R U ~ C H ~ ~ U ~ r Y DUTT IHA ?I. RAJUND~R N. RAE [1839] 11 MOORE IND. MP., 132
case the laches of the Appellants cannot justify our shutting them out from their
appeal, and that the Order, therefore, of the 16th of May, 1837, niust be rescinded ;
but upon the terms of their paying the costs incurred by the Respondents in [132]
India as we11 as here, consequent on the Order of dismissal, which are not costs in
tlie cause, and giving security to the amount of 2500 for the contiiigent costs here,
such security to be perfected within two months.
[S.C. 3 Moo. P.C. 11. As to present conditions of appeal from Bengal, see Letters
Patent of 28th Dec., 1865, Arts. 39-40 (Stat. R. and 0. Rev. iv. 93-95) : Code of
CW. I’mr. (Act XIV. of 1882) ss. 595, v t R P q . , rtrzd Giv. Pror. Amend. Act (Act
V T T . of 1888). s. 57.1
[I331 RUTCHEPUTTY DUTT IHA, BHO LAUiNATJTH IHA, and Others (Sons.
heirs, and legal representatives of GUNGA DUTT IHA. deceased),-Ap
p ~ ~ ~ n ~ s ; R A J U ~ D E R NARAIN RAE atid C O O ~ ~ E R ~ ~ ~ A I ~ ~ ~ ~ NA-
RAIN RAE (Sons and representativ~s of SREE NARAIN RAE, deceased),--
Rvspondents [Feb. 12, 18391.
On appva’1 Ip7 v m the ,Ctidu‘e,. Derivaizny Aduidut of Benyul.
l?y +he IIindoo law iri forrt: in Mithela, or Tirhoot, the right of succession vests
i n the descendants in the paternal ill preference to those of the maternal line ;
and such law continues to regulate the successioii to property i n a family
who have migrated from that District, but have retained the religious ob-
servances and ceremonies of Mithela [2 Moo. Ind. App. 167, ‘1681.
A suit having been instituted to recover the estate of a Hindoo Mithalese by tlie
maternal first cousin of the last inale proprietor, who claimed to be entitled
according to the law in force in Bengal-Held by the Judicial Committee
(affrniing the judgment below) that according to all the authorities, the
Shasters of Erlithela were to govern the succession, and that by them the
party in possession being descended in the line: degree in the p a t e r i d line
was to be preferred to the maternal sivth notwithstanding that part of the
property was locally situate in Bengal and that the last proprietor r a s
domiciled there.
This wa4 an appeal froin a decision (reported, 2 Ben. Sud. Dew. Ad. Relb. p. 11)
un a question of Hindoo law and usage: the point a t issue being, whether the laws
according to the Shasters or Books of authority current in the District of Mithela
in the country of Tirhoot (from whence the ancestors of the Respo~deiits had
originally emigrated, and the religion of which had been uniformly observed by his
[134.] descendants), were to govern the right of succession to property froiii such
ancestors, os the Shasters in use in Gour Doss or Bengal, where part of the property
was situate, and in which District the party last in possession m e domiciled.
Rajah Indur Narain Rae, the last male proprietor of the Zeniindary of Havila
Parnea, (the property in question) was descended in a direct line, and related in
the sixth degree to Bigge Poomph Sumroo Chowdry, who originally emigrated froni
Parnea, the adjacent district of Mithela, or Tirhoot, to Bengal.
The Rajah having no children, the Zemindary descended 011 his death to his
Widow, Ranee Indrawuttee, who continued in possession during her life, and died
in 1803.
Inimediately on her decease Sree Narain, the Father of the Respondents, and
Lullit Narain, who were also descended in the sixth degree from Sumroo Chowdry,
claimed to be the heirs of the late Rajah, and took possession of the Zemiiidary : but
Gunga Dutt (the Father of the App~llants), who was the Nephew of the late Rajah by
marriage, being the Son of his Wife’s only Sister, and as such the materna1 first
cousin of the late Rajah, claimed to be entitled according to the Shasters of Bengal.
In consequence of these adverse clairns, Gunga Dutt E a , in the month of ;Tanuary.
251
IX RE IND. UP., 195 R U T ~ H ~ P U T T ~ DUTT I H S
1808, c o ~ ~ e n c e d a suit in the Zillafi Court of Poorneah for the recorery of the
~ e ~ i n d a r y , c ~ a ~ i n i n ~ , as the khalatee Brother o r first cousin of the late Rajah, to
be his heir-at-law and personal r e p r ~ e n t a t ~ v e ; and as such entitle to his estates.
He set up a claim also, w ~ ~ ~ h was a terwards abandoned, of having been adopted
by the Rajah.
Srm Narain Rae and Lullit Narain Bae by tlieir [I351 amwer denied the title
of Gunga Dutt Iha as khalatee Brother of the Rajah, Bud insisted that the Shasters
decided the ~nher~tance to belong to them, as descended from a co~niol l ancestor with
the Rajah; and they requested that the case inight be decided according to the
%asters of Tirhoot, which were in usage in the country, and particularly amongst
the B r a h ~ ~ ~ K i s of ~ i t h e l a , who were entirely ruled by them.
To this Gunga T h t t replied, that on the au t~ lor~ty of the Rutnakur, the rnas
e ~ c e ~ ~ e r ~ t of the pothees (or Treatises) in usage in Tirfioot, and the Bebad Chundel.,
the rules of which are in usage in Bengal, his right was ~ncontrovertible ;he cited
also various other authorities ; and in order to show that the Defendants could have
no right to she succession, as relations within the seventh degree to the Rajah, he
alleged, chat relations descended f roni a con~i~ion Grandfather, or to four descents,
give the Find (or fi:iieral cake) to the nanies of their ancestors, w ~ ~ c 1 ~ stops in the
51%: so that, the near re la t ions~~p then ceases also.
The Defendants filed their rejoinder to this reply, citing variouh BuucI~u~~s, or
texts of lawgivers, i r i support of their title ; they disclaimed the usages af Bengal
and of tlie Dcccan, and relied p r i ~ ~ c ~ ~ a ~ l y upon the a u ~ l ~ o r i t y of Maha Maha Opediali
B a c l ~ ~ ~ p ~ ~ t , Misser of ~ i t l i e la , the c o ~ i p i ~ e r of the Vivada Ch~ntainan~, wl.~om they
represeiited as the most celebrated of the Pundits of Tirhoot, and wlmse laws they
stated, " are to this day venerated abose all others by the Nitheles,"
Both parties e~h ib~ ted and filed genealo~~cal tables of their respective ~an~i l ies ,
Srer Xsraiu and LuIlit Xarain being lineally descended from Sumroo C ~ o ~ i d r y ,
[I361 the paternal great ~raRd€ather of the great Gra~idfatlier of Rajah fndes
Narain.
It appears that all religious ceremo~~~es, as well as those of a civil nature, includ-
ing marriage, were performed in the families both of the Plaintiffs and Defendaiil~,
as well as in the family of the late Rajah Inder Pu'arain Ltg a Mithella Purohit ( F a m ~ l ~
Priest), according to the Shasters current in that District ; and that the Brahmins of
Mithela, as stated by Sree ru'arain and Lullit Narain in their answer, were regulated
in all things by the Tirhoot Shasters.
Previous to pronouncing a decision, the Zillah Judge, in order to ascertain the
~ i ~ ~ ~ ~ t ~ o law of the case, referred the papers in the cause for the opinioa of the
Pundit attached t o his Court, who returned the following Bewusta, or opinion.
'' After an attentive consideration of the claim of Gunga Dutt Iha, as khalatee
Brother to the late possessor, and of that of Sree Narain Rae and Lidlit Karain Rae,
as being descendants in the seventh ge~~eration from a c o x ~ i ~ o n aiicestor with the
deceased, I declare this Bewusta according to the Shasters. Inder Nerain Rae died,
leaving neither Son, Grandson, or Great rands so^^, and all his property came to
his Wife ; and in the case of her halring no relation within the affinity of her Husband's
Brother's Son ~ j r ~ e ~ ~ i s i v ~ } , Sree RTarain Rae and J d l i t Narain, who are Sapiuds
('kindred connected' by the funeral oLtlation), and heirs to her ~ ~ i s b a ~ ~ d , succeed to
the propesty, and these two persons being in existence, it cannot go to Gunga Dutt
Iha, the khalatee (relation) Brother of her Husband, who is a Bundhoo (cognate
kiusman).
Bulub Moonee : If a person dies c l~~ld~ess , fir t his property goes to his then to
his ~ a u g ~ t e r , theu the Father and Mo~~ier , then the Brother, then the Brother's
Son, then the Goutesuj (kindred of the same family opposed to Rundhoo), then the
R ~ i r l d ~ o o ~ then the disciple, then the fello~v-student."
