1. This appeal arises out of an application for Probate of a Will. The respondent Gopal Chandra propounded a Will said to have been executed by one Krishna Chandra. The appellants Radha Raman and others, who are the grandfather's daughter's son's sons of the deceased, opposed the application. The learned District Judge held that the appellants had no locus standi to oppose the grant, and that Probate would be granted to the respondent on proof of the Will in common form. Radha Raman and others have appealed to this Court and an application also has. been made under Section 115, Code of Civil Procedure, against the order of the Court below.
2. It has been held in several oases that no appeal lies against such an order. The order, however, can be revised upon the application under Section 115, Code of Civil Procedure.
3. The opposite party being the brother of the sister's husband of the deceased is a perfect stranger to the family, but the Court below held that the petitioners were not heirs and, therefore, had no locus standi to oppose the grant of Probate. The question for consideration, therefore, is whether the petitioners have any locus standi to oppose the application.
4. It is contended on behalf of the petitioners that they are heirs. Under the Mitakshara a daughter's son's son in the absence of other heirs succeeds as a bandhu. See Krishnayya v. Pichamma 11 M. 287 : 4 Ind. Dec. (N.S.) 200 and Sheobarat Kuari v. Bhegwati Prasad 17 A. 523 : A.W.N. (1895) 117 : 8 Ind. Dec. (N.S.) 660. A grandfather's daughter's son's son stands on the same footing. Bat the question is whether a daughter's son's son is an heir under the Dayabhaga, because if he is not, a fortiori the grandfather's daughter's son's son cannot be held to be in the line of heirs.
5. A daughter's son's son offers no oblation to the maternal grandfather of his own father, and it is accordingly contended on behalf of the opposite party that he is no heir according to the test laid down in the case of Gooroo Gobind Shaha v. Anund Lall Ghose 13 W.R. 49 (F.B.) : 5 B.L.R. (F.B.) 15. That the principle of spiritual benefit governs the law of inheritance in the Dayabhaga was laid down by the Fall Bench in the above case, and again by another Full Bench in the case of Digumber Roy Chowdhry v. Moti Lal Bundopadhya 9 C. 563 : 12 C.L.R. 204 : 7 Ind. Jur. 529 : 4 Ind Dec. (N.S.) 1023.
6. Attempts have been made from time to time to induce the Court to have the matter reconsidered by the Full Court on the ground that spiritual benefit is no test, at any rate not the only test, of heirship, and that the Fall Bench took an erroneous view of the fundamental principles which underlie the Dayabhaga and consequently arrived at an incorrect conclusion. These attempts have, however, been unsuccessful, and this Court has held that the matter should not be re opened. See Kedar Nath Soy v. Amritalal Mookerjee 17 Ind. Cas. 283 : 16 C.L.J. 342 : 17 C.W.N 492 and Kailash Chandra Adhikary v. Karuna Kantha Chowdhury 19 Ind. Cas. 677 : 18 C.W.N. 477.
7. It must now, therefore, be taken as settled that the principle of spiritual benefit is the test of heirship under the Dayabhaga, whatever view might have been taken of the matter had it been res integra. It is to be observed that in all the oases cited above,' the question was who was the preferable heir, according to the principle of spiritual benefit. In the present case no question of preference arises as between the petitioners and the opposite party, and, therefore, there is no question as to the superiority of spiritual benefit to be Conferred on the deceased by one as compared to that by the other. The opposite party is a perfect stranger to the family and in no circumstances can he be in the line of heirs, whereas the petitioners are the daughter's son's sons of the grandfather of the deceased. As stated above, their position is similar to that of a daughter's son's son, and the question, therefore, is whether a daughter's eon's son is excluded from inheritance under the Bengal School even where there is no other heir at all.
8. The Dayabhaga (Chapter XI, Section 11, verse 2) in discussing the right of the daughter's son to succession, says:
"it is the daughter's son who is the giver of the funeral oblation not his son, nor the daughter's daughter for the funeral oblation ceases with him."
The daughter's son's son is, therefore, expressly excluded from inheritance.
