1. The question arising in this Second Appeal is one of Hindu Law, the facts not being disputed. The plaintiff is the daughter's daughter's son of the last male-owner Kalimuthu Pillai who died in 1883. Kalimuthu had four wives, of whom two survived him. The last of these died in January 1923. According to the plaintiff the property has devolved under the Hindu Law on him as (he nearest Banhdu. The first defendant is the sister's son of Kalimuthu. He had previously obtained a decree for possession of the properties of Kalimuthu on the ground that he is the reversioner but the present plaintiff was not a party to that suit. The plaintiff in this suit now seeks to recover the properties from him. The present suit was filed on January 24, 1928, and there is no question of limitation in the case.
2. The only question for decision therefore is, who according to Hindu Law is the preferential heir--the plaintiff (the daughter's daughter's son) or the 1st defendant (the sister's son)? As the succession opened in 1923 this case is not governed by the Hindu Law of Inheritance Amendment Act, II of 1929. Both parties are Bandhus, i.e. cognates or Bhinna Gothra Sapindas. The nature of the Bandhu relationship, and to some extent, the order of succession among the Bandhus was discussed by me and our brother Venkatasubba Rao, J. in Rami Reddi v. Gangi Reddi 87 Ind. Cas. 609 : 21 L.W. 476 : 48 M. 722 : (1925) M.W.N. 335 : A.I.R. 1925 Mad. 807. A further question of order of succession has now arisen. It is unnecessary for me to repeat my observations made in that judgment. It is enough for the present purpose to start from the principles of succession for Bandhus laid down by the Privy Council. One of such principles was laid down so early as in Muthusami v. Muthuhumarasami 16 M. 23 : 2 M.L.J. 296 affirmed by the Privy Council in Muthasami Mudaliyar v. Simambedu Muthukumaraswami Mudaliyar 19 M. 405 : 23 I.A. 83 : 6 M.L.J. 113 : 7 Sar. P.C.J. 45 (P.C.). That principle is that the nearest Bandhus of a person may be divided into three classes, viz., the Atmabandhus, the Pithrubandhus and the Mathrubandhus. There may be Bandhus other than these three classes, but we are not concerned with them in this case, and it is unnecessary to discuss the order of succession among them. So far as these three classes are concerned, they take in the order enumerated, i.e. the Atmabandhus take first, then the Pithrubandhus and then the Mathrubandhus Muthusami v. Muthukumaraswami 16 M. 23 : 2 M.L.J. 296, Muthusami Mudaliar v. Simambedu Muthukumaraswami Mudaliyar 19 M. 405 : 23 I.A. 83 : 6 M.L.J. 113 : 7 Sar. P.C.J. 45 (P.C.) and also approved is Vedachala Mudaliar v. Subramania Mudaliar 64 Ind. Cas. 402 : 44 M. 753 : 14 L.W. 402 : (1921) M.W.N. 669 : 2 P.L.T. 707 : 26 C.W.N. 159 : 41 M.L.J. 676 : 30 M.L.T. 198 : 4 U.P.L.R. (P.C.) 13 : 24 Bom. L.R. 619 : A.I.R. 1922 P.C. 33 : 48 I.A. 349 (P.C.). Now the question at once arises who are Atmabandhus, who are Pithrubandhus and who are Mathrubandhus? The Mitakshara Section enumerates one's own first cousins as one's own Bandhus, the father's first cousins as Pithribandhus and the mother's first cousins as Mathrubandhus. But it has now been repeatedly held in all the Courts that this enumeration is not exhaustive and other persons fall within these headings or classes. Now the Atmabandhus of a person as enumerated by Mitakshara are the descendants of his paternal or maternal grandfather If these are Atmabandhus, it is an a fortiori case that the descendants of one's father and of himself should also be regarded as Atmabandhus and this is indeed the view taken by the Courts. For instance in Balusami Fandithar v. Narayana Rau 20 M. 342 : 7 M.L.J. 207 a sister's son was held to be an Atmabandhu. At p. 346 Page of 20 Mad.--[Ed.] the learned Judges observed-
As to the third defendant, the learned Vakil for the plaintiff urges that he is not Vasudeva's Atmabandhu. But that he is such a Bandhu seems to be necessarily implied by the passage of the Mitakshara cited above. For it lays down that the father's sister's son, that is a descendant of even the paternal grandfather is an Atmabandhu. How then can a Bandhu Like the third defendant who is able to trace his relationship to the deceased owner through a nearer ancestor, viz., the father, be held to be other than an Atmabandhu? The plaintiff's objection on this point is consequently untenable.