'- The Buchu~i of Bishnn ~ o o n e e : ' After h i s death it goes to tbe ~ ~ ~ I I ~ ~ ~ I ~ ~ ~ ~ , after
his death to the Sookool (distant kinsman).
'' In these two Ruchuns there are c ~ n t r a d i c t i ~ i i ~ ~ and to reconcile these, ~ ~ c ~ i s ~ ~ t
Miswr has called the Bundhoo Sapinds, and the Sookools he has calIed Sugotur.
(' Bodhaien Yoonee, after what he says respecting Sookools, adds : ' E n case
there i s no Sugotur Bandhoo. the Sookool succeeds.'
[I371 (' The a r ~ u ~ ~ ~ e n ~ s in proof of this are these.-The Buchun of suy
353
W. RAJUNDER NARAIN RAE [ 18391 I1 MOORE IND. APP., 138
'' According to the Buchun of Juy Bulub Mooriee, first, own Bundhoo, then Father's
Bundhoo, then Mother's Bundhoo, according to this series, inherit in the pothee
(Law Treatise) Vivida Chintainani.
-' Uachisput Misser has this c~iiimentary : ' In case if he not existing, the Brother,
and the Brother's Son, and the Sookools, arid Sapinds, and Bundhoo, and the disciple,
and the Bedereading Brahmins, are heirs in succession. If there are niaiiy Geants
(or kranuts, kinsmen generally), and Suokools, and Bundhoos, and if there i s no
Daughter, thca Sookools and Bundhoos succeed.'
" Many bfoonees (sages) have placed the Sapinds and Sookools before the Jhndlioos
as heir.
" Buchuit of Brishput Moonee : ' If a person dies E1381 childless, and leaves no
Wife, no Brother, nor Father, nor Mother, all the Sapinds shall divide the property,
and take according to their shares.'
" Kataien Moonee says : ' After his death, all the heirs shall succeed.'---' In case
there is no giver of pind to the possessor of property, the property goes to arty peshttxi
a h o gives the pind, and from him to the person who performs the same office for
him. If they do not exist, or any one concerned in the pind, he will succeed :' ai-e
explanations Tvhich I have never seen in any pothee in usage in Tirhoot.
" On examining the pothee Vivida Chintamani, and Bebad Chunder, and othei s,
it appears clear that the Sapinds are to the seventh generation (of seven descents),
for Bunhud Mooiiee has written, tlie Sapirids are extinct in the seventh dcsceiit
(inclusive of coume)."
Against this opinion Gunga Dutt produced three Uewustas, or law opinioris,
signed by a number of Pundits of Tirhoot, Benares and Nuddea, whereupon the
Zillah Judge ordered the documents filed on either side to be forwarded to the
Provincial Court a t Moorshedabad for the opinion of the Pundits of that Court.
The Pundits of the Court a t Moorshedabad differed in opinion with those of the
Zillah Court, and made the following report :-
" The Widow of Indur Narain Rae, deceased, named Ranee Indrawuttee, came into
possession of the property left by her late Husband at his death. The puttas which
decide the succession in favour of the khalatee relation of her late Husband, in
preference to the relations of the seventh descent from a conimon ancestor, are just,
and according to the Shasters.
'' Proof.--The Father, Grandfather, and Great [I391 grandfather, and in like
manner maternal Grandfather, great Grandfather, and his Father, have pind and
ju1 (funeral oblation, and water libation) offered to them ; the fourth is the giver,
and the fifth has no concern in the giving or receiving pind. Of these, he u-ho i8
nearest Sapind, will be heir to the property; after him, the Sookools, the Acharuj,
and the Shish (a spiritual guide or teacher); where there are many (ieants, and
Sookools and Bundhoos, he who is nearest will succeed to the property of a childless
person ; and in the case of there being no nearer protreety, the heritage comes to
the nearest Sapind ; the Great grandfather, (:randf ather, Father. self, with own
Brother's son of a Wife of same tribe, Grandson, and his Son, are joint Sapinds.
in an undivided property; but if it is divided, are Sookools : if there are no off'spring,
the Sapinds succeed; if there are no Sapinds, the Sookools. As far as the con-
nesion of pind estends to a coinmoit ancestor, so far do the Sapinds go : and when
they are re,tiote from pind, they are remote also from sapindee: in case of a dirision
of the property, the leep (remnant of oblation) tasters are Sookools.
'' The texts of all these Buchuiis are inserted in the pothees Rutnakur, and others
of Mithela, composed by Menu and Brishput Oupust, Bohaien Debul, the Brinch
Sooran (Poorana's or sacred books) : therefore, tlie khalatee relation is the giver of
the pind.
" The Bewusta which have decided in favour of the Sookools, or descendants of
the seventh generation from a coinnion ancestor, in preference to the khalatee relation,
are improper. and contrary to the text of Menu, and all texts and Shasters contrary
thereto are [140] of no authority, for he wrote according to the bedes (the Vedas 01.
Holy Scriptures); he is, therefore, above all. Thus, according to the Shastei-4.
Gunga Dutt Iha, the Plaintiff, is rightful heir."
Against this last opinion, i t was alleged bv Sree Narain and Lullit Narairt, that
the Pundits ( I f the Proi+iciaf Court had only consulted the Shasters in usage in
Bengal, which did not regulate the succwsion and inheritance of families in Tirhoot
25.7
Under these circui~stances the Zillah Court deemed it necessary to resort to further
authority, and ordered the proceedings to be transniitted to the Sudder I)e\?-an~~y
Adawlut of Bengal, wit'h a request that the Pundits of that Court might be directed
to examine the various Bewustas, and decide which was just and right according to
the Shasters.
The Sudder Dewanny Adawlut according~y referred the question and the Bewustas
to their ~ a w ~ ~ c e r ~ , who delivered the following opinion :-
'' Ranee Indrawuttee, Widow of Indur Narain Rae, having deceased, leaviug 110
Brotlier of the Rajah, or Son of the said Rrother alive, we conceive the property of
which she died possessed, in right of tlie Itajah, to be the right of Sree Naraiil Rae
aiid Lullit Narain Rae, the Defendants, as Sapind and heirs to her said Husband.
The Bewusta to this effect, passed on the authority of the Vivida ~hintamarii arid
other Books, and the usages of ~ ~ t ~ ~ e l a is correct ; and that which asserts the right
to come to Gunga Dutt Iha, the kiialatee Brother or Bundhoo, is not allowable by
the Shasters of Mithela, but is so according to the Daya-bliaga and Dye Tu&, the
poothees in usage in Gour Doss or Bengal. In proof of this, Bishun [I413 Moonee
writes :--Of a person who dies cliildless, the succession of his property devolves first
to his Wife, t+hen to his Daughter, then h i s Mother, then the Father, then h is Brother,
then Brother's Son, then the Bundhoo, then the Soobool, then the feIlo~~-stuaent,
then (exclusive of the property set apart for pious purposes) the State.
I' f ~ ~ c o r d ~ r i g to the Vivida ~ ~ 1 ~ i i t a ~ i ~ a ~ ~ ~ , the Buiidhoo's are Sapinds ; Sookools,
n~w,iis llumgotur, or descrnded from a carimo1i ancestor.
' * Again, BrishFut Mocnee say9, from self to seven gerieratioirs ale Sal iridb,
beyond Sapinds are baried, From fell upwards to fourteen pooslits are called
Smianodaca, who are of the s a m seed, xiest to them con13 t l i u Sugotur,
I' The abstract of this from the Bivida Chiiitar~~ani is this : First the Son, then
tlte Grandsou, then his son, then the Wife, the Daughter, then the Mother, then tlie
Father, then the Brother, then Brother's SOIL, then the near Setpind, then the remote,
dten the near Sookools, then tlie remote : then in default of all these, and exclusive of
the portion for pious purposes, the persons of the Mother's family have right of
succession.
" Again, according to Srec Kur Misaer, if a person dies childless, his property
becomes the right of the descendants of his Father ; if they exist not, Graxidfather's
offspring, then the offspriug of the great Grarldfather. This is thus proved : ~ k r e e
~ e ~ t e ~ * a t i ~ ~ ~ s give pind and jul-that is, three ge~ier~tioiis, from self: the fourth is
the giver, an13 the fifth has no concern tlie~ewith. After these, he who is nearest
heir must succeed. The proof of this is, in case there are no Sapinds, the Sookools
succeed ; after [I421 them, the nearest relations, according to their sinees : as upon
the authority of all these texts above quoted it is proved. The relative situations
of the Sapind Safnanodaca Goutery, or descendants from the saxne stock, i s stated
above.
