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  • Babu Sital Prasad Ghose, for the appellant:—
  • The Hon'ble Munshi Gokul Prasad (with him Munshi Sarnandan Prasad), for the respondents:—
  • Both the mother's brother's son and the mother's sister's son are atma bandhus. The Mitakshara only prescribes that the atma bandhus would come before the pitri bandhus who in their turn come before the matri bandhus. Mitakshara, Chapter II, section 6, paragraph 102. The Mitakshara does not prescribe any order of succession inter se between the different members of each of the different classes. The order given in the text is only for the exigencies of the metre. If the mother's brother's son be placed next to the father's sister's son then there would be one letter more in the first Hue and one letter less in the second than what the metre would require. The ruling in Appandai Vathiyar v. Bagubali Mudaliyar, is based upon Smriti Chandrika which is an authority in Southern. India but not here. It was a case between Jains. In the case of a mother's sister's son two females intervene, whereas in the case of a mother's brother's son only one female intervenes and therefore the latter is to be preferred; Tirumala Chariyar v. Andal Ammal.
  • I rely upon the observations of Banerji, J., in Suba Singh v. Sarfaraz Kuer(3). The test imposed by the Privy Council in Buddha Singh v. Laltu Singh(4), is that when consanguinities are equal, he who confers the greater spiritual benefit is to be preferred. Although the mother's brother's son offers only two full pindas whereas the mother's sister's son offers three full pindas to the ancestors to whom the propositus was bound to offer pindas in his paternal line, which are of superior benefit, he is to be preferred. On the ground of superior spiritual benefit the Dayabhaga has preferred the mother's brother's son. Moreover, the mother's brother's son offers pinda lepas to three higher ancestors in his paternal line; Ram Krishna's Hindu Law, Vol. II, p. 182. Further, by giving the property to the mother's brother's son you perpetuate the offering of oblations in his son, grandson and so on. Not so in the case of the mother's sister's son as his sons, grandsons, etc., do not offer any pindas to the ancestors of the propositus. Reliance was placed upon Mayne's Hindu Law, 8th edition, pages 713 (paragraph 512), 714 (footnote), 810, 811 (chart) and 812; Trevelya's Hindu Law of Inheritance, p. 42, 386; Sarvdhicary's Hindu Law of Inheritance, pages 698, 700 and 701; Tirumala Chariyar v. Andal Animal.
  • The conferring of funeral oblations will be one criterion. Now on that basis Hori Lal himself cannot give pindas to any ancestor beyond the grandfather of his own maternal grandfather. So we are not to go beyond that ancestor. The mother's sister's son will offer the same kind of full pindas to the same maternal ancestors as the propositus would have done. They both offer three full pindas whereas the mother's brother's son will offer 1 only two full pindas and a divided pinda to these ancestors. Divided oblations are of less benefit than full oblation; Sarvadhieary's Hindu Law of Inheritance, pages 648-650; Ram Chander Martand Waikar v. Vinayek Venkatesh Kothekar. Lepas offered to the ancestors beyond the grandfather of the maternal grandfather does not confer any benefit on the propositus; J.C Ghose's Hindu Law, page 182. As to the capacity of the sons, grandsons etc., of the mother's brother's son to offer pindas, one must look to the present state of affairs and not to a future possibility. Turning now to the text of the Mitakehara, we find that the same order is maintained in the case of pitri bamdhus and matri bandhus. This is not by mere accident and this is significant. If we put the maternal unless son first and the two others afterwards then the metre would not be changed if we transpose the line. Balam Bhatta in his Subodhini says that the order is to be maintained. This is also the order given in Vyavahara Mayukha, a commentary on Mitakshara; Mandlik's Translation, page 82. Ordinarily under the Mitakshara the succession opens out according to the enumeration; why should it not be in the case of bandhu? The father's sister's son offers three full cakes to three paternal ancestors of the propositus and hence comes, first, then comes the mother's sister's son who offers three full cakes to the maternal ancestors of the deceased and the mother's brother's son who offers only two full cakes will come last. Unless there is a rule that the order should not be followed it should not be departed from; Kishori Lal Sarcar's Tagore Law Lectures, page 154. The mother's brother is introduced by the Viramitrodaya. He will come after the mother's sister's son. The principle of the exclusion of the female line ought not to be followed in cognatic succession. If that be so several pitri bandhus would come before the atma bandhus. There is no warrant in the Hindu Law for the proposition laid down in Tirumalu Chariyar v. Andal Ammal, Trevelyan's Hindu Law, page 389. Propinquity being the same the mother's sister's son has got preference inasmuch as he confers greater spiritual benefit.
  • Babu Sital Prasad Ghose, in reply;—