3. In Krishna Ayyangar v. Venkatarama Ayyangar 29 M. 115 it. was held that a father's sister's daughter's son is an Atmabandhu. In Sham Devi v. Birbkadra Prasad 62 Ind. Cas. 432 : 43 A. 413 : 19 A.L.J. 312 it was held that a sister's daughter's son and also a lather's sister's son's son are Atmabandhus. In Uma Shankar Prasad Parasari v. Nageshwari Koeri 48 Ind. Cas. 625 : 3 P.L.J. 663 : 7 P.L.W. 1 : (1919) Pat. 162 the maternal uncle was described as an Atmabandhu. In Adit Narayan Singh v. Mahabir Prasad Tiwari 60 Ind. Cas. 25 : 40 M.L.J. 270 : 48 I.A. 86 : 6 P.L.J. 140 : (1921) M.W.N. 1 : 19 A.L.J. 208 : 2 P.L.T. 97 : 33 C.L.J. 263 : 29 M.L.J. 240 : 23 Bom. L.R. 692 : 25 C.W.N. 842 : 14 L.W. 90 (P.C.) the Privy Council in an appeal from Patna held that a mother's sister's grandson was an Atmabandhu. In all these decisions the descendants of the father of the propositus and the descendants of the grandfathers other than those enumerated in Mitakshara were held to be Atmabandhus. For the same reason it is obvious that the descendants of the propositus himself should be held to be Atmabandhus. Thus the term Atmabandhus has a wider scope than the terms Pithmbaxidhus or Mathrubandhus. Whereas Atmabandhus include the descendants of a man's paternal and maternal grandfathers just as one's Pithrubandhus denote the descendants of one's father's paternal and maternal grandfathers and the term Mathrubandh is denotes the descendants of one's mother's paternal and maternal grandfathers, the term Atmabandhus also includes the descendants of the propositus's father and the descendants of the propositus himself Accordingly a man's Atmabandhus may be divided into three sub-classes.
A.--His own cognate descendants.
B.--His father's cognate descendants, and C.--The cognate descendants of his paternal grandfather and the descendants of his maternal grandfather, Group A is group 1 at p. 725 Page of 48 Mad.-[Ed.] of ray judgment in Rami Reddi v. Gangi Reldi 87 Ind. Cas. 609 : 21 L.W. 476 : 48 M. 722 : (1925) M.W.N. 335 : A.I.R. 1925 Mad. 807. Group B is group 2 in the same page. Group C is group 3 in the same page.
4. The question now arises--how is the succession to be regulated as between the members of the different sub-classes of Atmabandhus. The answer to this question is to be sought from the basis of the classification in the Mitakshara into Atmabandhus, the Pithrubandhus and the Mathrubandhus The reason mentioned in Mitakshara itself is "by reason of nearer; affinity". The Atmabandhus enumerated in Mitakshara are preferred to the Pithrubandhus and the Mathrubandhus because they are the descendants of nearer ancestors, viz., the paternal and maternal grandfathers of the propositus than the ancestors from whom the Pithrubandhus and the Mathrubandhus are descended. Applying the same principle we arrive at the conclusion that among Atmabandhus one's own descendants should be preferred to the father's descendants and the father's descendants to the descendants of the grandfathers. This is the principle applied in. Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.J. 207. There it was observed:
But granting that the plaintiff's capacity is superior does that give him a better title? Now though the doctrine of religious benefit has exercised very much influence upon many of the great writers on Hindu Law, yet it is now rightly recognised that Vijnaneswara as well as most of his followers put their system on, a radically different basis.... But be this as it may, there need be no hesitation in saying that the doctrine ought not to be resorted to in derogation of the great principles pervading the law of inheritance under the Mitakshara system. The first of such principles is that the nearer line excludes the more remote.
5. Accordingly in that case it was held that a man's sister's son was entitled to preference to his maternal uncle's son. The former was a descendant of the father of the propositus. The latter was a descendant of the maternal grandfather of the propositus. On the same principle a man's own descendants ought to be preferred to the descendants of his father. One's own line is certainly a nearer line than the line of descendants from one's father. This is also the principle adopted in Mayne's Hindu Law where the descendants of the propositus are enumerated as Nos. 1 to 7 whereas the descendants of the father of the propositus are enumerated as Nos. 8 to 15.
