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508 paragraphs · 7,892 wordsRamesam, J.—The only question to be decided in this Second Appeal is one of succession to the properties of one C. Subbayya, who died
in 1906 or 1907, leaving a widow Narakka, who died in October 1918. The plaintiff is a vendee (under a sale-deed, dated 14th October, 1919)
from A. Venkatareddi and Balireddi, who are the mother''s sister''s sons of Subbayya. The District Munsif found that Subbayya has also left his
mother''s brother''s son, but held, relying on Appandai Vathiar v. Bagupali Mudaliar [1910] 33 Mad. 439 that the plaintiff was entitled to succeed.
The Subordinate Judge confirmed his judgment. The defendants file this Second Appeal and contend that the mother''s brother''s son is entitled to
priority, over the mother''s sister''s son, under the Hindu Law. They point out that the decision in Appandai Vathiar v. Bagubali Mudaliar [1910]
33 Mad. 439 has been dissented from in Bam Charan Lal v. Rahim Baksh [1916] 38 All. 416 and it must be regarded as shaken, if not overruled
by the decision in Vedachela Mudaliar v. Subramania Mudaliar AIR 1922 P.C. 33.
The question is one relating to the succession of Bandhus. It is desirable to clear the ground, by stating the principles of succession among
bandhus at least such of them as may help to solve the question.
There is no doubt as to the meaning of the term ""bandhu"" for purposes of succession. Though only some bandhus are enumerated in the well
known ancient Smriti text (attributed variously to Vriddha Satatapa and Baudhayana), it has been laid down that the enumeration is not exhaustive
and that it includes all bhinnagotra sapihdas : see Gridhari Lal Roy v. The Bengal Government 1867 12 M.I.A. 448 and Ramachandra Martand
Waiker v. Vinayak Venkatesh Kothekar AIR 1914 P.C. 1.
Relying on this definition, Sarvadhikari (Tagore Law Lectures 1882) attempted to construct exhaustive tables of bandhus. He restricted the
bandhus to four families : (1) family of the agnates of the propositus (2) the family of the agnates of his mother''s father; (3) the family of agnates of
his father''s mother''s father; and (4) the family of agnates of his mother''s mother''s father. Whether the bandhus ought to be limited to these four
families, though they otherwise satisfy the definition of bhinnagotra sapindas has not arisen for judicial decision and does not arise in this case. With
the said limitation and also excluding the so-called sapindas by frog''s leap : (see Sarvadhikari 2nd Edition pp. 592, 597 and 600 and remembering
that sapindaship is mutual, ha tabulated the possible bandhus in four tables (facing pages 606 and 607). Some of his views as to priority of
succession (as expounded in the 1st edition) based on the separation into four families were not accepted by the Privy Council, in E.O. Muthusami
Mudaliar v. Simambedu Muthukumaraswami Mudaliar [1896] 19 Mad. 405. All bandhus can be grouped in one table. Such a table is shown in
the ninth edition of Mayne''s Hindu Law faoing page 852. The table is exhaustive and accurate, subject to the limitation mentioned above. The
order of succession among the persons in the table has to be determined.
Now, apart from any texts of Hindu Law, the bandhus so enumerated Will naturally fall into the following groups, depending on the nearness of
the ancestor.
(1) Descendants of the propositus whom I indicate hereafter by the letter P. They are numbers 1 to 7 in the table in Mayne''s Hindu Law and in the
annexed table.
P
____________________________
s d
| |
___________________ |
s d ______________
| | s d
| | | |
| _______________ | |
| s (1) d | |
| | | | |
d | | s(2) s(3)
| s (5) |
| |
| s(6)
s(4)
|
s(7)
(2) Descendants of P''s father, collateral to P, i.e. excluding group 1. They are numbers 1 to 8 in the annexed table and Nos. 8 to 15 in the table in
Mayne.
F
|
_______________________________________
S P d
| |
_____________ |
S d |
| | ____________________
d | | |
| | S1 d
| | | |
S5 | | |
| ______________ S3 S4
S8 | |
S2 d
| |
S6 S7
(3) Descendants of P''s grandfathers (paternal and maternal) collateral to P''s father, i.e., excluding groups. 1 and 2, They correspond to Nos. 1 to
20 in the table annexed and are Nos. 16 to 35 in the table in Mayne.
F1
___________________________________
S d F
| | |
| |
___________ ______________ |
| | | | |
| | | | |
| | | | |
S d S3 d P
| | | |
| | | |
| | S7 S8
| |
d |
| |
| |
| _____________
| | |
| | |
S13 | |
| S6 d
S20 | |
S14 S15
(4) Descendants of P''s father''s grandfathers (paternal and maternal) collateral to P''s grandfather (F1), i.e., excluding groups 1 and 2 and left half
of groups 3. They are Nos. 36 to 55 in the table in Mayne.
F 2 fm F
| |
_________________________ ______________
| | | |
| | | |
De cendants. (m) | |
| M Descendants.
|
|
F
|
|
F
|
|
P
The descendants are formed exactly as, in the table for group 3.