9. On behalf of the petitioners, however, reliance is placed upon the arguments advanced by Raj Kumar Sarvadhikari in his Tagore Lectures in favour of the heritable right of a daughter's son's son. The first is that the mere fact that a daughter's son's son is not a Sapinda heir does not show that he is excluded altogether from inheritance. It is pointed out by him that in the verse cited above Jimutavahana is discussing the preferable right of a Sapinda to succession. The daughter's son is a Sapinda heir but his son is not so; he is not in the line of Sapinda heirs because he is not competent to offer an oblation. A great-grandson's son is not a Sapinda and, therefore, cannot succeed as a Sapinda, but he succeeds as a Sakulya. The mere fast, therefore, that a person cannot succeed as a Sapinda does not show that he is excluded altogether.
10. The next and the main ground which Raj Kumar Sarvadhikari urges in support of his view is that a daughter's son's son is a Samanodaka and a Sakulya and, therefore, is entitled to inherit on failure of nearer heirs even on the principle of spiritual benefit.
11. The reason given by him may be summarised as follows : The Dayabhaga, after dealing with the succession of Sapindas ex parte paterna and ex parte materna and that of Sakulya (distant kinsman), in Chapter XI, Section 6, verse 23, states: "If there he no such distant kindred the Samanodakas or kinsmen allied by a common libation of water must be admitted to inherit as being signified by the term Sakulya (conformably with Budhayana's explanation of it).
12. After the near Sakulyas, therefore, the Samanodakas come in, and these Samanodakas are also mentioned by Jimutavahana as Sakulyas, they are, therefore, the remote Sakulyas. Though every person who presents water if, properly speaking, a Samanodaka of the deceased, the law of inheritance has given a limited significance to the term. Every Samanodaka cannot be heir because every person is competent to offer libation of water to every other person, and in fact in making Tarpan water is offered to every created being. In order that he may inherit the Samanodaka must be 'also a Sakulya, i.e., must belong to the Kula or family.
13. If the word Kula be understood as meaning only the agnatic family, then the daughter's son's son would not belong to the same Kula, but Jimutavahana has not son-fined the expression to the agnatic family alone. The male descendants of the daughters of the family known as bandhus in the Mitakshara have been included by him in the expression Kula (family) of the deceased.
" Such kinsman, having sprung from his family though of different male descent as his own daughter's son or his father's daughter's son or having sprung from a different family as his maternal uncle or the like, is heir."
It appears, therefore, that not only those who bear the same Gotra or family name, but also those who, though they do not bear the family name, are sprung from the same line, i. e., cognatic kinsmen known as bandhus have been treated as belonging to the same Kula.
14. Jimutavahana has not stated who these Somanodakas are. Srikrishan Tarkalankar has treated them as
"remote Sakulyas or persons who are sprung from the same family, but whose right of inheritance is postponed to the near Sakulyas who confer a larger amount of benefit on the deceased."
Sarbadhikari, pages 842--843.
15. Raghunandan has not mentioned the Samanodakas as a class of heirs, but the three classes of bandhus (under the Mitakshara) are stated by him to be entitled to the inheritance. Most of them are heirs being connected by Parvana oblations. The rest must, therefore, come in as Samanodakas (as conferring spiritual benefit). He has mentioned the near Sakulyas. The Samanodakas, therefore, must be taken to be the remote Sakulyas.
As the author of the Dayabhaga has not given us any interpretation of the term Samanodaka himself, we shall be justified in consulting other writers of the Bengal School who have followed in the footsteps of Jimutavabana for an explanation of the term. We have seen that Srikrishna takes it to mean remote Sakulyas or persons who are sprung from the same family but whose right of inheritance is postponed to the near Sakulyas who confer a larger amount of benefit on the deceased. Let us now see what Raghunandan says on the subject.
