Ramaswami, J.:— This appeal raises an important question in the Hindu Law of inheritance. The plaintiffs brought the suit alleging that they were entitled to one-tenth share in the properties of their deceased grandfather Kunj Bihari Singh and asking for a partition thereof. The relationship of the parties will appear from the following pedigree:
It is the agreed case that in 1940 Kunj Bihari Singh partitioned his properties with his sons, Bhairab Pd. and Suresh Pd. Singh; that in 1942 the plaintiffs became separate from defendants 1 to 4, who continued to remain joint. Kunj Bihari died in March 1944. The plaintiffs claimed that they were entitled to one-tenth share of his inheritance. Defendant no. 1, Thakur Bhairab Pd. resisted the claim on the ground that only he and defendant no. 5 were the heirs of Kunj Bihari. It was alleged that the plaintiffs could claim any share in the inheritance since they were no longer co-parceners having separated from defendants 1 to 4. On these rival contentions the Subordinate Judge granted a preliminary decree to the plaintiff for partition of one-tenth share of the property of Kunj Bihari Singh.
Against this decree the defendants 1 to 4 have preferred this appeal.
The important question to be determined is whether the plaintiffs are entitled to a share in the inheritance left by Kunj Bihari Singh in spite of the fact that the plaintiffs have already separated from their co-parceners.
The cardinal principle of Mitakshara is that property in the father's or paternal grandfather's estate is by birth (Janmasvatvavada). In the Mitakshara I, 1, 2, Vijnanesvara declares that “the term heritage (daya) signifies the wealth which becomes the property of another solely by reason of relation to the owner.”
(Mitakshara I, 1, 2).
This text is the key to the theory of inheritance propounded by Vijnanesvara. In I, 1, 3, he proceeds to explain.—
“The wealth of the father, or of the paternal grandfather, becomes the property of his sons or of his grandsons, in right of their being his sons or grandsons, and that is an inheritance not liable to obstruction. But property devolves on parents (or uncles), brothers and the rest, upon the demise of the owner, if there be no male issue: and thus the actual existence of a son and the survival of the owner are impediments to the succession; and, on their ceasing, the property devolves on the successor in right of his being, uncle or brother. This is an inheritance subject to obstruction. The same holds good in respect of their sons and other (descendants).”
In other words, the kinsmen are entitled to succeed to the deceased owner's property solely by reason of their consanguity with the latter. This is confirmed by Visveswara Bhatta in Subodhini his commentary on the Mitakshara.
“Wealth which becomes the property of another (as a son or other person bearing relation) in right of the relation of offspring and parent and the like, which he bears to his father or other relative who is owner of that wealth, is signified by the term heritage. A son and a grandson have property in the wealth of a father and of a paternal grandfather, without supposition of any other cause but themselves.” Balam Bhatta also states that by the word “solely” Vijnanesvara meant to “exclude any other cause such as purchase and the like. Relation, or the relative condition of parent and offspring, and so forth, must be understood of that other person, a son or kinsman, With reference to the owner of the wealth.”
In Chapter I, 27, Vijnanesvara concludes follows:
“Therefore it is a settled point that property in the paternal or paternal grandfather's estate is by birth although the father have independent power in the disposal of effects other than immovables for indispensable acts of duty and for purposes prescribed by law and so forth; but he is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or inherited from his father and others.”
The opinion of Vijnanesvara that sons have by birth an equal ownership with the father in respect of ancestral immovable property is followed by Mithila authorities—Vivada Chintamani, P.C Tagore's edition, page 309; Vivada Ratnakara, II, 2-5; Madana Parijata, 8th stabaka, page 660, Bibliotheca Indica.
On behalf of the appellants it was conceded that had the plaintiffs been joint, they would be entitled, to their share of the grandfather's inheritance. But the argument was addressed that since the plaintiffs had separated from the joint family; their right was defeated, and the grandfather's estate devolved on defendant no. 1 and defendants 2, 3 and 4 who continued joint.
This argument, though plausible, must be rejected in view of the undisputed authorities. The principle of Mitakshara is that the son and grandson get “unobstructed” right (apratibandha daya) by mere birth to the separate property of the grandfather. If the text of Mitakshara Chapter I, section 5, is closely examined, it will be apparent that partition 3 does not annul the grandson's right or convert it into an obstructed right, that the existence of a son or united brothers would not defeat it, although both the son and grandson are separate from their ancestor and also from one another.