(5) Descendants of P''s mother''s grandfather (paternal and rrfaternal) collateral to P''s mother''s father (i.e., excluding groups 1 and 2 and right half
of group 3.) They are numbers 56 fo 75, in the table in Mayne.
m F1 mm F
| |
| |
______________ _______________
| | | |
Descendants. m F m m M Descendants.
|
|
P
m F (1)
__________________________________________________
| | |
m M S2 d
| |
_________________________ ______________
| | | |
| | | |
S4 d S5 d
| | | |
| | | |
____________ ___________________ | |
S9 d S10 d | |
| | | | S11 S12
| | | |
| | | |
S16 S17 S18 S19
The descendants are formed exactly, as in table for groups 3 and 4.
(6-a) Descendants of P''s paternal grandfather''s (F1) paternal grandfather (collateral to P''s paternal great grandfather (F2) i.e., excluding groups
1, 2, left half of group 3, and left half of group 4 and descendants of P''s paternal grandmother''s (fM) paternal grandfather, collateral to her father
(fmF) i.e., excluding groups 1, 2 and right half of group 4. These are Nos. 56 to 75, in the table in Mayne.
F3 Fm F 1
|
__________________ ___________________
| | | |
| | | |
| | | |
Descendants. F2 fm F Descendants.
| |
F1 _______mf M
|
|
F
|
|
P
The descendants are formed as before.
(6-b) Descendants of P''s mother''s father''s (mF) paternal grandfather collateral to mother''s father''s father (M mF 1) i.e., excluding groups 1, 2,
right half of group 3, and left half of group 5; and descendants of P''s mother''s mother''s (m M) paternal grandfather, collateral to mothers
mother''s father (mmf) i.e., exoluding groups 1, 2, right half of group 3 and right half of group 5. They are Nos. 105 to 125 in Mayne.
m F 2 mm F 1
| |
___________________ _____________________
| | | |
| | | |
| | | |
Descendants. m F1 mm F Descendants.
| |
| |
| |
m F m m M
|
|
M
|
|
P
The descendants are formed as before.
(7) Descendants of P''s paternal grandmother''s (fm) great grandfather, collateral to her grandfather, (fM f 1). These are numbers 76 to 80, in the
table in Mayne and are numbers 1 to 5 in the annexed table.
fm F 2
|
________________________________________________________
| |
S1 fm F1
| |
S2 fm F
| |
S3 F m fM
| |
S4 F
| |
S5 P
There is no doubt that all the persons in the above seven groups are bandhus. Groups 1, 2, left halves of groups 3, 4, 6(a) constitute
Sarvadhikari''s, Table I(a). Eight half of group 3, left half of group 5, and left half of group 6-b constitute his Table I(b). Right half of group 4, right
half of group 6-a and group 7 constitute his Table II. The right half of group 5 and right half of group 6-b constitute his Table III.
I now come to the expressions ''Atma Bandhus'' ''Pitru Bandhus'' and ''Matru Bandhus'' used in the anoient Sanskrit Text. It is, evident that the
word ''bandhu'' in these expressions has a narrower significance than ''bhinnagotra sapindas.'' The question that naturally arises is : Are Bandhus
other than those enumerated, included in each of these three expressions and if so, who? The three persons enumerated as Atma Bandhus are in
group (3), being Nos. 18, 19 and 20 in Mayne''s Table. The Privy Council held No. 17 to be Atma Bandhu in E.O. Muthusami Mudaliyar v.
Simambedu Muthukumaraswami Mudaliyar [1896] 19 Mad. 405 and Vedachela Mudaliyar v. Subramania Mudaliyar AIR 1922 P.C. 33 No. 22
to be an Atma Bandhu in Vedachela Mudaliar v. Subramania Mudaliyar AIR 1922 P.C. 33 and No. 26 to be an Atma Bandhu in Adit Narayan
Singh v. Mahabir Prasad Tiwari AIR 1921 P.C. 53. Therefore, it follows that Nos. 21, 23 to 25 and 27 who are in the same degree as Nos. 22
and 26 should be regarded as Atma Bandhus. Similarly, not only Nos. 38, 39 and 40, who are enumerated as Pitru Bandhus but also Nos. 41 to
47 on the analogy of Vedachela Mudaliar v. Subramania Mudaliar AIR 1922 P.C. 33 and Adit Narayan Singh v. Mahabir Prasad Tiwari AIR
1921 P.C. 53 should be regarded as Pitru Bandhus. Similarly, not only Nos. 86, 87 and 88, who are expressly enumerated, but also 85, who is in
the same line and on the analogy of E.O. Muthusami Mudaliyar v. Simambedu Muthuhumaraswami Mudaliar [1896] 19 Mad. 405 and Adit
Narayan Singh v. Mdhabir Prasad Thuari AIR 1921 P.C. 53 Nos. 89 to 96 should be regarded as Matru Bandhua. But beyond these, it is not
clear to me, how the bandhus should be classified. For instance, it is not clear to me, how Nos. 36, 81 and 82, who are the ancestors, should be
classified. I doubt, if the expressions ''Atma Bandhu'' etc., were ever intended to be the basis for a scientific classification and share in the doubts
of Mullick and Jwala Prasad, JJ., in Uma Shanhar Prasad v. Nageswari Koer (1919) 3 Pat. L.J. 663. If we assume that the expression ''Atma
Bandhu'' includes all these persons in my third group, the expression ''Pitru Bandhus'' includes all the persons in my fourth group and the expression
Matru Bandhus includes all the persons in my fifth group, even then the question arises in what class should groups 1, 2, 6 and 7 be placed? That
is, the first question is whether there are only these classes or more? If groups 1 land 2 are to be classified, under the named classes, they should
obviously be classed, as Atma Bandhus. For, if it is said that the expression ''Atma Bandhus'' is not quite appropriate for these, the other
expressions are still less appropriate. This is the view taken in Balusami Pandithar v. Narayana Rao (1897) 20 Mad. 342 and Sham Dei v.