" Ball ltoop writes :-' If t,here i s no relation within the Brother's Son inclusive,
the Gearits of the same common ancestor will inherit ; in proof of which i s this. First
the heirs, as far as the Brother's Son ; then the Goturuj heirs, ?.e., of one stock ; the11
the I3undJioo ; the meaning of Goturuj is he who is a Sapind,'
" Text of Menu is thus :-' Goturs reach to sis generations, Sapinds to seven,
which i s thus explained : That six g e n ~ ~ a t i ~ ~ ~ ~ ~ and their offspring are Goturuj ancl
Supinds ; and that from the deceased Father, including his G r a ~ ~ d ~ a t ~ I e r and great
~ ~ r a I ~ d f a t h e r , and in aecent up to the seventh generation, are Sapirids and Goturuj ;
and i n like manner seven.geIieratioi~s in descent are SapiIids and Goturuj. In sllppol-t
of t h i s it is said, pind may be given, from self up to great Grandfatller, and three
generations above that are eaters of the pind leep, and from the giver for sever1
generations are they named Sapinds in these generations. This is the relationship
and connexuion : If there are no Sapinds, the Samanodacas succeed to tlle i n ~ e r i ~ a n e e ~
which word nieans all the gei~er&tions ahove the Sapinds. of which the rnemor~
remains.'
'' This is supported by the text of Buchuri Moonee, who says that the Sa~~~anodacas
are Numgoturs, And if there are no Goturs, the Bundhoos inherit : that the Bundhoos
are of three kinds--- first, own Bundhoos : second, Father's Bundhoos ; third, Mother's
Butidhoos.
[143] '' In the Seetee Sar Gurint , according to the teu; of Orrpent ~ g o o ~ l ~ ~ ,
254
'U. RAJUNDER NARAIN ttAE [183'Sf 11 MOORE IND, APP., 142
fcund these words: ' In the event of there being no Son, the Sapinds are tleirs,' mid
the interpretat~on of near Sapind i s thus given : ' Great grar~dfa t~~er , G a n d f a t h ~ ~ ,
and Father, self, own Brother, Son by a Wife of the same tribe, Grandson, his SOU,
are, in an undivided inheritance, Sapinds ; but if said inheritsnce be divided
a ~ o n g ~ the heirs, they are Sookools. If a person has no offspring, the heritage
goes to the Sapinds; and if there are no Sapinds, to the Sookools; if tliey are riot,
it goes to the Acharuj ; if he is not, to the Disciple; if he is iiot, to the Piiiobit ; i f
there is none, the, whole (exclusive of ~ r a h ~ i n i c a l property) to the State.'
'' The Tan Ooktan, or those whose name have been mentioned above, respecting
whom has been explained the rights of Sapind and Sookool; said explanation is
in cases of the division of i n ~ e r i t a n ~ e , an? hears no reference to asocb ~ i ~ ~ ~ u r i t y
attaching on the birth or death of a relation), in which all who are of one blood are
Sapinds, as well as those merely connected. Abstract of the text :-' A peruxl
dying c~~ildless, his wealth goes to his Father and his descendants as far as tlie
Grandson; if none exist, it goes to his Grandfather and his descendaiits; if nolle
exist, to the Great ~ r ~ n d s o n and his descend an^ ; and so on to the sesmllr in asceii t,
after which right of inheritance ceases.'
"According to the Brinch Pooran Shaster, in the whole Hindoo rare, Sapindr
are to the seventh generation ; after which they are Saii~a~iodacas, who go up as far
as the niemory of the family exists. If self, Father, Grandfather, and Great Grand-
fat,iier, with seven generations in ascent from him, and from hini f1441 also, down to
the great Grandson, seven generations in descent (the seventh of whom is said great
Grandson), are dead, except said great Grandson, and the property has not been
divided, said great Grandson is Sapind; and if the property shall have beeii
divided, is Samanodaca, but all who eat of the pind leep are Sanianodacas, and those
who eat the pind are Sapinds.
~ ~ d ~ i a i e 1 ~ Moonee says:--' Re is a Sapind in cases where the property has not
been divided, and Sookool where i t has.' His esp~anation refers to the rights o i
Sapinds and Sookools, in a case of inheritance to the property of a childless
person.
" In the Rutnakur test of Menu i s found :-' The act of Xapindee ceases at the
seventh generation, and the Samanodaca extends therefrom to the further annals
of the faiiiify.' Thus explained, seven generation^ above the person living, and all
their offspring, are Sapinds; and in the potbees Parajat, also, i t i s written, that
the word seventh bears reference to the founders of the seven generatioI~s above,
and all their descenda~~ts who are i~utual ly Sapinds.
" In the Much Poor an :-' From the fourth generation (in ascent) they are leep
partakers, and from the father to three generations partakers of pind, the giver
of which pind i s the seventh.'
'' Test of ~ u n i u n t Moonee :-' Brahmins who are of one pind suffer asoch for tell
generations. After three generations pind ceases, and after, or in the severitli
generation, right of heritage ceases; that is, after seven the property left is riot
divided. If this asoch, etc., is not performed, tho punishnient is equal to the
slayer of a Brahmin ; or he who has relation of pind, his asoch ceases at the tenth
g e ~ ~ e r a t ~ o n . He whose F a - r l ~ ~ - t h e r , Graiidfat~~er, and Great ~raI idfather are
living, Great Grandfather's Father, and two ascents more, are partakers af the
leep.
" In the Briiich Pooran it i s thus written, a i d in the translation thereof in the
Seetee Sar ; but this is the explanation giverr thereof in the Retnakara :-' 111 a11
tribes of Hindoo, from seIf upwards to the seventh ascent, and froni the Great Grand-
father to Great Grandson, seven descents, both in ascent and descent, sevel1 genera-
tions are Sapinds; after whom are the Samanodaoas. This enumeration i s re-
peatedly written, and according thereto, the Sapinds extending! upwards se,vek)
~ e ~ e r a t ~ o n s ftr0 heirs to an undivided ~ r o p e r ~ y ; whilst those who haye right, to a
divided on0 are Sookools and Samanodacas.
in some, he who partakes of the leep comes into the property, who, in case of a
division, are Sookools and Samanodacas. whilst those who partake of pirid are,
even in case of a division, Sapinds ; and Sapinds, as above enumerated, succeed to
prope~y. '
255
All this refers to asoeh.'
This is not the case iri all places :
EX OR^ IND. APP., 146 ~ ~ ~ ~ ~ ~ E ~ ~ ~ ~ Y BUTT IHA
*I Bodhaien Moonee says : ' Great ~ r a ~ ~ d f a t h e r , Grandfather, Father, Self, O R n
Brother, Son of a Wife of same tribe, Grandson, and his Son, all, if the property is
undivided, are Sapinds ; and if divided, Sookools. In order to ascertain the right
of ~ ~ ~ ~ l e I * ~ i a l ~ ~ e to the property of a childless person, deceased, thie is the explanatioil
of Sapizids aitd Sookools; for in the matter of division of property left it i s writtelt
thus:
* - 'The e ~ p l a i ~ ~ t i o l z of the Bibad Chaader is thus :-' The property of a childless
person gocs to his Wife; if he leaves none, to his Daughter; if he has none, to his
Father ; then to the Mother, tlren to the Brother, then the Sagotur, then the Bundhoo.
their tlie Disciple, E1461 then (exclusive of B r a h ~ ~ ~ n i ~ a l property) to the Statc, who
will give srxcIi B r a ~ m ~ i z i c a ~ property to the B e d ~ r e a d i i ~ g B r a ~ ~ i I ~ s ; and a x ~ ~ o n g ~ ~
the S u ~ o t ~ r s the nearest will succeed : because where there are many ~ean t s , and
Sookaols, a i d BuiidI~oos, the nearest will inherit the property of % c~~ildless person.' "
The Zillah Court having received the above Bewusta, confir~atory of that
delivered by the Pundit of their own Court, on the 16th of Septexnber, 1808, after
~ e c a p ~ ~ u l a t i i ~ ~ the circumstances of the case, pronounced their decreo, and ordered
that the plaint should be dismissed, and that the Plaintiff pay the costs of the Su i t .
On the Ist, of February, 1809, the ~ l a i ~ ~ t ~ ~ , Gunga Dutt E a , appealed from this
decree to the Provincial Court of appeaI for the Division of ~~oorshedabad. In his
yetitioii to that Court, he represented that the Pundits of the Provincial Court at
~ o o r ~ h e d a b a d as well as the Pundits of the Sudder Dewanny Adawlut, upon the
iefereuce to them, had severally decided thak the usages of Gour or Bengal were in
favour of the Plaintiff ; that the Zemindary in dispute was in Gour ; and that the
deceased Rajah for. ten generations had been settled in Gour j he submitted that in
all affairs the S~as te rs of &ur must govern the c u s t o ~ s of Gour, and i n ~ ~ s t e d that
his right was clear, not onay accord~ng to aff those Shasters, bu t also according to
the autr~or~ties of the Reti~akara and Sumrit Sur in usage in Tirhoot.
