V. Subramania Mudaliar and Another vs K. Ranganatham Chettiar and Others

Miller, J.—The only question with which we have to deal in this appeal is whether the plaintiff or the 10th defendant is the nearest

reversionary heir of one Sankaramurthi Mudaliar.

The plaintiff is the son of Sankaramurthi''s father''s sister''s son and the 10th defendant is the brother of Sankaramurthi''s mother. The

Subordinate Judge has decided the question in favor of the 10th defendant, holding that the maternal uncle being nearer in blood and being a

person who would offer oblations to ancestors of the deceased, must be preferred to the plaintiff who makes no such offerings. The Subordinate

Judge, rightly, I think, holds that the plaintiff and the 10th defendant are both Atmabandhus of Sankaramurthi. That does not appear, judging from

the judgment, to have been questioned before him; before us Mr. Ramachandra Aiyar suggested the possibility of regarding the plaintiff as a

pitrubandhu, but I am unable to accede to that suggestion and in the face of the case Smidarammal v. Rangasami Mudaliar ILR (1896) M. 405 to

which I refer immediately, it cannot be held that the father''s sister''s grandson is merely on the ground of remoteness disentitled from succeeding,

before nearer relatives in the maternal line.

Both competitors then being in the class of Atmabandhus, the matter is in my opinion, concluded by authority in this Court. In Sundarammal v.

Rangasami Mudaliar ILR (1894) M. 193 and Balusami Pandithar v. Narayana Rao ILR (1897) M. 342 it was held that handhus exparte paterna

are to be postponed to those exparte patema. The contest in the former case between plaintiff and 3rd defendant closely resembles the position in

the case bafore us and there (vide p. 199) preference was given to the more distant paternal kinsmen, over the nearer relative on the maternal side.

It was contended by Mr. Ramachendra Aiyar that the decision may be supported on the ground that in that case the heir preferred by the Court

was a person who offered oblations to paternal ancestors of the deceased, while his competitor offered oblations only to the maternal ancestors. If

that were the sense in which the: learned judges were using the, Latin phrases exparte patema and exparte materna, I have no doubt they would

have said so and as they make no reference whatever to the superior spiritual efficacy of oblations offerred to paternal ancestors of the propositus,

I have no doubt that they did not base their decision on any such consideration.

Mr. Muthukrishnier on behalf of the 9th defendant in supporting the case of the 10th defendant contended that the decision as between the

plaintiff and the 3rd defendant in Sundarammal v. Rangasami Mudaliar ILR (1894) M. 193 was unnecessary for the decision of the case; but the

case for the appellants, 4th and 5th defendants was that the alienation in their favor had the assent of the 3rd defendant and in that way it became

necessary for them to establish the position of the 3rd defendant as the nearest reversioner; and it cannot be said that the rule laid down was an

obiter dictum. In Balusami Pandithar v. Narayana Rao ILR (1897) M. 342 the preference of bandhus exparte patema is said to be a fundamental

principle of the law, and the learned judges support their statement of the law by a reference to Sundarammal v. Rangasami Mudaliar ILR (1894)

M. 193 and to a text of the Sarasvati Vilasa from which they draw an inference opposed to the maternal bandhus. It is urged as detracting from the

authority of this case, that the decision was also based on other grounds, but that of course does not entitle us to treat this particular ground as

unnecessary for the disposal of the matter. It is also suggested that the rule is not based on the authority of the Smritis or any of the accepted

commentaries, but that, if that is so, is not a sufficient reason, why we should refuse to follow the course of decisions in this Court. As a matter of

fact the result at which I arrive in the present case is in accord with the views of the several learned writers on this very difficult branch of Hindu

Law. The Subordinate Judge was in error in treating this decision as of no authority on the question in dispute.

Holding that we are concluded by the cases to which I have referred and in the absence of any case in this Court to the contrary, I would allow

the appeal, decide the first part of the first issue in the affirmative, and remand the suit for disposal according to law.

Costs will abide the result.

In Appeal No. 82 of 1912.

