KALIMUTHU PILLAI (MINOR) Vs. AMMAMUTHU PILLAI

JUDGEMENT

(1.) The question arising in this Second Appeal is one of Hindu Law, the facts not being disputed. The plaintiff is the daughter's daughter's son of the last male-owner Kalimuthu Pillai who died in 1883. Kalimuthu had four wives, of whom two survived him. The last of these died in January 1923. According to the plaintiff the property has devolved under the Hindu Law on him as (he nearest Banhdu. The first defendant is the sister's son of Kalimuthu. He had previously obtained a decree for possession of the properties of Kalimuthu on the ground that he is the reversioner but the present plaintiff was not a party to that suit. The plaintiff in this suit now seeks to recover the properties from him. The present suit was filed on January 24, 1928, and there is no question of limitation in the case.

(2.) The only question for decision therefore is, who according to Hindu Law is the preferential heir--the plaintiff (the daughter's daughter's son) or the 1 defendant (the sister's son)? As the succession opened in 1923 this case is not governed by the Hindu Law of Inheritance Amendment Act, II of 1929. Both parties are Bandhus, i.e. cognates or Bhinna Gothra Sapindas. The nature of the Bandhu relationship, and to some extent, the order of succession among the Bandhus was discussed by me and our brother Venkatasubba Rao, J. in Rami Reddi V/s. Gangi Reddi . A further question of order of succession has now arisen. It is unnecessary for me to repeat my observations made in that judgment. It is enough for the present purpose to start from the principles of succession for Bandhus laid down by the Privy Council. One of such principles was laid down so early as in Muthusami V/s. Muthuhumarasami 16 M. 23 : 2 M.L.J. 296 affirmed by the Privy Council in Muthasami Mudaliyar V/s. Simambedu Muthukumaraswami Mudaliyar 19 M. 405 : 23 I.A. 83 : 6 M.L.J. 113 : 7 Sar. P.C.J. 45 (P.C.). That principle is that the nearest Bandhus of a person may be divided into three classes, viz., the Atmabandhus, the Pithrubandhus and the Mathrubandhus. There may be Bandhus other than these three classes, but we are not concerned with them in this case, and it is unnecessary to discuss the order of succession among them. So far as these three classes are concerned, they take in the order enumerated, i.e. the Atmabandhus take first, then the Pithrubandhus and then the Mathrubandhus Muthusami V/s. Muthukumaraswami 16 M. 23 : 2 M.L.J. 296, Muthusami Mudaliar V/s. Simambedu Muthukumaraswami Mudaliyar 19 M. 405 : 23 I.A. 83 : 6 M.L.J. 113 : 7 Sar. P.C.J. 45 (P.C.) and also approved is Vedachala Mudaliar V/s. Subramania Mudaliar 64 Ind. Cas. 402 : 44 M. 753 : 14 L.W. 402 : (1921) M.W.N. 669 : 2 P.L.T. 707 : 26 C.W.N. 159 : 41 M.L.J. 676 : 30 M.L.T. 198 : 4 U.P.L.R. (P.C.) 13 : 24 Bom. L.R. 619 : A.I.R. 1922 P.C. 33 : 48 I.A. 349 (P.C.). Now the question at once arises who are Atmabandhus, who are Pithrubandhus and who are Mathrubandhus? The Mitakshara Section enumerates one's own first cousins as one's own Bandhus, the father's first cousins as Pithribandhus and the mother's first cousins as Mathrubandhus. But it has now been repeatedly held in all the Courts that this enumeration is not exhaustive and other persons fall within these headings or classes. Now the Atmabandhus of a person as enumerated by Mitakshara are the descendants of his paternal or maternal grandfather If these are Atmabandhus, it is an a fortiori case that the descendants of one's father and of himself should also be regarded as Atmabandhus and this is indeed the view taken by the Courts. For instance in Balusami Fandithar V/s. Narayana Rau 20 M. 342 : 7 M.L.J. 207 a sister's son was held to be an Atmabandhu. At p. 346 Page of 20 Mad.--[Ed.] the learned Judges observed- As to the third defendant, the learned Vakil for the plaintiff urges that he is not Vasudeva's Atmabandhu. But that he is such a Bandhu seems to be necessarily implied by the passage of the Mitakshara cited above. For it lays down that the father's sister's son, that is a descendant of even the paternal grandfather is an Atmabandhu. How then can a Bandhu Like the third defendant who is able to trace his relationship to the deceased owner through a nearer ancestor, viz., the father, be held to be other than an Atmabandhu? The plaintiff's objection on this point is consequently untenable.

(3.) In Krishna Ayyangar V/s. Venkatarama Ayyangar 29 M. 115 it. was held that a father's sister's daughter's son is an Atmabandhu. In Sham Devi V/s. Birbkadra Prasad 62 Ind. Cas. 432 : 43 A. 413 : 19 A.L.J. 312 it was held that a sister's daughter's son and also a lather's sister's son's son are Atmabandhus. In Uma Shankar Prasad Parasari V/s. Nageshwari Koeri 48 Ind. Cas. 625 : 3 P.L.J. 663 : 7 P.L.W. 1 : (1919) Pat. 162 the maternal uncle was described as an Atmabandhu. In Adit Narayan Singh V/s. Mahabir Prasad Tiwari 60 Ind. Cas. 25 : 40 M.L.J. 270 : 48 I.A. 86 : 6 P.L.J. 140 : (1921) M.W.N. 1 : 19 A.L.J. 208 : 2 P.L.T. 97 : 33 C.L.J. 263 : 29 M.L.J. 240 : 23 Bom. L.R. 692 : 25 C.W.N. 842 : 14 L.W. 90 (P.C.) the Privy Council in an appeal from Patna held that a mother's sister's grandson was an Atmabandhu. In all these decisions the descendants of the father of the propositus and the descendants of the grandfathers other than those enumerated in Mitakshara were held to be Atmabandhus. For the same reason it is obvious that the descendants of the propositus himself should be held to be Atmabandhus. Thus the term Atmabandhus has a wider scope than the terms Pithmbaxidhus or Mathrubandhus. Whereas Atmabandhus include the descendants of a man's paternal and maternal grandfathers just as one's Pithrubandhus denote the descendants of one's father's paternal and maternal grandfathers and the term Mathrubandh is denotes the descendants of one's mother's paternal and maternal grandfathers, the term Atmabandhus also includes the descendants of the propositus's father and the descendants of the propositus himself Accordingly a man's Atmabandhus may be divided into three sub-classes. A.--His own cognate descendants. B.--His father's cognate descendants, and C.--The cognate descendants of his paternal grandfather and the descendants of his maternal grandfather, Group A is group 1 at p. 725 Page of 48 Mad.-[Ed.] of ray judgment in Rami Reddi V/s. Gangi Reldi . Group B is group 2 in the same page. Group C is group 3 in the same page.