  • The enumeration of bandhus given in the Mitakshara is not an exhaustive one as held by the Privy Council in 12 M.I.A, 448. Several persons who are admittedly bandhus do not find places there, the maternal uncle is one of these. The order given in all the three classes viz. atma bandhus, pitri bandhus and matri bandhus is similar for the sake of symmetry, euphony and also for the sake of metro. Further, this order is due to association of ideas and the father's son is juxtaposed with the mother's sister's son. The transposition of the line will detract from the euphony. Hence there is no special virtue in the fact that the same order is maintained in all the three classes. The governing principle of the Mitakshara is that the female line is excluded by the male line. On that principle the cognate in whose case two females intervene ought to be excluded by him in whose case only one female intervenes. As for the postponement of pitri bandhus who, ought on this hypothesis alone to have come earlier than certain atma bandhus, is due to express wordings of the texts. Note the place where the word lcram occurs in the text. As for the spiritual benefit: no doubt in parvana sradhas as well as in Nandi mukh sradhas the mother's sister's son offers pindas to the maternal ancestors of the deceased to whom the deceased was bound to offer pindas, whereas the mother's brother's son does only offer two full and a divided pinda to them, yet these are not the only sradhas that the latter performs as in ekodishta sradhas which are performed for the ancestors in the paternal line only; the mother's brother's son will be offering the two full pindas to these very ancestors. Hence, although in individual cases he may be offering a less number of pindas, yet the occasions for him to offer pindas will be more numerous. Moreover, the offering of pindas will be perpetuated in his line as his sons, and so on will continue to offer pindas, whereas in the case of the mother's sister's son the offering of pindas will cease with his death. The Hindu law does not overlook this perpetuation of pindas, Further, in the tarpan the mother's brother's son will be offering a larger number of libations of water to his own paternal female ancestors who according to Hindu notions are incorporated with the names of their respective husbands (the maternal ancestors of the propositus), than the mother's sister's son. All these must be kept in view in testing the amount of spiritual benefit.
Judges
  • Hon'ble Mr. Pramoda Charan Bannerji
  • Hon'ble Mr. Theodore Caro Pigott
Acts
  • Order XLI, Rule 23, of the Code of Civil Procedure,
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Advocates
  • Babu Sital Prasad Ghose, for the appellant:—
  • The Hon'ble Munshi Gokul Prasad (with him Munshi Sarnandan Prasad), for the respondents:—
  • Both the mother's brother's son and the mother's sister's son are atma bandhus. The Mitakshara only prescribes that the atma bandhus would come before the pitri bandhus who in their turn come before the matri bandhus. Mitakshara, Chapter II, section 6, paragraph 102. The Mitakshara does not prescribe any order of succession inter se between the different members of each of the different classes. The order given in the text is only for the exigencies of the metre. If the mother's brother's son be placed next to the father's sister's son then there would be one letter more in the first Hue and one letter less in the second than what the metre would require. The ruling in Appandai Vathiyar v. Bagubali Mudaliyar, is based upon Smriti Chandrika which is an authority in Southern. India but not here. It was a case between Jains. In the case of a mother's sister's son two females intervene, whereas in the case of a mother's brother's son only one female intervenes and therefore the latter is to be preferred; Tirumala Chariyar v. Andal Ammal.
  • I rely upon the observations of Banerji, J., in Suba Singh v. Sarfaraz Kuer(3). The test imposed by the Privy Council in Buddha Singh v. Laltu Singh(4), is that when consanguinities are equal, he who confers the greater spiritual benefit is to be preferred. Although the mother's brother's son offers only two full pindas whereas the mother's sister's son offers three full pindas to the ancestors to whom the propositus was bound to offer pindas in his paternal line, which are of superior benefit, he is to be preferred. On the ground of superior spiritual benefit the Dayabhaga has preferred the mother's brother's son. Moreover, the mother's brother's son offers pinda lepas to three higher ancestors in his paternal line; Ram Krishna's Hindu Law, Vol. II, p. 182. Further, by giving the property to the mother's brother's son you perpetuate the offering of oblations in his son, grandson and so on. Not so in the case of the mother's sister's son as his sons, grandsons, etc., do not offer any pindas to the ancestors of the propositus. Reliance was placed upon Mayne's Hindu Law, 8th edition, pages 713 (paragraph 512), 714 (footnote), 810, 811 (chart) and 812; Trevelya's Hindu Law of Inheritance, p. 42, 386; Sarvdhicary's Hindu Law of Inheritance, pages 698, 700 and 701; Tirumala Chariyar v. Andal Animal.