This appeal is by the 1st defendant in original suit No. 6 of 1911 and was argued on his behalf by Mr. Venkatrama Sastri who supported the

plaintiff''s claim.

The result of accepting that claim will be that the appeal will be allowed and the same order made as in appeal No. 65 of 1912.

Costs will abide the result.

In Appeal Nos. 65 & 82 of 1912.

Sadasiva Aiyar, J.

The question for decision in these cases, as stated by my learned brother, belongs to a ""very difficult branch of Hindu Law."" As Mr. Mayne

says ""The order of. succession among Bandhus under the Mitakshara Law is very obscure; and the principle upon which any case is to be decided

is far from clear."" In Muthusami v. Muthuhumaraswami ILR (1892) M. 23, Muthusami Aiyar J. laid down four conclusions,

(1) That those who are Bhinna Gotra sapindas, or related through females born in or belonging to the family of the propositus are bandhus;

(2) That as stated in the text of Vridda Satatapa or Baudhayana they are of three classes viz., Atma bandhus, pitru bandus, and Matru bandus and

succeed in the order in which they are named;

(3) That the examples given therein are intended : to show the mode in which nearness of affinity is to be ascertained and

(4) That as between bandus of the same class the spiritual benefit they confer on the propositus is as stated in Viramitrodaya a ground of

preference.

On the principles above enunciated I intend to make some comments, as they are necessary for making clear the reasons for my conclusions in

the present appeal. The Sanskrit sloka on which all the remarks of all the ingenious text writers or commentators are based is in my opinion a

spurious one. As usual with such spurious texts, the authorship is not definitely stated, some saying that it is a text of Vridha Satatapa and some that

it is a text of Baudhayana. The text is not, I believe, found in any work acknowledged as a complete or fairly complete Smriti of Vriddha Satatapa.

As usual with these spurious texts, the Smriti to which they belong is attributed to a Rishi having the same name as that of an acknowledged great

Rishi but with the word ''Vriddha'' or elder attached to the name so that no objection might be raised that the text is not found in the works of the

well-known Rishi of that name. And so we have spurious texts of Vriddha Manu and other Vriddha Rishis. As Mr. Mayne shrewdly points out, the

text in question omits mention of much nearer Atma bandus of the propositus such as his sister''s son or daughter''s son''s son or maternal

grandfather or maternal uncle. As I pointed out in the course of the arguments, that text is illogical, incomplete and inconsistent. However, it has to

be accepted though, in my opinion it is not a Shastraic text; for, I am bound by the authority of the Privy council not to rely upon the more ancient

and authoritative Shastras where law has been settled by the Courts according to the custom and practice of the Hindu community resident in a

certain province even though the custom is based upon less authoritative treatises. The mother''s sister''s son is unconditionally stated to come

under the term ""bhinna gotra Sapinda,"" though frequently he is of the same gotra as the propositus that is, when the mother and her sister have

married husbands of the same gotra. Though the bandhus are classified as Atma bandus, Pitru bandus and Matru bandus all three come in as heirs

because they are bandus of the propositus himself though the first class alone is technically called Atma bandhus (or own bandhus). With the

greatest deference, the fourth proposition laid down by Sir T. Muthusawmi Aiyar, J. viz., that between bandhus of the same class the spiritual

benefit they confer on the propositus is a ground of preference, does not commend itself to me, though guarded obiter dicta to the same effect are

found in the other learned judgments also both earlier and later in date than Muthusami v. Muthukumarasami ILR (1892) M. 23. Some of the pitru

bandhus and Matru bandhus mentioned in the text itself confer no spiritual benefit whatever on the propositus and I fully agree with those judicial

observations which held that according to the Mitakshara, (and ignoring the Benares branch of that school) the question of spiritual benefit or of

death pollution or of the right of performance of obsequial ceremonies should not be introduced when considering the question of heirship. I go

further and say that the introduction of such questions would lead only to inextricable confusion. The other three propositions laid down by

Muthusami Aiyar, J. have been too well established now to allow of being controverted or overthrown by judicial pronouncements.