Birbhaddra Prasad AIR 1921 All. 178 where persons in group 2 were held to be Atma Bandhus and by Dawson Miller, C.J., and Imam, J., in
Uma Shankar Prasad v. Nageswari Koer (1919) 3 Pat. L.J. 663 (as to a person in group 2). But Mullick and Jwala Prasad, JJ, doubted the
propriety of attempting to class the unnamed bandhus under the expression ''Atma Bandhus''''etc., a view which has much to commend itself. In
Ajudhia v. Earn Sumar Misir (1909) 31 All. 454 and Ram Phal Thakur v. Pan Mati Padain (1910) 32 All. 640 person in group I was regarded as
an Atma Bandhu, though no question of priority and hence no question of classification aroBe in the case. If the connotation of the term ''Atma
Bandhu'' is extended as in Balusanti Pandithar v. Narayana Rau (1897) 20 Mad. 342 and Sham Dei v. Birbhadra Prasad AIR 1921 All. 178 so as
to include group 2 for satisfying the requirement that all bandhus should be divided into three classes, we aro landed in anomalies, as to the similar
connotation of the expressions ''Pitru Bandhus and Atma Bandhua''. Again, how should groups 6 and 7 be classified? If they are classed as Pitru
Bandhus, groups (6a) and (7) take priority over group (5) and group (7) takes priority over group (6b) - a result as to the equity of which I have
considerable doubts. The doubts, indicated by me above, do not arise in this case and have not got to be solved by us. Such as relate to groups
(6) and (7) have never arisen, and may never arise.
Confining myself to groups (3), (4) ancl (5), as to the division of which into three classes, there is no difficulty, the first rule to be applied is that
Atma Bandhus take precedence Over the rest: Muthusami Mudaliyar v. Simambedu Muthukumaraswami Mudaliar [1896] 19 Mad. 405. This rule
does pot help us in this case, as both the claimants are in group (3) and are Atma Bhandus on any view of the expression. We have to find tha
rules regulating priority among Atma Bhandus.
The only decision of the Privy Council, dealing with a case of rival claimants, who are both Atma Bhandus is Vedachela Mudaliar v. Subramania
Mudaliar AIR 1922 P.C. 33. The passage from the Mitakshara (II-6-1) was quoted at p. 758 (and again referred to at p. 764). At. p. 765 the
Smriti Ohandrika (XI-5, 13 to 15) and Sarasvati. Vilasa 595-8 were cited. At p. 766, the conclusion is thus stated:
A very small consideration would show that that passage has nothing to do with the members of the same class inter se.
After this conclusion of the Privy Council, I think it is unnecessary for me to deal in detail with the arguments of Mr. Chandrasekbara Aiyar based
on (1) the sentence: in the Smriti Chandrika and in Sarasvati Vilasa.
(2) Jaimini Mimamsa Sutras, Adhikaram V and Parthasarathi Misra''s Sastra Dipika - a commentary on Nyamala of Madhwaoharya. I may add as
to the passage from Smriti Chandrika, there are two versions - one containing the other not containing it, and the version relied on by Mr.
Chandrasekara Aiyar, i.e., containing the referred to, by their Lordships at p. 765. I will only add that Dayavibhaga of Madhwacharya (Dr.
Bernell''s translation), another Madras authority, supplemental to Mitakahara says that the enumerated bhandus take according to nearness. In my
opinion the basis of the decision in Appandai Vathiyar v. Bagubali Mudaliar [1910] 33 Mad. 439 has been destroyed by the reasoning of their
Lordships in Vedachela Mudaliar v. Subramania Mudaliar AIR 1922 P.C. 33. It still remains for us to determine the rules, that have to be applied,
to Afcma Bhandus.
At p. 762, his Lordship Right Honour-able Amir Ali, after referring to the proposition that;
each class should be divided into subclasses, according to the side of relationship and that in any case preference should be given to the father''s
side observes : ""Their Lordships 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.
At p. 763 the principles laid down by Muthusami Aiyar, J., in Muthusami v. Afuthukumarasami (1893) 16 Mad. 23 were quoted. The second
principle refers to the decision into three classes and the third runs thus:
(3) That the examples given therein are intended to show the mode in which nearness of affinity is to be ascertained.
The fourth relates to spiritual benefit. At p. 766, His Lordship says:
Among modern writers, both Golap Chandra Sastri (p. 296) and Raj Kumar Sarvadhikari (p. 726) affirm that nearness of blood is the governing
principle in the succession of bandhus.
The Sastri lays down the rule in the following words:
(1) The nearer in degree on whichever side is to be preferred to one more remote.
His Lordship then says that the rules quoted from Muthusami v. Muthukumaraswami (1893) 16 Mad. 23 furnish a safer guide (p. 767). The
conclusion is thus stated:
the appellant is undoubtedly nearer in degree to the deceased than Subramania. He also offers oblation to his father and grand-father, to whom the
deceased was also bound to offer pinda.
Accordingly, I infer from Vedachela Mudaliar v. Subramania Mudaliyar AIR 1922 P.C. 33 that the rules to be applied to the Atma Bhandus
for determining priority are : (1) propinquity should be the governing factor; (2) if both are equal in degree, the spiritual benefit oonferred may be
used as a test for preference.
