Sir Edward Maynerd Des Champs Chamier, Kt., C.J.

1. This appeal arises out of a suit brought by the respondent for possession of a village, called Bariarpur in the district of Patna, which was formerly the property of one Dhanukhdhari Misir. On the latter's death the village passed into the possession of his widow Monakka Kuer. She died in September 1902. At that time the appellant was in possession of the village under a zar-i-peshgi ticca patta which, he alleged, had been executed in his favour by Monakka Kuer. The Government appear to have been under the impression that there were no relatives of Dhanukhdhari Misir alive and capable of inheriting his property. Accordingly a suit was brought in the name-of the Secretary of State for India for possession of the village against the present respondent, who claimed to be entitled thereto under a Will executed in his favour by Monakka Kuer. It was clear, and it is now admitted, that the respondent was not entitled to the village under that Will, for Monakka Kuer had held the village as a Hindu widow. In that suit the respondent set up the title of one Gopal Missir, who was said to be one of the agnate relatives of Dhanukhdhari. Thereupon Gopal Missir was made a defendant to the suit. The Subordinate Judge decreed the claim of the Secretary of State but on appeal the High Court dismissed the suit, holding that it was proved that there were heirs of Dhanukhdhari capable of inheriting the property. They declined to consider whether Gopal Missir had proved his agnatic relationship with the deceased. The Judges of the High Court in the course of their judgment suggested that Deokinandan might have a title to the estate as a bandhu of Dhanukhdhari. The respondent then purchased the rights of Gopal Missir and of Deokinandan and his brothers and brought the present suit. He alleged that the ticca patta, under which the appellant held the village, was not a genuine document and that the appellant was, therefore, a trespasser. It is now conceded, however, that the ticca patta was genuine and that the appellant was entitled to retain possession of the village until payment of the zar-i-peshgi. The Court below has found that the respondent is not entitled to the village as purchaser of the rights of Gopal Missir, as he has failed to show that Gopal Missir is an agnate of Dhanukhdhari Missir. But it has found that the respondent is entitled to the village as purchaser of the rights of Deokinandan and his brothers. The following table exhibits the relationship between Dhanukhdhari and Deokinandan and his brothers and also between Dhanukhdhari and other persons who will be referred to in this judgment:--

2. In his written statement the appellant put the respondent to proof of his right to possession of the village as purchaser of the rights of the heir of Dhanukhdhari (see paragraphs 5, 7, 8, 11, 15 and 23 of the written statement). He did not definitely set up the rights of any person not a party to the suit, but nearly three years later he put in a petition in which he said that he had come to know that the heir of Dhanukhdhari was one Raghunandan, the son of a sister of Dhanukhdhari. No issue was struck by the Subordinate Judge with reference to that petition, and the petition may be disregarded inasmuch as it is conceded on behalf of the appellant that he has failed to prove the alleged right of Raghunandan. Mr. Manuk on behalf of the respondent has contended that in view of the fact that the respondent's name is entered in the khewat as proprietor of the village, while the appellant's name is entered in another part of the khewat as ticcadar of the village, the respondent is entitled to a decree for possession as against the appellant without proving that be is the person best entitled to the property, i.e., that be is the purchaser of the rights of the next heir of Dhanukhdhari. I cannot accept this contention. A respondent suing in ejectment must in order to succeed, strictly prove his title. He must prove that he has purchased the rights of the next heir of Dhanukhdhari. As regards his purchase of the rights of Gopal Missir, I have nothing to add to the remarks made by the Court below. It appears to me that the respondent signally failed to prove that Gopal Missir is an agnate of Dhanukhdhari.