In Chapter I, section 5, Vijnanesvara discusses the text of Yajnavalkya (ii—122)
In placitum 3 Vijnanesvara sets forth certain doubts that arise in consequence of the rules laid down in placita 1 and 2:
Dr. Jolly transtates this placitum as follows (Tagore Lectures 1883, page 125);
“Supposing the father to be divided (from his co-parceners) or to have no brothers, shall the estate which has been inherited from the grandfather not be divided at all from the grandson in that case because it has been directed that fathers shall be allotted in the right of the father if he is deceased (and not otherwise); or admitting partition to take place in that case, shall it be instituted by the choice of the father alone?”
In placitum 5 Vijnanesvara explains the text and categorically answers the doubt “in such a property which was acquired by the paternal grandfather the ownership of father and son is notorious and therefore, partition does take place”. In Subodhini placitum 3 is explained in greater detail:
If the father be alive, and separated from “his own father, or if, being an only son with no brothers to participate with him, he be alive and not separated from his own father, then, since in the first mentioned case he is separate, no participation of the grandson's own father, in the grandfather's estate, can be supposed, and therefore, as well as because he is surviving the grandson cannot be supposed entitled to share the grandfather's property since the intermediate person obstructs his title: and in the second case, although the grandson's own father has pretensions to the property, since he is not separated, still the participation of the grandson in the grandfather's estate cannot be supposed, for his own father is living: hence no partition of the grandfather's effects, with the grandson whose father is living, can take place in any circumstances: or, admitting that such partition may be made, because he has a right by birth. Still, as the father's superiority is apparent (since a distribution by allotment to him is directed, when he is deceased, and that is more assuredly requisite, if he be living), it follows that partition takes place by the father's choice, and that a double share belongs to him. Having thus stated the difficulty, the author proceeds: “To obviate the doubt the author says: for the ownership of father and son is the same in land.” and in verse 5 he concludes: “In such property which was acquired by the paternal grandfather, etc., the ownership of father and son is notorious: the right is equal or alike: therefore partition is not restricted to be made by the father's choice, nor has he a double share”.
That partition cannot annul or destory the right of the grandson to the grandfather's estate is also supported by the Viramitrodaya: “Wherefore should it be restricted to the case of grandsons whose father is dead? Nor, can it agreeably to what is maintained by Dharesvara, be said, that the text is intended to prevent only unequal distribution by the choice of the father, and not the determination of the time for partition by the father's choice, nor his double share, which are without distinction applicable to this case. Because there is no ground of discrimination (as to what is the intention).—Moreover, the causality of the father's desire, is literal, being expressed by the instrumental case in the text, “may separate by his choice;” but the determination, by the father's desire, of the time for partition, is only inferential: it is very strange that when the literal causality is prevented by this text, it does not prevent the determination (by the father's choice) of the time for partition—which is inferential. And if the ownership be admitted to be co-equal, as you have taken upon yourself the difficulty of admitting it, — then the causality of the sons's desire and the determination by it of the time, cannot be opposed”. From Chapter V of Mitalishara and Subodhini's commentary thereon it is patent that Vijnanesvara considered that even in the case of a father who was separated from his co-parceners, the grandson was entitled to partition, the reason being that “the ownership of the father and son is notorious: the right is equal or alike; therefore partition is not restricted to be made by the father's choice”.
The conclusion, therefore, emerges that partition merely adjusts or resolves joint right into several rights, that it frees the father's share from any present proprietary, right on the part of the divided son but it could not annul the filial relation nor the right of succession incidental to that relation. In Marudayi v. Doraisami Karambian(1) the plaintiff and his three deceased brothers partitioned the family properties with their father who took one share. After the father's death the plaintiff sued for possession of his share to the exclusion of his nephews, defendants 2 to 4, who were the sons of the predeceased brothers. Plaintiff claimed the whole of his father's share on the ground that he being the sole surviving son excluded the nephews. The argument was that the plaintiff and his nephews being divided, there was no co-parcenary and where there was no co-parcenary, there was no right of representation and the plaintiff took the whole of the father's estate as the nearest sapinda. This argument was negatived by the Madras High Court, who held that even in a separated family the rule of succession per stirpes applied, and that partition did not extinguish the grandson's right to succession of the estate. “To allow a rule of succession per stirpes in a separated family is to admit an exception to the rule of Hindu Law by which the inheritance devolves on the nearest sapinda; but the exception is one which in our opinion necessarily follows from the exposition given in the Mitakshara of the rights of sons and grandsons in the estate of the grandfather”. The exception did not extend to, cognate relations because they took an “obstructed” inheritance whereas the sons and grandsons took an “unobstructed” inheritance. In Muttuvaduganatha Tevar v. Periasami Sir T. Muthusami Iyer explains the matter: “The distinction is material only to the extent that, in the one case the nearer male heir excludes the more remote, while in the other the doctrine of representation excludes this rule of preference. It is founded upon the theory that the spiritual benefit derivable from the three lineal male descendants is the same, though among collateral male heirs the quantum of such benefit varies in proportion to the remoteness of the male heir from the deceased male owner. The rule that to the nearest sapinda the inheritance belongs applies alike whether the inheritance is ‘obstructed’ or ‘unobstructed’ with this difference, viz., that, where the last ‘full owner’ leaves sons, grandsons, and great-grandsons, their sapinda relationship confers equal spiritual benefit on him though their blood relationship is not the same, and they are all co-heirs within the meaning of the rule.”
