Mohandas v. Krishnabai

Melvill, J.:— As we have come to the conclusion that the minor plaintiff is not one of Sunderlal's heirs, it is unnecessary for us to decide whether, if he had any right to the inheritance, he would have been bound by the compromise entered into by his father on his behalf.

Among other relatives who survived Sunderlal were three brothers of his mother. The plaintiff's mother, who is still alive, was a sister of Sunderlal's mother; and it may well be doubted whether the plaintiff would be entitled to succeed in preference to his own mother, through whom he claims. It is sufficient, However, for our present purpose, that we should confine ourselves to what may perhaps be a somewhat simpler question, viz., whether the plaintiff, as standing in the relationship to Sunderlal of mother's sister's son, is entitled to preference over his own and Sunderlal's maternal uncles.

The rule relating to the succession of cognates (bandhus or bhinnagotra sapindas) is contained in the first placitum of the sixth section of the second chapter of the Mitakshara. Nine heirs are specified, of whom the first three are the father's sister's sons, the mother's sister's sons, and the maternal uncle's sons. The maternal uncle is not specified: but it was held by the Judicial Committee in Gridhari Lall Roy v. The Bengal Government that the enumeration of bandhus in the text of the Mitakshara is illustrative, and not exhaustive; and that the maternal uncle is a bandhu, and, failing nearer bandhus, is entitled to inherit. Similarly, a sister's son is not among the specified relations; but both in Calcutta and Madras it has been held that he is in the line of heirs: (Amrita Kumari Debi v. Lakhinarayan Chuckerbutty; Chelikani v. Rajah Suraneni Vencata. None of the above cases determine the position of the maternal uncle or the sister's son, with reference to other bandhus; and it was argued for the plaintiff that, even though they be admitted to be bandhus, they must still take rank after all the heirs enumerated in the text. From West and Buhler, page 203, it would seem that the learned authors of that Digest rather incline to this view: but they speak with some hesitation on the subject; and the passage of the Mayukha to which they refer appears to us to be hardly sufficient to support their conclusion. In that passage (Mayukha, ch. iv, sec. viii, pl. 18) Nilkant is discussing the position of the paternal grandmother. He quotas the text of Manu: “The mother also being dead, the father's mother shall take the heritage,” and then adds: “Even though she is here mentioned immediately next to the mother, she is to be entered at the end, after the brother's sons, after the manner of incidental persons at the end, because the placing her in the middle is in violation of the rank fixed for each, as far as brother's sons.” The principle here stated of placing; incidental persons after those expressly specified is here applied by Nilkant only to the “compact series of heirs,” i.e, to the list of heirs ending with the brother's sons (Mitakshara, ch. ii, Sec. 5, pl. 2; Stokes' Hindu Law Book, 446): and it does not follow that he intended to apply it to the list of bandhus. Placitum 22 treats of the bandhus, and, after quoting the text in which they are enumerated, Nilkant adds: “Here also the order of succession is even the order of the text”; but by this he seems to intend no more than is stated in the Mitakshara, (ch. ii, sec. vi, pl. 2), viz., that, “by reason of near affinity, the cognate kindred of the deceased himself are his successors in the first instance; on failure of them, his father's cognate kindred; or, if there be none, his mother's cognate kindred.” There does not appear to us to be anything in the Mitakshara or the Mayukha which can be construed into a direction that the nine specified bandhus are to take precedence of all unspecified bandhus; and if there be no such direction, then the text of Manu “to th® nearest sapinda the inheritance next belongs,” and that of Brihaspati, “where many claim the inheritance of a childless man whether they be paternal or maternal relations (sakulya), or more distant kinsmen (bandhava), he who is the nearest of them shall take the estate,” seem to furnish the proper ground for decision. Nor are we without judicial authority on the point. We have already referred to a Fall Bench judgment of the Calcutta High Court, in which it was held that a sister's son is entitled to rank as a bandhu. This decision was followed in Gunesh Chunder Roy v. Nil Komul Roy by Markby and Mitter, JJ., who held that, according to the general principles of Hindu law, a sister's son is a preferential heir to a mother's sister's son, as being capable of conferring greater spiritual benefits upon the soul of the deceased. This is a distinct authority for holding that the nearest of kin inherits in preference to a more distant bandhu, though the latter may be among those specified in the text. Again the passages from the Mitakshara, quoted at pages 40 and 41 of the judgment in the Calcutta Full Bench case Amrita v. Lakhinarayan, already referred to, tend to show that the maternal uncle was regarded by Yajnavalkya as the principal, or representative bandhu; while the passage from the Viramitrodaya, cited at page 42, is still more clear upon the point. This passage was one of those relied upon by the Judicial Committee in Gridhari Lall Roy v. The Bengal Government: and the translation of it given by their Lordships at page 466 of Moore's Reports seems in some respects more correct than that given by Mr. Justice Mitter in the Calcutta case. “The term ‘cognates’ (bandhus) in the text of Yajneswara or Yajnavalkya must comprehend also the maternal uncles and the rest: otherwise the maternal uncles and the rest would be omitted; and their sons would be entitled to inherit, and not they themselves, for ‘then they themselves,’] though nearer in the degree of affinity: a doctrine highly objectionable.” The Viramitrodaya is an authority in this Presidency illustrative of, and supplementary to, the Mitakshara: and in the above passage we find a distinct declaration that maternal uncles must take before the sons of maternal uncles, though the latter are among the specified bandhus. It being thus established that maternal uncles have priority over the mother's brother's son, there would seem to be no possible ground for holding that they have not priority over the mother's sister's son. When it is once admitted that the list of bandhus given in the text is not exhaustive, and that certain other relatives take before some of those specified in the list, there is no other logical conclusion except that the relative who, as nearest of kin, is capable of conferring the greatest spiritual benefit on the soul of the deceased, must in all cases he preferred to a more remote bandhu. Applying this principle, we come to the conclusion that the plaintiff had no share in the inheritance of Sunderlal, as there were preferential heirs in existence at Sunderlal's death; and for this reason we confirm the decree of the District Court with costs.

Decree confirmed.