3. The question whether the respondent is entitled to succeed in virtue of his purchase of the rights of Deokinandan and his brothers requires more detailed examination. It is now common ground that Hanuman the father of Deokinandan survived Monakka Kuer. Hanuman is dead but his rights have devolved upon his sons. By cross-examination of the witnesses produced by the respondent and also by evidence produced on his own behalf the appellant has endeavored to prove that Ram Manohar, Harihar, and Jagdeo shown in the above pedigree survived Monakka Kuer. The Subordinate Judge disposed of this question in a few lines. He said: "The next point to be considered is whether Hunuman Tewari, father of Deokinandan and his brothers, was heir of Dhanukhdhari when Monakka Kuer died ........... There can be no doubt that Hanuman was a bandhu of Dhanukhdhari Missir; the learned Vakil for the defendant No. 1 did not deny that Hanuman was a bandhu but maintained that some nearer bandhus (i.e., daughters' sons of Chinu) were alive when Monakka died; there is no positive proof to show that any nearer bandhu was alive when Monakka died." The evidence that Ram Manohar, Harihar, and Jagdeo survived Monakka Kuer, is of the most meagre description. The respondent said: "Ghinu had three daughters, one was married to Dhanukhdhari's father, another to Raj Dewal Tewari whose son was Ram Manohar. Ram Manohar is dead but I cannot say if he died before or after Monakka. The sons of the third daughter are Harihar and Jagdeo. I cannot say if they are alive on this day or not. I cannot say if Jagdeo is alive. I have not seen Harihar Pande". Deokinandan, P.W. No. 3, said that Ram Manohar had died four or live years before 1914, that he did not remember if Jagdeo was a relative of Ghinu, and that he had seen no other nati of Ghinu except Ram Manohar. The 4th witness Fenangi Lal, a patwari, said that the respondent performed the shrad ceremony of Monakka and that Ram Manohar and Harihar were invited as relatives of Dhanukhdhari and that Harihar had no brother. He did not go on to say that either Ram Manohar or Harihar attended the ceremony, and he said that he had not seen Run Manohar for 15 or 16 years. The 8th witness Dhanukhdhari Singh said that Ram Manohar Ghinu's daughter's son, died 13 or 14 years ago. He (the witness) had never seen Harihar but had heard that he died 20 years ago. The 9th witness Chanchal Missir said that Ram Manohar was a nati of Ghinu's and died 14 or 15 years ago and that Harihar, another nati of Grimm's, died 21 or 22 years ago. The 12th witness Lalji said only that Ram Manohar and Harihar were natis of Ghinu. The 18th witness Ram Dhari said that Ram Manohar died "8, 10, or 12 years ago" and he could not say how long ago Harihar had died. The appellant's witness Kokil Singh said: "Manohar, Harihar, and Jagdeo were natis of Ghinu Missir. Manohar and Harihar are dead. Jagdeo and Rajendra the son of Harihar are alive. Manohar died five or six years ago and Harihar seven or eight years ago." A wasil-baki, produced by the appellant himself for a totally different purpose, discloses the fact that Ram Manohar must have died in or before July 1901, for there is the following entry: "Sawan 1308 Fasli. Spent for cremation of Ram Manohar Missir Rs. 21". This shows that the appellant when ticcadar of the village advanced Monakka Kuer Rs. 21 on the occasion of the funeral ceremonies upon the death of Ram Manohar. The oral evidence quoted above shows clearly that Harihar died several years before Ram Manohar and that Jagdeo also died before Ram Manohar. The statement of a witness for the appellant that Jagdeo is alive is an obvious falsehood, for if he was olive he would have been produced. It is thus clear that the Subordinate Judge was right in finding that the appellant had failed to prove that another bandhu of Dhanukhdhari nearer in degree than Hanuman survived Monakka Kuer.

4. Both sides say, however, that Rajendra the son of Harihar is now alive. In fact both sides asked us to admit in evidence certain fresh documents, one of which was a copy of a plaint in a suit brought in 1914 for possession of this very village by a person claiming to be the purchaser of the rights of Rajendra. In that suit Rajendra was impleaded as a defendant. Rajendra and Hanuman are both five or, according to Hindu, lawyers, six degrees removed from Dhanukhdhari and, therefore, the question is whether, upon the death of Monakka Kner, Rajendra had a better claim to succeed to the property of Dhanukhdhari than Haumanan had. The above pedigree shows that Rajendra is the mother's sister's son's son of Dhanukhdhari while Hanuman is the mother's paternal aunt's son of Dhanukhdhari. Both are bhinna-gotra sapindas or bandhus of the deceased.

