JUDGMENT Dar, J.
1. This is an appeal against a judgment and decree, dated 24th August 1936 of the Subordinate Judge of Bareilly in a suit for possession of immovable property and for recovery of its mesne profits. The property in suit which consists of certain villages in Bareilly District is alleged to be the estate of a Hindu named Chhote Lal, who died in or about the year 1914 leaving two widows, Mt. Janki Kuer and Mt. Sunder Kuer. The last surviving widow died on 12th August 1933 and on 2lst May 1935 the plaintiffs, Debi Das and Beni Ram, who are two own brothers, raised an action in the Court of the Subordinate Judge of Bareilly for recovery of possession of the said estate with its mesne profits against 16 persons who were alleged to hold the said estate under various transfers from the said widows of Chhote Lal. The plaintiffs claimed that they were the reversionary heirs of the said Chhote Lal and on the death of the last widow without any issue they were entitled to the said estate. The relationship of the plaintiffs with the deceased Chhote Lal will appear from the following pedigree :
BALJIT RAM _________________|________________________ | | Gopal Ram Kesho Ram | _________________|___ Chaturbhuj | | | Chhote Lal Mt. Chandan Mt. Kaunsilla (proposition) Kuer Kuer =Mt. Janki | ____|_____ Kuer and Baboo Ram | | Mt. Sunder | Debi Das Beni Ram Kuer Asharfi Lal (plff. 1) (plff. 2)
2. The defendants contested the claim inter alia on the ground that the plaintiffs were not the reversionary heirs of Chhote Lal as Chhote Lal had left a sister's grandson by the name of Asharfi Lal who was a preferential heir against the plaintiffs and in the presence of Asharfi Lal the plaintiffs had no right to claim possession of the estate from the defendants. The trial Court found in favour of the defence and dismissed the claim. Against that judgment and decree the plaintiffs have made this appeal.
3. The parties are twice-born Hindus governed by the Mitakshara or Benares School of Hindu law and the pedigree set out above and the relationship of the plaintiffs and of Asharfi Lal with the deceased Chhote Lal as set out in that pedigree is not in dispute. Chhote Lal admittedly has left no other heir except the plaintiffs and Asharfi Lal, and while Asharfi Lal is Chhote Lal's sister's grandson, the plaintiffs are Chhote Lal's first cousin's daughter's sons and the question which falls to be determined in the case is a pure question of law, viz., as between a sister's son's son and a cousin's daughter's son who is the preferential heir ? It is obvious that both the claimants are claiming as bandhus. It is not disputed that both fall within the class of atma bandhus. It is also admitted that both are within five degrees from the common ancestor and while the plaintiffs are fifth in descent from the common ancestor, Asharfi Lal is only fourth in descent from his common ancestor and thus Asharfi Lal is one degree nearer than the plaintiffs. It is also not disputed that the plaintiffs can confer some spiritual benefit upon Chhote Lal by offering funeral oblations to their maternal ancestor whereas Asharfi Lal cannot confer any benefit whatever and the controversy in the case is whether the capacity to offer spiritual benefit on the deceased is a ground of preference to such an extent so as to override the claim of nearness of line and nearness of degree.
4. The Mitakshara restricts bandhus to bhinna gotra sapindas. It limits the sapinda relationship to five degrees or seven degrees according as the claim is through a female or through a male, respectively. It specifies the method of computation of degrees which is from common ancestor to the claimant or to the propositus, one degree to be given to each step including the common ancestor and the claimant, on one side, and the common ancestor and the propositus, on the other side. It classifies the bandhus into three classes: atma bandhus, pitri bandhus and matri bandhus, and it enumerates three specified relations as comprising each class. But beyond laying down that atma bandhus will succeed in preference to pitri bandhus and pitri bandhus will succeed in preference to matri bandhus and the property of a near sapinda will be inherited by a near sapinda and nearness depends upon relationship and not upon capacity to offer funeral oblations, it lays down no definite rules for determining the order of succession when the competition is between bandhus who belong to the same class but are related in a higher and lower degree or between bandhus of the same class who are of equal or of different degrees but one is of a nearer line and claims through a nearer ancestor and the other is of a remoter line and claims through a remoter ancestor or between bandhus of the same class of equal or different degrees when one claims as a descendant of the propositus and the other claims as an ascendant or as a collateral.