Sree Narain Rae and Lullit Narain Rae put in their a~iswers to this appeal,
~ ~ ~ e g ~ ~ ~ ~ tha% the Perguni~a~i of Havellee ~ o o r n e a h was in fact in Tirhoot, and th&
according to all Pothees prevaleat in Tirhoot, the right to the inher~taiice had
devolved upon them
On the 4th of September, 1809, tbe ~ r o v i n e i a ~ Court, E1477J e n t e r t a i n ~ n ~ some
doubts on the law, ordered that copies of the proceeding, together with the original
Bewast-as of the Pundit? of the Sudder Dewaiiny AdawIut, be again sent to that
Court for their further opinion.
The Pundits accordingly reviewed the proceedings, and the Bewiistas dolivered
i n tlze cause, and gave the following opinion :-
" Upoii an examination of the various Bewustas, it appears to us that, according
to the Sliasters of usage in the Country of Mithael, whenever ~ ~ ~ h a ~ ~ ~ t a ~ ~ t ~ of that
~ o u ~ ~ t r y , who carry on their agairs a ~ o r d ~ n g to the usages of the said country,
happen to have a diqute, it i s proper that the Judge do decide in the d~spute agree-
ably with the institutes of the Shasters of that country; and that when disputes
arise bet~veen ~ n ~ a b ~ t a n t s of Wtr, or those who carry on their affairs according to
the Shasters of that Country, or Malda Tajpoor, etc., he stiall decide according to
the Sfiasters of Gour. Upon this principle, in the dispute between G z ~ ? ~ ~ ~ h t t [ha
v. Srce XQN& Rae and LulJd N n r * ~ t k h e , Eithilees inhabitants of M i ~ h i ~ a ~ , the
Pothees in usage in Poorneah bear strongIy, viz., the Vivada Chintai~~ani, the Bibad
Chunder, the Retnacara, the Surnrit Sur, compiled by Bal Roop and Three Krepae,
and according to the Bewu8tas of the Shasters, the inheritance of Rajah Inder Narafn
Rae should rest in Sree Narain Rae and Lultit Narain Rae.
'' 2nd. Answer of Soolpanee, tlie Pundit of the Zillah Court, i s accordiap to the
Shaster of Gour Doss, and not according to those of Mitlzeel.
'' 3rd. In answer to tlze Bewustas of Xuboor Tewarree aand ~ ~ n s a ~ ~ 1 , Punditri of
the Srtdder, it is written, that ~1~~~ they have passed their ~ e w u s t a a e c o ~ d i n ~ trr
the Vivada C~intamani, the Shaster in use iiz Poorneah; for they have rtlerel7
written, that according to the Shasters, etc., and have not written according to the
%asters in usage in Gour Doss ; but, moreover, they have written, that, Sree Narain
and I d l i t Narain, the relations of the seventh deseent, are r i g h t ~ u ~ heirs to the
property of the deceased Rajah ; and according to the Daya-Bhaga, the retations of
256
V. ~J~~~~~ NAEAIK R-AE [1839] 11 ~U~~~ DX). APP,, 1%
the seventh descent9 who are Gootur Chow (family, etc.), are heirs, they have not
then written.
“ 4th. They have not written after whom, who i s to inherit,
“ 5th. The Bejye ne~ther, and other ~ e r ~ n ~ s 5 are in usage in Benares, and the
~ a y a - ~ h a g a in Gour DOSS.”
On the 9th of D ~ e ~ b e r 5 3809, the Bewusta of the Pundits of the Sudder ~ e ~ v a n ~ ~ y
~dawlu t , with the various Bewustas, h a v ~ ~ ~ ~ been received, the Provincial Court
declared, “ that, upon an examination of the same it appeared that the Pundits ha&
decided that, a c c ~ r d ~ n g to the Shasters in usage in ~ o o r n ~ a ~ , the Bivada ~ ~ ~ ~ x I ~ a m a n i ,
Bibad Chundur, and Retnacara, Sumrit Sur, in usage in Mitheel, and various other
Shasters, the claim of Sree Narain and Lullit Harain was preferable.” And the
~ o u r t a c ~ o r d i n g l ~ decreed aga~ns t he ~ l a i n t ~ ~ s claim, and a ~ r m e d the decree of
the Zilfah Court with cos&.
Soon after the date of this decree, Lullit Narain Wee died, ~ i t h ~ u ~ leaving any
children, but leaving his Widow, ~ u s s u m u t ~ee lawa t t e~ , who was admitted as his
r e ~ r e s e n t a ~ ~ v e in the further proceedings in the cause.
On the 20th of April, 1810, Cunga Dutt Xha appealed from the above decisions of
the Ziltah and Provincial El@] Courts to the Sudder Dewanny Adawlut at Bengal, and
Sree Barain Rae and ~ u s s u ~ u t ~ e e t a ~ v a t ~ e r ~ p e c t i v e ~ y put in their answers to
the petition of appeal.
At the ~ ~ e a r ~ n ~ of the a p ~ e a l , it appea~,ed that a decree of the Xudder ~ e ~ ~ a n n y
Adawlut, dated the 22nd of June, 1801, had been made in a cZtuse of ~ ~ j ~ ~ ~ ~ ~ ~ ~ ~ r
a ~~~~~~~~ v, G ~ c ~ Z ~ ~ ~ ~ ~ @oh (reported 1 Ben. Sud. Dew. Ad. Eep. 43), in
which it was determined that if a person of a Mithila family living in Bengal con-
tinue the observance of the Mithila Shaster on occasion of marriages and m o u r n ~ n ~ ~
in his family, and have a ~ i t h i ~ a P u r o ~ ~ t , or Priest, to ~ e r ~ o r ~ the €eremo~ies,
his right to ~aheritance and other claims were to be determined according to the
~ i t h i l a Shasters ; but that if these cere inoni~ were p~r~orKned by him accordii~g to
the Bengal Shasters, his right of inheritance should be determined by the Bengal
Shasters.
In confo r~ i ty with this decree, and with the opinion of the Bindoo law Officers,
and finding %Qat i t was admitted on the part of the Appe~~ant, C u ~ ~ ~ a Butt &a,
upon the ~ u e ~ ~ ~ o n being put by the Court, that the Purohits or Priests of all parties
in the suit, were Mithila men, and that the marriage and ~ o u r n i n g cere~onies were
observ~d by them aecord~ng to the ~ i t h ~ ~ a Shasters, the Judges of the Sudder
Dewanny Adawlut were of opinion, that the case as to be decided by the ~ ~ t h ~ ~ a
Shasters, and in order more c ~ e a r l ~ and finally to aEccrtain the r ~ g ~ ~ t s of he parties
a c c o ~ d ~ n ~ to those Shasters, the Court, on the 16th of February, 1812, directed a
reference to the Pundits of the Zillah Court of Tirhoot, which was in the District
of ~ ~ t h i l a proper, and to the Proy~nc~al Court of Patna, in order to o b t a ~ r ~ the
opinion of the [l.SQ] ~ u n d ~ t ~ of those Courts, they being the persons most versed in
the Shasters current in the Mith~la tribe and District, upon the ~ o i ~ o w ~ n ~ question :
‘‘ In the case of a person of the Mitheel tribes dwelling in Bengal (in whose family,
through Purohits of the Mitheel tribe, the observances of joy and of grief have been
in usage according to the ~ ~ t h ~ l a Shasters) dying and leaving persons related to
him in the sixth descent his ~umgoters-that is, the deseendant’s children of his
great randf father's great g r a n d s i r ~ a n d also having the Son of the Sister of
his Hother, with no other nearer heir than these Eying; to which of these persons,
that is, the descenda~t in tbe s i x t h degree, or the ~ ~ t h e r ’ s Sister’s Son, does the right
of i n h e r ~ t a ~ c e to th3 real and ~ersonal property of the deceased belong$”
In answer t o this ~ ~ e s t ~ o n ~ the ~ ~ n d i ~ delivered a B e ~ u ~ t a , which declared, that
accord~ng to the M~thila author~ties, the estate of a person, 0x1 failure of heirs,
within the relation of Brothers’ Sons, devolved on the paternal kindred, who are
Sapinds, including descend~nts of a paterna1 ancestor to the sixth degree ; and in
~ ~ f a ~ l ~ of S a i n d a ~it devolved on the S ~ ~ a n o d a e a s or more distant paternal kindred
ex teK~d~n~ to the f o u ~ e e n t ~ degree, and that in failure of Samanodacas the Bu~dhoos?
or rnater~al ~ ~ n d r e d , Succeeded~ and that, there fore^ Sree Narain Rae was the
nearest heir as Sapinda; the Appe~lant~ Guaga Dutt Iha, being of the class of
~undhoos.