5. The order of succession among the more distant bandhus has been the subject of much controversy. According to the text of Manu, which is the foundation of all rules of inheritance in the Hindu Law, "the property of a near sapinda shall be that of a near sapinda." The author of the Mitakshara after giving the rules for the succession of gotraja sapindas says:--"on failure of gotrajas the bandhus are heirs". Bandhus are of three kinds--those related to the person himself, those related to his father, and those related 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 bandhus. The sons of his father's paternal aunt, the sons of his father's maternal aunt, must be deemed his father's bandhus. The sons of his mother's paternal aunt of his mother's maternal aunt and, the sons of his mother's maternal uncle must be reckoned his mother's bandhus. Here by reason of near affinity the bandhus of the deceased himself are his successors in the first instance, on failure of them his father's bandhus or if there be none, his mother's bandhus. This must be understood to be the order of succession here intended." It has been held by the Privy Council that the word bandhu in this passage means a relation belonging to a different family but united by sapinda relationship, and that the passage was not intended to be an exhaustive enumeration of all bandhus capable of inheriting but to illustrate the author's proposition that there are three kinds or classes of bandhus, viz., the atma-bandhus, the pitri-bandhus, and the matri-bandhus [see Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 42 C. 384 : 18 C.W.N. 1154 : 27 M.L.J. 333 : 1 L.W. 831 : 10 N.L.R. 112 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 16 Bom. L.R. 863 : 12 A.L.J. 1281 : 20 C.L.J. 573 (P.C.) : 41 I.A. 290].

6. Messrs. West and Buhler in their work on the Hindu Law, 3rd Edition, page 491, say: "Regarding the order in which the bhinna-gotra sapindas succeed each other it is difficult to speak with certainty. It would seem, however, that the nine bandhus mentioned ought to be placed first, if effect is to be given to the principle of the Mayukha that incidental persons' are placed last." The author of the Smriti Chandrika seems to suggest the same view. (See Krishnasawmy Iyer's Translation, page 197.) If this view is correct Hanuman must be taken to exclude Rajendra in the present case, as Hanuman being the deceased's mother's paternal aunt's son is expressly mentioned while the mother's sister's son's son is not. Dr. Jolly in the Tagore Law Lectures for 1883 at page 215 points out that this view has the effect of excluding the maternal uncle who is obviously a nearer bandhu than his son who is expressly mentioned.

7. Messrs. West and Buhler, in another passage say that as it is finally settled that the mention of the bandhus in the Mitakshara is not exhaustive, the rule does not give precedence to any one enumerated over others nearer to the propositus in the same line of connection. The decision of the Privy Council in Gridhari Lall Roy v. Bengal Government 12 M.I.A. 448 : 10 W.R. 31 (P.C.) : 1 B.L.R. 44 (P.C.) : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 382 : 20 E.R. 408 and Muthusami Mudaliyar v. Simamhedu Muthukumaraswamy Mudaliyar 19 M. 405 : 23 I.A. 83 : 6 M.L.J. 113 : 7 Sar. P.C.J. 45 affirms the correctness of this. This view does not assist Rajendra, for he is not nearer to the propositus in the same line of connection than any one expressly mentioned but is one degree further off.

8. Pandit Raj Kumar Sarvadhikari takes the bandhus specially named in the Mitakshara as indicating the three principal classes of bandhus and not as embracing only the nine bandhus specially named. He discusses at length the position of the mother's paternal aunt's son and decides that he should be preferred to the mother's sister's son's son and others, both because he is nearer in degree and because he is the deceased's own bandhu.

9. Dr. Jogendra Nath Bhattacharya (page 460) also prefers the mother's paternal aunt's son to the mother's sister's son's son. Mr. Trevelyan (pages 390 and 393) prefers the mother's sister's son's son to the mother's paternal aunt's son. He regards the former, as an atma-bandhu and the latter as a pitri-bandhu. He cites the case of Bai Vijli v. Bai Prabhalakshmi 9 Bom. L.R. 1129, in which a mother's sister's son's son was preferred to the paternal grandfather's sister's son's daughter. The decision in that case appears to have no bearing upon the question which we have to decide, except that the Court held that the mother's sister's son's son was an atma-bandhu. The decision avowedly rests upon the decision in the case of Chamanlal v. Ganesh Moti Chand 28 B. 453 : 6 Bom. L.R. 460 where, however, the question for decision was different, namely, whether a mother's sister's son being an atma-bandhu named in the Mitakshahra had a better claim than the father's father's sister's son who is named as a pilri-bandhu.