  • The conferring of funeral oblations will be one criterion. Now on that basis Hori Lal himself cannot give pindas to any ancestor beyond the grandfather of his own maternal grandfather. So we are not to go beyond that ancestor. The mother's sister's son will offer the same kind of full pindas to the same maternal ancestors as the propositus would have done. They both offer three full pindas whereas the mother's brother's son will offer 1 only two full pindas and a divided pinda to these ancestors. Divided oblations are of less benefit than full oblation; Sarvadhieary's Hindu Law of Inheritance, pages 648-650; Ram Chander Martand Waikar v. Vinayek Venkatesh Kothekar. Lepas offered to the ancestors beyond the grandfather of the maternal grandfather does not confer any benefit on the propositus; J.C Ghose's Hindu Law, page 182. As to the capacity of the sons, grandsons etc., of the mother's brother's son to offer pindas, one must look to the present state of affairs and not to a future possibility. Turning now to the text of the Mitakehara, we find that the same order is maintained in the case of pitri bamdhus and matri bandhus. This is not by mere accident and this is significant. If we put the maternal unless son first and the two others afterwards then the metre would not be changed if we transpose the line. Balam Bhatta in his Subodhini says that the order is to be maintained. This is also the order given in Vyavahara Mayukha, a commentary on Mitakshara; Mandlik's Translation, page 82. Ordinarily under the Mitakshara the succession opens out according to the enumeration; why should it not be in the case of bandhu? The father's sister's son offers three full cakes to three paternal ancestors of the propositus and hence comes, first, then comes the mother's sister's son who offers three full cakes to the maternal ancestors of the deceased and the mother's brother's son who offers only two full cakes will come last. Unless there is a rule that the order should not be followed it should not be departed from; Kishori Lal Sarcar's Tagore Law Lectures, page 154. The mother's brother is introduced by the Viramitrodaya. He will come after the mother's sister's son. The principle of the exclusion of the female line ought not to be followed in cognatic succession. If that be so several pitri bandhus would come before the atma bandhus. There is no warrant in the Hindu Law for the proposition laid down in Tirumalu Chariyar v. Andal Ammal, Trevelyan's Hindu Law, page 389. Propinquity being the same the mother's sister's son has got preference inasmuch as he confers greater spiritual benefit.
  • Babu Sital Prasad Ghose, in reply;—
  • The enumeration of bandhus given in the Mitakshara is not an exhaustive one as held by the Privy Council in 12 M.I.A, 448. Several persons who are admittedly bandhus do not find places there, the maternal uncle is one of these. The order given in all the three classes viz. atma bandhus, pitri bandhus and matri bandhus is similar for the sake of symmetry, euphony and also for the sake of metro. Further, this order is due to association of ideas and the father's son is juxtaposed with the mother's sister's son. The transposition of the line will detract from the euphony. Hence there is no special virtue in the fact that the same order is maintained in all the three classes. The governing principle of the Mitakshara is that the female line is excluded by the male line. On that principle the cognate in whose case two females intervene ought to be excluded by him in whose case only one female intervenes. As for the postponement of pitri bandhus who, ought on this hypothesis alone to have come earlier than certain atma bandhus, is due to express wordings of the texts. Note the place where the word lcram occurs in the text. As for the spiritual benefit: no doubt in parvana sradhas as well as in Nandi mukh sradhas the mother's sister's son offers pindas to the maternal ancestors of the deceased to whom the deceased was bound to offer pindas, whereas the mother's brother's son does only offer two full and a divided pinda to them, yet these are not the only sradhas that the latter performs as in ekodishta sradhas which are performed for the ancestors in the paternal line only; the mother's brother's son will be offering the two full pindas to these very ancestors. Hence, although in individual cases he may be offering a less number of pindas, yet the occasions for him to offer pindas will be more numerous. Moreover, the offering of pindas will be perpetuated in his line as his sons, and so on will continue to offer pindas, whereas in the case of the mother's sister's son the offering of pindas will cease with his death. The Hindu law does not overlook this perpetuation of pindas, Further, in the tarpan the mother's brother's son will be offering a larger number of libations of water to his own paternal female ancestors who according to Hindu notions are incorporated with the names of their respective husbands (the maternal ancestors of the propositus), than the mother's sister's son. All these must be kept in view in testing the amount of spiritual benefit.
Judges
  • Hon'ble Mr. Pramoda Charan Bannerji
  • Hon'ble Mr. Theodore Caro Pigott
Acts
  • Order XLI, Rule 23, of the Code of Civil Procedure,
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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This dispute concerns succession under the Benares School of the Mitakshara law. The property in issue is said to have originally belonged to one Hori Lal who predeceased his mother, Musammat Jhumma. Musammat Jhumma succeeded him and remained in possession until her death about seven or eight years prior to the opinion. She had two brothers (Kishun Das and Jhanjhan Rai) and two sisters (Musammats Lachminia and Behia). Narayan Das, son of Behia (the mother's sister), is alive but not a party to the suit.