Two other propositions also have been established viz., that all female bandhus in the Madras Presidency (except the daughter) must be

postponed to all male bandhus, and that agnates to the fourteenth degree take precedence of all male and female bandhus except the daughter and

daughter''s son, whose exclusion was recognised as so outrageous even by the Mediaeval commentators that they were obliged to bring them in by

a sort of special pleading based on special texts. The enumeration in the Vridda Satatapa''s text being clearly not exhaustive, several bandhus have

been brought in by the decisions of Courts even in precedence of the three Atma bandhus specially mentioned in the text (the said three being the

father''s sister''s son, the mother''s sister''s son and the mother''s brother''s son). When we once bring in others, Atma bandhus before Pitru

bandhus, it seems logical to hold that all Atma bandhus (lower in status to the three specially mentioned) should also be exhausted before even the

first Pitru bandhus could come in. The only convenient and logical principle seems to me so to bring in all the Atma bandhus though removed to the

extreme limit of five degrees from the propositus before bringing in a Pitru bandhu, though the latter may be removed by a less number of degrees

from the propositus, and (by the same analogy) to bring in all the Pitru bandhus even up to the fifth degree before a matru bandhu though the latter

is removed by less than five degrees. The table given in Mayne, paragraph 579 is clearly inaccurate, and it is misleading in some particulars. It puts

down the maternal grandfather as number 17 and the maternal uncle as No. 9, whereas Krishnayya v. Pichamma ILR (1887) M. 287 and

Chinnatnmal v Venkatachella ILR (1891) R. 15 contain clear dicta that the maternal grand-father ranks higher than a maternal uncle when the

question of heirship is involved. Mayne''s table puts the maternal uncle''s sou again as No. 10 and the maternal aunt''s son as No. 11 which is

opposed to Appandai Vathiyar v. Bagubali Mudaliar ILR (1910) M. 439. Mr. Mayne again does not carry the three classes of bandhus up to the

fifth degree, from the propositus in most cases and hence his list is incomplete. I am therefore inclined to agree with the learned leader writer in 9

M.L.J. 51 . who states that the 32 Atma bandhus (10 in the line of the propositus, 11 in that of the propositus'' father and 11 in that of the

propositus'' grand-father) should be exhausted before the maternal grand-father, (the first of the Atma bandhus ex parte matema or the maternal

uncle (the second of the Atmabandhus exparte materna) could come in as heir. The plaintiff in this case belonging to one of the eleven

Atmabandhus exparte paterna comes in therefore before the maternal uncle. I am fortified in this view by the cases of Sundarammal v. Rangasami

Mudaliar ILR (1887) M. 287 and Rambharos v. Ram Pershad (1906) 3 A.L.J. 416. This is there fore the law which I as a judge, feel myself

bound to lay down, though it is not the sastra according to my view. In the very recent case reported in Budha Singh v. Lalta Singh ILR (1911) A.

663, the learned judges held that the word ''son'', is usually used in the Mitakshara so as to include ''son'', ''grand son'' and ''great grand son'' and if

so, the paternal aunts''s son''s son, will come within the term paternal aunt''s son'' and must therefore come before the maternal uncle and his

santanam. The Mitakshara contravenes the shastras (and ordinary rationalistic principles) in two ways (a) by bringing in as heirs very remote

agnates before near bandhus like the sister, and sister''s son and (b) by excluding all females (except the daughter) from succession as bandhus till

males are exhausted. In finding out the order of succession therefore, according to the Mitakshara, these two irrational principles become the

foundation of all further reasoning, and it is no wonder that this branch of law based upon reasons themselves founded upon unreason is most

unsatisfactory. The obvious course of remedying the confused and unshastraic character of this branch of the law is by resort to legislition which

must be initiated by the enlightened Hindu members of the Bar and of the Legislative Council. The uncertainty and confusion at present existing no

doubt favors the cultivation of the legal acumen of the Bar and the Bench (See the very acute judgment, if I may be permitted to say so, of Pigott J.

in Budha Singh v. Lalta Singh ILR (1911) A. 663, but it is clearly detrimental to the permanent interests of the Hindu public.

In the result I agree with the orders proposed by my learned brother in the matter of the disposal of these appeals.