The first of these rules does not help us in the present case, as both the claimants are of the same degree. I am unable to agree with the
statement in Ram Charan Lal v. Rahim Bahsh [1916] 38 All. 416 stated at p. 425:
As we hold that the maternal uncle''s son is of nearer consanguinity than the maternal aunt''s son, the question of funeral oblations need not be
considered.
It is not clear whether the expression ""nearer consanguinity is used in a different sense from nearness in degree."" If the expressions mean the
same, I am not able to see, how the maternal uncle''s son is nearer in degree than maternal aunt''s son. To this extent, viz., that both are equal in
degree, I agree with the decision in Rajeppa v. Gangappa AIR 1922 Bom. 420. Mr. Chandrasekhara Aiyar adduced an ingenious argument,
based on the rules relating to marriage. In Southern India, a man may marry his maternal uncle''s daughter, but not his mother''s sister''s daughter.
Therefore, he argues, that a maternal aunt''s daughter is nearer than a maternal uncle''s daughter and therefore a maternal aunt''s son is nearer than
a maternal uncle''s son, for purposes of succession. According to ancient Sanskrit texts both maternal ""uncle''s daughter and maternal aunt''s
daughter are sapindas, and are ineligible for marriage. I believe the rule is strictly observed in Bengal and probably in other parts in Northern India.
But a oustom has grown up in Southern India (probably a Dravidian custom), by which a mother''s sister''s daughter is regarded equivalent to a
sister and is ineligible for marriage, while a mother''s brother''s daughter, or a father''s sister''s daughter is regarded equivalent to a wife or wife''s
sister and therefore eligible for marriage. This notion has nothing to do with nearness. Even the South Indian ancient Sanskrit texts, (e.g.,
Vyavahara Madhaviya a commentary on Parasara Smriti by Madhwacharya, of which Dayavibhaga translated by Dr. Burnell is a portion) that
recognise the marriageability of a maternal uncle''s daughter base the recognition on local custom.
We hare therefore, to resort to the second test enumerated by their Lordships in Vedachela Mudaliar v. Subramania Mudaliar AIR 1922 P.C.
33 viz., spiritual benefit. We have to see which of the two claimants confers higher spiritual benefit on the propositus. There is no doubt that both
confer some spiritual benefit.
In discussing the question of spiritual bsnefit, we have to remember : (1) that a claimant offers oblations to his ancestors in which, the
propositus participates through his ancestors (2). The offering to a paternal ancestor is superior to the offering to a maternal ancestor. (3) It
follows, by the prinoiple of mutuality, that the participation through a paternal ancestor is superior to the participation through a maternal ancestor.
Thus as between two persons propositus P and (claimant) 0 there are four possible cases.
(1) C offers to his paternal ancestor and P participates through paternal ancestors.
(2) C offers to maternal ancestors and P participates through paternal ancestors.
(3) C offers to paternal ancestors and P participates through maternal ancestors.
(4) C offers to maternal ancestors and P participates through maternal ancestors.
The first case is a case where C and P are Sagotra sapindas and does not come under the discussion relating to succession by Bhandus. In the
other three cases, C is a Bbandu of P. Mr. Cbandrasekhara Aiyar concedes that C in the second case is superior to C in (3) and (4) e.g., a
father''s sister''s son is superior to mother''s sister''s son, or mother''s brother''s son, i.e., he concedes that the participation through paternal
ancestors is superior to participation through maternal ancestors. (Mayne p. 736, 508 Rule 4). But he does not concede that offering to maternal
anoestors is inferior to offering to paternal ancestors. If we remember that all sapinda-ship and all bandhuship is mutual, it seems to me that the
same inferiority attaches to offering to maternal ancestors in comparison with offering to paternal ancestors, as in the case of participation. That
offering to maternal ancestors is interior to offering to paternal ancestors is an a fortiori case andean be inferred from the following facts : In all
schools of Hindu Law, Bandhus descended from agnate ancestors are certainly postponed to agnates (subject to certain exceptions in Bengal,
which is unnecessary to note here). For instance, in the four simple cases mentioned above, a father''s brother''s son is superior to a father''s
sister''s son. In this case, the participation in each case is through paternal ancestors. So far is the rule recognised that agnates, even if remoter are
preferred to cognates, even if near (except in Bengal in the case of daughter''s sons of agnate ancestors and in Mitakshara law in the case of
daughter''s sons). In fact, the principle is the very foundation of the whole system of Hindu Law by which agnates are preferred to cognates. If so,
among cognates, one degree of cognateness is certainly superior to two degrees of cognateness.
Diverted of the religious, spiritual or ceremonial veil, the same principle of religious efficacy or spiritual superiority may be stated as (1)
claimants through father of propositus are superior to claimants through mother of propositus other circumstances being equal; (2) a claimant
through his father is superior to a claimant through his mother; The caution is necessary that these rules should not be applied, as they were applied
in Sundarammall v. Rangasami Mudoliar (1895) 18 Mad. 193 so as to defeat the rule as to nearness in degree. The case in Sundarammall v.
Rangasami Mudaliar (1895) 18 Mad. 193 has been overruled by Vedachela v. Subramania AIR 1922 P.C. 33. They should be applied subject to
the rule of nearness in degree : see Vedachela v. Subramania AIR 1922 P.C. 33.