In Gangadhar Narayan v. Ibrahim(2) the Bombay High Court also held that the right of divided sons, grandsons and great-grandsons of the last male owner to succeed to his divided property, was the same as in the case of undivided family property. In that case the plaintiff was son of one Naro, who had a four annas share in a certain milkiat. The pedigree was as follows:
Naro died leaving him surviving his son Gangadhur and grandsons who had predeceased Naro. In 1916 the plaintiff Gangadhur sued to recover two-fifths share in the milkiat alleging that there had been a partition during the lifetime of Naro between Naro and his sons and, therefore, on Naro's death, his one-fifth devolved on the plaintiff. Naro's grandsons also claimed rateably in Naro's one-fifth share and filed different suits for their shares. The High Court held that the grandsons were entitled to their share in Naro's one-fifth and that Gangadhur had no exclusive title. In my opinion the principle of ownership by birth which is the corner stone of Mitakshara inheritance is of such a character that in the development of law we are bound to carry it to its logical consequence except only so far any other principle of greater or equal authority may prevent our doing so. No such principle can be pointed out in this case. The position of son or grandson in the Mitakshara is similar to that of sui heredes (in the Roman law) who are regarded as having a sort of dormant ownership in the estate of their father even during his lifetime and at his death succeed without the need of any express acceptance. Their succession was in fact not so much a succession as coming into the enjoyment of what in a sense had already partly belonged to them (Digest 28. 2. 11—Paulus).
In an address characterised by much painstaking research learned Advocate-General sought to convince us that in the Mithila school succession to the grandfather's inheritance was different from Mitakshara that the son and grandson do not simultaneously succeed, but in preference, to grandson the son succeeds. In suport of this argument he cited Vivada Chintamoni stanza 283 (page 269, Setlur Vol. II): “Therefore the summary is this; first, the son; on failure of him, the grandson: in his absence, the grandson's son; on failure of him, a chaste wife, in her default the daughter, in her default the mother; in her default the father, in his default the brother”.
But the summary in the first part does not appear authentic, for it is not supported by the discussion which precedes. Indeed, the whole chapter deals with the succession to the estate of one “who leaves no son” “and there was no occasion for Vachaspati Misra to discuss the order in which the son and grandson was to inherit.
That the summary is not authentic is also apparent from paragraph 245 where Vachaspati Misra puts his own gloss on Vishnu's text: “The wealth of one dying without issue goes to the wife……………Dying Without issue (means) without son, grandson or great-grandson.”
Mr. Jha's edition, page 232]
The right to perform sradha being established in the order laid down in the text. ‘The son, the grandson, the great-grandson’, the right to succeed to the wealth which is similar to it is also settled” (page 265, Setlur).
In Vivada Ratnakara Chandesvar Thakur does not state that grandson is postponed to the grandson in succession to ancestral estate. On the contrary, Chandesvar Thakur quotes the complete text of Bandhayana:
(Vivada Ratnakara, Bibliotheca Indica, 602)
Bandhayana's text speaks of the three ascendants of a man, of himself, of his full brother and of his son, grandson and great-grandson from a savarna wife as one group called avibhaktadaya sapindas, and in the absence of these only the wealth of a man goes to his sakulyas. Further the texts of Manu, IX, 137 and 186, Vasista (17.5), Vishnu (15.46) and Yagnavalkya (1.78) all suggest that son, grandson and great-grandson equally confer spiritual benifit and hence simultaneously take the ancestral estate.
