1. The point in issue in this appeal is, whether sons of sisters of the whole or half blood are entitled to succeed equally to the estate of a deceased brother. The lower Courts have held that they inherit equally.
2. As an authority for this proposition there is a translation of Dyakrama-Sanghraha of Srikrishna Tarkalankara by Mr. Wynch, chap. I, Section 10, Clause 1, in which as an authority the opinion of Acharrya Chudamoney is given. That this was Srikrishna's opinion is confirmed by a reference made to it in a commentary by Jagannatha Tarkapanchanana (see book V, chap. 8, Section 1), or in the edition of 1874, published by Higginbotham & Co., vol. 2, p. 566. From this we learn that some fifty years after Shrikrishna Tarkalankara, Jagannatha Tarkapanchanana, who was a great authority in all matters connected with Hindu law, and probably may have been a contemporary of Srikrishna, distinctly states Srikrishna's opinion to the same effect as has been presented in the translation by Mr. Wynch. In 1829, Mr. Macnaghten, in his well-known book on the principles of Hindu law, evidently having in his mind these authorities, expresses his opinion that, according to the most approved authorities, there should be no distinction between the sister's son of the whole and half blood. See page 28 of the edition published by Higginbotham & Co., in 1874.
3. In 1859 Baboo Shama Charan Sircar, who is generally accepted as an authority on Hindu law, in his Vyavastha Darpana, 2nd ed., page 265, refers to this opinion as being that of authors respected and followed; but at the same time he gives his own opinion to the contrary, and gives reasons for the same. The reasons for the contrary opinion are that superior spiritual benefits by oblations are conferred by the sons of the sister of the full blood. But we find, that in the opinion of Srikrishna quoted by Jagannatha, it is laid down that this is not so--that is, the sons of both sisters, whether they be sisters of the whole or full blood, offer the same oblations, and therefore rank equally in their rights of succession to inheritance. The opinion is thus expressed, ' but no distinction is taken in the case of daughter's sons, because the maternal grand-mother does not share the funeral cake offered by her daughter's son.'
4. It is, however, pressed on us that the translation of the commentary by Mr. Colebrooke is not altogether correct, and more recent editions, the first of which bears date 1829, are laid before us as reproducing the correct version. Now, as I have already stated, all the previous authorities are unanimous to the contrary. In the edition of 1829 there is no reference made to the previous mistake, and looking to the context, there seems reason to believe that the word tadwava introduced there would give a different meaning and is an interpolation
5. The only other direct authority on this point is the Vyavastha, published by Mr. Macnaghten in his book; it is to be found at page 86 of the second volume, in which the Pundit, to whom the point we are now called upon to decide was pointedly referred in 1826, declares that there is no difference between sons of sisters of the whole and half blood.
6. Under such circumstances I am unable to come to any other conclusion than that arrived at by the lower Courts. The appeal must, therefore, be dismissed with costs.
7. I concur in the decision arrived at by my learned brother. In this case we have to determine what is the law of inheritance which prevails in Bengal, in regard to father's daughter's sons, and whether there is any distinction between the son of a sister of the whole blood and the son of a sister of the half blood.
8. The contention raised on behalf of the appellant is that according to Srikrishna Tarkalankara sister's sons of the whole blood took before sister's sons of the half blood. He bases his contention on three grounds: first, spiritual benefit; and second, that in the edition of 1829 of Srikrishna's recapitulation of the line of inheritance, there the word tadwava between these two Classes, [?] which show that they did not take together, but that one was postponed to the other. Thirdly, that in two subsequent editions of 1850 and 1860, both of which were edited by the same gentleman, the word tadwava appears in a subsequent part of the recapitulation which refers to the succession of paternal grandfather's daughter's sons. Consequently there can be no doubt that the word tadwava in the edition of 1829 must be considered to be correct.
9. Putting aside for the moment any discussion as to the law which has actually prevailed in Bengal up to the present time, we find that Colebrooke, on a comparison of those copies of the recapitulation, declared that sister's sons of the whole blood and of the half blood take together; that in 1829, the word tadwava was interpolated by persons whom we do not know, or on what authority we do not know, and that in 1853 and 1860, the word tadwava was inserted in another place for reasons equally unknown. It seems to me that even in this state of circumstances, it would be difficult to conclude that Colebrooke's translation is incorrect. The difficulty becomes insuperable when we refer to the other authorities. In the Dyakrama-Sanghraha, chap. I, Section 10, para. 1, Srikrishna states as follows: 'According to Acharrya Chudamoney, the son of the proprietor's own sister, and the son of his half sister, have an equal right of inheritance.' So that if we hold that Colebrooke's translation is incorrect, we must start with the proposition that Srikrishna has in one book said one thing, and in another something directly contradictory. This, though possible, is very improbable. But I think that all doubt on that point is set at rest by referring to the commentary by the learned lawyer of about the time of Sir William Jones. I refer to the commentary of Jagannatha Tarkapanchanana. In book V, chapter 8, Section 1, it is stated as follows: 'In the succession of brother's sons, a distinction between the whole and half blood must be understood, not in the ease of daughter's sons. But some lawyers consider it as the opinion of Jimutavahana that, in the succession of the sons of the father's daughters and so forth, a distinction is taken between uterine and half-sisters. Herein Srikrishna Tarkalankara does not acquiesce, because no law is found expressly declaring the participation of a maternal grandmother in the funeral cake offered to the maternal grandfather.' We have, therefore, not only the opinion of Srikrishna himself, but of another very eminent lawyer, stating that this is Srikrishna's opinion. I think that this must put an end to any doubt that may be entertained as to the correctness of Colebrooke's translation. From the time of Srikrishna to 1809, Colebrooke's time, this was the recognized law. In 1829, Sir William Macnaghten said: 'There is a difference of opinion among different writers of the Bengal school as to the whole and half blood; some maintaining that an uterine sister's son excludes the son of a sister of the half blood: but according to the most approved authorities there should be no distinction. A sister's daughter is nowhere enumerated in the order of heirs.' This opinion he supports by the opinion of a pundit of the Zillah Court in the Jungle Mehal, dated 1826.
10. Next in succession is the opinion of Shama Charan Sircar, a gentleman well known for his knowledge of Hindu law. At page 265 of the second edition of his book, written about the year 1860, he says, referring to the right of sister's son to inherit: 'Although the opinion of the aforesaid authors is respected and followed, yet it must be admitted that the distinction made in the commentaries above alluded to is neither unreasonable nor inconsistent, based as it is not only in preference to the whole blood, but also on consideration of the sons of the sister, paternal aunt and grandfather's sister of the whole blood, conferring comparatively more benefit than the sons of those of half blood.'
11. Therefore it appears to me that an unbroken series of authority from the time of Srikrishna to the year 1860, show that the law prevailing in Bengal makes no distinction between the sons of sisters. Nor does it appear, even discussing the question on the ground of spiritual benefit, that the appellant should succeed In the reference, which I have already made to Srikrishna's opinion, it is stated that, as far as spiritual benefit is concerned, there is no difference, and there can be no difference, between that which is derived from the sons offering oblation to a maternal grandfather, because in those oblations the maternal grandmother obtains no part. Whether, therefore, we look at the law prevailing in Bengal, or at the doctrine of spiritual benefit, the result is the same, and the conclusion that we have arrived at is, that no distinction is made between the sister's sons of the whole and half blood. The appeal is dismissed with costs.