Three sons of Kishun Das (one of Musammat Jhumma's brothers) sold what they alleged to be three-fourths of their interest in the property to the plaintiff-appellant. The plaintiff instituted suit for partition and possession of a 9/20th share and other reliefs, relying on that sale deed.

The respondents (defendants in the suit) contended that the vendors of the plaintiff did not succeed to Hori Lal's estate in preference to Narayan Das (the mother's sister's son), and thus set up the jus tertii of Narayan Das; they also raised other pleas not relevant for the present appeal.

The court of first instance held in favour of the plaintiff, concluding that the mother's brother's son (i.e., the maternal uncle's son) had precedence over the mother's sister's son and decreed the claim after overruling the defendants' other pleas. The lower appellate court reversed that decision on the sole ground that, in its opinion, the mother's sister's son was the preferential heir, following a recent ruling of the Madras High Court in Appandai Vathiyar v. Bagubali Madaliyar (I.L.R. 33 Mad. 439). This appeal raises the question of which of these two bandhus (mother's brother's son or mother's sister's son) succeeds in preference under the relevant school of Mitakshara law.

Legal Issues Presented

  1. Under the Benares School of the Mitakshara law, does the mother's brother's son (the maternal uncle's son) succeed as a bandhu in preference to the mother's sister's son?
  2. Whether the lower appellate court erred in reversing the decree of the court of first instance by following the Madras High Court decision in Appandai Vathiyar v. Bagubali Madaliyar?

Arguments of the Parties

Plaintiff-Appellant (as presented in the opinion)

  • The plaintiff relied on a sale deed executed in favour of the plaintiff by three sons of Kishun Das and brought suit for partition, possession of a 9/20th share and other reliefs on that basis.
  • Implicit in the plaintiff's case (as described) is the contention that the vendors had succeeded to an interest that the plaintiff could acquire by purchase, giving the plaintiff standing to sue.