In Viramitrodaya, Mitra Misra places the matter beyond all doubt. He emphatically states that the three descendants, son, grandson, great-grandson, simultaneously succeed to the grandfather's estate:
(Chapter II, Part I, section 23-A.)
“23a. This distribution among sons extends equally to them and to grandsons and great-grandsons in the male line. There is not here an order of succession following the order of proximity according to birth. For the three descendants, namely, the son, the grandson and the great-grandson are competent to offer oblations in the parva occasions………………… Thus the competency being equal and the right by birth also being equal, equal participation would have followed but is prevented by the text,—‘among grandsons by different fathers the allotment of shares is according to the fathers’.
Jimutavahana says:—‘The grandsons and great-grandsons whose fathers are alive cannot confer oblation in the parva occasions, they are not therefore entitled to the estate of their grandfather and great-grandfather respectively. If there be one son, and sons of another son (who is dead,) then one share appertains to the surviving son, and the other share goes to all the grandsons; for their interest in the grandfather's wealth is founded on their relation by birth to their own father, consequently they have a right to just so much as should have been their father's share.’
This, however, is not acceptable; because, it has been established that in the grandfather's property the grandsons also acquire ownership by birth; hence the equality of the grandsons' share (with a son's share) in the grandfather's property is based upon the authority of the texts, and not founded upon any equitable principle”. (Dr. Sarkar Sastri's translation).
Even if Vachaspati's summary is authentic his incidental dictum that son is preferred to grandson cannot prevail over the doctrine held, by Mitakshara and Vivada Ratnakara and the texts of Manu, Bandhayana and Yagnavalkya, the last of whom it is important to remember was himself a Smriti writer from Mithila. In Surja Kumari v. Gandhrap Singh a Mithila case, Sadar Diwani Adalat stated that even if Vachaspti Misra intended the exclusion of the daughter's son, his opinion was inconsistent and ambiguous, and the daughter's son could not avail against the many strong texts of Munis, decisive of the daughter's son's right and the concurring opinions of expounders including writers of Mithila.
As the Judicial Committee observed in Surendar Mohan Sinha v. Hari Prasad the law of the Mithila school is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila school has departed from the Mitakshara. In Bacha Jha v. Jagmohan Jha the succession to the widow's stridhan was held to go to the husband's brother's son in preference to her sister's son. The learned Judges decided the case in accordance with Mitakshara on the ground that the meaning and effect of a text of Brihaspati quoted by Ratnakara (a Mithila authority) was too ambiguous to control the plain meaning of that work. In Kumla Pd. v. Murli Manohar(3) a Division Bench of this Court held that the sister's son could not be preferred to the husband's sapindas in succession to stridhan of a childless widow. The learned Judges pointed but that the sister's son was a special heir mentioned in Brihaspati's text which was quoted in Kalpataru and Ratnakara and Vivada Chandra, but not in Vivada Chintamani or Madana Parijata. Since the former authorities did not attempt to indicate whether the special heirs mentioned in that text do or do not come before the husband mentioned in Manu Smriti which too they quoted, the learned Judges held that Mitakshara applied and the sister's son should not be preferred to the husband's sapindas. In this context, it is of great importance to remember the observation of the Judicial Committee in Collector of Madura v. Mootoo Ramalinga. “The Mitakshara is universally accepted by all the schools except that of Bengal, as of the highest authority and in Bengal is received also of high authority, yielding only to the Dayabhaga on those points where they differ.”
In the present case, therefore, I hold that the plaintiffs are entitled to one-tenth share of the inheritance left by Kunj Bihari Singh.
For the appellants it was next contended that the plaintiffs' mother was necessary party and was entitled, to a share. But from the previous discussion it will be apparent that the mother had no share in the inheritance of Kunj Bihari and was not a necessary party to the present suit.
In my opinion, the decree of the Subordinate Judge is correct and this appeal must be dismissed with, costs.
Manohar Lall, J.:— I have taken time to consider the elaborate and exhaustive judgment prepared by my learned Brother. Mr. L.K Jha advanced an attractive argument, but upon a careful consideration I take the same view as my learned Brother that this argument is not entitled to succeed. I wish to indicate briefly why I agree entirely with my learned Brother.
The relevant texts are to be found in Chapter I, Section V, Mitakshara. This deals with the equal rights of father and son in property ancestral.
