Judgement

Appeal from a judgment and decree of the High Court at Patna (August 7, 1916) affirming a judgment of the Subordinate Judge (Third Court) of Patna.

The suit was instituted by the respondent against the appellant and others for possession of a mauza with mesne profits.

The facts appear from the judgment of the Judicial Committee. The question for determination was whether one Hanuman, from whom the plaintiff-respondent derived title, was entitled upon the death of the widow of Dhanukdhari Misra to succeed to his property, there being alive at the date of the widows death one Rajendra. The family was governed by the Mitakshara school of Hindu law. Hanuman was Dhanukdharis mothers paternal aunts son ; Rajendra was Dhanukdharis mothers sisters grandson. The defendant-appellant alleged that Jagdeo, Rajendras paternal uncle, and therefore a degree nearer to Dhanukdhari than Rajendra, was also alive at the widows death, but he failed to establish that fact.

The Subordinate Judge made a decree declaring the plaintiffs title and ordering that he should recover possession upon discharging a usufructuary mortgage granted to the appellant by Dhanukdharis widow.

Upon appeal the High Court affirmed the decree.

Chamier C.J., upon an examination of the evidence, agreed with the trial judge in finding that Jagdeo did not survive the widow of Dhanukdhari, and stated that both sides agreed that Rajendra was still alive. The Chief Justice referred to the text of Mitakshara, ch. II., s. 6 (1.) and (2.), and to the authorities with regard to the order of succession of bandhus in a Mitakshara family, and said ." There is thus an extraordinary diversity of judicial and other opinion on the meaning and application of the text of the Mitakshara quoted above. After giving the matter my best consideration I have come to the conclusion that as the enumeration of the bandhus in the text is illustrative only and not exhaustive the text should be read in such a way as to give effect to the guiding principle of the Hindu law of succession that the inheritance belongs to the nearest sapinda, and there seems to me no difficulty in doing so. If each of the bandhus expressly mentioned in the text is held to include his descendants or (which is much the same thing) the descendants of an atma bandhu expressly mentioned are held to be themselves atma bandhus and are entitled to succeed in preference to all the pitri or matri bandhus expressly mentioned, it may easily happen that an obviously more remote sapinda will exclude a nearer sapinda." He then referred to a passage in the judgment of the Judicial Committee in Buddha Singh v. Laltu Singh (L. R. 42 I. A. 208, 227.), in which it was laid down that it was clear that under the Mitakshara whilst the right of inheritance arises from sapinda relationship or community of blood, yet in judging of the nearness of blood relationship or propinquity among the gotraja, the test to be applied is the capacity of offer oblations, and said " These remarks were made in the case of a dispute between agnates but they seem to apply as well to the case of bandhus. As regards connection by particles of the body of the common ancestor, Hanuman was nearer to the common ancestor of the deceased and himself than Rajendra is to the common ancestor of the deceased and himself. While as regards the benefit to be conferred upon the deceased by offerings made by Hanuman and Rajendra respectively it will be seen that Hanuman made offerings to the maternal great-grandfather and maternal great-great-grandfather of the deceased while Rajendra cannot make offerings to any ancestors of the deceased. It appears to me that Hanuman was according to the Hindu law a nearer sapinda of the deceased Dhanukdhari than Rajendra is, and that if they both stand in the same degree of propinquity preference must be given to Hanuman on account of his capacity to make offerings to ancestors of the deceased."

Jwala Prasad J. delivered judgment to the same