The subject-matter of the litigation which has given rise to this appeal is the estate of one Haradhan Singh who died on the 8th January 1896, leaving two first cousins, Ramnath the father of the Plaintiffs, and Jadunath the father of the Defendants. It is not disputed that the three cousins originally formed a joint Hindu family governed by the law as expounded in the Mitakshara and that they subsequently separated. The Plaintiffs allege that upon the death of Haradhan, his estate was inherited in equal shares by Jadunath and Ramnath and that they, as the sons of Ramnath are entitled to a half share of the properties. The Defendants allege, on the other hand, that after the separation, there was a re-union between Haradhan and Jadunath and that consequently under the Hindu law, upon the death of Haradhan, Jadunath his re-united cousin became entitled to the whole of his estate in preference to his separated cousin Ramnath. The substantial question of law, therefore, which calls for decision is whether under the Hindu law, as laid down in the Mitakshara, there may be valid re-union between two first cousins who were originally joint but had subsequently separated. The Courts below have concurrently answered this question in the negative and the Defendants have appealed to this Court.

The decision of the question whether there may be a valid re-union between two first cousins depends upon the interpretation of a passage in the Mitakshara, Chap. II, sec. 9, paras 2 and 3, which has been thus translated by Colebrook:—

“2. Effects which have been divided and which are again mixed together are termed re-united. He to whom such appertain is a re-united parcener 3. That cannot take place with any person indifferently, but only with a father, a brother or a paternal uncle: as Brihaspati declares, ‘He who being once separated, dwells again through affection with his father, brother or paternal uncle, is termed re-united.’”

This translation is slightly inaccurate in two particulars, namely, there is no word in the original Sanskrit corresponding to the word ‘only,’ and, secondly, the original which is rendered “is termed re-united” literally means “is termed re-united with him.” The third paragraph therefore should stand as follows: That cannot take place with any person indifferently, but a father, brother or a paternal uncle: as Brihaspati declares, ‘He who being once separated dwells again through affection with his father, a brother or a paternal uncle is called re-united with him.’”

We think it is quite clear from this passage that according to the Mitakshara, re-union is restricted to three classes of cases, namely, (1) between father and son, (2) between brothers, and (3) between paternal uncle and nephew. The learned vakil for the Appellants suggested that the author of the Mitakshara treated the text of Brihaspati as illustrative and not restrictive. In our opinion this interpretation is wholly inadmissible and we find that this passage is interpreted, as we interpret it, in the Subodhini, which is an authoritative commentary upon the Mitakshara. The learned vakil for the Appellants next contended, that the text of Bribaspati [XXV, 72, Sacred Books of the East, Vol. XXXIII, p. 381], has been differently interpreted in the Viramitrodaya (Shastri Golap Chandra Sarkar's translation, p. 168), where the enumeration is regarded as merely illustrative and not intended to exclude re-union amongst other coparceners, and he urged that this view ought to be accepted instead of the rule as laid down in the Mitakshara. In support of this view, he placed reliance upon the observations of the Judicial Committee in Gridhari Lal Ray v. Bengal Government(1). In our opinion, the observations referred to are wholly inapplicable to the case before us. Their Lordships no doubt laid down that the Viramitrodaya which is stated by Colebrooke and others to be a treatise of high authority at Benares, is properly receivable as an exposition of what may have been left doubtful by the Mitakshara and declaratory of the law of the Benares School. Here, however, the Mitakshara lays down the law in clear and unambiguous terms and we are aware of no authority for the position that the Viramitrodaya supersedes the Mitakshara except in places where the former is accepted as the binding authority. See the observations of the Judicial Committee in Bhagwandeen Doobey v. Myna, Baee(2).

The learned vakil for the Appellants further contended that the text of Brihaspati has been misunderstood by the author of the Mitakshara, and that it ought to be interpreted so as to make the right of partition and the right of re-union co-extensive. For this purpose, in addition to the arguments contained in the Viramitrodaya, he referred to the Vivada Chintamoni (Prosunno Kumar Tagore's translation, p. 300) and the Vivada Ratnakar (Shastri Golap Chandra Sarkar and Digambar Chatterjee's translation, p. 91), both of which are treated as authorities in Mithila and the Vyavahara Mayakhu (Mandalik's translation, p. 84, Ch. IV, sec. 9, para 1), which is treated as an authority in parts of the Bombay Presidency. At the same time he admitted that the text of Bribaspati has been understood in the sense in which the Mitakshara interprets it by the author of the Dayabhaga (Chap. XII, para), which is the paramount authority in Bengal, by the author of the Smriti Chandrika (Chap. XII, para 1), which is the recognised authority in southern India and by the author of the Saraswati Vilasa (Foulke's translation, p. 139, para 716), which is recognised as an authority in parts of the Madras Presidency and in Orissa. When therefore we find the text of Brihaspati interpreted in different ways by different commentators, are we entitled to go behind the Mitakshara and examine the validity of the grounds upon which its conclusions are based? In our opinion the course which the learned vakil for the Appellants has invited us to take, is directly contrary to the rule laid down by the Judicial Committee in the case of Collector of Madura v. Mootoo Ramalinga(3), where their Lordships pointed out that the duty of a Judge “who is under the obligation to administer Hindu law is not so much to enquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage, for under the Hindu system of law, clear proof of usage will outweigh the written text of the law.” This is nowhere better illustrated than in the very passage of the Viramitrodaya upon which reliance is placed, where the author urges as a reason against the acceptance of the view of the Mitakshara the fact that “if that were so, then re-union with the daughter's son and the like, which is recognised by the practice of all people, would become improper.” If, therefore, we were to accede to the suggestion made by the learned vakil for the Appellants', we should really be called upon to examine the foundations of the different Fchcols of Hindu law. The adoption of such a course is obviously impossible.

The learned vakil for the Appellants finally suggested that the text of the Mitakshara has been construed in several cases in the way that he suggests it should be interpreted and he referred to the decisions in Vishvanath v. Krishnaji(4), Lakshmi Bai v. Gunpat(5), Abhai Charan v. Mangul Jana(6) and Balkishen v. Rum Narain(7). In our opinion these cases do not support the contention of the Appellants. The case of Vishvanath v. Krishnaji decided that re-union to be operative in law must be by the parties who had separated; there three brothers had separated and their sons, first cousins, had re-united; the learned Judges held that the re-union was invalid because the original separation had taken place between the fathers of those who re-united; but the Court was not called upon to consider whether the re-union might not be held to he had upon the additional ground that it had taken place between cousins. The case of Lakshmi Bai v. Gunpat does not carry the matter any further. The case of Abhai Charan v. Mangul Jana turned upon the construction of certain passages of the Dayabhaga and we are unable to hold that it supports either directly or indirectly the contention of the Appellants. The case before the Judicial Committee, Balkishen v. Ram Narain, is an authority for the proposition that evidence of some of the separated coparceners having continued to enjoy their shares in common, does not affect their tenure of their separate property or interest in it. It is suggested, however, that the learned Judges of the High Court against whose judgment appeal was preferred to the Privy Council had decided that there may be a valid re-union under the Mitakshara law between cousins. We have carefully examined that judgment, (7 C.W.N, pp. 581—585), but we cannot trace the decision of any such point therein.

The result, therefore, is that the decree made by the Subordinate Judge must be affirmed and this appeal dismissed.

S.C.S

Appeal dismissed.