In the above discussion, I have attempted to establish the superior spiritual efficacy of the mother''s brother''s son to the mother''s sister''s son,
from general principles. As a particular case, the fact has been recognised in Dharma Sindhu.
a book which though mentioned by West and Buhler, as an authority in Western India, is of high authority, along with Nirnaya-sindhu, in the Telugu
country (the parties in this case are Telugus) being constantly referred to, by Pandits and Purohits - (see translation in Sarvadhikari pp. 86-89.) It is
true that the text shows a mother''s brother''s son should have priority in the performance of Sraddah over even father''s sister''s son. I do not wish
to concede that the order of succession is the same among them. The point does not arise here.
If every step in cognateness, compared to agnateness denotes a mark of inferiority, it follows that two steps in cognateness are inferior to only
one step in cognateness and one in agnateness. The principle has been recognised in this Court in Tirumalachanar v. Andalammal [1907] 30 Mad.
The decision in Appandai Vathiyar v. Bagubali Mudaliar [1910] 33 Mad. 439 itself recognises the superior spiritual efficacy of a maternal
uncle''s son to a mother''s sister''s son. Finally, the Bengal school of law, which depends on spiritual efficacy gives preference to mother''s brother''s
son; see Daya Krama Sangraha Ch. I-X, 14 to 26. Mayne 584 p. 859). A text eomewhat in conflict with the passage in Daya Krama Sangraha,
viz., the commentary of its author (Sri Krishna Tarkalankara).
Jimutavahana''s Dayabhaga has been cited in Ghoso''s Hindu Law, Vol. II, p. 928; but its authenticity is doubtful and it is inconsistent with the
main work of the author. This is also the view of Sar-vadhikari.
For all the reasons, I would agree with the conclusion in Rom Charan Lal v. Rahim Baksh [1916] 38 All. 416 and regard Appandai Vathiyar
v. Bagubali Mudaliar [1910] 33 Mad. 439 as overruled by Vedachela Mudaliar v. Subramania Mudaliar AIR 1922 P.C. 33 and allow the appeal
and dismiss the suit with costs, only in the first Court. Each party will bear his costs in this and in the lower Appellate Court.
Venkatasubba Rao, J.
I agree.
This question to be decided in this case has reference to the priority in regard to succession to a deceased Hindu, the computing claimants
being his maternal uncle''s son and his maternal aunt''s son. The rules respecting succession of Bandhus are involved in considerable obscurity and
the specific point, with which we have to deal, has been the subject of great controversy. The case has been fully and ably argued by Mr. B.
Somayya, whose contention has been that the maternal uncle''s son is to be preferred and by Mr. N. Chandrasekrra Aiyar, who has maintained
that the maternal aunt''s son has the preferential right.
I have come to the conclusion that the maternal uncle''s son must be preferred. A Bench of this Court held in Appandai Vathiyar v. Bagubali
Mudaliar [1910] 33 Mad. 439 that a mother''s sister''s son is to be preferred to a maternal uncle''s son. But, in my opinion, the reasons given for
the decision cannot now be accepted as sound, in view of the recent judgment of the Judicial Committee in Vedachela Mudaliar v. Subramania
Mudaliar AIR 1922 P.C. 33.
I shall first examine the texts of Hindu Law on this subject and shall then discuss the ease referred to above, namely, Appandai Vathiyar v.
Bagubali [1910] 33 Mad. 439.
I may preface my remarks on the original texts, with the observation that the ancient writers, after stating that on failure of agnates, cognates,
succeed invariably, quote a text that is variously attributed to Vriddha Satatapa and Baudbayana. The text merely enumerates the Bandhus and has
no bearing on the question of succession. Though it has been repeatedly quoted by the exponents of the law, there is nothing to show that the text,
whatever may be its origin, had any connection with any discussion of legal questions and it is more than probable that the author intended to do no
more than merely enumerate the Bandhus. The text itself is this.
The sons of a man''s own paternal aunt, the sons of his own maternal aunt, and the sons of his own maternal uncle, are recognised as a man''s
own bandhus (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, are recognised as his father''s bandhavas. (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 are recognised, as his mother''s bandhavas. (Matru Bandhus).
I shall now proceed to examine the texts.
(1) Vignaneswara in his Mitakshara says thus.
(1) On failure of agnates, the cognates are heirs. Cognates are of three kinds, related to the person himself (Atma Bandhus), to his father (Pitru
Bandhus) or to his mother (Matru Bandhus), as is declared by the following text.
Here is quoted the famous text attributed to Vriddha Satatapa.
Then the Mitaksbara continues :
(2) Here by reason of near affinity, the cognate kindred of the deceased himself (Atma Bandhus) are his successors in the first instance. On failure
of them, his father''s cognate kindred (Pitru Bandhus) or if there be none, his mother''s cognate kindred (Matru Bandhus). This must be understood
to be the order of succession here intended.
Sea Ch. II, Sect. 6 Setlur''s Hindu Law Books on Inheritance.
The Mitaksbara thus prescribes that the Atma Bandhus are to be preferred to the Pitru Bandhus and the Pitru to the Matru. As regards the
order of succession among the Bandhus of each class, it says nothing. The Mitakshara, therefore, is, not an authority for the proposition that the
maternal aunt''s son is to be preferred to the maternal uncle''s son.