Clause 2.— Although grandsons have by birth a right in the grandfather's estate, equally with sons: still the distribution of the grandfather's property must be adjusted through their father, and not with reference to themselves and then an explanation is given as to how such a distribution is to, be made.
Clause 3 obviates the doubt by stating: “For the ownership of father and son is the same in land, which was acquired by the grandfather,………….
Clause 5.— In such property, which was acquired by the paternal grandfather, through acceptance of gifts, or by conquest or other means (as commerce, agriculture, or service,) the ownership of father and son is notorious: and therefore, partition does take place. For, or because, the right is equal, or alike, therefore partition is not restricted to be made by the father's choice: nor has he a double share.
Clause 6 emphasises that it is ordained by the preceding text, that “the allotment of shares shall be according to the fathers” (paragraph 1) although the right be equal.
Clause 9.— So likewise, the grandson has a right of prohibition, if his unseparated father is making a donation, or a sale, of effects inherited from the grandfather: but he has no right of interference, if the effects were acquired by the father. On the contrary, he must acquiesce, because he is dependant.
Clause 10.— Consequently the difference is this: although he have a right by birth in his father's and his grandfather's property: still, since, he is dependant on his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father's disposal of his own acquired property: but, since both have indiscriminately a right in the grandfather's estate, the son has a power of interdiction [if the father be dissipating the property] (this is from Subodhini).
Clause 11.— Menu likewise shows, that the father, however, reluctant, must divide with his sons, at their pleasure, the effects acquired by the paternal grandfather: declaring, as he does (“If his co-heirs, recover paternal wealth not recovered by his coheirs, he shall not, unless willing, share it with his sons; for in fact it was acquired by him:“)—from Menu, 9, 209,—that, if the father recovers property, which had been acquired by an ancestor, and taken away by a stranger, but not redeemed by the grandfather, he need not himself share it, against his inclination, with his sons; any more than he need give up his own acquisitions.
These clauses are so clear and distinct that it is difficult to understand how it can be argued that the grandson has no interest in the property which descends from the grandfather. I draw attention here to the observations of Sir Shadi Lal when delivering the judgment of the Privy Council in the case of Muhammad Husadn Khan v. Kishava Nandan Sahai “The rule of Hindu, law is well-settled that the property which a man inherits from any of his three immediate paternal ancestors, namely, his father, father's father and father's father's father, is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth such property is held by him in coparcenary with his male issue, and the doctrine of survivorship applies to it. He also refers to the 27th sloka in Chapter I which is translated by Colebrooke. “Therefore it is a settled point, that property in the paternal or ancestral estate is by birth”. At the bottom of the page Sir Shadi Lali observed, “Indeed, there are other passages in the Mitakshara which shows that it is the property of the paternal grandfather in which the son acquires by birth an interest jointly with, and equal to that of, his father. For instance, in the 5th sloka of the fifth section of the first chapter, it is laid down that in the property ‘which was acquired by the paternal grandfather………..the ownership of father and son is notorious: and therefore partition does take place, etc., etc.,’. I am aware of the observation of the Privy Council in Rao Balwant Singh v. Rani Kishori, that the statement in clause 27 is no more than a moral precept, whereas clauses 8 and 9 of section V lay down the positive law. I may also add that clauses 3, 5 and 11 of section V make it clear that even in the self-acquired property of the grandfather, the father and son have equal rights, but only when the property comes by inheritance to the father on the death of the grandfather.
A somewhat similar question arose for decision in the Full Bench case of Bhagwat Shukul v. Mt. Kaporni. Chaitterji, J. who delivered the judgment of the Full Bench considered the various sections in the Mitakshara and came to this conclusion at page 609: “The effect of clauses 1 and 9 of section IV, read with clauses 3, 5 and 11 of section V, seems to be that when a grandfather's self-acquired property is taken by the father by gift from him he takes it subject to the right of his own son, unless, of course, the grandfather expresses a clear intention in the deed of gift that the property should be taken by the donee exclusively. In my view, therefore, the decision in Muddun Gopal, is supported by the text of the Mitakshara.” Earlier at page 608, Chatterji, J. took the same view as I have expressed as to the right of the son in the estate of the grandfather when inherited by the father. Reference may also be made to the Privy Council case of Ulgalum Perumal Sethuraya v. Subbulakshmi Nachiar(4); where Sir George Rankin appears to indicate that the interest given to Minakshi Sundara should be regarded as joint family property and not his self-acquired.
