B.B. Ghose, J.
1.This appeal is by the plaintiff for recovery of possession of certain properties on the allegation that he is the preferential heir of the last male owner and is, therefore, entitled to succeed to the properties as the next reversionary. The properties originally belonged to one Rameawar Roy who died on the 6th of June, 1882, leaving a widow Mankumari Barmanya pregnant with child. She gave birth to a posthumous son on the 31st of December, 1882. That son died on the 7th of March, 1883, leaving his mother Mankumari as his sole heir. This lady was in possession of a Hindu widow's estate till her death on the 5th of June, 1916. A controversy then arose as to whether the plaintiff and his two brothers, pro forma defendants Nos. 3 and 4, were the preferential heirs or the defendants. The two parties are related in this way. The plaintiff and his brothers are the mother's sister's sons of the infant who was the last male owner, the propositus. The defendants are the sons of the father's half-sister of the propositus. The properties are partly debottar and partly secular and the title to possession is the same both with regard to the debottar and secular properties. Nothing turns upon the nature of the properties in the decision of the case. The point is controversy is a rather vexed one as to the preferential right of atmabandhus in the same degree to succeed to the properties of a deceased person under the Mitakshara which governs the parties in this case as found by the Subordinate Judge. There is no question before us that the parties are governed by the Mitakshara. The only question that was argued is whether the mother's sister's sons are to be preferred to the father's half-sister's sons. The Subordinate Judge has decided the question in favour of the defendants and has held that the mother's sister's son a should be postponed to the father's half-sister's sons. The plaintiff alleges that his two brothers have taken their shares and have, therefore, refused to join him as plaintiffs, and his claim is only to a one-third share in the properties. The question in controversy was raised in the second issue as framed by the Subordinate Judge, namely, as to whether or not the plaintiff is the preferential heir of the deceased infant son of Rameswar Roy. The Subordinate Judge after considering the various cases cited before him on the point came to his conclusion. It is unnecessary for me to repeat the grounds on which the Subordinate Judge held in favour of the defendants, as the questions argued before us will be stated by me in detail.
2. It is argued on behalf of the appellant that the fact that the defendants are related through the father does not give them a preferential right nor is the fact that the text in the Mitakshara mentions atmabandhus related through the father first as in the line of heirs, decisive on the question, because the order in which the names are given is not the guiding factor in deciding which of the heirs should be preferred. The list of bandhus is enumerated in the Mitakshara, Chap. II, Section 6, verses 1 and 2 which are as follows:--(1) 'On failure of gentiles, the cognates are heirs. The cognates are of three kinds; related to the person himself, to his father do to his mother as is declared by the following Text: 'the sons of his own father's sister, the sons of his own mother's sister, and the sons of his own maternal uncle must be considered as his own cognate kindred'... ' '(2) Here by reason of near affinity the cognate kindled of the deceased himself are his successors in the first instance on failure of them, his father's cognate kindred, or, there being none, his mother's cognate kindred. This must be understood to be the order of succession here intended.'
