The spiritual benefit conferred by the respective heirs is a ground of preference in determining the preferential heir to an intestate estate.

Venkataramana Rao, J.

1. The question raised in this appeal is whether the fathers half sisters son or the maternal uncles son is the preferential heir to the estate of one dying intestate. The learned Subordinate Judge of Nellore was of the opinion that the maternal uncles son is the preferential heir. It is against this decision that this appeal has been preferred. It seems to us that this matter is concluded by the recent decision of the Privy Council in Jotindra Nath Roy v. Nagendra Nath Roy (1931) 61 M.L.J. 442 : L.R. 58 IndAp 372 : I.L.R. 59 Cal. 576 (P.C.). In that case the conflict was between fathers half sisters son and mothers sisters son and their Lordships held that fathers half sisters son is the preferential heir. The ground of the decision is this. Both are atma bandhus and between bandhus of the same class "the spiritual benefit they confer upon the propositus is a ground of preference". This was the principle laid down in Muthusami v. Muthukumarasami (1892) 2 M.L.J. 296 : I.L.R. 16 Mad. 23 which was re-affirmed. Their Lordships held that a greater spiritual benefit is conferred upon the propositus by the fathers half sisters son than by the mothers sisters son and as a measure of propinquity the spiritual benefit which they respectively confer should be taken in deciding the question of preference. So far as the mothers brothers son and mothers sisters son are concerned there is no difference in the application of this principle. Following the said principle we allow this appeal and hold that the fathers half sisters son is the preferential heir.

2. The decree of the lower Court is reversed and the case remanded to the lower Court for disposal of the further issues raised in the case. The appellant is entitled to the costs of this appeal which we fix at Rs. 150 from the respondents. As the appellants have filed the appeal in forma pauperis and as the court-fee if paid will have to be refunded we make no order as to the court-fee.