6. The learned Advocate for the respondent contended that the principle of spiritual benefit ought to be applied and that one's daughter's daughter's son makes no offering to the propositus whereas the sister's son offers oblations to the father of the propositus in which he participates. To this it is enough to reply that though the principle of spiritual benefit may be resorted to even under the Mitakshara, it should not be so resorted to as to defeat the rule that the nearer line should exclude the more remote. This is exactly what the learned Judges have held in Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.J. 207. In fac if the learned Advocate's contention is accepted, we have to hold that the decision in Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.J. 207 is erroneous. That decision has stood in the books for 37 years and has been repeatedly cited before the Privy Council and its correctness has not been questioned and we do not see why we should unsettle the law by doubting its correctness. The learned Advocate relied on three decisions for his contention, viz., that the principle of spiritual benefit should be given preferential recognition under the Mitakshara Law. Those decisions are Chinnasami Pillai v. Kunju Pillai 11 Ind. Cas. 885 : 35 M. 152 : 10 M.L.T. 226 : M.L.T. 226 : 21 M.L.J. 853, Buddha Singh v. Laltu Singh 30 Ind. Cas. 529 : 37 A. 604 : 29 M.L.J. 434 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 20 C.W.N. 1 : 22 C.L.J. 481 : (1915) M.W.N. 772 : 42 I.A. 208 (P.C.) and the judgment of our learned brother Kumaraswami Sastri, J, in Subrahmania Chetty v. Nataraja Pillai 127 Ind. Cas. 113 : 58 M.L.J. 468 : A.I.R. 1930 Ind. 534 : 53 M. 61 : 31 L.W. 617 : Ind. Rul. (1930) Ind. 929. All the above three cases relate to succession among Sagothra Sapindas and not Bandhus, and the decision of the Privy Council expressly rests on various texts laying down that among Gothraja Sapindas the principle of spiritual benefit should be specially looked to. One of these texts is the Viramitrodaya which was also quoted in Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.J. 207 but was not applied to Bandhus. In my opinion we are not called upon to discuss these three decisions in this case and it is enough to observe that whatever the stage at which the principle of spiritual benefit may be applied among Gothraja Sapindas, it should not be applied to Bandhus so as to defeat the rule of "nearer affinity." Even among Bandhus when the above principles fail, the principles of spiritual benefit will have to be resorted to Jotindra Nath Roy v. Nagendar Nath Roy 135 Ind. Cas. 637 : 58 I.A. 372 : 8 O.W.N. 101 : A.I.R. 1931 P.P. 268 : 35 C.W.N. 1153 : 34 L.W. 465 : 161 M.L.J. 442 : 33 Bom. L.R. 1411 : (1931) A.L.J. 1009 : Ind. Rul. (1929) p.c. 29 : 59 c. 576. in mayne's hindu law. section 579(a) at p. 849 it is suggested that the first rule should be I hat a nearer ancestor and his descendants should exclude a more remote ancestor and his descendants. This is in accordance with the decisions in Balusami Pandithar v. Narayana Rau 20 M. 342 : 7 M.L.J. 207 and Adit Narayan Singh v. Mahabir Prasad Tiwari 60 Ind. Cas. 25 : 40 M.L.J. 270 : 48 I.A. 86 : 6 P.L.J. 140 : (1921) M.W.N. 1 : 19 A.L.J. 208 : 2 P.L.T. 97 : 33 C.L.J. 263 : 29 M.L.T. 240 : 23 Bom. L.R. 692 : 25 C.W.N. 842 : 14 L.W. 90 (P.C.).