5. During the last 75 years, the Judicial Committee has made several pronouncements which have settled some of the controversies which had gathered round this branch of Hindu law. In Giridhari Lall Roy v. Bengal Government ('67-69) 12 M.I.A. 448 the Privy Council decided that enumeration of nine relations as atma bandhus, pitri bandhus and matri bandhus in the Mitakshara is only illustrative and is not exhaustive and, following this decision, it has now been established that one's own descendants and one's father's and grandfather's descendants through females and one's maternal grandfather's descendants might all be regarded as bandhus and similarly father's paternal and maternal grandfathers' descendants through females be regarded as pitri bandhus and mother's paternal and maternal grandfathers' descendants through females be regarded as matri bandhus. In Ram Chandra Martand v. Venayek Venkatesh ('14) 1 A.I.R. 1914 P.C. 1 and again in Adit Narayan Singh v. Mahabir Prasad Tiwari ('21) 8 A.I.R. 1921 P.C. 53 the Privy Council decided that all bandhus or bhinna gotra sapindas are not necessarily heritable bandhus and to create a title of inheritance there must be mutuality between the claimant and the propositus and both must be bandhus of each other and the one related through male should be within seven degrees of the common ancestor and the one related through female should be within five degrees of the common ancestor.
6. We have thus now got some definite rules to indicate who the heritable bandhus are, but there are even now two matters in this connection which are subjects of controversy. The passage in Mitakshara that where relationship is through a male, the sapinda relationship lasts to seven degrees and where the relationship is through a female, the sapinda relationship lasts to five degrees has given rise to two views notwithstanding the pronouncement of the Privy Council in Ram Chandra Martand v. Venayek Venkatesh ('14) 1 A.I.R. 1914 P.C. 1. According to one view, if the bandhu is claiming through his father--although higher up a female intervenes between him and the common ancestor--he is a heritable bandhu if he is within seven degrees of the common ancestor and the rule of five degrees only applies when the bandhu is claiming through his mother : see Ram Sia v. Bua ('24) 11 A.I.R. 1924 All. 790 at Harihar Prasad v. Ram Daur ('25) 12 A.I.R. 1925 All. 17 at pp. 178 and 179 and Kesar Singh v. Secy. of State ('26) 13 A.I.R. 1926 Mad. 881 at pp. 660, 664, 665, 682 and 690 and the opinion of the late Sir Dinshah Mulla as expressed in Principles of Hindu Law (1940) Edn. 9, in para. 7 at p. 48. The other view is that irrespective of the fact whether the bandhu claims through the mother or through the father in all cases where a female intervenes between the claimant and the common ancestor, the heritable bandhu must be within five degrees from the common ancestor. This view is supported by Sir Shah Sulaiman in his judgment in Gajadhar Prasad v. Gauri Shankar ('32) 19 A.I.R. 1932 All. 417 and in Brij Mohan v. Kishun Lal ('38) 25 A.I.R. 1938 All. 443 and by the opinion of the late S. Srinivasa Ayengar as expressed in Mayne's Hindu Law and Usage (1938) Edn. 10 at page 161.