"We have the authority of Harita for saying that the relation of Samanodaka ends only where birth and family name arc no longer known. Samanodakas are kinsmen who same in after the partakers of the divided oblations. If the details regarding the descent of a given person from a common ancestor are known or if it is known in a general manner that be is simply sprung from the family, he is reckoned as a Samanodaka,... If our ' interpretation of the word Samanodaka be correct, it would follow that certain male descendants of the daughters of the family are entitled to inheritance. It would follow, I mean that according to the Dayabhaga, the daughter's son's son and similar cognate kinsmen are also heirs"
....' Only two conditions then are necessary to entitle a kinsman to be, ranked as a Samanodaka heir. He must present the water and be 'allied by the family' Both these conditions are met with in the daughter's grandson. On what ground then can he be excluded from succession? Even by the principle of spiritual benefit he ought to take his natural place as heir of his father's maternal grandfather.
16. It was also argued on behalf of the petitioners that we should follow the Mitakshara in matters not expressly dealt with by the Dayabhaga, and reliance was placed on a passage in the judgment of Mittra, J., (sitting singly) in the case of Akshay Chandra Bhattachary a v. Hari Das Goswami 35 C. 721 12 C.W.N. 511, where he observed that in oases not contemplated by Jimutavahana or his followers the law should be interpreted on rational lines consistently with principles in similar oases, and the decisions of our Courts should not be based on a blind adherance to the principle of spiritual efficacy, as it may lead to the violation of other recognised principles consistent with natural justice, and that in all cases of absence of any express texts or precedents under the Dayabhaga Law, Courts should have recourse to the theory of propinquity and natural love and affection as adopted by Vijnaneswara and the commentators of the more ancient and orthodox schools of Hindu Law, It is also pointed out on behalf of the petitioners that the Dayabhaga lays down that on failure of heirs, the spiritual preceptor or a fellow pupil succeeds; and in default of them the King gets the property. That under the bengal tenancy act in the case of an occupancy holding it goes to the Zemindar, who may be a Muhammadan or a Christian; and that it is difficult to see how it would be consistent with the doctrine of spiritual benefit that the estate should devolve upon a person belonging to a different religion than upon a daughter's son's son or a grandfather's daughter's son's son.
17. On the other hand the respondents rely upon the view taken by Banerjee, J., in the case of Dino Nath Mohunto v. Chundi Koch 16 Ind. Cas. 349 : 16 C.L.J. 14, viz., that the scheme of the Dayabhaga is radically distinct from and to some extent incompetible with the scheme of the Mitakshara and the one cannot well be made to supplement the other so far as the law of inheritance is concerned. Nor can it be said that the Dayabhaga is silent upon this point, seeing that although the Dayabhaga may be silent so far as express enumeration goes, it is not silent so far as the indication of general principle according to which heirship is to be determined is concerned, that general principle being clearly the principle of spiritual benefit" and which is settled by authority.
18. Now the question whether the daughter's son's son or the grandfather's daughter's son's son can come in as an heir, on failure of heirs, depends upon whether Raj Kumar Sarvadhikari has taken a correct view as to the meaning of the words Sakulya and Samanodaka upon which he bases the right of the daughter's son's son to succession on the principle of spiritual benefit under the Dayabhaga; or whether the view that the Dayabhaga should be supplemented by the Mitakshara, in oases where there is no heir according to the principle of spiritual benefit, is correct. The question, however, cannot be finally decided in the present proceedings which arise out of an application for Prohate, and when the persons who would be entitled to get the property (on intestacy) on failure of heirs, viz., the Crown or the Zemindar (if the property is an occupancy holding) are no parties to the proceedings.
19. As already stated, the opposite party is a perfect stranger to the family, whereas the petitioners claim some sort of relationship (however distant) with the family of the deceased and if the will is disproved, the questions stated above may have to be decided in a title suit between the petitioners and the person entitled to the estate of the deceased on failure of heirs.
20. Without deciding any of the said questions, we think that in the particular circumstances the petitioners have some interest in appearing and opposing the application for Probate. We accordingly set aside the order of the Court below and direct that the application for Probate be heard in the presence of the petitioners as early as possible.
21. The appeal is dismissed on the ground that no appeal lies and the above order is made upon the application under Section 115 of the Civil Procedure Code. We make no order as to costs. Let the records be sent down without delay.