This opinion having been duly rweived, the Xudder Dewanny ~dawlu t , on the
P.C. VII. 257 9
23rd of March, 1812, ordered, that the papers in the cause should be laid before the
third Judge, for his opinion.
On the 6th of April following, the P l a i n t i ~ , with [I511 permission of the Court,
filed 'a petition, protesting against the Bewustas of the Pundits of the ~ i l l a h Court
of Tirhoot and the Provincial Court of Az~emabad.
Mr, Harrington, the first Judge, investigated the opinions of the various Pundits
delivered in the cause, and after some delay pronounced the following elaborate
opiniori : -
" 1st. The decision of this cause rests entirely upon a point of Hindoo law, whether
Appe~~ant, as maternal first cousin of Rajah Inder Narain (viz., of the Sister of
Inder Narain's Mother), be the legal heir to the estate of Inder Narain, vacated by
the death of his Widow, Ranee I n d r a ~ u t t ~ , or whether, on the Ranee's death, the
right of succession to her Husband's estate devolved to Sree Narain and LuXiit
Narain, lineally descended in the sixth degree from Sumroo Chowdry, also called
Somer Sing, ar~ce~tor in the sixth degree of Bajah Inder Narain, viz., his paternal
Great ~ r a ~ ~ d f a t ~ i e r ' s great grandsire.
'' 2nd. The Pundits of the Zillah Courts of Poorneah and Tirhoot, of the Pro-
vincial Court for the division of Patna, and of the Sudder ~ e w a n n y Adawlut, eoncur
in declaring that, according to We received and most authoritative Books of law of
the M ~ t h ~ l a or Tirhoot system (by which the parties, though resident within the
limits of Bengal, are regulated in their religious ceremonies, marriages, etc.), the
paternal kiudred are entitled to succeed before the maternal ; and, oonsequently, the
Appellant (the Plaintiff in the suit) has no legal right to the succession claimed
by him.
'' 3rd. In support of this opinion the following authorities are cited (besides others
less concius~ve), which expressly. declare a preference of the Gotraja kindred of the
same Gotra, or paternal stock, to the ~ u i ~ d h o o or kinsnian of a different stock,
namely, the El521 maternal kindred and the issue of Daughters married into another
family : -
" 1st. A passage of ~a jnyawa~cya , cited in the, ~ i t ~ c s h a r ~ , Ch. II., sec. 1,
p a c 2 : ' The Wife, and the Daughters a1so, both parents, Brothers likewise, and
their Sons,' the paternal kinsman (Gotraja), k~nsman of a d ~ ~ e r e n t family ( ~ u n d h o o ~ ,
' a pupil and a fellow-student ; on failure of the first among these, the next in order
i s indeed heir to the estate of one, who departed for heaven leaving no male issue.
This rule extends to all persons and classes.'
" 2nd. The Mitiicsharb itself, which declares the order of succession according to
the above text (see page 324 of Mr. Colebrooke's Translation), and afterwards in two
distinct sections (5 and 6 of chap. XI.), the one entitled succession of kindred of the
same faniily name, termed Gotraja, or Gentiles,' the other on the succession of
Bundhoo, or kindred of a different family name, states the order in whictt. the
paternal and maternal kindred are to succeed respectively. From these, it will be
sufficient to extract, the substance of the conmencement of each section, viz., If there
be not even Brothers' Sons, the Gotraja, or more distant paternal k i ~ ~ s ~ a n (tr ns~ated
by Mr. Colebrooke, ' Gentiles '), share the estate, On failure of Gentiles, the ~ u n d h o o ,
or kinsman of a different family (translated ' Cognates '1, are heirs. For the re-
~ a i n d e r of the Mitiicsl~~rii, 8s applicable to the case, I beg to refer to the t ranslat io~
of that work, pages 349 to 352, includin~ also in notes the explanations of Corn-
rnentators, and sentimei~ts of other Writers upon the subject.
" 3rd. The Trivada Chintamani, the Author of which, after citing different
authorities on the order of succession, gives the following recapitulation :--
[la$] " The abstract is this: First the Son, after him the Grandson, then tile
Great ~ r a ~ d s o n ; on failure of these, the virtuous Wife; fail in^ her, the Daughter;
in her default, the Xother ; i f she be dead, the Father ; if he be so, tfxe Brotlier ; on
failure of him, his Son ; in default of him, the near and more remote Sapirrda or
kindred, connected by the funeral oblation (for want of such Saculya, also caIted
Sa!~anodaca~, or those connected by a common libation of water, in order; on
failure of them, the Mother's family ~Matr~ca l ) and the rest; and default of an, tbe
King, except in^ the property of a Brahmin.
4th. A passage from Balarupa, referring to Lhe text of ~ a j n y a w a ~ e y a above
cited, in proof that on failure of him down to the Brother's Son, the success~on
258
’U. ~ A J U ~ ~ ~ ~ ~ A ~ A ~ ~ RAL [I8391 a ~ 0 0 ~ ~ XND. APP., 1-
devolves on the Got ra~a; and after e ~ p l a i n i n ~ it as meaning the Sapindas, and
compris in~ six ancestors and their issue, coiicluding with the f o ~ ~ o w i ~ ~ g quotation
from Virhut Menu : the relation of Sapinda ceases with the seventh person, and that
of the Sa~~anodaca extends to the fou~een th degree. The Sa~nal~odaca, too, are
~ o t r a j ~ (or p a ~ r n a l k ~ i ~ s ~ a n ) j o failure of such, the ~ u c c e s s ~ o ~ ~ devo ves on the
~undhoo {or k i n s n ~ ~ n of a ~ ~ ~ e r e ~ i ~ stock), co~Ifor~nab~y with the text of Y a~n~Tawalcya
above cited, Gotraja, Bundhoo, etc.
‘( 5th. The following extract from the Bibad Chander :-
‘‘ The wealth of one dying without male issue goes to his Wife j if he leave none,
it, goes to his Daughter ; if there be none, it devolves on his Father ; if he be dead,
it passes to the ~ o t ~ i e r ; if she deceased, it comes to the ~ ro thess ; in default of
Brothers, i t goes to the Sagotra ; for want of such, it descends to [164] the Bundhoo ;
on failure of whom, it accrues to the disciple; if there be none, it goes to the King,
except to the property of a Brahm~n. Among Sagotras the nearest shall take pro-
perty of the ehi~dIess man ; conformably with text of Vrihaspate and q ~ o ~ a t i o i ~ ~
from the Shasters, where many claim the ~ n h ~ r ~ t a n c e of a c ~ ~ ~ l d ~ e s s man, whether
near or distant paternal kindred or kinsmen, or of a difterent stock {Geanli, Saculya,
or ~undhoo), he who is the nearest of them shall take estate.
“6th. A text from A p o ~ a ~ b a , cited in the Chintamani, ~ ~ p o r t ~ n g that if a
person die c ~ ~ i ~ d ~ e s s , his estate, m o v ~ h ~ e and ~ ~ o v e a b l ~ goes to his Sapinda;
i f there be no Sapinda, to his ~ a c u ~ y a ; if there be 110 Saeulya, to hi8 B ~ n d ~ ~ ~ o .
“ 4th. These last texts are quoted by the Pundit of the Patna ~ r o ~ i n c i a ~ Courtp
aad the Pundit of the Zillah Court of Tirhoot, but not by the Pundits of the Sudder
Dewanny Adawlut, who cite only from the Sumrit Sara another dictum of Apos-
tamba, tha$ on failure of male issue, the nearest ~ ~ ~ i n d a is the heir.
“5th. Jiniuta Vahana, the Author of the ~ a y a - B ~ a g a ? cons~~er ing a text of
Menu, which direcb that the inher~tar~ce b given ‘ to the nearest Sapinda,’ or those
who are con11~cted by funeral Qblations, to refer not so much to n e a r n ~ s of kin or
family r e ~ a ~ i o ~ ~ , as to the presentatio~ of o ~ e r ~ I ~ g s , and that the maternal Uncle
and other maternal kindred present oblations to the maternal rand father and other
ancestors, which the deceased was bound to oEer when living, and consequently
partakes when ogered by others after his death, declares them entitled to succeed on
failure of near Sapinda among the paterna~ kindred, viz,, ‘ on failure of any lineal
~ e § c e n d a ~ t of the paternal G r a n d ~ ~ l ~ ~ l - f a t h e r , down tQ the Dau~hter’s Son, who
might present oh~ations in which the deceased .would ~ a ~ i c i p a t e ~ He adds, that on
failurc of such materna~ kind~ed, viz., those who offer o ~ ~ a t i o ~ ~ which the deceased
was bound to present, and of which he partake8 when presented by others after his
death, the ‘ Saculya ’ or distant paternal kinsman i s the successor, and defines ‘ the
Saeulya to be one who shares a divided oh~ation? as the ~ r a ~ ~ d s ~ n ’ s r ~ d s o n ? or
other descendant within three degrees reckoned fsom him, or as the o ~ s p ~ ~ n g of
the ~ r a n d f ather’s Grandfather, or other remoter ancestor? (See Xr. ~ o ~ e b r o o k ~ ’ s
Translat~on of the ~ a y a - 3 h ~ ~ a ~ pages 216 to 219 ; and the rule, that be who whilo
living presents an oblation to an ancestor, par~akes when deceased of oblatio^^
presented to the ssme person, in page 111.)