7. On the question whether a bandhu who has satisfied the test of mutuality and of the degree becomes a heritable bandhu, there is yet a second matter of difference of opinion, and it turns upon the interpretation which is to be placed on the words 'pitri bandhu' and 'matri bandhu' in the classification of the Mitakshara. One view is that the terms: 'pitri' and 'matri' bandhus mean one's own bandhus through father and through mother and they do not mean the father's bandhus and mother's bandhus generally including in those terms the bandhus of all three classes of father and of mother respectively, and the effect of this interpretation is that succession of bandhus beyond grand-parents proceeds on agnatic lines and not on cognatic lines with the result that all bandhus in whose line a great-grand-mother or three females or two females who are not related to each other as mother and daughter intervene are excluded. The other view is that pitri bandhus and matri bandhus mean bandhus of all three classes of father and mother respectively with the result that succession beyond grand-parents also proceeds both on agnatic and cognatic lines and the question of intervention of females loses all its importance. In Gajadhar Prasad v. Gauri Shankar ('32) 19 A.I.R. 1932 All. 417 this Court interpreting bandhus as one's own bandhus through father and mother and applying the doctrine of mutuality has laid down that in the case of a heritable bandhu in the line of succession on either side a great-grandmother should not intervene and two females should not intervene unless they are related as mother and daughter. On the other hand, in Kesar Singh v. Secy. of State ('26) 13 A.I.R. 1926 Mad. 881, the Madras High Court has interpreted the words 'pitri and matri bandhus' in the wider sense and has held that Hindu law does not impose any limitation upon the intervention of females in the line of succession of bandhus and the only qualification required in a heritable bandhu is the qualification of requisite degree of sapinda-ship and of mutuality. The Madras view has also received the support of the commentaries on Hindu Law by Mayne, Mulla and Golap Chandra Sarkar Sastri.
8. The order of succession amongst heritable bandhus has also been settled to a certain extent by the decisions of the Judicial Committee. It has now been finally determined that atma bandhus succeed before pitri bandhus, and pitri bandhus succeed before matri bandhus irrespective of the question whether the claimant in the preceding class is of a higher or lower degree against the succeeding class: see Muthusami v. Muthukumarasami ('93) 16 Mad. 23, affirmed by the Privy Council in Muthusami Mudaliyar v. Muthukumaraswami Mudaliyar ('96) 19 Mad. 405 and Adit Narayan Singh v. Mahabir Prasad Tiwari ('21) 8 A.I.R. 1921 P.C. 53. That within the same class a bandhu nearer in degree excludes a bandhu more remote in degree was affirmed for the first time by the Judicial Committee in Vedachela Mudaliar v. Subramania Chettiar ('22) 9 A.I.R. 1922 P.C. 33 But the question whether a bandhu who is a descendant of the propositus should be preferred to a bandhu who is an ascendant or collateral of the propositus where the degree of relationship is equal or favours the ascendant or collateral and the question whether a bandhu descended from a nearer ancestor, for example the father, is entitled to preference against a bandhu who claims from a higher ancestor, for example the grandfather, when the degree of the two is the same or the degree favours the bandhu in remoter line, has not yet been finally settled by the Judicial Committee. In other words, whether descendants of equal or lower degree should be preferred to ascendants or collaterals and whether collaterals of nearer line of equal and lower degree should be preferred to remoter line and in a case of conflict of line and degree whether the line prevails or the degree prevails are still matter involved in controversy. In Dattatraya Bhimrao v. Gangabai ('22) 9 A.I.R. 1922 Bom. 321 and in Kalimuthu Pillai v. Ammamuthu Pillai ('34) 21 A.I.R. 1934 Mad. 611 the claim of a descendant bandhu was preferred to those who were not descendants. In Balusawi Paudithar v. Narayana Rau ('97) 20 Mad. 342 and in Kalimuthu Pillai v. Ammamuthu Pillai ('34) 21 A.I.R. 1934 Mad. 611 referred to above it was broadly held that in succession relating to bandhus the nearer line excludes the remoter line irrespective of the degree. On the other hand in Umashankar Prasad v. Mt. Nageswari Koeri ('18) 5 A.I.R. 1918 Pat. 1, the majority of Judges in a Full Bench decision preferred the claim of a bandhu nearer in degree though remoter in line against a claimant who was nearer in line but remoter in degree. In both Mulla's and Mayne's Hindu Law the opinion is expressed in favour of the view that descendants should be preferred to ascendants and collaterals and the nearer line should exclude the more remote line.