Respondent(s) / Defendants (as presented in the opinion)

  • The respondents contended that the plaintiff's vendors did not succeed to Hori Lal's estate in preference to Narayan Das (the mother's sister's son), and therefore the plaintiff acquired no title under his purchase and had no right to sue (setting up the jus tertii of Narayan Das).
  • The respondents also raised other pleas in the original suit, but those other pleas are not material to the question decided in this appeal and are not detailed in the opinion.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Appandai Vathiyar v. Bagubali Madaliyar (I.L.R. 33 Mad. 439) Held by the Madras High Court that the mother's sister's son was a preferential heir (i.e., preferred over the maternal uncle's son). The lower appellate court followed this Madras decision in reversing the trial court. The present court considered this authority but found it not persuasive for the provinces governed by the Benares School and disagreed with its conclusion on the order between these bandhus.
Girdhari Lal v. The Bengal Government (1868) 12 Moo. I.A. 448 The Privy Council held that the enumeration of bandhus in the Mitakshara is not exhaustive but illustrative; Mitakshara sets out classes of bandhus, not a definitive inter se order within each class. The court relied on this decision to conclude that the Mitakshara's list cannot be treated as an exhaustive ranking of bandhus within a class, and thus one cannot infer that the order in which specific person-types are named in the Mitakshara is meant to determine priority among them.
Mehudar v. Krishna Bai (1881) I.L.R. 5 Bom. 597 The Bombay High Court interpreted the Vyavahara Mayukha as meaning only what the Mitakshara states: that priority is among the three classes of bandhus (atma, pitri, matri), not a textual intra-class order. The present court cited this case to support the view that the texts relied upon by the Madras Judges do not establish an order of precedence among members of each class of bandhus; it also noted that in the Bombay decision the maternal uncle was held to take precedence over the mother's sister's son.
Triumala Chariyar v. Andal Ammal (1905) I.L.R. 30 Mad. 406 The Madras High Court expressed the opinion that the general preference of Mitakshara for the male over the female line may be legitimately extended so as to prefer a claimant separated from the stem by only one female link to a claimant separated by two female links. The court invoked this reasoning as supportive of preferring the mother's brother's son (separated by one female link) to the mother's sister's son (separated by two female links), thereby supporting the conclusion that the maternal uncle's son is of nearer affinity.
Budha Singh v. Laltu Singh (1915) I.R.L. 37 All. 604 Concerned the question of religious efficacy (funeral oblations) as a ground for preference in succession. The court noted this Privy Council ruling but held that, given their decision that the maternal uncle's son is nearer in consanguinity, it was unnecessary to decide the question of funeral oblations in this appeal.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, relying strictly on the materials and reasoning set out in the opinion:

  1. Identification of the legal gap: The court observed an absence of definitive authority in the Benares School and in the commentaries on the Mitakshara that prescribes the order of precedence among persons who constitute the members of each of the three classes of bandhus (atma, pitri, matri). Although the Mitakshara lists examples of bandhus, the court noted that the text does not exhaustively determine intra-class priority.
  2. Reliance on precedent interpreting the Mitakshara: The court relied on the Privy Council decision in Girdhari Lal v. The Bengal Government to support the view that the Mitakshara's enumeration is illustrative and not exhaustive; therefore the order in which types of relatives are named in the Mitakshara cannot be taken as determinative of their priority among themselves.
  3. Examination of the authorities relied on by the lower court: The court reviewed the Madras High Court's reliance on the Smriti Chandrika, Saraswati Vilas and the Vyavahara Mayukha and concluded that none of these authorities actually prescribes an intra-class order among bandhus; they only reiterate the three-class priority (atma > pitri > matri).
  4. Turn to the guiding canon of nearest sapinda: Because of the lack of an explicit intra-class ordering in the Mitakshara and its commentaries, the court turned to the text of Manu—"to the nearest sapinda the inheritance next belongs"—and to the Mitakshara's allocation of preference on the ground of nearness of affinity. The court therefore resolved the relative priority by assessing which claimant is the nearer sapinda (closer in consanguinity).
  5. Comparative analysis of consanguinity and the male-line preference: The court applied the principle of nearness of affinity together with the general preference exhibited by Mitakshara for the male over the female line. It cited authorities and commentators (Mayne, Professor Sarvadhicari, Bhattacharya) and the Madras opinion in Triumala Chariyar as supporting the view that a claimant separated by only one female link (the maternal uncle's son) is nearer than a claimant separated by two female links (the mother's sister's son). The court rejected an alternative view (attributed to Golap Chandra Shastri) that the two bandhus are of equal degree.
  6. Decision on ancillary point (religious efficacy): The court acknowledged an argument raised as to superior efficacy of funeral oblations and noted the Privy Council's recent ruling in Budha Singh v. Laltu Singh, but held that because it concluded the maternal uncle's son is nearer in consanguinity, it was unnecessary to decide the question of funeral oblations in this appeal.

Holding and Implications

Holding: The court held that, under the Benares School of the Mitakshara law, the mother's brother's son (the maternal uncle's son) is a preferential heir as compared with the mother's sister's son.

Consequences and directions issued by the court:

  • The decree of the lower appellate court (which had dismissed the claim) was reversed.
  • The appeal was allowed, and the case was remanded to the lower appellate court under Order XLI, Rule 23 of the Code of Civil Procedure with directions to re-admit it under its original number and to try the other questions which were not determined by that court.
  • Costs here and hitherto were ordered to be costs in the cause.

Broader implications: The opinion explains and applies principles (nearness of sapinda and the Mitakshara's preference for the male line) to resolve the intra-class question between these two specific bandhus and explicitly disagrees with the Madras High Court decision it cites. The opinion did not expressly state whether it intended to establish a binding precedent beyond the parties and the matters remitted for further trial; its direct operative effects are the reversal of the lower court's decree and the remand for further proceedings as directed above.

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    Ram Charan Lal v. Rahim Baksh

