JATINDRA NATH ROY Vs. NAGENDRA NATH ROY

JUDGEMENT

(1.) This appeal is by the plaintiff for recovery of possession of certain properties on the allegation that he is the preferential heir of the last male owner and is, therefore, entitled to succeed to the properties as the next reversionary. The properties originally belonged to one Rameawar Roy who died on the 6 of June, 1882, leaving a widow Mankumari Barmanya pregnant with child. She gave birth to a posthumous son on the 31 of December, 1882. That son died on the 7 of March, 1883, leaving his mother Mankumari as his sole heir. This lady was in possession of a Hindu widow's estate till her death on the 5 of June, 1916. A controversy then arose as to whether the plaintiff and his two brothers, pro forma defendants Nos. 3 and 4, were the preferential heirs or the defendants. The two parties are related in this way. The plaintiff and his brothers are the mother's sister's sons of the infant who was the last male owner, the propositus. The defendants are the sons of the father's half-sister of the propositus. The properties are partly debottar and partly secular and the title to possession is the same both with regard to the debottar and secular properties. Nothing turns upon the nature of the properties in the decision of the case. The point is controversy is a rather vexed one as to the preferential right of atmabandhus in the same degree to succeed to the properties of a deceased person under the Mitakshara which governs the parties in this case as found by the Subordinate Judge. There is no question before us that the parties are governed by the Mitakshara. The only question that was argued is whether the mother's sister 's sons are to be preferred to the father's half-sister's sons. The Subordinate Judge has decided the question in favour of the defendants and has held that the mother's sister's son a should be postponed to the father's half-sister's sons. The plaintiff alleges that his two brothers have taken their shares and have, therefore, refused to join him as plaintiffs, and his claim is only to a one-third share in the properties. The question in controversy was raised in the second issue as framed by the Subordinate Judge, namely, as to whether or not the plaintiff is the preferential heir of the deceased infant son of Rameswar Roy. The Subordinate Judge after considering the various cases cited before him on the point came to his conclusion. It is unnecessary for me to repeat the grounds on which the Subordinate Judge held in favour of the defendants, as the questions argued before us will be stated by me in detail.

(2.) It is argued on behalf of the appellant that the fact that the defendants are related through the father does not give them a preferential right nor is the fact that the text in the Mitakshara mentions atmabandhus related through the father first as in the line of heirs, decisive on the question, because the order in which the names are given is not the guiding factor in deciding which of the heirs should be preferred. The list of bandhus is enumerated in the Mitakshara, Chap. II, Section 6, verses 1 and 2 which are as follows:--(1) "On failure of gentiles, the cognates are heirs. The cognates are of three kinds; related to the person himself, to his father do to his mother as is declared by the following Text: the sons of his own father's sister, the sons of his own mother's sister, and the sons of his own maternal uncle must be considered as his own cognate kindred ... " "(2) Here by reason of near affinity the cognate kindled of the deceased himself are his successors in the first instance on failure of them, his father's cognate kindred, or, there being none, his mother's cognate kindred. This must be understood to be the order of succession here intended."

(3.) The question as to the precedence of atmabandhus standing in the same degree of relationship to a deceased parson has been the subject of discussion in many decisions of the different High Courts where the Mitakshara Law prevails and it must be admitted that there is a good deal of divergence of opinion among the various High Courts as to the principle which should guide the Courts in coming to a conclusion with regard to the question, and the Madras High Court is divided against itself with regard to the question. It has been held in several cases that bandhus related through the father should be preferred to those related through the mother, and further, those whose relationship to the deceased is intervened by two females are to be postponed to those whose relationship is intervened by one female. In some cases it has been held that precedence must be in accordance with the order in which the atmabandhus are enumerated in the Text, that is to say, the son of the deceased's own father's sister must come before the son of his own mother's sister and this principle is sought to be supported by the rule of interpretation enunciated in Jaimini's Nyayamala. The principle first stated is laid down in some of the Madras cases of which I may cite Sundrammal v. Rangasami Mudaliar (1) and Balusami Pandithar V/s. Narayana Rau (2). The second principle which I have stated above is laid down in the case of Appandai Vathiyar V/s. Ragubali Madaliar (3). But in the last case the principle enunciated in the previous cases was dissented from and this last case was again dissented from in a later case of Sagili Pedda Rami Reddi V/s. Narreddi Gangi Reddi (4). Turning to the Allahabad High Court we find that the rule that the order of precedence should be followed in accordance with the order in which the Atawabandhus are named in the Text was not accepted. But it was laid down in the case of Ramcharan Lal v. Rahim Bakhsh (5) that bandhus connected through the father are to be preferred to those connected through the mother. In Bombay it was laid down in the case of Saguna v. Sadashivpandu (6) that according to Mitakahara those connected through the male line among the bandhus are to be preferred to those connected through the females. The rule that a bandhu connected with the propositus through one more female than another should be postponed to that other was not followed in the case of Rajeppa Ranappa Kundagol v. Gawpappa Jotappa Mandwe (7). Then again the question was debated at considerable length by a Full Bench of the Patna High Court in the case of Uma Shankar Prasad Parasari v. Nageswari Koeri (8). But the learned Judges composing the Bench give different reasons for their conclusion and there is no unanimity as to the principle to be followed in giving preference to one set of atmabandhus to another set.