3. The question as to the precedence of atmabandhus standing in the same degree of relationship to a deceased parson has been the subject of discussion in many decisions of the different High Courts where the Mitakshara Law prevails and it must be admitted that there is a good deal of divergence of opinion among the various High Courts as to the principlewhich should guide the Courts in coming to a conclusion with regard to the question, and the Madras High Court is divided against itself with regard to the question. It has been held in several cases that bandhus related through the father should be preferred to those related through the mother, and further, those whose relationship to the deceased is intervened by two females are to be postponed to those whose relationship is intervened by one female. In some cases it has been held that precedence must be in accordance with the order in which the atmabandhus are enumerated in the Text, that is to say, the son of the deceased's own father's sister must come before the son of his own mother's sister and this principle is sought to be supported by the rule of interpretation enunciated in Jaimini's Nyayamala. The principle first stated is laid down in some of the Madras cases of which I may cite Sundrammal v. Rangasami Mudaliar (1) and Balusami Pandithar v. Narayana Rau (2). The second principle which I have stated above is laid down in the case of Appandai Vathiyar v. Ragubali Madaliar (3). But in the last case the principle enunciated in the previous cases was dissented from and this last case was again dissented from in a later case of Sagili Pedda Rami Reddi v. Narreddi Gangi Reddi (4). Turning to the Allahabad High Court we find that the rule that the order of precedence should be followed in accordance with the order in which the Atawabandhus are named in the Text was not accepted. But it was laid down in the case of Ramcharan Lal v. Rahim Bakhsh (5) that bandhus connected through the father are to be preferred to those connected through the mother. In Bombay it was laid down in the case of Saguna v. Sadashivpandu (6) that according to Mitakahara those connected through the male line among the bandhus are to be preferred to those connected through the females. The rule that a bandhu connected with the propositus through one more female than another should be postponed to that other was not followed in the case of Rajeppa Ranappa Kundagol v. Gawpappa Jotappa Mandwe (7). Then again the question was debated at considerable length by a Full Bench of the Patna High Court in the case of Uma Shankar Prasad Parasari v. Nageswari Koeri (8). But the learned Judges composing the Bench give different reasons for their conclusion and there is no unanimity as to the principle to be followed in giving preference to one set of atmabandhus to another set.
4. In this state of judicial decisions in the Courts in India one would try to find if any certain direction can be obtained from any decision of the Judicial Committee of the Privy Council. The case of Vedachela Mudaliar v. Subramania Mudaliar (9) was relied upon on behalf of the appellant in support of the proposition that an atmabandhu related through the father has no preferential right to claim succession to the property of a deceased as against one connected through the mother. On behalf of the respondents it has been contended that although there are certain expressions in the judgment which might support the contention urged on behalf of the appellant by Dr. Bijan Kumar Mukerji, those observations are really obiter, and should not be taken as authoritative as compelling us to accept the proposition that is sought to be drawn from the observations in the judgment. It is, therefore, necessary to examine the case in some detail. The controversy in that case was between the material uncle and the son of a paternal aunt's son and their Lordships held that the maternal uncle succeeded in preference to a son of the paternal aunt's son. At page 359* of the report their Lordships made the following observations; 'For instance, among the atmabandhus enumerated, the name of the father's sister's son is first given; then comes the mother's sister's son; and after him, the son of the mother's brother. Similarly, among specifically named (pitri) pitribandhurs first comes the son of the father's paternal hunt, and among (matri) matribandhus the son of the mother's paternal aunt. From this it has been inferred that the expounder of the rule in question intended that each class should be divided into two Sub-classes according to the side of relationship, and that in every case preference should be given to the father's side. Their Lordships, again, in the view they take of the rights of the parties in the present case, do not think it necessary to express an opinion how far this proposition is in conformity with the express rule that in each class propinquity should be the governing factor. Assuming, however, the inference to be well-founded, the question arises, what is the place of the mother's brother among the atmabandhus ?' From this passage it would appear that their Lord-ships did not desire to lay down any definite rule as to whether those related through the father's side should be given preference or not. But later on while discussing the case Vedachela Mudaliar v. Subramania Mudaliar (9) already cited their Lordships observed at page 363*. 