    1. The question raised in this appeal is whether under the Benares School of the Mitakshara law, by which the parties to this case are governed, the mother's brother's son succeeds as a bandhu in preference to the mother's sister's son. The question arises out of the following facts. One Hori Lal, who is said to have originally owned the property in dispute, died many years ago leaving him surviving his mother Musammat Jhumma, who succeeded him and remained in possession till her death, 7 or 8 years ago. Musammat Jhumma had two brothers, Kishun Das and Jhanjhan Rai,and two sisters, Musammats Lachminia and Behia. Narayan Das, son of Behia, is admittedly alive but is not a party to this suit. Three of the sons of Kishun Das sold three-fourths of what they alleged to be their interest in the property to the plaintiff appellant. On the strength of the sale deed executed in his favour the plaintiff brought the present suit for partition of a 9/20th share, for possession of that share and for other reliefs. The respondent to this appeal and the connected appeal No. 1387, contended that the vendors of the plaintiff did not succeed to the estate of Hori Lal in preference to Narayan Das, the son of Hori Lal's mother's sister, and that the plaintiff has consequently acquired no title under his purchase and has no right to sue. They thus set up the jus tertii of Narayan Das. They put forward other pleas also with which we are not concerned in this appeal. The court of first instance held that the mother's brother's son had precedence over the mother's sister's son and over-ruling the other pleas raised by the defendants decreed the claim. This decision was reversed by the lower appellate court on the sole ground that in its opinion the mother's sister's son was a preferential heir. It has followed the recent ruling of the Madras High Court in Appandai Vathiyar v. Bagubali Madaliyar (1903) I.L.R. 33 Mad. 439. The question is by no means free from difficulty and except the ruling to which we have referred there is, as far as we are aware, no case in which the point was directly raised and decided. And we have not been referred to any text, authoritative in the Benares School, in which the order of succession among bandhus of each class has been clearly laid down. According to the Mitakshara, bandhus who succeed on failure of gentiles or gotrajas, are of three classes: (1) related to the person himself (2) to his father and (3) to his mother. The author them refers to the following text which is attributed to Satatapa or Baudhayana: "The sons of his own father's sisters, the sons of his own mother's sister, and the sons of his own maternal uncle, must be considered as his own cognate kindred" (atma bandhus). The same relations of his father and mother are mentioned as his father's bandhus (pitri bandhus) and his mother's bandhus (nvxtri bandhus) respectively (Mitakshara chapter II, Section 6, paragraph 1). In the following paragraph it is stated that "by reason of mere affinity, the cognate kindred of the deceased himself are his successors in the first instance, on failure of them his father's cognate kindred, or if there be none, his mother's cognate kindred. This must be understood to be the order of succession here intended." The order of priority among cognate bandhus of each of the three classes mentioned is thus clearly laid down; but not among persons constituting cognate bandhus of each class. Had the enumeration of each class of bandhus been exhaustive it might with much force be contended that the son of the mother's sister having been mentioned before the maternal uncle's son would take priority over the latter. But it has been held by their Lordships of the Privy Council in Girdhari Lal v. The Bengal Government (1868) 12 Moo. I.A. 448, that the enumeration of bandhus in the Mitakahara is not exhaustive but only illustrative of the proposition that there are only three classes of bandhus among whom one's own bandhus must be exhausted before those of other classes can come in. The enumeration not being exhaustive it can not be said that the three persons named as one's own bandhus (atraa bandhus) take in the order in which they are named. In addition to the nine persons mentioned in the Mitakahara many others have been held to be bandhus and their place in the order of succession has to be determined otherwise than by reference to the list in the Mitakshara itself. The order of succession is not set forth in any of the commentaries on the Mitakahara. The learned Judges of the Madras High Court, who decided the case mentioned in an earlier part of this judgement, relied on the Smriti Chandrika and the Saraswati Vilas, which arc of high authority in the Madras Presidency but not in these Provinces, and the Vyavahara Mayukha, which is a high authority in the Western Presidency; but a reference to these authorities shows that in them also no order of succession was prescribed as between persons who came within each of the three categories of bandhus. All that they declare is that as between each class of bandhus one's atma bandhus take precedence over pitri bandhus and the latter over matri bandhus. In chapter XI, Section 5, paragraph 13, of the Smriti Chandraka, what the learned author, Devananda Bhat, says, quoting Brihaspati, is that when there are many cognate kindred (Bandhewak) "whoever is nearest of kin takes the wealth of him who dies without male issue." He then gives the same description of the bandhavas as is contained in the Mitakahara; but does not lay down any order of precedence among bandhus of each class inter se. It is in the summary given at the end of the section that the translator, T. Kristnasawmy Iyer, gives, among the nine bandhus mentioned in the Mitakshara lists, the mother's sister's son a higher place than the maternal uncle's son. It may be pointed out that this translation was first published in 1866, before their Lordships of the Privy Council decided the case of Girdhari Lal Roy v. The Bengal Government (1868) 12 Moo. I.A. 448 in 1868. The learned translator apparently considers the list to be exhaustive. As for the Saraswati Vilas the learned Judges themselves point out, as strange, that "though in this treatise there is a discussion and a decision in placita 597 and 598 as to the precedence of atma bandhus over pitri bandhus and of the latter over matri bandhus, there is none as to the order amongst the bandhus of each class."