9. Now according to doctrines of Mitakshara a daughter's son's son of the propositus and a daughter's son's son of the father of the propositus and of the grand-father of the propositus are all atma bandhus and all are related in four degrees from the common ancestor. The entire scheme of the Mitakshara succession is based upon propinquity and nearness of blood to the exclusion of the theory of spiritual benefit and both in gotraja succession and in bhinna gotra succession the Mitakshara favours the succession of nearer line against the more remote line; see the preference which it gives to descendants against ascendants in lineal succession and to brother against nephew in collateral succession and to one's own bandhu against the father's bandhu in bhinna gotra succession. Can it be reasonably contended that the fourth in descent from the propositus and the fourth in descent from the propositus' father and the fourth in descent from the propositus' grandfather are all equally related to the propositus ? There can be no doubt that on the doctrine of the Mitakshara if the degree of the bandhus who are claimants in any particular class is equal and if their line is unequal, then the line must take precedence and the bandhu of the nearer line must be preferred to the one in remoter line. The further question whether a remoter bandhu in the nearer line should be preferred to a nearer bandhu in the remoter line does not call for determination in the present case and it is unnecessary to express any final opinion upon it.
10. There are certain matters which furnish ground of preference amongst bandhus provided they are of the same class and the line and the degree is equal. The capacity to confer spiritual benefit is one of them, the claim ex parte paterna is another and the claim through a lesser intervention of females may be the third and the claim of whole blood against half blood may be the fourth, but these preferences, in our opinion, all give way to the class and to the degree and line. Mr. P. L. Banerji contends that the capacity to confer spiritual benefit is a matter which stands by itself and is a decisive ground of preference even against the degree and line in bandhus of the same class, and for this contention he relies upon a well known passage in Viramitrodaya and upon the fourth proposition laid down by Muttusami Ayyar J. in Muthusami v. Muthukumarasami ('93) 16 Mad. 23 at p. 30 in the following words :
(4) ... that as between bandhus of the same class, the spiritual benefit they confer upon the propositus is, as stated in Viramitrodaya, a ground of preference.
11. Mr. Banerji furthur contends that this judgment was affirmed by the Privy Council in Muthusami Mudaliyar v. Muthukumaraswami Mudaliyar ('96) 19 Mad. 405 and the said proposition was again approved by the Privy Council in Vedachela Mudaliar v. Subramania Chettiar ('22) 9 A.I.R. 1922 P.C. 33 in which Mr. Amir Ali in delivering the judgment of their Lordships observed as follows :
Their Lordships think that, in the absence of any express authority varying the rule, the propositions enunciated in Muthusami v. Muthukumarasami ('93) 16 Mad. 23 which, on appeal, was affirmed by the Judicial Committee, furnish a safe guide. In the present case before their Lordships, the appellant and the deceased were sapindas to each other; and the appellant is undoubtedly nearer in degree to the deceased than Subramania. He also offers oblations to his father and grandfather to whom the deceased was also bound to offer pinda. The deceased thus shares the merit, resulting from the appellant's oblations to the manes of his ancestors, whereas the father's sister's son's son offers no pinda to the deceased's ancestors. On all these grounds, their Lordships think the view taken by the Subordinate Judge was well founded.
12. The judgment of their Lordships read as a whole, clearly indicates that they considered nearness in degree as the preferential test and the religious test was only applicable where the degrees were equal. The claimant who succeeded before their Lordships, was nearer in degree and also satisfied the religious test, but undoubtedly up to a certain time this pronouncement of the Privy Council was variously interpreted by the Madras High Court and by this Court on one side and by the Bombay High Court on the other. In Chengiah v. Subbaraya ('30) 17 A.I.R. 1930 Mad. 555 and in Gajadhar Prasad v. Gauri Shankar ('32) 19 A.I.R. 1932 All. 417 at p. 707, Vedachela Mudaliar v. Subramania Chettiar ('22) 9 A.I.R. 1922 P.C. 33 was taken to lay down that in each class propinquity is the governing factor and the nearness in blood determines the right to succeed, though as between the bandhus in the same class and in the same degree of nearness the spiritual benefit conferred upon the propositus may be a ground of preference.