“6th. This order of success~on, however, which has been adopted in Bengal, and
which Nanda Pandita, a modern Author, is dairous of e ~ t e n d ~ n g to Benares, in
oppos~~,ion to C a ~ a ~ a c a r a and the Author of the Viramitorodya, who follow the
M ~ t ~ s h a r ~ (see note to ~ r a n s ~ a t i ~ n of ~ i t ~ c s h a r ~ ~ pages 350 and 351), i s not
a d ~ ~ ~ t e d by the ~ ~ ~ h i ~ a sc ool, who u n i f o r ~ ~ y prefer the paternal to the mat ern^^
kindred, whilst# any of the f o ~ e r ? O X at least any within the fou~eea th degree,
may be living. In the Bengal law of ~nher i t~nce? a pind or oblation at obsequies is
chiefly regarded in Mithila the Gotra or relation of the same family. This point
appears to me ~~~cont rover t ib~y e$ta~~ished by the authorities cited in the Bevvustag
of the ~ a ~ ~ ~ c e r s of this Court, the Zillah Courts of Poorneah and
Patna ~ r o ~ i n e i a l ~ o u ~ , and I see ikothing whatever to prove the contrary.
~ e w u ~ a of the Pundit of the ~oorshedabad Provincial [156] Court? i s found^ on
his own construct~on of texts that are cited by the other Pund~ts to prove the
opposite doctrine. The whole of the objections of Appellant to the ~ewustas in
favour of the distant kindred of Rajah Zndur Narain, also appear to me unfounded
or ~ r r e~evan t to the present case, in which the contest i s not between a ~ a ~ i ~ ~ ~ ~ - 4
259
I
Saculya, both of the pa~ernal kindred, but between a paternal and maternal
kinsman.
" 7th. In Appellant's replication in the Zillah Court, he states his claim to be
supported by a text of Wr~haspate, cited in the Vivada Chintamani, ~ ~ p o r t i n g that
when there are several ~ l a ~ m a n t s , of whom some are paternal and others maternal
kinsmen, whichever may be nearest in affinity shall succeed to the estate; but the
extract above given from the Vivada Chandra shows that the Author of this work,
which is held authoritative in Mithila (see Preface t o Translation of Daya-Bhaga
and M ~ t ~ c s h a r ~ ? , expressly prefers the Sagotra to the Bundhoo; and the text cited
from Vrihaspate, which is also relied upon by tfie Pundit of the ~~oorshedabad
~ r o v i n c ~ a ~ Court, is construed to mean only, that among several kinsmen, whether
paternal or maternal, who may claim an estate, thoge of each who may be nearest
of kin are entitled to succeed, in preference to the more distant. In his p e t ~ t ~ o n f
appeal to this Court, the Appellan~ cites the Retnacara and Sunirit Sur to prove
that Sree n'arain and Lullit Narain, not having descended from an ancestor of
Rajah Indur Narain within the third or fourth degree, are not Sapindas. But the
Author of the ~ e t n a c a r ~ , after citing tb. text from Menu, saying-' The relation of
Sapinda ceases with the seventh person, and that of Samanodaca reaches as far as
E1571 m c ~ o r y of birth and name extends,' adds, accord in^ to the s i ~ n ~ f i c a t i o ~ of
the word ' Sapinda,' as deducible from its etymology, it comprehends the offspring of
the seventh pcrson; and he adduces the authority of the ~a t syapurana to prove
that ' the relation of Sapinda extends to the seventh degree.' In the Sumrit Sur also,
although reference is made to a text of Baudhayana (see Translation of the Daya-
Bhaga, Ch. XI., sec, 1, par. 377, in which those pastaking of ind divided oblations are
pro~~ounced ' Sapinda~ whilst those who share divided oblations are called ' Sacul-
yas'; yet this very text adds, ' on failure of Sapindas or near kindred, Saculyss, or
remote kinsmen, are heirs ' ; and the Author of the Sumrit Sur himself expressly
adds, ' The wealth of one who leaves no male issue goes to his Father and his off-
spring; on failure of offspring of his Father, the succession devolves on the paternal
randf father and his offspring; on failure of issue of the paternal Grandfather, it
goes to the paternal Great Grandfat~ier and his ogspring, in regular order, and so
on to the seventh degree.'
'' 8th. As to the further argu~nent of the Appell~nt in the representations
ddivered through his Vakeel and Moklitar, on the 18th of Peloruary last and 6th
iastanl, in which he endeavours to show that his claim is s~pported by the Mi t~csha r~ ,
it appears to me, on a careful examination of the English version, which we happily
possess, o€ that Work, to be totally without foundation. I have already noticed the
two sections which declare the succ~sg~on f the Gotraja, or paternal kindred, before
the Bund~oo, or kindred of a different stock, and which in my judgment are con-
clusive against the A~pellant, who ack~~owledges himself to be one of the Bundhoo of
Rajah Indur Narain, and claims as his maternal first cousin.
" 9th. The term putra, or Son, in the M i t ~ s h a r ~ and its co~mentary, the
Subadhini, is f re~uent ly used as a generic term for male issue o r descendant, and
must be so construed in several parts of the ~ i t ~ c s h a r ~ , or the Grandson, ao well as
the Great Grandson, would be excluded from the immediate succession, though
acknow~ed~ed in every system of Hindoo law to represent their deceased Father
and Grandfather, and entitled with Sons to share the estate of a person leaving
Sons, Grandsons, and Great Grandsons, the Father of the Grandson and Father
and Gra~idfather of the Grandson being previously dead. !Phis principle appears to
be recognized in the MitbsharB, and both its commentaries, in the third paragraph
of the introductory section and notes referring thereto (see page 242 of Mr. Cole-
brooke's Trans~ation~. In that paragraph, after stating that ' the wealth of the
Father, or of the paterna1 Grandfather, becomes the property of his Sons, or of his
Grandsons, in right of their being his Sons or Grandsons, and that is an inher~tance
not liable to o b ~ r u c t i o n ~ it i s immediately added, ' but property devolves on parents
(or Uncles), Brothers and the rest, upon the demise of the owner, if there be no male
issue, and thus the actual existence of a Son and the survival of the owner are im-
pediments to the succession ; and, on their ceasing, the property devolves on the
successor, in right of his being Uncle OS Brother. This is an inheritance subject to
ohs~ruction. The same holds good in respect to their Sons and other desce~d~nts . )
260
0. R A ~ ~ N ~ E ~ ~ A ~ A ~ ~ RAE Cl8391 II ~~0~ IND. APR., 159
Eere it i s manifest the words trans~ated ‘mate issue,’ and a son,’ were not meant
to exclude the ~ r a ~ ~ d s o 1 ~ ~ before ~ e n t ~ o n e d , and the two ~ o ~ m e n ~ a t o r s agree 1x1
construing the last clause to intend ‘ the Soils or other de~cendants of the $on and
Grandson.’ The same construct~on [I591 must, I think, be put on the words ‘ Sons ’
and ‘issue’ ( p u t r ~ and sunaya), in the fourth and fifth p a r a ~ r a p ~ ~ s of the fifth
section, m d second chapter of the ~ i t ~ c s h a r ~ , and this interpretation i s indeed
indicabd by ex~ress~ons in the same paragraphs, viz., ‘ on failure of the father’s
descenda~~ts ’ { ~ ~ n ~ a n a ) , and ‘ OB that of the paternal ~ randfa~her ’ s line ’ ( s ~ n t a ~ ~ a ~ .
