The Judgment of the Court was delivered by

Ayling, J.:— This Second Appeal arises out of a suit by Government to obtain possession as an escheat of the property of one Shanmuga Yogeeswaraswami. The facts found are that the latter was a Sudra ascetic, not entitled to enter the order of yati or sanyasi, that the suit property was his secular property, not endowed in favour of any institution, that he died leaving no relations, and that fourth defendant was his chief “sishya” or disciple. The sole question for our decision is whether, the claims of the fourth defendant to inherit as “sishya” are sufficient to stop the escheat to Government. Both the Lower Courts decided in favour of Government. Defendants 1 and 3, who have acquired the rights of the fourth defendant by purchase, appeal.

Both the Lower Courts have decided the question as if it were concluded by the ruling in Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai, but as a matter of fact that has no application to the present case. Appellants here rely on the passages in Yajnavalkya, Chapter II, verse 137, and Mitakshara, Ch. II, section 7, which recognize in ordinary cases of succession the claims of a pupil or fellow-student to succeed in default of kindred. The text in Yajnavalkya runs thus:

“The lawfully wedded wife and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil and a fellow-student, on failure of the first among them, the next in order is the heir to the estate of one who departed for heaven, leaving no male issue. This rule extends to all classes.”

The learned Judges in Dharvi ipuravi Pandara Sannadhi v. Virapandiyam Pillai, on the other hand, were considering the applicability of a totally different section of the Mitakshara, section 8, which is based on Yajnavalkya, Chapter II, verse 138, and lays down a special rule of succession to a hermit or ascetic whereby the claims of kindred are dismissed in favour of those of “a preceptor virtuous pupil and spiritual brother or associate in holiness.” This is an exception to the ordinary rule: and it was held in the above quoted judgment that it did not govern the case of a Sudra ascetic. The dispute there was between the spiritual and natural heirs.

What has to be determined here is whether the rule in Yajnavalkya, Chapter II, verse 137, which is stated to apply to all classes should be given effect to as against the escheat claim of Government: or whether, as urged by the learned Government Pleader, the rule is obsolete and should be disregarded. I need hardly say that where the meaning and applicability of ancient texts is concerned, I come to a conclusion with great diffidence; but in the present instance there seems to be no doubt as to the meaning of the texts themselves while as to their applicability I am not unfortified by authority and the conclusion to which I feel forced is not so unreasonable, even to western ideas, as it might seem at first sight.

I have already quoted the text of Yajnavalkya which is not only perfectly specific but purports to be of universal application. Chapter II, section 7 of the Mitakshara is equally clear (quoting Apastamba):

“If there be no male issue the nearest eapindas inherit or in default of kindred the preceptor, or failing him the disciple. If there be no pupil, the fellow-student is the successor.”

And the last paragraph of the section limits the king's right of escheat as regards property of Kshatryas or other inferior castes (i.e, non-Brahmans) to cases of “failure of all heirs down, to the fellow-student.”

The same section makes it clear (paragraph 2) that in dealing with the case of preceptors, pupils and fellow students, we have only to consider purely religions instruction—a consideration which would largely limit the application and prevent the undesirable extension of the rule—vide also Manu IX, 18, which in dealing with the same point speaks of “the spiritual teacher of the pupil.” Having regard to the importance of religious teaching in Hindu ideas, and to the fact that this kind of heirship, only operates on failure of natural heirs and to defeat the claims of the State, this seems to me to present the rule in a much less unreasonable and fantastic light, than one might be at first inclined to view it in.

In this connexion it may be useful to refer to a passage from a judgment of the Judicial Committee of the Privy Council in Ramchandra Martand Waikar v. Vinayeh Venkatesh Kothekar. Their Lordships were there dealing with an attempt to secure recognition as heirs of sapinda relations beyond the fifth degree. They say (page 421):

“It was urged that it is hardly likely Vijnaneswara would give a right of inheritance to a spiritual preceptor or guru before kinsmen however remotely connected. This argument appears to ignore the peculiar and intimate relationship which their Lordships understand exists in the Hindu system between the pupil and the guru who has to initiate him into the mysteries of the vedic laws and rites, and under whose roof he has to pass many years of his life. It is easy to suppose that in such circumstances the mystical relationship between a spiritual preceptor and a pupil should be regarded as creating a far closer the than remote relationship of blood.”

The spirit of these remarks seems to me to militate strongly against any tendency to brush aside appellants' claim as based on an obsolete and unreasonable rule.

In another case, Gridhari Lall Roy v. The Bengal Government, their Lordships also comment (at page 463) on the extreme jealousy with which the Hindu Law regarded the right of the king to take on a failure of heirs. They quote the provisions of the Mitakshara to which I have referred; and they do so without any suggestion that the rules should not be given effect to.

