CHINNA PICHU AIYANGAR ALIAS K VEERARAGHAVA AIYANGAR Vs. MINOR PADMANABHA AIYANGAR BY THEIR GUARDIAN VENKATARAMA AIYANGAR

JUDGEMENT

(1.) The facts have been set out in the judgment of my learned brother which I have had the advantage of reading before writing this opinion of mine. I have considered in Subramania Mudaliar v. Ranga-natham Chettiar (1918) 24 M.L.J. 301 the Sloka about Atma bandhus, Pitru bandhus and Matru bandhus which is attributed to Baudhayana by one commentator and Vriddah Satatapa by others. I have expressed my considered opinion in that case that the sloka is a childish and spurious text and that it is an illogical, incomplete and inconsistent classification of bandhus. Mr. S. Srinivasa Aiyangar with great legal acumen and a wealth of legal terms of highly subtle meaning tried to establish that the classification was not so illogical or inconsistent as I thought. I can only say that he has merely confirmed me in my view, though it may be that the subtlety and, what he called, the intricacy of the ideas involved in the classification make it so elusive as to escape the grasp of ordinary minds including my own.

(2.) As regards the case in Umaid Bahadur v. Udai Chand (1880). I.L.R. 6 Cal. 119 I recognise that it contains the opinion of a full Bench of 5 Judges of whom Mr. Justice Romesh Chander Mitter was one. But as my learned brother points out, the passage in the judgment of the Full Bench relevant to the question which we have to consider is an obiter dictum. There is no discussion of the subject, and the obiter dictum is laid down as if it is an axiomatic truth. In the phrase " Maternal grandfather either of his father and mother", found in the relevant passage the word " and " seems to be a clerical error for or . The enumeration (in this sentence of the judgment) of the perspns within whose category the male claimant s male ancestor (who is the nearest common male ancestor of the propositus and the claimant) should be found in order that male claimant can be recognised as a heritable male bandhu is very incomplete. The persons enumerated are (1) the natural grandfather of the claimant (2) the maternal grandfather of his father and (3) the Maternal grandfather of his mother (the claimant being lettered F in the tree found in the end of the judgment. The Atma bhandus, Pitru bandhus and Matru bandhus as given by the text already referred to include the descendants not only of the three ancestors mentioned in the above sentence in Umaid Bahadur v. Udai Chand (1880) I.L.R. 6 Cal. 119 (which is the first sentence in the last paragraph of the judgment at page 128) but also of several others. The full enumeration of the male ancestors of claimant F (whose descent is traced through a female or females from the common male ancestor) should therefore have been as follows (confining ourselves to that text for the moment.)

(3.) The male heritable bandhus should be found among the descendants of these six ancestors if the text is taken to impose a further restriction already imposed by the general rule of restriction that where the claimant claiming through a common male ancestor has female or females intervening in the line of descent, he should be within 5 degrees of the common male ancestor. It is clear that several bandhus nearer than some of those enunciated in the text such as maternal uncle, " sister s son and son s daughter s son of the propositus do not find a place in the text. I can only again express ray regret that in Umaid Bahadur v. Udai Chand (1880) I.L.R. 6 Cal. 119 the learned Judges did not even indicate the chain of reasoning by which they arrived at the conclusion that the enumeration of bandhus in the text was not merely illustrative, but restrictive and if restrictive how far and on what principles the restrictions proceeded. The Atma bandhus mentioned in the text are descended from the paternal or maternal grandfather alone but it has now been settled by decisions that Atma bandhus might be the descendants of the father, such as sister s son or even of one s self such as son s daughter s son.