II. Saraswathi Vilasa thus deals with the succession of the Bandhus :
The Bandhus are exhibited in another law Code, in the order of their greater propinquity."" The text of Vriddha Satatapa is then quoted.
If there are no Gotrajas the connection through property belongs to these.
There also, the order to be recognised is that a man''s own Bandhavas first take the property, on account of their nearer relationship ; if there
are none, the father''s Bandhavas take the property ; if there are none, the mother''s Bandhavas."" (See translation of Saraswathi Vilasa by Rov.
Thomas Foulkes p. 119).
A reference to the original Sanskrit texts will show that the passage in Saraswathi Vilaaa, stanza 597, is identical with paragraph 2 of the above
quotation from the Mitakshara.
Now turning to the opening words of Sloka 595.
The bandhus are mentioned in another Smriti in the order of their propinquity.
I cannot agree with the contention that the learned author intended in this passage to lay down the order of succession, in regard to Bandhus,
mentioned in each of the three categories. Sloka 597 puts the matter beyond doubt, because there it is expressly stated that the order prescribed is
only as regards the three classes of the Bandhus.
III. Smriti Chandrika, after stating that after sapindas, samanodakas take the wealth of a deceased kinsman, says that Bandhavas come in next
in order. Then Sect. 5 Sloka 13 continues :
The Bandhavas are exhibited in another Law Code, in the order of their greater propinquity.
Then follows the text of Vriddha Satatapa, which is numbered Sloka 14. So far it will be seen that Smriti Chandrika is in complete agreement
with Sarasvati Vilasa In the original Sanskrit, the same words are used in both the treatises to express the idea conveyed by the words "" are
exhibited in another Law Code, in the order of their propinquity."" Then comes Sloka 15, which according to one reading is as follows:
Of the kinsman (gnatiyah or Sapindas), distant kinsman (sakulyah or samanodakas) and cognate kindred (Bandhavas) in default of one that stands
nearest in the order expressly given, he that may be somehow viewed to stand on a par with him may be selected ; it being generally declared by
Gautama "" Let those take the inheritance, who gave the funeral cake (pinda), who are the descendants from the same gotra, or who are sprung
from the same Rishi.
See Setlur p. 297. The other reading is that which is adopted by Ghose and is as follows:
Of the agnates, Sakulyas and bhandhus, on failure of near heirs, those that may be somehow considered near, may be considered as heirs, from
what Gautama says generally thus: "" sanindas, sagotras, or those connected by descent from the same Rishi take the estate.
See principles of Hindu Law, Vol. II p. 471, for the Sanskrit text and p. 403 for the English rendering.
In the first place, whichever reading is adopted, Sloka 15 is somewhat obscure and in any event, it contains no indication that a different rule
was intended to be laid down from what was prescribed in the Mitakshara.
IV. Parasara Madhavya is even less explicit on the point. It does not set out the priority, even in regard to the three main classes. This is how
the law is stated:--
In default of gotrajas, Bandhavas take the property ; and they are of three kinds, as has been shown by Baudhayana.
Here the writer gives as usual the well-known text and then proceeds to say. But he who is nearest among the bandhavas tikes first. So
Brihaspati says:
Where there are many kinsmen sakulays and bandhavas, he who is nearest to them should take the property of a man who leaves no issue.
(See Sloka 41 in the translation by Mr. A.C. Burnell. p. 41). As I have observed on the point at issue, this passage throws little light.
V. Varadaraja''s Vyavahara Nirnaya merely states that bandhavas succeed in default of sagotras and then cites the text of Vriddha Satatapa.
See Burnell''s translation of Vyavahara Nirnaya, p. 37.
VI. Vyavahara Mayukha enunciates the law thus.-
If no distant kinsman exists then come the cognate kindred (bandhu) who are thus specified in another smriti.
The Smriti of Vriddha Satatapa is then as usual quoted. Then the author continues:
Here also the order of succession follows the order of the text.
(See Section 8, verse 22 p. 101 of Burnell''s translation).
A careful examination of these texts reveals that so far as the Mitakshara is concerned it settles priority only in regard to the three main
categories of the bandhus and that excepting a doubtful and obscure passage of the Smriti Chandrika, there is nothing in these authorities which
indicates that the order in which the band-hua of each class are enumerated, is intended to determine their respective priority.
I shall next deal with Appandai Vathiyar v. Bagubali Mudaliar [1910] 33 Mad. 439 the Case to which I have referred. The reasons for holding
that a mother''s sister''s son is to be preferred to a maternal uncle''s son are, according to the judgment in that case the following;
The express authority of the Smriti Chandrika, the Sarasvathi Vilasa and the Vyavahara Mayukha must be given effect to (p. 445).
With all respect, in my opinion, as I have shown, this reason is not sound. The translator of the Smriti Chandrika, who is referred to in the judgment
(Mr. Krishnaswami Aiyar), no doubt gives the 24th place to the son of the mother''s sister and the 25th to the son of the maternal uncle. This is
merely the opinion of the translator and it is not correct to say that the Smriti Chandrika itself supports the view. Again Mr. Mandlik in his
translation of the Vyavahara Mayukha adds in a footnote that the order applies to the three classes, as well as to the several members of those
three classes. Whatever may be Mr. Mandlik''s opinion, it does not receive any support from the original, which he has translated. I have
sufficiently shown that the texts of Hindu Law do not support the view, which the learned judges have taken in this case.