No doubt the claim is a novel one so far as the Courts are concerned. Mr. Mayne in his hook on Hindu Law; in paragraph 489, says:

“I know of no instance in which a claim has ever been set up by a preceptor or pupil to the property of a man dying without heirs”

and no case has been quoted to us. But it by no means follows that the rule has not been observed in practice: and I hesitate to treat a clear direction of the texts as obsolete and negligible, when it involves no inequity or conflict, so far as I know, with even modern Hindu ideas, and when it has been referred to by the highest tribunal in the terms I have quoted.

The learned Government Pleader has drawn our attention to a recent case of this Court in which the ancient Hindu rule disqualifying a person born blind from inheriting was held to be obsolete. I do not find anything in the reasoning of the learned Judges which bears on the question before us. The learned vakil for appellants also referred to a case of the Privy Council [Gunjeawar Kunwar v. Durga Prasad Singh], as throwing doubt on the correctness of the decision in that case.

On the best consideration I can give to the matter, I am inclined to think that the old rule appearing in the texts should not be treated as obsolete. Its applicability will naturally be closely scrutinized by the Courts and strict proof required of the spiritual relationship alleged. But where, as in the present case, that is clearly established, I can see no reason for refusing to give effect to it.

I would allow the Appeal and dismiss the suit with costs, throughout.

Odgers, J.:— This Appeal boncerns the property of a certain Sudra ascetic, Shanmuga Yogeeswaraswami by name, who died without heirs or relations in the ordinary sense of those words. The property of the deceased is claimed by the appellant, who was a “disciple” of the deceased, and by the Government as escheat. The lower Courts have held that the Government is entitled, hence this Second Appeal. Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai(2), is relied on by both the lower Courts. This lays down that a Sudra is unable to enter the order of “yathi” or sanyasi and that the ordinary law of inheritance regulates the devolution of his property. There, the property was decreed to the secular heir, the brother of the deceased as against the members of the mutt into which the deceased had been admitted. There is no such contest in this case. I am not called upon to decide between a devolution to an ordinary heir, e.g, a brother or a son and one to a religious institution. The question is whether a disciple of a Sudra ascetic can be interposed between the deceased and the Government, who admittedly take by escheat only in the last resort. It is admitted that there is no decision that the disciple of a Sudra ascetic is an heir and the case is therefore largely one of first impression. Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran(3), is authority for holding that religious training is not confined to Brahmans and the first authority relied on by the appellant for establishing his right is the first paragraph of Yajnavalkya, Chapter II, verse 137-139, quoted at page 171 of, J.C Ghose's book on Hindu Law. It runs as follows:

“The lawfully wedded wife and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellow student, on failure of the first among them, the next in order is the heir to the estate of one who departed for heaven, leaving no male issue. This rule extends to all classes.” (Note especially the last sentence)—

“The heirs to the property of a hermit, of an ascetic, and of a student in theology are in order (that is in the inverse order) the preceptor, a virtuous pupil, and a spiritual brother and one belonging to the same hermitage.”

The second paragraph admittedly cannot apply as a Sudra cannot be an ascetic: Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai; cf. also Colebroke's Digest of Hindu Law, Volume 2, page 522, for the former of these texts and page 577 for the second. Similar quotations are given from Yajnavalkya in Setlur's Hindu Law Books on Inheritance, the Mitakshara, page 36, where it is stated that the rule of Yajnavalkya must be understood as extending to all castes; at page 48, it is stated:

“if there be no bandhus of the deceased, the preceptor, or on failure of him, the pupil, inherits under the texts of Apastamba (ii, 6, 14, 2-3) of, also Sacred Books of the East, Volume II, page 133.”

In the Laws of Manu, Chapter IX, section 187 (Sacred Books of the East, Volume 25, page 366) it is stated:

“Always to that (relative within three degrees) who is nearest to the (deceased) sapinda the estate shall belong, afterwards a sakulya shall be (the heir, then) the spiritual teacher or the pupil.”

Sir Thomas Strange in his book on Hindu Law, Chapter VI, page 148, puts it thus:

“In default of natural kin, the series of heirs, in all the classes, that of the Brahman excepted, terminates with the preceptor of the deceased, his pupil, his priest hired to perform sacrifices, or his fellow-student, each in his order—and, finally, failing all these, the lawful heirs of the kshatrya, yaisya and sudra, are learned and virtaous Brahmans—a description, however special, yet too comprehensive to be consistent with the right of escheat, for want of heirs, in the king; and, therefore, it has been narrowed in construction to such as reside in the same town or village.”

