KISAN DHONDUBAI NIRMALGOVRI Vs. SHEVANTABAIRAMNIKLAL RAMLAL

JUDGEMENT

(1.) THESE appeals raise a very important question of Hindu law as to whether when applying the test of propinquity in determining who is the bandhu to succeed to a propositus, the females are to be excluded and the males are to be preferred even though the male may be lower in degree of relationship to the female.

(2.) BEFORE reviewing the authorities which have been cited at the bar, it would be perhaps better to lay down certain principles which are now well established. Mitakshara lays down three classes of bandhus, atma bandhus, pitru bandhus and matru bandhus, and the line of succession is laid down in order of preference of each class. Atma bandhus come first, then come the pitru bandhus, and finally come the matru bandhus. It is also well settled that in deciding who is to be preferred in each class, the test that must he applied is propinquity, the proximity of blood relationship. It is immaterial as to whether a particular bandhu is descended ex parte paterna or ex parte materna. It is only when the bandhus are of the same nearness of degree in relationship that the question as to whether the particular bandhu is ex parte paterna or ex parte materna is to be considered, and in that case a bandhu ex parte paterna is to be preferred to a bandhu ex parte materna, and that preference is given because of religious efficacy and the fact that a particular bandhu is in a position to confer higher spiritual benefit upon the propositus than another. Therefore, when one has to consider bandhus in a particular class, the main and the primary test must be the test of propinquity of relationship. It is only if that test fails that the test of religious efficacy is to be applied. So far, as I shall presently point out, there is no dispute as to the position in law. The only question that arises for our determination is whether, when we apply that test and when we find that a female bandhu is nearer in relationship than a male bandhu, we should exclude the female bandhu and prefer the male bandhu solely on the ground that the former is a female and the latter is a male. If I may put it in a different language, whether we are justified on the state of the authorities to discard the test of propinquity merely because the result of that test is to prefer a female to a male. In our opinion, the recent decisions of the Privy Council make it perfectly clear that the only test that has to be applied is the task of propinquity and that test should not be qualified in any way and certainly not because the result of applying that test in a particular case may be the preference of a female to a male.

(3.) THE law could not have been more clearly stated than in these words of the decision of the Privy Council. THErefore, the test of religious efficacy is only permissible when the test of proximity of blood relationship fails or is not available. But if the test of proximity of blood relationship can be applied, then the Court has not to look further to consider the test of religious efficacy at all. It is also important to note that their Lordships have not suggested any qualification or limitation to the test of proximity of blood. It is true that their Lordships were not considering the case of female bandhus, but it is difficult to understand why that test would not be a proper test merely because in a particular case the test was satisfied by a female bandhu being nearer in relationship to the propositus. THE only reason why a female can be excluded is because she does not satisfy the test of religious efficacy. But once the Privy Council rules out the test of religious efficacy and considers the test of blood relationship to be the primary test, then no logical ground remains for excluding a female bandhu in preference to a male bandhu.