TO adopt t,he construction proposed by the A ~ p e ~ ~ a n t would be to cut OR all the
desce~~dants below the h rand son of the ath her, Grandfather, and every other
ancestor, and would render n u ~ a t ~ r y the prov~s~ons in ~ ~ t ~ c s h a r ~ , as well as in the
other Books of law, which expressly state ‘ the succession of kindred belonging to the
same fami~y, and con~ected by f u n e r ~ l o b ~ ~ t i o n s to the seventh degree; or if there
be none such, the succession devolves on kindred connected by libations of water,
and they must bc understood to reach to seven degrees beyond the kindred con-
nected by funeral oblations of food, or else as far as the limits of know~edge as to
birth and name extend.’ (See l ’ ra~~s~at ior~ f ~ ~ t ~ o s h a r ~ , Ch. XI,, sec. 5, pass 5
and 6,)
‘‘ 10th. It may be added, that the ~ e s ~ o i ~ d e n t ? Sree Narain Rae, as descendant
in the sixth degree from Sumroo howd dry, the ancestor of Rajah Xnder Narain,
does actually make oblations to the manes of ancestors, in which those of Inder
Narain are supposed to p a ~ t i c ~ ~ a t e ? nd c o ~ i s e ~ ~ e n t ~ y that he is not only of the saine
f a n ~ i ~ y or paterna~ stock as fnder Narain, and related to him with~ii the seventh
degree, but is also connected with him Iny o~)lat~ons to a c o m r ~ o ~ ancestor, in which
the manes of fnder Narain are supposed to ~ar t ic ipate ;which notion, to use the
words of the late Sir Williani Sones (see note in ~ r a ~ s - ~ ~ ~ ~ ~ - ~ a t ~ o ~ of Digest of
~ ~ ~ ~ d o o Law, V l. 111, par. 146), i s the key to the whole Indian law of inherit&~cc.
‘* 11th. Sir ~ i l ~ i a r n Jones further observes, that for this reaaon the law of
obsequics p r o ~ u i ~ a t e d by genu must be carefully studied,’ And it will accordingly
be found on reference to the third chapter of en^ (which contains thc law of
obsequ~es~, par. 216, that ‘the person offering three balls of rice or cakes to the
manes of his Father, his paternal ~ r ~ n d f a t ~ ~ e r , and Great ~ r a n d ~ a t ~ i e r , is directed
to wipe the same hand wi& the roots of cusa, which he had before used for tfte sako
of his paternal ancestors in the fourth, fifth, and sixth degrees, who are ~ a r t a ~ e r s
of the rice and c ~ ~ r ~ ~ e ~ butter thus wiped 08.‘ This expl&ins ~ n Q t ~ e r Text of Xenu
(Ch. Y., par. 601, in which it i s stated, that ‘the relation of the ~ a p ~ n d a s , or men
connected by the funeral cake, ceases wi& the seventh person, or in the sixth degree
of ascent or descent,’ which, without attent~on to the d i s t~n~ t ion between c o m ~ ~ e t e
~ b l a t ~ o ~ s f the pind or funeral cake, made to the ~ a ~ e s of the three nearest a,n-
cestors, and the w ~ p i n ~ s (leep) received by the three more remot,e ancestors, would
appear at variance with a third Text in Ch. IX, par. 186. ‘To three ancestors
must water be given at their obsequies; for three (the Father, h is Father, and the
paternal randf father) i s the funeral cake ordained ; the fourth in descent is the giser
of oblations to them, and their heir, if they die ~ ~ i t h o u t neares desce~dants ;but the
fifth has no concern with the gift of the funeral cake.’ The three Texts of Menu
above cited are perfectly reconcileab~e, ~ ~ i t h o u t suppos~ng (as some Authors have
done) the second Text to relate to Sapiadas required to mourn for a deceased person,
no$ to his heirs. And a fourth Text, which follows that ~ ~ 6 ~ 3 last quoted, and directs
that, ‘ to the nearest Xapinda, male or female, after him in the third degree the
inheritance next belongs; then, on failure of Sa~ indas and of their issue, the
~ a m ~ n o d a c a , or d i s t ~ ~ ~ t k i ~ ~ s ~ ~ i a n , shall he the heir,’ prove that not only other
Sapindas beside the Son; Grmdson, and Great Grandson, but their descendants
also, are incl~ded by Menu among the legal heirs.
‘‘ 12th. The only sha~ow of p~e ten~ ion which appears left to the Appe~~ant is,
that wh~ch he has further urged of the estate in dispute being partly s ~ t ~ a t e d w ~ t h ~ ~
the limits of the Province of Bengal, and of the late Rajah and Ranee, as well as the
parties in this cause, being ~ ~ s i d e n t wi hi^^ that Province. It is, however, acknow-
ledged by the Ap~elIant, that all ceremonies of ~ o ~ r n i n g and rejoicing (viz., all
religious cese~ionies, and some of a oivil nature, including ~ a r r i a g e ~ , a re performed
in the families of both the Appellants and the ~espondents (as they were in the
261
family of the late Rajah and Ranee, whose ancestors came into Poorneah from the
adjacent District of Mithila or Tirhoot), by 8 Mithila Purohit or Priest, and accord-
ing to the ~ i t h i l a Shaster. It appears, too, that Roojput Iha, the Son of the Appel-
lant, has succeeded (under a summary decision of the Judge of Zillah Poorneah,
passed on the 27th of November, 1809), to the estate of Madbo Dai, half Sister of
Rajah Inder Narain, as her Kurta Pooter, which form of adoption is not sanctioned
by the current law of Bengal. And in a former case before this Court that of
Rajchunder Narain Chowdry, Appellant, and Goculchund Goh, Respondent, decided
22nd June, 1801 (reported 1 Ben. Sud. Dew. Ad. Rep. 43), it was determined on a
Bewusta of the Pundits. In Ch. VIII. of Menu’s Institutes on Judicature, and [I621
Law, it is prescribed, in par. 41, that ‘ A King, who knows the revealed law, must
inquire into the particular laws of classes, the laws of usages of Districts, the
customs of traders, and the rules of certain families, and establish their peculiar
laws, if they be not repugnant to the law of God ’ ; that i f a person of Mithila family,
resident in Bengal, have Mithila Purohit, and perform his domestic ceremonies of
mourning and rejoicing, according to the Mithila Shaster, his right of inheritance
is governed by the Mithila Shaster, or vice versa.
‘‘ 13th. On the whole, therefore, I see no ground whatever for altering the
decrees of the Zillah and Provincial Courts in this cause, whereby the claim of the
Appellanti was declared inadmissible, and am of opinion, that his appeal to this
Court should be dismissed with costs.”
On the 24th of the same month, the opinion and result of the First Judge’s
investigations having been made known to the Third Judge, the cause came on for
decision; when both Judges declared themselves of opinion, that there was no
sufficient cause exhibited for altering the decisions of the Zillah and Provincial
Courts, because “ it was clear that at the time of the death of Ranee Indrawuttee,
the Widow of Rajah Inder Narain Itae, the Ilespondents, Sree Narain Rae and Lullit
Narairk Rae, the descendants of Sumroo Chowdry, the Great Grandsire of the Great
Grandfather of Inder Narain, with others, his Huiigotur relations, were in existence ;
while the Appellant, the Son of the Sister of the Rajah’s Mother, was amongst the
Bundhoo o f the Rajah, and according to the Bemustas of the Pundits of that Court,
and those of the Zillah and Provincial Courts of Poorneah, Tirhoot, and Azee-[l@]-
mabad, and the result of the examination of the M i t ~ c s h a r ~ and other Pothees
venerated by the Mithelees, in usage in the families of the parties in the cause, i t
appeared that the right of inheritance of the Hungoturs was prior to that of the
Bundhoos.” It was, therefore, ordered, and a final decree was passed, deciding
that the decree of the Provincial Court of Moorshedabad, passed on the 9th of
December, 1809, should be affirmed, the appeal dismissed, and that the Plaintiff
shocld be liable to costs.
On the 3rd of April, 1819, Gunga Dutt Iha obtained leave to appeal from this
decree to His Majesty in Council, subsequent to which Sree Narain Rae died, leaving
the present Respondents, his Sons and representatives. Mussumat Leelawattee, the
Widow of Lullit Narain Rae, also died without issue, and Gunga Dutt Iha, the
Father of the present Appellants, having died, the Appellants, as his heirs and
representatives, obtained leave to revive and prosecute the appeal ; and prayed that
the several decrees appealed from might be reversed for the following reason :-
Because, according to the laws which regulate the succession to the property
in dispute, Gunga Dutt Iha, the Father of the Appellants, upon the death of the
Widow of the deceased Rajah, became entitled thereto, as the heir and representative
of the Rajah.
The Respondents, however, submitted that the decrees appealed from ought to
be affirmed for the following reasons :-
I. Because the parties being of a Mithila family, and performing their cereinonies
according to the ~ i t h i l a Shasters, the authorities clearly proved that Sree Narain
Rae and Lullit Narain Rae, as the paternal kindred of Rajah Inder Narain Rae,
were E l f 4 entitled to succeed to the Zemindary in question, and to all the Rajah’s
personal property, to the exclusion of the maternal relations.
11. Because the question being one entirely of Hindoo law, could not be more
fully or satisfactorily investigated than it had already been by the three Courts,
the Zillah Court, the Provincial Court of Moorshedabad, and the Sudder Dewanng
262
v. RAJU~DER NARAIN ME [€839] II H O O ~ IND APP~, im
Adawlut, each of which, after elaborate ~nvestigation, decided in favour of the
~ e s p ~ n d ~ n t s ’ ti le.