13. And in Sakharam Narayan v. Balkrishna Sadashiv ('25) 12 A.I.R. 1925 Bom. 451 a Full Beach of the Bombay High Court took the view that spiritual benefit could prevail against the nearness of blood. The Privy Council by two later decisions of its own has finally settled this controversy. In Jatindranath Roy v. Nagendranath Roy ('31) 18 A.I.R. 1931 P.C. 268 Sir George Lowndes has thus explained the bearing of the doctrine of spiritual benefit in relation to bandhus succession :
It is, their Lordships think, a mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded in the Mitakshara. No doubt, propinquity in blood is the primary test, but the intimate connexion between inheritance and funeral oblations is shown by various texts of Manu (see for instance, Chap. 9, Verses 136 and 142), and the Viramitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood relationship furnishes no certain guide.
14. And again in I.L.R. Balasubrahmanya v. Subbaya Tevar ('38) 25 A.I.R. 1938 P.C. 34 in which the entire question of preference on the ground of spiritual benefit was argued afresh before the Privy Council, Sir George Lowndes explained the two previous decisions of the Board in the following way :
A reference to the judgment delivered by Mr. Amir Ali in Vedachela Mudaliar v. Subramania Chettiar ('22) 9 A.I.R. 1922 P.C. 33 makes it clear that no such change over in the case of cognates was contemplated and the rule above referred to, which was affirmed towards the end of the judgment, obviously does not make religious efficacy the only test among bandhus of the same class, though it does make it an admissible test, and it is perhaps worth noting that the view taken by the Subordinate Judge, to whose judgment their Lordships have referred and which was held to be well founded, was that the religious test was only applicable if the proximity test failed. The final conclusion at which the judgment of the board then arrived is stated as follows:
In the present case before their Lordships, the appellant and the deceased were sapindas to each other; and he (the appellant) is undoubtedly nearer in degree to the deceased than Subramania (the respondent). He also offers oblations to his father and grandfather to whom the deceased was also bound to offer pinda. The deceased thus shares the merit resulting from the appellant's oblations to the manes of his ancestors, whereas the father's sister's son's son offers no pinda to the deceased's ancestors. On all these grounds their Lordships think that the view taken by the Subordinate Judge was well founded.
It is difficult to suggest that the board here discarded the test of nearness of degree, and adopted only that of religious efficacy; they clearly applied both, and it is perhaps not without significance, in view of what the Subordinate Judge had said, that nearness of degree is put first.
In Jatindranath Roy v. Nagendranath Roy ('31) 18 A.I.R. 1931 P.C. 268 the question was between atma-bandhus, admittedly equal in degree so that the test of, proximity was no guide, and it was laid down, strictly as their Lordships think in accordance with the general scheme of the Mitakshara, that it was only when the test of proximity failed that religious efficacy came in. Their Lordships can see no inconsistency between the two decisions of the board, and no antagonism between the later decision and the rule enunciated by Muttusami Ayyar J. upon which Mr. Dunne relies so strongly. They must therefore confirm the decision of both Courts in India that, as between claimants 2 and 3, Subbaya as nearer in degree to the last male owner is entitled to succeed to the estate.
15. It is not necessary to determine the exact place which the capacity to confer spiritual benefit now occupies in the law of succession relating to bandhus. For the purpose of this case, it is sufficient to hold that it cannot displace the nearness of line and nearness of degree, and, that being so, we must hold that as against Asharfi Lal, who is nearer in line as also nearer in degree the plaintiffs were not preferential heirs and their claim was rightly dismissed and this appeal must be and is hereby dismissed with costs.