The second reason given, in support of their judgment may also be stated in the words of the learned judges:
There is a rule of Mimamsa that effect should be given to the order in which persons and things are named unless the sense requires, a different
order. In the absence of any decisive principle, dictating a different order, the duty of the interpreter of the law is to accept the order in which they
are named, as based upon some rule, which they may be unable to discover, or upon the mere ipse dixit of the law-giver.
Jaimini in his Mimamsa Sutras refers to what are called Kramas. The three chief Kramas are thus defined:
(i) The order of succession is sometimes declared by express srutis. This is called Sruti-krama.
(ii) In the absence of express Sruti it is in some cases to be determined by the sense of the passage. This is called Arthakrama, (determination of
order by sense).
(iii) It is sometimes indicated by the order in which the texts appear. This is called Pada-krama (succession by reading). See Sarkar, Tagore Law
Lectures on Mimamsa Rules of Interpretation, p. 196.
It is the third rule that is referred to, in the passage quoted above, from the judgment. The first two Kramas are based on reason. The third
Krama is purely arbitrary and cannot be relied on, excepting possibly, in the last resort. This artificial rule was treated by the learned judges, as the
chief cannon of construction. The mere accident of enumeration in a certain order was taken as decisive of the point at issue.
Moreover, in the light of decided cases, can any importance be attached to the order of enumeration? In Sundrammal v. Rangasami Mudaliar
(1895) 18 Mad. 193 the sons of the daughter of the deceased''s paternal uncle were preferred to the deceased''s mother''s sister''s son. Both
belonged to the class of Atma Bandhus, but a cognate not specified in the enumeration was preferred to a cognate specified. In Balusami Pandithar
v. Narayana Rau (1897) 20 Mad. 342 the son of the sister''s son was preferred to the maternal uncle''s son. Here again, the contest was between
two Atma Bandhus and a Bandhu not mentioned was preferred to a bandhu mentioned. In Kafetoolah v. Ariza Bibee (1875) 28 W.R. 64 a
sister''s son was given priority over a mother''s sister''s son and in Mohandas v. Krishnabai 1880 5 Bom. 597 the maternal uncle was preferred to
the mother''s sister''s son. In each of these two cases again, a bandhu specified among the Atma Bandhus was rejected in favour of one not
specified. In Vedachela Mudaliar v. Subramania Mudaliar AIR 1922 P.C. 33 the Judicial Committee preferred a maternal uncle (an Atma Bandhu
ex parte maternal to a son of the paternal aunt''s son an Atma Bandhu ex parte paterna).
It has been held that the enumeration in the text of Vriddha Satatapa is only illustrative and not exhaustive and if cognates not included in the
enumeration of Atma Bhandhus are to be preferred to the first named pitru bhandu and if similarly pitru bandhus not in the list are to be preferred
to the first mentioned matru bandhus, where then can priority come, by virtue of mere enumeration? I am therefore decidedly of the opinion that
Padakrama rule ought not to be applied.
(3) I shall next deal with the third ground, on which judgment in Appandai Vathiyar v. Bagubali Mudaliar [1910] 33 Mad. 439 is based.
Referring to Bhattacharya and Sarvadhikari, who give precedence to the maternal uncle''s son over the mother''s sister''s son, the learned judges
observe that the view of those writers is not entitled to weight, as it is based on the theory of religious efficacy of oblations, which has no place in
the Mitakshara scheme of succession. The learned judges say:
It is difficult to decide the question under consideration, on any theory of religious efficacy:
Similarly, they dispose of the observation of Mr. Justice Muthuswami, Ayyar in Muttusami v. Muttukumaraswami (1893) 16 Mad. 23 I that the
spiritual benefit conferred on a propositus is a ground of preference. A good portion of the judgment is devoted to showing that the Mitakshara
repudiates the notion of connection by spiritual offerings."" There can be little doubt that the learned Judges were disposed to take the view that, if
the question had to be decided with reference to the theory of religious efficacy, the maternal uncle''s son ought to be preferred to the maternal
aunt''s son. A very different view on the question of spiritual benefit has now been taken by the Judicial Committee in Vedachela Mudaliar v.
Subramania Mudaliar AIR 1922 P.C. 33 and the value of Appandai Vathiyar v. Bagubali Mudaliar [1910] 33 Mad. 439 as an authority is thus
lost.
In Vedachela Mudaliar v. Subramania Mudaliar AIR 1922 P.C. 33 the contest was between the mother''s brother and the father''s sister''s
son''s son. The Madras High Court (Miller and Sadasiva Aiyar, JJ.) held that the latter was the preferential heir. In doing so, one of the learned
Judges (Sadasiva Aiyar, J.) refused to recognise the fourth rule, laid down by Sir T. Mathuswami Aiyar, J., in Muttuswami v. Muttuhumaraswami
(1893) 16 Mad. 23 namely:
that as between the bandhus of the same class, the spiritual benefit they confer upon the propositus is as stated in Virarnitrodaya a ground of
preference.
Their Lordships of the Judicial Committee point out that the Virarnitrodaya is regarded as a high authority, wherever the law of the Mitakshara
is in force and state their conclusion thus:
Their Lordships think that in the absence of any express authority varying the rule, the propositions enunciated in Muttuswami v.
Muttuhumaraswami (1893) 16 Mad. 23 which on appeal was affirmed by the Judicial Committee, furnish a safe guide.