Mr. Wigram, Q.C., and MS. E. J. Lloyd, for the Appe~ants.-The question in
this case is, whether the law of Bengal does not apply 4x1 property locally s i t u a t ~
here; the Pundits are of opinion, that a person who derived his origin from a
rterson of M~thila, and lived in Bengal, did not lose his caste prov~ded he con-
tinued the rel~gious observ~tions of the ~ i t h i l a Shasters. In ordinary cases, the
~ircumstances which determine q u ~ t ~ o n s with respect to real estate are the sit%$
of the property, and with respect to personal property the domicile of the Owner;
as f a r as these principles extend, i t is clear, that the law of Bengal must apply, for
it is nowhere denied that the property is not situated in Bengal; and that the
intestate was domiciled in Bengal i s also undisputed, By the authorit~es of the
Bengal law there i s no doubt the AppellaIits are entitled to succeed in preference.to
the ~~espondents, and even by some of the authorities of the Mithi~a schoof, the
Appellants’ title is preferable to the Respondents’. If the decision i s upheld, i t will
come to this: where you find a particular law i s estab~~shed in a Country, a party
coming into that count^^ [la] is entitled, notwit~~standing, to import the par-
ticular law of h i s own tribe; the effect wilI be to decide that all private law may be
introduced into Bengal proper. It i s quest~onable whether there i s any specific
rule which enables the party to say he shall bring his own family law, and import
it into Bengal proper. They cited Stran~e’s ‘‘ Bindu Law,” Vol. I. Ch. VI. p. 125.
Sir W i ~ l ~ a ~ Jones’ “Inst. of Henu,” Ch. VIII. par. 41. Ben, Reg. IT. of 1793,
8ec. xv. and Statute, 21 Geo. 111. c. TO.
Mr. Serjeant Spankie, Sir Charles Wetherall, Q.C., and Mr. J. Stuart, for the
Itespondent~s.-~very civilized country allows an individual to make a Will to regu-
late the succession to his property, different from the general law of the land of his
domicile; arid the lenient toleration of the law of Bengal has been to allow the
H~ndoos to regulate their succession by their general and varying law as it exists
in this country or that. The case of ~ ~ j c ~ ~ ~ ~ e ~ f ~ r ~ ~ ~ ~ ~ ~ o ? ~ ~ r v, G o c i ~ ~ ~ ~ ~ ~ ~
Goh (1 Ben. Sud. Dew. Ad. Itep., 43), promul~ated the law and made i t known
t l ~ r o u ~ ~ i o ~ i t Bengal, so that there cannot be now any doubt about the law: when i t
i s ascertained that tfie party conforms to the customs of Bengal, the right of succt3s-
sion follows by that lam ; but if the confori~ity to the Mithila Shasters continues,
then the law of inheritance is governed by the law of Mithila. The q u e s ~ ~ ~ ~ ~ then
in this case is very clear ; the Rajah’s ancestors unquestionably e ~ i g r a t ~ e d from
Mithila to ~ e n g a ~ , where they retained their Mithila character b;p ad her in^ to the
religious ceremonies prescribed by the Mithila Shasters. There Cl661 i s no analogy
to the English law cited on the other side ; i t is not a question of lez loci rei sitae, but
of the law of the ~ i ~ ~ d o o s , governed by their religious opinions; a question of caste,
not of an individual.
Mr. Baron Parke.-In this case their Lordships concur in ~ e c o m n ~ e r ~ d i ~ ~ g
%er Majesty to aErm the decision of the court beIow. We would not have troubled
the learned Counsel for the ~ e s ~ o n d e ~ t s , but that we were anxious the case should be
fully investigated, as i t relates to property of a very large amount. On a full con-
s idc~at~on, we feel no d i ~ c u l t y in asseI~ting to the propriety of the decree of the
Sudder Court on all points.
The Appe~lant claims the ~ e ~ i n d a r y of Pergunnah Haveelee ~oorneah, situate
in the Province of ,Bengal. He claims to be entitled as the cousin on the Mot~~er’s
side, and claims a ~ a ~ n ~ t the ~ e f e n d a n t below, the father of the ~espondent~s, who
i s related in the sixtli degree on the Fathcr’s side. It is ad~l i t ted that if the law on
which the learned Judge, Mr. Narrington, proceeded, governs the succession, no
valid objection can be taken to the decree of the Court below. That matter has
been fully investigated; and although there was some doubt about it, the Counsel
for tlie Appellants do not feel strong enough to impeach the decree if it was rightly
decided accord in^ to the law. Let us look, in tfie first
instance, to the point on which the parties put their case till they came to tile Svdder
Court. The ~ ~ ~ a i n t i ~ does not state by what law his descent is to be regulated, but
he claims as the heir-at-law of the deceased Rajah. The answer of the [16fl Do
f ~ n d a n t s ~ whose representatives are the present Respondents, dist~nctly puts i t on
the ground that the Shasters of Tirhoot regufate the Yuccession. They state that
263
Now, was it so dec~ded?
11 MOORE IND. APP., 168 RUTCHEPUTTY DUTT IHA v. RAJUNDER N. RAE f18391
the case ought to be decided ‘‘ according to the Shasters of Tirhoot which are in
usage in the country, and particularly among the Brahmins of Mithila, who are
ruled entirely thereby.” Now, when the Plaintiff comes to his replication, it is
equally clear that he puts his claim also on the Shasters of Tirhoot or the law of
Mithila, and there is not a word said about any other law to regulate the succession
between the parties.
Then we find, that in pursuing his appeal to the Sudder Dewanny Adawlut, it is
said, that one small portion ought to be adjudged according to the law of Bengal.
Now, i s that right? Mr. Harrington, who considered the question, i s of opinion,
that the rule of succession ought to be the Mithila law, according to which the parties
have governed themselves, and he lays i t down as a clear proposition of law. that
in a case where a family migrates from one territory to another, if they preserve
their ancient religious ceremonies, they also preserve the law of succession, and
relies on the case of Eajehunder Naraim Chowd~y v. G o e u ~ ~ h ~ ~ n ~ Goh (1 Ben. Sud.
Dew. Ad. Rep., 43), proceeding on the opinions of the Pundits, and which vas in
evidence in the Sudder Dewanny Adawlut. It is very true, that the precise point
decided by the Court in that case does not go to the ful l length of Mr. Rarrington’s
judgment, for the family there had abandoned part of the religious observances and
adopted those of Bengal; and there it is said, that the law of that Country must
decide; there is a want of clearness, probably in consequence of the [I681 defect of
translation; but the effect is, that if they had preserved their ancient religion, the
law of succession would be according to the Country from whence they migrated:
that opinion is clearly adopted by the Court, and there is a note well deserving of
attention, which is not only the note of the Reporter, but as we learn from the
Preface to the Book, especially valuable as coming from the pen of Mr. H. Cole-
brooke. Now, the note upon this subject says, “ If the family had been shown to
have continued in the observance of the natural law and usages, namely, those of
Mithila, the rule of inheritance, as established in that Province, must have been
followed.” They treat that as a matter of clear law, and not admitting of any
doubt. The present case, therefore, must be considered rather as an exception to that
which is laid down as the law in that case, because there they had abandoned those
usages and taken to those of Bengal. It appears highly reasonable in such circum-
stances that that should be the rule, for the law of succession of the Hindoos partakes
greatly of their religious opinions, and i s part of their system.
It appears to their Lordships, that the opinion expressed by Mr. Harrington is
the law to govern this case; and in respect to the application of that law to the
state of this family, there appears no objection. Upon the whole view of the case,
the law to decide, therefore, must be the Mithila law ; and according to that, their
Lordships cannot say that the case has been wrongly decided. It appears there
was some little doubt as to the provision of the Mithila law ; the note to which I
have referred states that “ The Books of greatest authority in Mithila, on the subject
of inheritance, are silent in regard to the [I691 Sister’s Son; and the established
opinion is, that the male descendant of the remote ancestor shall inherit, and not a
descendant through females of a near ancestor.” But that does not appear to have
been perfectly decided ; and, therefore, probably this suit was brought to have that
point cleared up, upon which the opinions of so many Pundits have been taken. It
appears that the Mithila law is against the claim of any relation on the Mother’s
side till those on the Father’s side to the seventh degree have been exhausted. This
being an appeal against the decision of the three Courts, it must of course be dis-
missed with costs.
[See Rajunder Naraim Rue v. Bijai Govhd Simg, 1839, 2 Moo. Ind. dpp. 182;
Bhyah Ram Sing v. Bhyah ligur Simgh, 1870,13 Moo. Ind. App. 393.1
264