Govinda Menon, J.—The question for decision in this second appeal is settled from the earliest times and does not require any reconsideration. It is argued by Mr. D. Ramaswami Aiyangar for the appellant, that when a man dies leaving a divided brother and a pre-deceased divided brother's son, the succession should be for the brother and the nephew together and that the brother does not take precedence ever the nephew. The basis of this argument is centred round the text of Yanjavalkya which Mr. Ramaswami Aiyangar contends means that the brother's son stands on an equal footing with the brother, in which case, the brother cannot exclude the brother's son. He admits that a brother would exclude a brother's son if the son is that of a living brother; but if the son is that of a deceased brother and if there is another living brother, then both of them take together. We do not think that there is any justification for this argument. In Mayne's Hindu Law, 11th Edn., at page 653, the learned author says as follows:
“According to the Mitakshara and Dayabhaga Schools, no nephew can succeed as long as there is any brother capable of taking, the rule being universal that except in the case of a man's own male issue, the nearer sapinda always excludes the more remote.”
The authority for this statement of the law is contained in Manu Ch. IX S. 187 which is as follows:
“In the case of competition between brothers and nephews, the nephews have no title to the succession; for their right of inheritance is declared to be on failure of brothers (both parents, brothers likewise, and their sons)” (See Principles of Hindu Law, by J.C Ghosh, Vol. 2 page 167).
Again in Hindu Law Books of Inheritance by Setlur, at page 47, in Ch. II, S. IV, para 8, we find the following:
“Where there are brothers and nephews, the nephews have no title to the succession; for their right of inheritance is declared to be on the failure of brothers (both parents, brothers, likewise and their sons).”
The case law on the subject is also to the same effect. See Pirthee v. Court of Wards (1), Burham v. Punchoo (2), and Chandika Baksh v. Muna Kunwar (3). In the last case, their Lordships of the Privy Council held that on extinction of the line of one of several brothers, the descendants of all the other brothers take equally without reference to their nearness to their common ancestor and when one of the brothers had already died, his issue would not take along with the living brothers. In Nilakanth v. Narayan , a Full Bench consisting of Subhedar, Niyogi and Staples A.J.Cs, had to consider the same question and the headnote is to the following effect:
“The brother's grandsons are no doubt included in the compact series of heirs, but the inheritance does not devolve upon the brother's sons and brother's grandsons jointly. The brother's son, therefore, though of half blood, excludes the brother's grandson, though of full blood.”
Niyogi, J., in considering the meaning of the passage in Yajnavalkya, which we have referred to above, adverts to the word “tatsutah” as contra-distinguished from tatputrah and various authorities as Karem Ghand Gurain v. Oodung Gurain , were considered. We have no doubt that the conclusion arrived at by the Full Bench of the Nagpur High Court represents the law which has been existing for centuries in this country. It may also be useful to refer to a judgment of this Court in B. Deivanayagam Pillai v. Subbiah Pillai , in which Venkatarama Aiyar, J., delivering the judgment of the Bench referred to the fact that when the estate of the propositus devolves on his brothers, they inherit it as tenants-in-common and not as coparceners and that their issues do not take any interest therein by birth and that the sons by the deceased brothers are not entitled to take along with their uncles on the theory of representation.
We do not think there is any doubt involved in the case and the lower appellate Court is right in coming to the conclusion it did. The second appeal is dismissed with costs.
Ramaswami, J.—I agree. In addition to the authorities pointed out by my learned brother, I would like to mention Trevelyan (Hindu Law of Inheritance, page 425), West and Majid (Digest of Hindu Law of Inheritance, 1919 Edn., page 104) Sarvadhikari (Principles of Hindu Law of Inheritance—Tagore Law Lectures, page 512), Dr. Gour Hindu Code, page 947, Sarkar Sastri's Hindu Law, pages 435, 475 and 484, 8th Edn., N.R Raghavachari Hindu Law Principles and Precedents, page 488; Mulla's Hindu Law, pages 25 and 43, 44, also all mention that the sons of a deceased brother cannot claim to succeed along with the brothers on the theory of representation.
V.C.S