The competing claimants, the maternal uncle and the father''s sister''s son''s son, both belong to the class of Atma Bandhus. The maternal uncle
was preferred on the grounds : (1) that he is undoubtedly nearer in degree to the deceased than the rival claimant: (2) that he offers oblations to his
father and grandfather, to whom the deceased was also bound to offer pinda, whereas the father''s sister''s son''s son offers no pinda to the
deceased ancestors. In the course of their judgment, their Lordships observe that it is not necessary to express any opinion, how far the
proposition that preference should be given to cognates ex parte paterna over cognates ex parte materna, is in conformity with the express rule,
that in each class, propinquity should be the governing factor : but it is noteworthy that the maternal uncle, who was preferred by their Lordships is
a cognate ex parte materna and that the sister''s son, who was rejected in favour of the maternal uncle, is a cognate ex parte paterna.
In Appandai Vathiyar v. Bagubali Mudaliar [1910] 33 Mad. 439 the learned Judges, (White C.J. and Krishnaswami Aiyar, J., expressed
disapproval, as Mr. Justice Sadasiva Aiyar did in the case that went up to the Privy Council, of the fourth principle, enunciated by Sir Muthuswami
Aiyar, J., in Muthusami v. Muttukumarasami (1893) 16 Mad. 23. It therefore, follows that Appandai Vathiyar v. Bagubali Mudaliar [1910] 33
Mad. 439 cannot now be regarded, as an authority for the proposition that the maternal aunt''s son is to be preferred to the maternal uncle''s son.
I have so far examined the grounds of the decision in Appandai Vathiyar v. Bagubali Mudaliar [1910] 33 Mad. 439 with a view to show that it
cannot be followed. That is the only Madras case, that deals with the question of preference between the maternal aunt''s son and the maternal
uncle''s son. The same question arose in two other oases, one of the Allahabad High Court, and the other of the Bombay High Court. In Ram
Charan Lal v. Rahim Baksh [1916] 38 All. 416 Banerji and Piggott, JJ., held dissenting from the Madras view, that the maternal uncle''s son was
the preferential heir. The ground of decision was that precedence was to be determined by propinquity. They quote with approval the passage in
Tirumalachariar v. Andalammal [1907] 30 Mad. 406 which is to the effect that all other considerations being equal, that claimant, between whom
and the stem, there intervenes only one female link, is to be preferred to the claimant, who is separated from the stem by two such links. In
Rajeppa v. Gangappa AIR 1922 Bom. 420 Macleod, C.J., and Shah, J. held that the only test that ought to be applied is propinquity to the
deceased, that the argument of relative religious efficacy was not well-founded and that the affinity of the maternal uncle''s son and the maternal
aunt''s son is equal and that they being equally near to the propositus they ought to take equally. The peculiar doctrine that prevails in Bombay
enabled the learned Judges to treat a female''s and a male''s descendants as standing on a par and therefore being equally entitled.
We are bound by the decision of the Judicial Committee and giving effect to the view adopted in Vedachela Mudaliar v. Subramania Mudaliar
AIR 1922 P.C. 33 we must hold that the maternal uncle''s son is the preferential heir, on the ground of superior efficacy of oblations, The mother''s
sister''s son as well as the mother''s brother''s son are both Atma Bandhus, and are both expressly mention in the Mitakshara. They are both
related on the mother''s side and they are both equally removed from the propositus. The Allahabad High Court held that the maternal uncle''s son
is nearer to the deceased than the maternal aunt''s son; but the Bombay High Court was of the opinion that both were equally near to the
propositus. In my opinion, it is unnecessary to enquire whether the Allahabad view or the Bombay view is correct. I would prefer to base my
judgment on the surer ground, referred to by the Privy Council, that of superior religious efficacy.
How then does the question of superior religious efficacy stand?
Sarvadhikari in classifying the heirs, according to the Dayabhaga gives the thirty-fifth place to the maternal uncle''s son and the thirty-seventh
place to the maternal aunt''s son. The doctrine of spiritual benefit, which is the foundation of the order given in the Dayabhaga is discussed by
Sarvadhikari at pages 700 to 710 : (See Hindu Law of Inheritance by Sarvadhikari 2nd Edition). Daya Krama Sangraha by Sri Krishna
Tarkalankara similarly prefers maternal uncle''s son to maternal aunt''s son and superior spiritual efficacy is given as the ground : See Ch. 1, Section
10, pp. 14, 15 and 16. Ghose, in his Hindu Law, observes that in some copies of Sri Krishna''s commentary on the Dayabhaga the maternal aunt''s
son is given a place higher than that accorded to the maternal uncle''s son and the learned author points out that this order of succession is not only
opposed to the authority of Daya Krama Sangraha, but on principle cannot be accepted.
I do not propose to discuss the theory of the relative superiority of the pindas. It is sufficient to say that Jurists of the Bengal School, whose
system of the Law of Inheritance is permeated by considerations of religious efficacy, recognise that the maternal uncle''s son has precedence over
the maternal aunt''s son. It is also worthy of note, that the learned Judges in Appandai Vathiyar v. Bagubali Mudaliar [1910] 33 Mad. 439 as also
in Ram Charan Lal v. Rahim Baksh [1916] 38 All. 416 were disposed to take the view that if the question was to be decided with reference to the
ground of superior spiritual efficacy, the maternal uncle''s son would be the preferential heir.
I therefore agree in the order proposed by my learned brother.