10. In Krishna Ayyangar v. Venkatarama Ayyanager 29 M. 115 a father's sister's daughter's son was held to be an atma-bandhu and as such entitled to succeed in preference to the paternal grandfather's sister's son who was a pitri-bandhu. The Madras High Court seem to have held in this and some other cases that the descendants of atma-bandhus named in the Mitakshara are also atma-bandhus and that the descendants of a father or mother should be preferred to the descendants of a grandfather or grandmother, on the principle of the nearer line excluding the more remote.

11. There is thus an extraordinary diversity of judicial and other opinion on the meaning and application of the text of the Mitakshara quoted above.

12. After giving the matter my best consideration, I have come to the conclusion that as the enumeration of the bandhus in the text is illustrative only and not exhaustive, the text should be read in such a way as to give effect to the guiding principle of the Hindu Law of succession that the inheritance belongs to the nearest sapinda, and there seems to me to be no difficulty in doing so. If each of the bandhus expressly mentioned in the text is held to include his descendants, or (which is much the same thing) the descendants of an atma-bandhu expressly mentioned are held to be themselves atma-bandhus and are entitled to succeed in preference to all the pitri or matri-bandhus expressly mentioned, it may easily happen that an obviously more remote sapinda will exclude a nearer sapinda.

13. In the recent case of Buddha Singh v. Laltu Singh  30 Ind. Cas. 529 : 20 C.W.N. 1 : 29 M.L.J. 534 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 22 C.L.J. 481 (P.C.) (1915) M.W.N. 772 : 37 A. 604 : 42 I.A. 208, their Lordships said: "As pointed out in the case of Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar  25 Ind. Cas. 290 : 42 C. 384 : 18 C.W.N. 1154 : 27 M.L.J. 333 : 1 L.W. 831 : 10 N.L.R. 112 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 16 Bom. L.R. 863 : 12 A.L.J. 1281 : 20 C.L.J. 573 (P.C.) : 41 I.A. 290, the right of collaterals to succeed to the inheritance of a deceased person is based on the rule of Manu, which has been translated differently by different writers, but which in substance amounts to this, that the estate of a deceased goes to his nearest sapinda. The right of collaterals, therefore, is dependent on the existence of the sapinda relationship between the propositus and the claimant. It is now well settled by the decisions of this Board that under the Mitakshara, the sapinda-relation ship arises between two people through their being connected by particles of one body, viz., that of the common ancestor, in other words, from community of blood in contradistinction to the Dayabhaga notion of community in the offering of religious oblations. But as will be shown later on, the Mitakshara, whilst holding that the right to inherit does not spring from the right to offer oblations, does not exclude it from consideration as a test of propinquity or nearness of blood". "Now it is absolutely clear that under the Mitakshara, whilst the right of inheritance arises from sapinda relationship, or community of blood, in judging of the nearness of blood-relationship or propinquity among the gotraja, the test to be applied to discover the preferential heir is the capacity to offer oblations." "In the case of Bhyah Ram Singh v. Bhyah Ugar Singh  13 M.I.A. 373 : 14 W.R. (P.C.) 1 : 5 B.L.R. (P.C.) 293 : 2 Suth. P.C.J. 330 : 2 Sar. P.C.J. 566 : 20 B.R. 591 the Board affirmed this rule in the following words: 'when a question of preference arises, as preference is founded on superior efficacy of oblation, that principle must be applied to the solution of the difficulty.'"

14. These remarks were made in the case of a dispute between agnates but they seem to apply as well to the case of bandhus.

15. As regards connection by particles of the body of the common ancestor, Hanuman was nearer to the common ancestor of the deceased and himself than Rajendra is to the common ancestor of the deceased and himself, while as regards the benefit to be conferred upon the deceased by offerings made by Hanuman and Rajendra respectively, it will be seen that Hanuman made offerings to the maternal great-grandfather and maternal great-great-grandfather of the deceased while Rajendra cannot make offerings to any ancestors of the deceased.

