Judgement

Appeal from a judgment and decree of the High Court (July 6, 1912) affirming a judgment and decree of the Subordinate Judge of Moradabad (June 23, 1910).

The appellants instituted a suit against the respondents for the possession of movable and immovable property, the last owner of which was one Saheb Sahai, deceased.

The sole question to be determined in the appeal was whether, according to the Mitakshara law of the Benares school, the first appellant, who was the grandson of the great-grandfather of Saheb Sahai, had a preferential right of inheritance as against the first respondent, the great-grandson of the grandfather of the propositus. A genealogical table will be found in their Lordships judgment.

The Subordinate Judge of Moradabad dismissed the suit, being of opinion that the propinquity which extends down to the great-grandson in the case of lineal inheritance extends in a similar manner to three degrees from each ancestor in the, case of collaterals.

The High Court (Sir P. G. Banerji J. and Piggott J.) affirmed the decree of the Subordinate Judge.

The former learned judge, alter setting out the text of Yajnavalkya, reproduced in the Mitakshara, eh. II., s. 1, v. 1, and the text of the Mitakshara, eh. II., s. 5, vv. 4 and 5, said " The question thus turns on the interpretation of the words santana and putra in vv. 4 and 5 of the Mitakshara cited above, that is to say whether by santana in vv. 4 and 5 is meant the descendants specifically mentioned in the preceding verses, and the word putra is to he taken in the narrow sense of son and does not include grandson The appellants contend that the enumeration of heirs given in the above paragraphs should he strictly followed, and that after the paternal uncle conies the line of the paternal great-grandfather. They say that the paternal uncles grandson is a gotraja only under the last portion of v. 5. It may be taken as settled that the enumeration of heirs in the Mitakshara is not exhaustive. We have, therefore, to consider whether the word son is to be understood in the narrow sense contended for, and whether in the case of each ancestor in the ascending line only two descendants are to be computed. The word putra has, it seems to me, been understood in a wide sense. In the text of Yajnavalkya beginning with patni (wife), &c, cited above, the word at the end is aputrasya. That the word putra is used by him in an extended sense and is not limited to the son, but also includes the sons son and the sons grandson, is manifest. This is admitted by Mr. Mandlik on page 222 of his work on Hindu Law. In the translation of the text itself he has retained the word putra, and in the note relating to it he says the word " putra " in this verse stands for son, sons son, sons sons eon. He refers to the Viramitrodaya and Balam Bhatta as authorities for this interpretation. This is also in accordance with what Manu ordains (eh. IX.., v. 187, Sacred Books of the East, vol. 25, p. 366) in the following text To three ancestors water must be offered; to three funeral cakes must be given ; the fourth descendant is the giver of oblations; the fifth has no connection. So that the participation of the body extends to the fourth descendant, including the propositus. To the same effect is the following text of Devala Up to the third degree the members of the family are of the same body. (Ghoses Hindu Law, 2nd ed., p. 97.) Parasara says that the separation of the body accrues to the fifth person born of ones family. (Ghose, p. 57.) Jimutavahana, quoting Manu, Vishnu, Harita, Yajnavalkya, Sankha and Likhita, says that the term "putra" stands for descendants up to the sons sons son. (Mandliks Hindu Law, p. 381.) Vijnaneswara, the author of the Mitakshara, has also used the word putra in the same sense.

" In ch. I., s. 1, v. 3, treating of unobstructed and obstructed inheritance, he says with reference to sons and grandsons, &c, that the rule should be inferred in respect of " their " sons. B