JATINDRA NATH RAY Vs. NAGENDRA NATH RAY

JUDGEMENT

(1.) This appeal is by the plaintiff for recovery of possession of certain properties on the allegation that the is the preferential heir of the last male owner and is, therefore, entitled to succeed to the properties as the next reversioner. The properties originally belonged to one Rameswar Ray who died on the 6 June 1882 leaving a widow Mankumari Barmanya pregnant with child. She gave birth to a posthumous son on the 31 December 1882. That son died on the 7 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 June 1916. A controversy then arose as to whether the plaintiff and his two brothers, pro-forma defendants 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 debuttar and partly secular and the title to possession is the same both with regard to the debuttar and secular properties. Nothing turns upon the nature of the properties in the decision of the case. The point in controversy is a rather vexed one as to the preferential right of atma bandhus in the same degree to succeed to the properties of a deceased person under the Mitakshara which governs the parties in the 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 sons 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 Ray. The Subordinate Judge, after considering the various oases 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 atma bandhus 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, Ch. 2, 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, or 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 kindred 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 mothers cognate kindred. This must be understood to be the order of succession here intended.

(3.) The question as to the precedence of atma bandhus standing in the same degree of relationship to a deceased person 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 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 oases it has been held that precedence must be in accordance with the order in which the atma bandhus 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 oases of which I may cite Sundrammal V/s. Rangasami Mudaliar [1894] 18 Mad. 193 and Balusami Pandithar V/s. Narayana Rau [1897] 20 Mad. 342. The second principle which I have stated above is laid down in the case of Appandai Vathiyar V/s. Bagubali Mudaliyar [1909] 33 Mad. 439. 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 P. Rami Reddi V/s. Gangi Reddi .