7. The result is that in our opinion the plaintiff is entitled to the properties in. preference to the 1st defendant.
8. I may now sum up for convenience of reference the rules as to the order of secession among Bandhus. Atmabandhus get in preference to Pithrubandhus and, Mathrubahdhus. Atmabandhus are divided into three sub-classes, (1) Descendants of the propositus. Excluding unlikely descendants these will generally include son's daughter's son, daughter's son's son and daughter's, daughther's son. All these three are entitled; to come in before the descendants of the father: As to the order between these, three I do not wish to discuss the question, as between the first two as the point does not arise. That the second is entitled to preference over the third has been decided in Tirumalachariar v. Andal Ammal 30 M. 406 : 2 M.L.T. 357 : 17 M.L.J. 285. It is only after this sub-class of descendants of the propositus are exhausted that we go to the next sub-class, viz., (2) the father's descendants. It is only after these, are exhausted that we go to the next sub, class, viz., (3) the descendants of the grandfathers. It is only after this third subclass of Atmabandhus are exhausted that, we get to the Pithrubandhus or the Mathru. bandhus as the case may be. For instance in Krishna Ayyangar v. Venkatarama Ayyangar 29 M. 115 a father's sister's daughter's son who is in the third sub-class of Atmabandhus was given preference over the paternal grandfather's sister's son who is a Pithrubandhu. In Adit Narayan Singh v. Mahabir Prasad Tiwari 60 Ind. Cas. 25 : 40 M.L.J. 270 : 48 I.A. 86 : 6 P.L.J. 140 : (1921) M.W.N. 1 : 19 A.L.J. 208 : 2 P.L.T. 97 : 33 C.L.J. 263 : 29 M.L.T. 240 : 23 Bom. L.R. 692 : 25 C.W.N. 842 : 14 L.W. 90 (P.C.), a mother's sister's grandson who is in the third sub-class of " Atmabandhus was given preference ,over the mother's paternal aunt's son who is a Mathrubandhu. And the next rule would be that when the Pithrubandhus; are exhausted, we go to the Mathrubandhus. Another rule would be that in each subclass of Atmabandhus or among the Pithrubandhus or Mathrubandhus, the nearer descendant from the common ancestor or from the ancestor of equal degree is entitled to preference over a remoter descend, ant. In other words the nearer excludes the more remote. This last rule is illustrated by the decision in Nucherla Chengiah v. Subbaraya Aiyar 128 Ind. Cas. 172 : 28 M.L.J. 562 : A.I.R. 1930 Mad. 555 : 31 L.W. 592 : (1930) M.W.N. 537 where the mother's father's sister's son's son is preferred to the mother's father's brother's grandson's son's son, the latter being the lower descendant from the common ancestor than the former. If these rules fail, we have resort to other rules: (1) preference is given to Bandhus who confer greater spiritual benefit Jotindra Nath Roy v. Nagendra Nath Roy 135 Ind. Cas. 637 : 58 I.A. 372 : 8 O.W.N. 101 : A.I.R. 1931 P.P. 268 : 35 C.W.N. 1153 : 34 L.W. 465 : 161 M.L.J. 442 : 33 Bom. L.R. 1411 : (1931) A.L.J. 1009 : Ind. Rul. (1929) P.C. 29 : 59 C. 576; (2) Bandhus ex parte paterna are entitled to preference to those ex parte materna; (3) A claimant in whose relationship two females intervene would be postponed to another in whose relationship there is only one female. This is illustrated by the judgment of myself and Venkalasubba Rao, J. in Rami Reddi v. Gangi Reddi 87 Ind. Cas. 609 : 21 L.W. 476 : 48 M. 722 : (1925) M.W.N. 335 : A.I.R. 1925 : Mad. 807 and I may suggest another illustration of the first rule but as the case has not arisen and as I do not wish to prejudge it, I abstain from giving the illustration.
9. The result is that the second appeal must be allowed and the decision of the District Judge is reversed and that of the District Munsif restored with costs here and in the lower Court. I may add that it is so much in accordance with the sentiments of Hindus that a man's descendants should be preferred to his collateral?, that the Hindu Law of Inheritance Amendment Act II of 1929 while it followed a right policy in elevating a son's daughter, daughter's daughter, sister and sitser's son above Sagothra Sapindas it is faulty in that it does not provide for the man's cognate descendants, viz, son's daughter's son, daughter's son's son and daughter's daughter's son being given preference to the sister, and the sister's son who are only collaterals and it would be in accordance with the sentiments of Hindus if the Act is amended on such lines. Even on the principle of spiritual benefit, one's son's daughter's son should be preferred to a sister's son, and even on any non-Hindu mode of computation of the steps between the propositus and the claimants, the three Bandhu descendants abovementioned cannot be inferior to the sister's son and ought to precede him, if not the sister.
Curgenven, J.
10. I agree.