Judgement

Appeal from a decree of the High Court (May 5, 1892), which affirmed a decree of the District Court of Chingleput (May 12, 1891) dismissing the appellants suit with costs.

The question decided was, whether the appellants, or certain persons through whom the respondent claimed, were the preferable heirs of one Muthuswami Mudali, a Hindu inhabitant of Madras subject to Mitakshara law, and as such entitled to succeed to his estate. Muthuswami died sonless in 1879, and thereupon his estate vested in his widow Swarnathammal until her death on April 14, 1888, when the succession in question opened.

The relationship of the family, so far as material, appears from the following pedigree.—

Law. Rep. 23 Ind. App. 83 ( 1895- 1896) Muthuswami Mudaliyar V. Sunambedu Muthukumaraswami Mudaliyar 42

| Arumugatha,died before his father, S.S. MUTHU MUDALIAR | | Parvatha Ammal.

| Arunachala, d 1866. m. Munia Ammal. Kandasami | | Subbaroya | First plaintiff. | Second plaintiff.

| Muthuswami, d. 1879. m. Swarnathammal, died April, 1888. | M(1) Vedammal. | M(2) Rukmani. | Nagappa | | V a it hya na t h a . Third plaintiff.

| | |

Gnanambal, d. Ratna,alias Apparao.

without issue, Kandaswami

1883.

It thus appears that Nagappa, under whom the respondent claimed, was the maternal uncle by half-blood of the last male holder. The first and second plaintiffs were the sons 6f his grandfathers sister, while the third plaintiff was one degree more remote.

The District Judge stated the issue to be—

" Whether Vadapathi Nagappa Mudali, as maternal uncle of the propositus, is entitled to succeed as his heir in preference to the first and second plaintiffs, who are the fathers paternal aunts sons."

It was admitted before the District Judge that Nagappa was only a step-brother of the said Muni Ammal, and the case was argued before him on the basis that Parvathammal was the full sister of Arumugatha.

The District Judge decided in favour of the respondent upon the construction put by him upon the text set out in their Lordships judgment from the Mitakshara, c. ii. s. 6, verses 1 and 2, holding that a maternal uncle was a mans own bandhu (his atma bandhu) and was as such entitled to inherit in preference to a paternal grandfathers sisters son, who he held was not a mans own bandhu, but was his fathers bandhu (his pitri bandhu).

Upon this construction of the law he decided that Nagappa, under whom the respondent claimed, was at th death of Swarnathammal the nearest reversioner of Muthuswami (being nearer than the appellants, who were his fathers paternal aunts sons), and was therefore a preferable heir to the appellants.

He held, also, that a half-brother of the mother was a maternal uncle within the meaning of the text referred to.

Law. Rep. 23 Ind. App. 83 ( 1895- 1896) Muthuswami Mudaliyar V. Sunambedu Muthukumaraswami Mudaliyar 43

The High Court (Muttusami Aiyar and Parker JJ.) first dealt with the appellants contention to the effect that a mothers step-brother is not at all ones bandhu or cognate kindred. They said " As it is conceded that a maternal uncle of the full blood is a bandhu, and as it has been so held by the Privy Council in Gridhari hall Roy v. Bengal Government (12 Moores Ind. Ap. Ca. 448.), the contention for the appellants is not tenable. Further, a mothers step-brother is a bhinna gotra sapinda whether the term sapinda is taken in the sense of consanguinity by virtue of the presence of particles of one body or of capacity to offer funeral oblations. Through the maternal grandfather, the maternal uncle is related to his sisters son as sapinda in the sense of consanguinity, and to that grandfather both the maternal uncle and his step-sisters son offer funeral oblations. We think the decision of the judge that the maternal uncle of the half-blood is ones own cognate kindred or atma bandhu is correct."

They then proceeded " The next and the most important question is whether, under the Mitakshara law, the maternal uncle excludes the fathers pa