1. This is an appeal by defendant No. 6 from a decision of the Subordinate Judge of the Second Court of Faridpur reversing a decision of the Munsif of the Third Court of Bhanga. The suit was brought by the plaintiffs for declaration of their title to and for possession of a certain plot of niskar land, plot No. 137 of the cadastral survey which was in estate No. 1187. Some question was raised in the Courts below as to whether the property in dispute was niskar or mal land of the estate but it has been found that the property is niskar and this is not questioned in second appeal. The plots originally belonged to one Raghumani Banerji. He died leaving a daughter Dakhina who had a son Purno. Purno died leaving him surviving three sons who are the plaintiffs in the present suit. Their case was that Dakhina succeeded to the property on the death of Raghumani and that on Dakhina's death the property passed to her son Purno and on his death to his sons, the present plaintiffs. Their case was that they had been in possession through their bhag tenants and that they have been dispossessed. The defendants or some of them were owners of the estate No. 1187. As we have already stated they claim the land as mal land of the estate. The case was only contested by defendant No. 6 who had purchased the land from the other defendants. Although the plaintiffs' case was that Purno had inherited after his mother, they had inherited from him, it turned out in the course of the case that Purno predeceased his mother Dakhina. The suit was dismissed by the First Court but the lower Appellate Court allowed the plaintiffs to raise what is said to be a fresh case, namely, that although Purno predeceased his mother, Dakhina, the plaintiffs' inherited the property as Dakhina's heirs.
2. The only question that arises in this appeal is whether under the facts and circumstances stated, namely, that Purno predeceased his mother, the plaintiffs are entitled to claim the property as heirs of Raghumani. The lower Appellate Court has held that they were entitled and this is the proposition which is disputed before us. It is stated that in no case can the grandsons of a daughter inherit the property as they cannot confer spiritual benefit on the original owner Raghumani and that the power to confer spiritual benefit is the only test of inheritance. In support of this proposition we were referred, first of all, to a passage in Mayne's Hindu Law (8th Edition) page 706, Section 505 and also to a passage in Trevelyan's Hindu Law (2nd Edition) page 410 where the learned author states that the daughter's son's son is not an heir according to the Bengal School. Then we were referred to the actual test of the Dayabhaga in the translation by Colebrook, Ch. 11, Section 2, verse (ii) at page 159 where it is stated as follows: 'It is the daughter's son who is the giver of a funeral oblation, not his son, nor the daughter's daughter for the funeral oblation ceases with him' and in the analysis at p. IX it is stated that 'in default of the widow the daughters inherit.' The daughter that is barren or a sonless widow or female children, hence daughter's daughter and daughter's son's son are not heirs being incompetent to confer spiritual benefit; and in support of the proposition that inheritance depends on the power to confer spiritual benefit and on this alone we were referred to the Full Bench case of Gooroo Gobind Shaha v. Anund Lall Ghose 13 W.R.F.B. 49 at p. 59 : 5 B.L.R.F.B. 15. The passage relied on in the judgment of Mr. Justice Mitter is to the following effect:' Having shown by the preceding observations that the principle of spiritual benefit is the sole foundation of the theory of inheritance propounded in the Dayabhdga we proceed to determine whether the particular claimant before us, namely, the son of a paternal uncle's daughters is competent to confer any such benefit on the deceased proprietor. We are of opinion that he is, and we may add that this point was not even contested before us by the Pleader for the respondent.' We think, therefore, that this passage clearly lays down the principle that the foundation of the theory of inheritance as propounded in the Dayabhaga proceeds on the doctrine that only those can inherit who can confer spiritual benefit on the owner whose property they claim to inherit. Similar authority is to be found in another Full Bench case of this Court in Digumber Roy Chowdhry v. Moti Lal Bundopadhaya 9 C. 563 : 12 C.L.R. 204 : 7 Ind. Jur. 529 : 4 Ind. (N.S.) 1023, the material passages in this judgment on this point being those occurring at page 567. There is no doubt as has been pointed out by a reference to the text books and to passages in the case to which we have referred that from time to time attempts had been made to throw doubt on the proposition laid down in the passage to which we have referred in Gooroo Gobind Shaha v. Anund Lall Ghose 13 W.R.F.B. 49 at p. 59 : 5 B.L.R.F.B. 15, but the attempts that had been made to re-open the question have always failed on the ground that the Court have stated that that principle must be taken as decided by the passage to which we have referred in the case which is a decision which has stood for 50 years. But it is argued on behalf of the respondents that even accepting this principle as there is no one alive who can confer spiritual benefit, the grandsons of a daughter may be entitled to inherit on the ground of their propinquity to the original owner of the property in default of the existence of persons who can confer such spiritual benefit. In support of this proposition we were referred to the case of Radharaman Chowdhuri v. Gopal Chandra Chakravarty 56 Ind. Cas. 122 : 31 C.L.J. 81 : 24 C.W.N. 316. The cases to which we have referred are there considered and the argument that was propounded to the Court based on the right of persons standing in propinquity to the original owner to inherit in default of the existence of persons who can confer spiritual benefit was discussed. But in the result no decision was arrived at by the Court on the application which was merely an application to appear and contest certain probate proceedings. We do not think, therefore, that the learned Vakil who appeared for the respondents is entitled to rely on anything that occurs in Radharaman Chaudhari v. Gopal Chandra Chukrvarty 56 Ind. Cas. 122 : 31 C.L.J. 81 : 24 C.W.N. 316 in support of his argument for as we have already stated we do not think that any decision was come to there. In my view the passages to which We have referred in the two Full Bench cases lay down clearly that unless a person is in a position to confer spiritual benefit on the owner of the property whose property he claims, he is not and cannot be an heir of such a person and cannot, therefore, claim to inherit such property.
3. This being so, we think that the appeal must succeed on this ground, namely, that the respondents here who succeeded in the Courts below are not heirs of Raghumani and have, therefore, no interest in the property which they claim. They were suing in ejectment and it was for them, to establish their title. This they have failed to do and the appeal accordingly succeeds and with costs in all Courts.