The principle of propinquity as the sole test of succession among bandhus under Hindu Law.

1. The only question for consideration in this case is whether the mothers sisters son or the maternal uncles son is the preferential heir to the estate of a deceased Hindu. The matter is involved in considerable obscurity and no clear pronouncement can be gathered from the texts of the Hindu Law. The commentators are also mostly silent upon the subject. The well-known text cited, as that of Vridha Satatapa or sometimes as that of Baudhayana, divides bhandhus into three classes, namely Atma bandhus, Pitri bandhus and Matri bandhus. The Mitakshara is explicit that these three classes succeed in the order in which they are named; see Mitakshara, Chapter II, Section 6, Pl. 2. And the Privy Council, accepting the decision of this Court in Muthusami v. Muthukumarasami 16 M.k 23 has approved of this order in Muthusami Mudalyiar v. Simambedu Muthukumaraswami Mudaiyar 19 M.k 405. The question of the older of succession of the three classes of bandhus being thus settled, the farther question arises as to the order of succession inter se of the bandhus comprised in each class. The maternal uncles son and the mothers sisters son are both expressly named in the class, Atma bandhus. But there is no indication in the Mitakshara, unless the order in which they are placed is such an indication, as to their respective priority. Mr. Mayne observes in Section 57: Perhaps the order of enumeration is not intended to convey any right of precedence." The Smrithi Chandrika, which is the next best authority after the Mitakshara in Southern India, before giving the list of nine bandhus, quoting the same text of Vriddha Satatapa, says in Chapter XI Sec. 5. PI. 13 "Cognate kindred. A description of these is given as follows in a different Smrithi according to their order of relationship." The learned translator, in his summary at the end of the section, gives the 24th place to the son of the mothers sister and the 25th to the son of the maternal uncle, thus recognising the order in which bandhus are named as indicating the order of succession. The Sarasvati Vilasa which is also a recognised authority in Southern India says in P1. 595: The bandhapas are exhibited in another law code in the order of their greater propinquity," and proceeds to quote the same text of Vriddha Statapa which names the maternal aunts son before the maternal uncles son amongst Atma bandhus. It is strange, however, that, though there is a discussion and a decision in placita 597 and 598 as to the precedence of Atma bandhus over Pitri bandhus and of the latter over Matri bandhus, there is none as to the order amongst the bandhus of each class. Again in the Vyavahara Mayukha, which is an authority in the Mitakshara school, though of special value only in the Presidency of Bombay, it is stated after citing the text of Vriddha Satatapa: "Here i.e., (among these)the order of succession is that stated in the text." Mr. Mandlik adds a note that this order applies to the three classes as veil as to the several members of those classes. These are the only references that we have been able to find to the question of the order of succession among the bandhus of each class. There is, of course, the circumstance that the text of the ancient law-giver, whoever he was, has named the mothers sisters son before the maternal uncles son. There is a rule of the Mimamsa that effect should be given to the order in which persons and things are named unless the sense requires a different order; see Jaiminiya Nyayamala v. Adhikaran. In the absence of any decisive principle dictating a different order, the duty of the interpreter of the law is to accept the order in which they are named as based upon some rule which they may be unable to discover or upon the mere ipse dixit of the law-giver. The three commentaries that have been referred to, viz., the Smrithi Chandrika, the Sarasvati Vilasa and the Vyavahara Mayukha have stated no reason for placing the mothers sisters son before the maternal uncle