1. 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.
2. 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 (1896) I.L.R. 19 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.
3. 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 (1894) I.L.R. 18 M. 193 and Balusami Pandithar v. Narayana Rao (1897) I.L.R. 20 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.
4. 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 (1894) I.L.R. 18 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 (1897) I.L.R. 20 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 (1894) I.L.R. 18 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.
5. 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.
6. Costs will abide the result.
In Appeal No. 82 of 1912.
7. 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.
8. 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.
9. Costs will abide the result.
In Appeal Nos. 65 & 82 of 1912.
Sadasiva Aiyar, J.
10. 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 (1892) I.L.R. 16 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.
11. 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 (1892) I.L.R. 16 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.
12. 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 (1887) I.L.R. 11 M. 287 and Chinnatnmal v Venkatachella (1891) I.L.R. 15 R. 15 M. 421 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 (1910) I.L.R. 33 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 at 67. 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 (1887) I.L.R. 11 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 (1911) I.L.R. 34 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 (1911) I.L.R. 34 A. 663, but it is clearly detrimental to the permanent interests of the Hindu public.
13. In the result I agree with the orders proposed by my learned brother in the matter of the disposal of these appeals.