'And then comes the passage on which the Judges in the case of Balusami Pandithar v. Narayana Rau (2) relied in their division of atmabandhus into two sub classes, namely, ex parte paterna and ex parte materna. That passage runs thus (Setlur's Collection of Hindu Law Books on Inheritance) 'Nor could it be urged here that the mother being nearer than the father, the matribandhus take the wealth before the pitribandhus. From the Text, 'of these the mother is more important than the father; (2) the mother's precedence alone is stated and not that of the mother's bandhus. Therefore, we think it sound that the matribandhus should take the wealth only after pitribandhus.' 'A very small consideration would show that that passage has nothing to do with the members of the same class inter se. It only explains why pitribandhus are to be preferred to matribandhus, the mother's position being special to herself under an express rule.' This passage has been taken as having disapproved the rule laid down in the two Madras cases reported as Sundrammal v. Rengasami Mudaliar (1) and Balusami Pandithar v. Narayana Rau (2) so far as they lay down that among bandhus of the same class those ex parte paterna are to be preferredto those ex parte materna. I have already pointed out that in the previouspart of the judgment their Lordships saidthat it was unnecessary to express anyopinion on that point. The difficulty asto what has been decided by their Lord-ships of the Privy Council in this casewith reference to the general principle indebate is further enhanced by the factthat their Lordahips themselves referred ina later case Kenchava Kom SawyellappaHosmani v. Girimallappa Channappa Somasagar (10) as to what has been decidedin the case reported as VedachelaMudaliar v. Subramaina Mudaliar (9).Their Lordships observe at page 376*''The question of priority as between atmabandhus ex parte paterna and those ex partematerna has been the subject of much discussion,-- the latest word on the subjectbeing found in the case of VedachelaMudaliar v. Subramania Mudaliar (9) whichdecided in 1921, that as between pitri bandhus, and matribandhus, the preferencegiven to the former is settled' It maybe pointed out that in Vedachela's case(9) the question as to priority as betweenpitribandhus and matribandhus was not disputed. It was admitted in that case that the parties in controversy were both related to the deceased as atmabandhus. But there can be no question that as between patri bandhus and matribandhus, pitribandhus are entitled to priority. The question, therefore, as to the priority of atmabandhus who are related through the father and those who are related through the mother seems to have been left in as much obscurity with reference to the general principle enunciated in the cases I have cited, as before. I do not think having regard to the divergence of judicial opinion, that I should hazard an attempt to lay down any general principle with regard to the point in controversy raised in the various decisions. It seems to me it would be a fruitless endeavour. I shall therefore, confine myself to the decision of the present question on principles with regard to which there is no controversyand that principle is that where the parties are related in the same degree, the preferential right should be in him. who confers the greatest spiritual benefit on the deceased. This is one of the principles laid down in the case of Muthusami v. Muthukumarasami (11) which was affirmed by the Privy Council on appeal in the case of Muthusami Mudaliyar v. Simambedu Muthukumarasami Mudaliyar (12) and I should follow the principle laid down in that case all the more, as their Lordships of the Privy Council observe at page 361* 'that in the absence of any express authority varying the rule, the propositions enunciated in Muthusami v. Muthukumarasami (11) furnish a safeguide.' Those propositions are enunciated in the following terms: (i) Those who are bhinnagotra sapindas as are related through females born in or belonging to the family of the propositus are bandhus: (ii) that as stated in the Text of Vridha Satatapa or Baudhapana, they are of three classes, viz. atmabandhus pitribandhus and matribandhus, and matribandhus succeed in the order in which they are named; (iii) that the examples given therein are intended to show the mode in which nearness of affinity is to be ascertained, and (iv) that as between bandhus of the same class the spiritual benefit they confer upon the pro-positus is, as stated in the Vira Mitrodaya, a ground of preference. This proposition that the ground of preference should be according to the spiritual benefit conferred upon the propositus is not controverted by the appellant's Counsel. But he contends that in the present case the plaintiff confers greater benefit on the propositua than the defendants do His argument is that the plaintiff offers three oblations to the maternal ancestors, that is to say, his maternal grandfather, maternal great-grandfather and maternal great great grandfather. The propositus also offered oblations to all these three ancestors. On the other hand, the defendants offer the same class of divided oblations to their maternal grandfather, maternal great-grandfather and maternal great great-grandfather ...These relations are paternal grandfather, paternal great-grandfather and paternal great-(11) 16 M. 23 at p. 30; 2 M. L. J. 296; 5 Ind. Dec. (N. s)524.great-grandfather