I, verse 4) for the purpose of indicating the succession of all descriptions of them in the order here stated; else it would be unmeaning.' Then comes verse 38. 'The text 'a reunited (brother) shall keep the share of his reunited co-heir' (Section 10) is intended to provide a special rule governed by the circumstance of re-union after separation and applicable to the case where a number of claimants in an equal degree of affinity occurs.' And in verse 39 the author says as follows: 'Hence, if there be competition between claimants of equal degree, whether brothers of the whole blood or brothers of the half blood, or sons of such brothers, or uncles or the like, the re-united parcener shall take the heritage: for the text does not specify the particular relation; and all (these relations) were premised in the preceding text (section I, verse 4), and a question arises in regard to all of them. Therefore, the text must be considered as not relating exclusively to brothers.'
9. The author in verse 37 evidently refers to Section I, verse 4, and inverses 38 and 39, when speaking of 'the text,' he means to refer to the text of Yajnyawalcya, which is that 'a re-united (brother) shall keep the share of his re-united (co-heir).' And when the author alludes to the 'preceding text,' he apparently means the text of Yajnyawalcya as recited in Section I, verse 4. It is to be observed that verse 39 speaks of competition between 'brothers' 'or sons of such brothers, or the uncles, or the like,' and in each one of these cases the re-united parcener takes the heritage. It seems to us upon a consideration of all these passages that, supposing that a re-union cannot take place between persons other than those expressly enumerated in the text of Brihasbpati, if there has been a re-union between individuals so enumerated, and their descendants continue to be members of the re-united family, the law of inheritance applicable to them is the same as in the case of the death of any of those between whom the re-union took place. And this was the view that was taken in the case of Tara Chand Ghose v. Pudum Lochun Ghose 5 W.R. 249 where the law on the subject seems to have been fully considered. This case was apparently followed in Gopal Chunder Daghoria v. Kenaram Daghoria 7 W.R. 35 and the same view seems to have been acted upon in the case of Ramhari Sarma v. Trihiram Sarma 7 B.L.R. 336. There is also a case to the same effect to be found in Macnaghten's Hindoo Law, Vol. 2, decided by the Zillah Court of Hooghly in the year 1820.
10. We might here observe that there is a slight inaccuracy in the translation given by Colebrooke of the text of Yajnyawalcya as given in verse 10, Section V, chapter XI, of the Dayabhaga. The correct rendering is, we think, as follows: 'But one re-united shall keep the share of his re-united (co-heir),' and so on. With reference to this text the author of the Viramitradaya at page 205 (Babu Golap Chunder Sarkar's translation), after alluding to the said text, observes as follows: 'The term 'but' shows that it forms an exception to that what proceeds (i.e., the text of Yajnyawalcya quoted in chapter XI, Section I, verse 4, laying down the order of succession to the estate of a sonless deceased person). Thus the meaning is that the estate of a re-united co-heir dying without a male issue shall be taken by a re-united co-heir alone and not by the wife, and the like.' If this opinion (as regards the law in the Benares school) be correct, there can be, we think, no doubt as to the meaning of the verses 38 and 39 of Section V, chapter XI, of the Dayabhaga, viz., as we understand it, that the competition need not be a competition between those who are expressly mentioned in the text Bribashpati, but that it extends to the case of their descendants, provided they continue to live together as members of the re-united family.
11. We might add that it would be anomalous if the Jaw of succession us between the descendants of re-united members be different from the laws as between the re-united members themselves. If certain persons who are entitled to re-unite come to a re-union, they form one joint Hindu family, and it would be only reasonable to suppose that the same law which regulates succession as between them, in the event of any one of them dying without issue, is also applicable to their descendants, if they continue to be members of the same joint Hindu family.
12. We might here observe that Sree Krishna Tarkalankar in his commentary on the Dayabhaga, chapter XI, Section VI, styled by Mr. Colebrooke as 're-capitulation,' recognises the distinction between a re-united and disjoined coparcener as forming a ground of distinction in the heritable rights of brother's grandsons.
13. Upon these considerations we think that the Courts below have come to a right conclusion, the result being that this appeal will be dismissed with costs.