    2. As regards the Vyavahara Mayukha the learned Judges of the Bombay High Court held in Mehudar v. Krishna Bai (1881) I.L.R. 5 Bom. 597 that by the text in the Vyavahara Mayukha that "the order of succession is even the order of the text" the author intended "no more than is stated in the Mitakshara (chapter II, Section 11, paragraph 2) viz. that by reason of near affinity the cognate kindred of the deceased himself are his successors in the first instance, on failure of them his father's cognate kindred; or if there be none, his mother's cognate kindred." It is thus manifest that none of the three authorities relied upon by the learned Judges of the Madras High Court supports their view that the order of succession among bandhus of each class should be that mentioned in the text of Satatapa quoted in the Mitakshara. In the case of Girdhari Lal Roy v. The Bengal Government (1868) 12 Moo. I.A. 448, the Judicial Committee of the Privy Council expressed the opinion v that the Mitakshara only laid down the order of precedence among the three classes of bandhus, and the enumeration of each class of bandhus being only illustrative, the maternal uncle, who was not mentioned by the Mitakshara succeeded as a bandhu In the Bombay case referred to above the maternal uncle was held to take precedence over the mother's sister's son. The learned Vakil for the respondent referred to a passage in the Madanaparijat, which has been translated in Sarvadhicary's Tagore Law Lectures and in Setlur's Hindu law. The two translations differ from one another, but in any view the author of the Madanaparijat seems only to lay down, as the Mitakshara does, the order of priority among bandhus of each of the three classes of atma bandhus, pitri bandhus, and matri bandhus.

    3. There being thus an absence of authority among Sanskrit text writers and commentators as to the order in which bandhus of each class should take precedence among themselves we have to follow the text of Manu "to the nearest sapinda the inheritance next belongs" and determine the order of precedence with reference to that text. The Mitakshara itself assigns the reason for preference to be nearness of affinity (Chapter II, Section vi, sloka 2). We have therefore to see whether the maternal uncle's son is a nearer sapinda than the mother's sister's son. Mr. Mayne places the former before the latter on the ground of nearness of propinquity in the chart on page 810 of the 8th Edition of his well-known work. He points out, as indeed the whole scheme of the Mitakshara shows, that the Mitakshara gives preference to the male over the female line (page 811) and following this preference he assigns the 9th place to the maternal uncle, the 10th to his son, and the 11th to the mother's sister's son. Professor Sarvadhicari, in the Togore Law Lectures on the Hindu Law of Inheritance, gives preference to the maternal uncle and his son over the mother's sister's son (See page 712), and so does Bhattacharya in his Commentaries on Hindu Law (page 460). The Madras High Court in Triumala Chariyar v. Andal Ammal (1905) I.L.R. 30 Mad. 406 expressed the opinion that "the general preference exhibited by the Mitakshara for the male over the female line...may legitimately be extended so as to prefer, all other considerations being equal, that claimant between whom and the stem there intervenes only one female link, to that claimant who is. separated from the stem by two such links." In this view the mother's brother's son, who is separated by only one female link is to be preferred to the mother's sister's son who is separated by two such links. The weight of authority, therefore, seems to be in favour of the proposition that the maternal uncle's son is a preferential heir as compared with the mother's sister's son and we are unable to agree with the decision in Appandai Vathiyar v. Bagubali Mudaliyar (1908) I.L.R. 33 Mad. 439. According to Mr. Golap Chandra Shastri (Hindu Law, page 295), these bandhus are of equal degree, but we see no reason to agree with him. Even according to him the plaintiff's vendors would not be totally excluded.

    4. We were asked to consider the question of religious efficacy and the recent ruling of the Privy Council in Budha Singh v. Laltu Singh (1915) I.R.L. 37 All. 604, was referred to. 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. We may observe that the plea of superior efficacy of oblations was fully answered by the Madras High Court in the case in I.L.R. 33 Mad. 439.

    5. As the mother's brother's son is, for the reasons stated above, a preferential heir, as compared with the mother's sister's son, the court below was wrong in dismissing the claim, and its decree must be set aside and the case remanded for trial of other questions which were not determined by that court. We, accordingly, allow the appeal, reverse the decree of the court below and remand the case to that court under Order XLI, Rule 23, of the Code of Civil Procedure, with directions to re-admit it under its original number and try the other questions which arise in the appeal. Costs here and hitherto will be costs in the cause.

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    Ram Charan Lal v. Rahim Baksh
    (Apr 12, 1916)