It was laid down by the Privy Council in The Collector of Masulipatam v. Gavaly Vencata Narrainapah that the Mitakshara is the highest authority on inheritance for this province. Their Lordships say, at page 525:

“But when it is made out clearly that by the law applicable to the last owner, there is a total failure of heirs, then the claim to the land ceases (we apprehend) to be subject to any such personal law.”

They proceed, at page 526:

“In the present case, if the Hindu Law had expressly provided that, upon the death of a Brahman, without heirs, ordinarily so-called, his property should pass to some definite person or class of persons; if, for instance, it admitted, in the case of a Brahmanical succession, collaterals more remote than it would admit in the case of succession to a sudra, there would be ground for excluding the title of the Crown, because there would, by Hindu Law, be some person in the nature of an heir capable of succeeding; but here the Sudder Dewanny Adawlut rests its decision on what it terms the primary declaration of Manu that ‘the property of a Brahman shall never be taken by the king’.”

It is therefore established in my opinion, that there is, on the authority of the texts quoted above, a rule of Hindu Law that the property of a person such as the deceased should pass to a definite person or class of persons by the personal law of the deceased. Gridhari Lall Roy v. The Bengal Government is also authority for saying that the Mitakshara recognizes the interposition of three classes of heirs, viz., preceptor, pupil, fellow-student, between the relatives of the deceased and the King.

In Ramchandra Martand Waikar v. Vinayek Venhatesh Kothekar, a case before the Privy Council, their Lordships say, at page 406:

“It is to be remarked, as has been observed in previous cases before this Board, that the Hindu Law contains its own principles of exposition, and that questions arising under it cannot be determined on abstract reasoning or analogies borrowed from other systems of law but must depend for their decision on the rules and doctrines enunciated by its own law-givers and recognized expounders;”

again, after noticing the argument that it is hardly likely that Vijnaneswara would give a right of inheritance to a spiritual preceptor or guru before kinsmen, however remotely connected, their Lordships remark:

“This argument appears to ignore the peculiar and intimate relationship which their Lordships understand exists, in the Hindu system between the pupil and the guru who has to initiate him into the mysteries of the vedic laws and the rites and under whose roof he has to pass many years of his life. It is easy to suppose that in such circumstances the mystical relationship between a spiritual preceptor and a pupil should be regarded as creating a far closer the than remote relationship of blood (page 421).”

The answer to this argument is that the rule of law and the texts on which it is based are obsolete and that in the absence of proof of a special custom it is impossible or impracticable to apply it. The texts are also said to be too indefinite and vague. Reliance is placed on the text of Brihaspathi, XXV (see Ghose, page 175):

“Should akshatriya, vaisya of sudra die without leaving male issue, or wife, or brother, their property shall be taken (as escheat) by the King, for he is the lord of all.”

The objection to this view is chat Brihaspathi has admittedly nothing like the same authority as the Mitakshara, which, as pointed out above, has been laid down by the highest judicial tribunal as being the authority for the Hindu Law of Inheritance in this part of India. There is also the objection that Brihaspathi does not enumerate all heirs, bandhus, etc. I do not think it is impossible to apply the text—at least to a disciple. I admit greater difficulty in the case of a “fellow-student” in modern days. It is not disputed that the appellant was a sishya or student of the deceased and this was so found by the learned Subordinate Judge. With regard to the question of the rule of inheritance being obsolete, reference was made to Surayya v. Subbamma. In that case it was held that the rule which prevents a person “born blind” from claiming a share in his ancestral property was obsolete having regard to present day circumstances and modern methods to enable the blind to, at any rate partially, overcome their defect.

However, in Gunjeswar Kunwar v. Durga Prasad Singh, it was held that blindness, to exclude from inheritance, must be congenital, adopting the statement of law in Rajkumar Sarvadhikari's Hindu Law of Inheritance, page 956. Apparently the attention of the learned Judges of this Court was not called to this authority when they decided Surayya v. Subbamma. In any case, the Privy Council has upheld the rule of Hindu Law as far as congenital blindness is concerned. Further, the Full Bench case of Rajani v. Nitai, is authority for saying that a rule (in that case also a rule of inheritance) cannot be said to be obsolete merely because there is no occasion for its application. The application of a rule like that under discussion must of necessity be extremely rare, but I have already stated that in my opinion its application when necessity arises is neither impossible nor impracticable. It seems to me that where we have, as I think we have here, a clear rule of inheritance deducible from the ancient Hindu authorities which is generally recognized and supported by the highest judicial authority in recent times [cf. Ramchandra Martand Waikar v. Vinayek Venkatesh Kothekar(4)], it cannot be said that the rule is obsolete because there happens to be no judicial decision exactly in point. For all these reasons I would allow the Appeal and dismiss the suit throughout with costs.

K.R