of the propositus. The propositus offered oblations to three ascendants, father, grandfather and great-grandfather. Therefore the defendants offer oblations to two only of the ancestors of the propositus to whom he would have offered oblations. Therefore, there is greater merit conferred by the plaintiff than by the defendants. Against that Mr. Sarbadhicari for the respondents argues that the oblations offered to the paternal ancestors are of greater merit than those offered to the maternal ancestors and the reason is that the propositus himself partakes of the oblations which are offered to his paternal ancestors. This proposition is supported by the authority of the Viromitrodaya which was referred to in the judgment in the case in Muthusami v. Muthukuwarsami (11), which I have already cited. At page 155 of Gopal Chandra Sarkar's Translation of the Viromi ordaya the following passage occurs: 'Since a person (when deceased) partakes of the oblations presented to the three paternal ancestors beginning with the father by reason of the union of oblations (effected through the ceremony called sapinda karan), and since the three descendants in the male line beginning with the son presented oblations to that person himself; and since he who while living offered oblations to an ancestor in the male line partakes, when dead, of the oblations presented to that ancestor by reason of union of oblations, thus the middle most person Who while living offered oblations to his ancestors and when dead partakes of the oblations presented to them becomes the object to whom oblations are presented by others that are living and partakes with these latter while they are dead, of the oblations presented (to him) by the daughter's son and the like' and so on. The conclusion must, therefore, follow that in the present case the defendants being so related as to confer greater spiritual benefit on the propositus, they are the nearer heirs.
5. It is contended again on behalf of the appellant that the plaintiff is nearer in blood, because he has more blood particles in common with the propositus than the defendants; and learned Counsel refers to the fact that the defendants are only sons of the father's half-sister of the propositus. It. may possibly be that according to medical theories the plaintiff may have more blood particles in common with the propositus that the defendants have. But the Mitakshara and the Viromitrodaya state that in doubtful cases the rule as to how it should be determined that a person has more blood particles in common with the propositus is that it should be decided in accordance with the efficacy of oblations offered to the ancestors,
6. The last argument that has been urged en behalf of the appellant is that if it had been a question between the father's full sister's son and the mother's sister's son, then the father's sister's son might possibly be entitled to preference. But a half sister is not the same as a full sister: and, therefore, the father's half sister's son cannot claim the same right as a full sister's son. It is further argued that what the old Text meant by the term 'father's sister's son' was father's full sister's son. But there is no difference between a half-sister and a full-sister in this respect. If there had been a competition between a father's full sister's son and a father's half sister's son, that would have been a matter for consideration. But when we have to consider the position of the parties as related in the present case, we have to deal with the matter on the basis of spiritual benefit, as the father's half sister's son offers the same number of oblations to the paternal ancestors of the propositus and of the same efficacy as the father's full sister's son would have done, I do not think that the fact of the defendants being the father's half sister's sons of the propositus makes any difference in this case. With regard to another argument that pitri-swasa in the enumeration of atmabandhus refers only to a full sister of the father, and a half sister's son of the father is not one of the enumerated atmabandhus but would come merely as a bandhu not enumerated in the Text; it may be stated that the proper construction of the Text does not lead to any such inference. Where the Text writers, meant that there should be a difference between the relations of full blood and half blood, that was specially enumerated. Where there is no such distinction made in the Text, the words should be construed as including both full blood and half blood. As authority for this proposition the following cases may be referred to Dasarathi Kundu v. Bipin Behari Kundu (13) and Shashi Bhushan Lahiri v. Rajindra Nath Joordar (14).
7. On all these grounds this appeal must fail and be dismissed with costs to the principal defendants respondents.
8. A cross-objection has been urged on behalf of the defendants-respondents on the question as to the costs of the lower Court. The Subordinate Judge, although he has dismissed the suit of the plaintiff, has not allowed any costs. But he has not given any reason for doing so. We do not see any reason for depriving the contesting defendants of their costs in the Court below. The cross objection must, therefore, be allowed to this extent that the contesting defendants would have their costs from the plaintiff in the Court below. There will be no costs of this cross-objection.
9. I agree.