Rutcheputty Dutt IHA... v. Rajunder Narain RAE ...

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appeal, and that the Order, therefore, of the 16th of May, 1837, niust be rescinded ;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