A serious argument was advanced by the learned Advocate General before us that here the position of the plaintiff is entirely different because he is separate from his father. It is, therefore, suggested that the separation of the plaintiff from his father deprives him from, the rule so authoritatively and clearly laid down by Mitakshara in the clauses referred to above. He suggests that in such a case at least the property vests in the father and the separated son can have no right to claim a partition. This argument is not sound and conflicts with the clear meaning of the authoritative texts. The learned Advocate General was forced to submit that it is unnecessary for us to consider the rights of the unseparated sons of the father with regard to the property which has descended from the grandfather. It is true that it is not necessary to consider here the rights of the unseparated sons of the father, but we are bound to decide the nature of the interest which the father obtains in the property of the grandfather when it descends on his death as ancestral.
My learned Brother, has shown the right of the grandson to share in the property of the grandfather by birth and not by reason of his being undivided with his father.
The learned Advocate General relies upon the text in his book at page 240 to the effect that the succession is firstly to the son, after him, to the grandson, and then to the great grandson, etc. Even if this text is assumed to be genuine, the explanation is quite simple. The term putra, or son in the Mitakshara and its commentary, the Sabodhene, is frequently used as a generic term for male issue or a male descendant, and must be so construed in several parts of the Mitakshara, otherwise the grandson, as well as the great grandson, would be excluded from the immediate succession, though acknowledged in every system to represent their deceased father and grandfather, and entitled with the sons to share the estate of a prseon leaving sons, grandsons, and great grandsons, the father of the grandson and father and grandfather of the grandson being previously dead.
This view is supported by the elaborate decision pronounced by Sir Ameer Ali in delivering the judgment of the Board in Buddha Singh v. Laltu Singh. In that case there was a competition between the great grandson of the grandfather and the grandson of the great grandfather to succeed to the estate of the deceased. It is pointed out at page 220 after, examining various texts that Vijnaneswara has used the word ‘putra’ in the sense of lineal male descendants in a comprehensive and generic sense. Dr. Sarvadhikari also in his Tagore Law Lectures gives emphatic expression to the view that the word ‘son’ includes three degrees of descendants. Sir Ameer Ali approves of this opinion at page 224 in these words: “Dr. Rajkumar Sarvadhikari's construction appears to them to rest on a logical foundation, and his views seems to be consistent and clear. In effect he says that the Mitakshara propounds a definite scheme of succession; lineal male descendants of the deceased owner down to and including the third degree, who constitute the first class of propinquous relations (the nearest sapindas), inherit in succession in the first instance.” etc., etc., and then it is observed that “two recent Hindu writers of repute (Dr. Bhattacharyya and Mr. Ghose) and also Dr. Jolly who was at one time Tagore Law Professor in the Calcutta University, and is one of the translators of the Sacred Books of the East, are in substantial agreement with Dr. Sarvadhikari.” Sir Ameer Ali then examined the conflict of decisions in the Indian Courts. At page 227 it is observed; “It is admitted that the defendant confers greater benefit on the deceased by offerings he makes to the manes of the common ancestor. Now, it is absolutely clear that under the Mitakshara, whilst the right inheritance arises from sapinda-relationship, or community of blood, in judging of the nearness of blood-relationship or propinquity among the gotraja, the test to be applied to discover the preferential heir is the capacity to offer oblations.”
For these reasons it is clear to me that the words “son or male issue” are not intended to exclude the grandsons. It may be that the text relied upon by the Advocate General intends to mean that the property will go to the son if he is alive, otherwise to the grandson and great grandson, etc.
Our attention has been drawn to the various passages of the commentaries in Setlur's books; but having read the passages over and over again I am unable to come, to any other conclusion than that which I have indicated above.
It was also argued by the learned Advocate General that this is a case governed by the Mithila School of Hindu Law, and therefore, the text of Mitakshara will not be of any great assistance in deciding the question in controversy. I do not agree with this argument either. It is new well settled that the law of the Mithila School is the law of Mitakshara except in a few matters in respect of which the law of the Mithila School has departed from the law of the Mitakshara: See the Privy Council case of Surendra Mohan Sinha. It has not been shown to us that there is any clear law of the Mithila School on this question different from the law of the Mitakshara.
These are some of the reasons which have induced me to unhesitatingly reject the argument advanced by the learned Advocate General, and to agree with the view of my learned Brother. I entirely agree with him in his exposition of the various texts which be has examined so patiently and exhaustively.
K.D
Appeal dismissed.