16. It appears to me that Hanuman was according to the Hindu Law a nearer sapinda of the deceased Dhanukhdhari than Rajendra in, and that if they both stand in the same degree of propinquity preference must be given to Hanuman on account of his capacity to make offerings to ancestors of the deceased.

17. I would hold that the respondent by virtue of his purchase from Deokinandan and his brothers acquired the rights of Hanuman, who was the person entitled to the property on the death of Monakka Kuer. I would, there fore, dismiss the appeal with costs.

Jwala Prasad, J.

18. I entirely agree with the learned Chief Justice. It has not been proved that Gopal is an agnate of the deceased Dhanukhdhari or that Ram Manohar, Harihar and Jagdeo survived Musammat Monakka Kuer, widow of Dhanukhdhari.

19. The crucial point in this case is whether Rajendra or Hanuman was the preferential heir of Dhanukhdhari Missir when the Musammat died. Rajendra is the mother's sister's son's son of Dhanukhdhari. Hanuman is the mother's paternal aunt's son. Both of them are bandhus, who have a right to succeed on failure of golraja.

20. The Mitakshara gives a list of nine persons as bandhus dividing them into three classes, atma-bandhu,  pitri-bandhu and matri-bandhu. The mother's paternal aunt's son is mentioned there as a matri-bandhu. This will be Hanuman. Mother's Sister's son is mentioned as atma bandhu. This will be Rajendra's father Harihar. Rajendra is not mentioned. If the list of the heritable bandhus in the Mitakshara is exhaustive or if those not mentioned there are to succeed on failure of those expressly mentioned, then the matter would have been very simple as in either case Hanuman, being expressly mentioned, would exclude Rajendra, who is not mentioned in the list. But it is settled now that the list is not exhaustive but only illustrative.

21. Mr. Pugh contends that Rajendra is a son of an atma-bandhu mentioned in the list and must succeed in preference to Hanuman, who is a matri-bandhu. No case has been cited before us where the contest was between relations such as those concerned in his case. The matter has to be decided, therefore; upon the principles of succession mentioned in the text and recognised by the case-law on the subject.

22. Among bandhus the right of inheritance is confined to bhinna-gotra sapindas. 'Sapinda' has been used in the Mitakshara, verse 3, section 5, in the sense of connection by particles of one body. In the case of succession through females sapinda-relation ship is confined to five degrees including the propositus. Another limitation is that the propositus and the claimant must be sapindas to each other.

23. Applying the test of community of particles of the body of the common ancestor, Hanuman is third in descent from the common ancestor of himself and the propositus, whereas Rajendra is 4th in descent from the common ancestor of himself and the propositus. Hanuman, therefore, has a preferential right to succeed, to the property.

24. Even supposing that Rajendra and Hanuman stood in the same degree of relationship or nearness to the deceased, preference would be given to Hanuman for he would offer religious oblations to two ancestors of the deceased, whereas Rajendra would offer to none, for cakes are offered only to three ascendants of the mother.

25. I have refrained from discussing in detail the text or the authorities bearing on the subject, as they have been sufficiently dealt with by the learned Chief Justice. Reference may, however, be made to the Privy Council rulings in Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar  25 Ind. Cas. 290 : 42 C. 384 : 18 C.W.N. 1154 : 27 M.L.J. 333 : 1 L.W. 831 : 10 N.L.R. 112 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 16 Bom. L.R. 863 : 12 A.L.J. 1281 : 20 C.L.J. 573 (P.C.) : 41 I.A. 290, Babu Lal v. Nanku Ram 22 C. 339 and Umaid Bahadur v. Udoi Chand 6 C. 119 : 6 C.L.R. 500.

26. There can, I think, be no doubt that Hanuman was entitled to succeed to the property in suit after the death of Dhanukhdhari's widow in preference to Rajendra. Deokinandan and others, sons of Hanuman, therefore, succeeded to the property after their father's death. The plaintiff, therefore, acquired a good title to the property by virtue of the kabala executed by Deokinandan and his brothers. The plaintiff's suit has been rightly decreed by the first Court and I agree that the present appeal should be dismissed with costs.