Muthuswami Mudaliyar and Others vs Sunambedu Muthukumaraswami Mudaliyar

Hobhouse, J. 1. The question in this appeal is one of pure law, relating to the inheritance of a Hindu gentleman who died in the year 1879. No facts are in dispute. He had no issue except a daughter who died without issue in 1883; his widow, who became his heir, died in 1888; at that time, when his inheritance opened, he had no collateral relatives of the same gotra with himself; both parties claim as bandhus or cognates; two of the plaintiffs are the deceased''s first cousins once removed, being sons of his father''s father''s sister, and the third plaintiff is one degree more remote; the defendants claim under a half-brother of the deceased''s mother. 2. The text of the Mitakshara which governs the question raised on these facts (Clause ii., Section 6) is, as translated by Colebrooke, as follows:

On failure of gotrajas the bandhus are heirs. Bandhus are of three kinds, related to the person himself atma bandhu to his father pitri-bandhu or to his mother matri bandhu 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 his atma bandhus. The sons of his father''s paternal aunt, the sons of his father''s maternal aunt and the sons of his father''s maternal uncle must be reckoned as his pitri bandhus. The sons of his mother''s paternal aunt, the sons of his mother''s maternal aunt and the sons of his mother''s maternal uncle must be reckoned as his matri bandhus. 3. The commentator then says in the next verse: Here by reason of near affinity the bandhus of the deceased himself his atma bandhus are his successors in the first instance: on failure of them, his father''s bandhus (pitri bandhus) or if there be none, his mother''s bandhus matri bandhus. 4. The plaintiffs, being the sons and grandson of the paternal aunt of the deceased''s father, are expressly mentioned as falling within the second kind of bandhus who cannot succeed until after failure of the first kind. They are, therefore, reduced to contend that the quoted text contains an exhaustive list of bandhu successors, and that as the deceased''s maternal uncle is not mentioned in it he cannot succeed. Both Courts below have decided against that contention. 5. Their Lordships do not think it necessary to discuss the fanciful suggestion made in the Courts below, and refuted there with much care and learning, to the effect that the quoted text is addressed to religious ceremonies of purification rather than to positive rules of succession. To whatever extent rules of succession may have been founded on religious observances, or may now be explained by them, it is clear that fixed rules of law for successions have been established for ages, and equally clear that the Mitakshara professes to express such rules in the quoted text. Taking it to mean what it says, the question is whether its omission to mention a maternal uncle signifies that he is excluded from the first class of bandhus, or whether the writer is not rather classifying by sample without attempting to specify every member of each class. 6. Their Lordships are of opinion that even if the quoted text stood alone the only admissible construction would be the latter one; for no rational ground can be assigned for excluding the maternal uncle of the deceased while his more remotely allied sons are admitted to succeed. But in fact the text does not stand alone, and whatever difficulty might at one time have been felt in applying it has now been removed by judicial decision. 7. In the case Gridhari Ball Boy v. Bengal Government 12 Moore''s Ind. Ap. Ca. 448, the person claiming to be heir was the maternal uncle of the deceased''s father. The High Court of Calcutta decided against his claim on the ground that he was omitted from the quoted text. On appeal, this Board referred to a passage in the Mitakshara which is not translated by Colebrooke, but which was translated and used for the purpose of that suit. In that passage, which deals with the property of a trader dying abroad, his maternal uncle is included among bandhus capable of succeeding, though the order of succession is not there stated. The Board also referred to a passage of the Viromitrodaya as a work of high authority at Benares and properly receivable to explain things left doubtful by the Mitakshara. That passage states that maternal uncles are to be comprehended in the quoted text; noting how objectionable it would be to exclude them while admitting their sons. This Board held that a grand-uncle fell within the same reasoning, and upheld the plaintiffs'' title. 8. It is true that in that case the dispute was between the person claiming as heir and the Crown claiming as in default of heirs. But the grounds of the judgment apply equally to questions between nearer and more remote bandhus. The decision is precisely in point, and, as it entirely commands the assent of their Lordships, they examine this question no further. 9. The only other question raised is whether a mother''s brother by the half-blood stands on the same footing as an uterine brother. This point also is decided in the Courts below against the plaintiffs on grounds in which their Lordships entirely concur. A half-brother may be postponed to an uterine brother; but there does not appear to be any authority, and certainly there is no reason for holding that he should be postponed to more remote kinsmen. In fact the point was not pressed by the appellants'' counsel at this bar. 10. The result is that their Lordships will humbly advise Her Majesty to dismiss this appeal, and the appellants must pay the costs.