Judgement

Consolidated Appeals (No. 103 of 1916) from a judgment and decree of the High Court (January 22, 1913) reversing a decree of the Subordinate Judge of Tinnevelly.

The suit related to the property of one Sankaramurthi Mudaliar, a Hindu governed by the Mitakshara. There were cross-appeals to the High Court, the two appeals to the Privy

Council being consolidated. The appellant (defendant No. 10) was the maternal uncle of the deceased ; the first respondent (plaintiff, since deceased) was the son of a son of the paternal aunt. The relationship of the parties appears from the pedigree included in the judgment of the Judicial Committee. The sole question for determination upon the appeal was whether the appellant or the first respondent had the better right to succeed to the property.

The Subordinate Judge, after considering the authorities, held that the appellant, the maternal uncle, was entitled. He was of opinion that there was no foundation in the smritis for the view that among atma-bandhus those ex parte paterna succeeded in preference to those ex parte materna. He said "If atma-bandhus are divided into bandhus ex parte paterna and ex parte materna, where is the place for sisters son and brothers daughters son? They are both descendants of the father and mother. In my humble opinion atma-bandhus or bhinnagotra sapindas related through ones self and ones father or mother are not capable of being classified as bandhus ex parte paterna and ex parte materna." On an appeal to the High Court the decision was reversed. Miller J. said " Both competitors then being in the class of atma-bandhus, the matter is in my opinion concluded by authority in this Court. In Sundrammal v. Rangasami Mudaliar (( 1894) I. L. R. 18 M. 193.)and Balusami Pandithar v. Narayana Rau (( 1897) I. L. R. 20 M. 342.), it was held that bandhus ex parte materna are to be postponed to those ex parte paterna. The contest in the former case between the plaintiff and the 3rd defendant closely resembles the position in the case before us and there preference was given to the more distant paternal kinsman, over the nearer relative on the maternal side.....In Balusami Pandithar

v. Narayana Rau (I. L. R. 20 M. 342, 349.) the preference of bandhus ex parte paterna is said to be a fundamental principle of the law and the learned Judges support their state ment of the law by a reference to Sundrammal v. Rangasami Mudaliar (( 1894) I. L. R. 18 M. 193.) and to a text of the Saraswati Vilasa from which they draw an inference opposed to the maternal bandhus. It is urged as detracting from the authority of the former case, that the decision was also based on other grounds, but that of course does not entitle us to treat this particular ground as unnecessary for the disposal of the matter."

Sadasiva Ayyar J. was of opinion that the text of the Mitakshara with regard to the succession of bandhus was not in accordance with the shastras and was spurious. His views on that point are set out in the judgment of the Judicial Committee. He was of opinion that the plaintiff being one of the eleven atma-bundhus ex parte paterna in the line of the propositus father came in before the maternal uncle. He said that he felt bound as a judge so to hold, though it was not the shastra according to his view.

1921. May 5, 6. Dube and Hazra for the appellant. Both the appellant and the respondent were atma-bandhus. The inheritance belongs to the appellant as the nearer sapinda. He was nearer in blood, and to be preferred having regard to the benefit which he conferred on the deceased by his offerings. The respondent would make no offerings to the ancestors of the deceased. The position of a maternal uncle as a very near sapinda and as an atma-bandhu is well established Gridhari Lall Roy v. Government of Bengal (( 1868) 12 Moo. I. A. 448.) ; Amrita Kumari Debt v. Lakhinarayan Chuckerbutty (( 1868) 2 Ben. L. R. (F. B.) 28.) ; Muthuswami Madaliyar v. Sunambedu Muthukumaraswami (( 1896) L. R. 2