Judgement Consolidated Appeals from judgments and decrees of the High Court (April 9, 1910, and April 13, 1911) reversing judgments and decrees of the Subordinate Judge of Farrakhabad. The consolidated appeals related to property which formed part of the state of Bahadur Singh, deceased, and the main issue raised was whether under the Mitakshara law of succession his heirs were the sons of his fathers own brother deceased (those claimants being represented in the appeal by the parties Munshi Lal and others), or whether his fathers half-brother (represented in the appeal by Kesri and others) was entitled to succeed. The property in suit was a third share in two villages which were in the possession of Ganga Sahai, he having purchased the villages at an auction sale held under a mortgage decree made in favour of himself and others as mortgagees, and having obtained certificates under s. 317 of the Code of Civil Procedure, 1882. The mortgagee interest under the mortgage in question was at the date of the decree and sale vested as to a one-third share in the heirs of Bahadur Singh. In 1906 the two sets of claimants above referred to each instituted a suit against Ganga Sahai, joining their rival claimants as parties with him, and each claiming, as heirs of Bahadur Singh, to recover the third share in the two villages to which the latter had been entitled. Both Courts in India held that Ganga Sahai was not by reason of his purchase at the auction sale entitled as against the heirs of Bahadur Singh, and those claiming under them, to the entire possession of the two villages. Upon the question as to who was entitled under the Mitakshara law to succeed to Bahadur Singh the Subordinate Judge decide1, in favour of the claimants represented in the appeals by Munshi Lal and others, holding that the sons of a fathers own brother were to be preferred to a fathers half-brother. A Full Bench of the High Court, consisting of Sir George Knox, Banerji, and Richards JJ., by its judgment delivered on April 9, 1910, reversed this decision. Banerji J., with whose opinion his learned colleagues concurred, in the course of his judgment said " In ch. A Full Bench of the High Court, consisting of Sir George Knox, Banerji, and Richards JJ., by its judgment delivered on April 9, 1910, reversed this decision. Banerji J., with whose opinion his learned colleagues concurred, in the course of his judgment said " In ch. 2, s. 5, of the Mitakshara, the rule of succession in default of brothers sons is Laid down, the heirs being gotraja sapindas and after them bhinna gotra sapindas or bandhus. Among the former the heirs are successively the paternal grandmother, the paternal grandfather, the uncles and their sons (s. 5, v. 4). The word in the original Sanskrit which has been translated as successively is kramena, which means one after another. Among gotraja sapindas, therefore, the paternal grandmother takes first; after her, the paternal grandfather; alter him uncles, that is, the paternal grandfathers sons; and, in default of them, their sons. The son of the paternal uncle thus comes in after the paternal uncle, whether he is of the whole blood or the half-blood. As we have seen, a brother of the half-blood excludes the son of a brother of the whole blood. On the same principle, which is that of propinquity, a paternal uncle of the half-bloo.1 excludes the son of a paternal uncle of the whole blood. The learned advocate for the respondents contends that s. 5, v. 4, is intended to apply only to relations of the whole blood, but there is no authority as far as we are aware in support of this contention, and none has boon cited. On the contrary, the Madana Parijata by Visvesvara Bhatta, a commentary on the Mitakshara of great authority, clearly explains what the meaning of the rule is. The passage in the Madana Parijata bearing on. the point is thus translated by Professor Sarvadhikari in the Tagore Law Lectures for 1880, p. 440 Among the paternal uncles, the succession of uterine and half-blood uncles should be regulated in the same manner as in the case of brothers, that is, the paternal grandmothers sons first inherit and after them the step-grandmothers sons, and in their default the paternal uncles sons inherit in the same manner as brothers sons. The same passage is quoted in Mandliks Hindu Law, p. 384, footnote, and is similarly translated- Beading the text of the Mitakshara by the light of this commentary, there can be no room for doubt that an uncle of the half-blood succeeds in preference to the son of an uncle of the whole blood, the former being nearer in propinquity than the latter." The proceedings in the High Court are reported I. L. R. 32 Allah. 541 and I. L. R. 33 Allah. 563. Lowndes, for Ganga Sahai. The evidence shows that the properties in suit were purchased by Ganga Sahai for his own benefit; the heirs of Bahadur Singh, whoever they may be, have no right to share in them. The claims of the respective groups of plaintiffs are matters which should have been dealt with in execution proceedings under s. 244 of the Code of Civil Pro cedure (XIV. of 1882). Ganga Sahai obtained a certificate under s. 317 of that Code confirming his purchase, and the plaintiffs are precluded by that section from maintaining the suits. [Their Lordships did not call upon the other parties with regard to Ganga Sahais claim in the appeal.] Ross, K.C., and Kenworthy Brown, for Munshi Lal and others. The position of uncles in the scheme of inheritance according to the Mitakshara is provided for by ch. II, s. 5, v. 4. The Mitakshara by ch. II., s. 3, makes exceptions in favour of brothers and nephews of the half-blood, but these exceptions should not be extended. There is no provision in the Mitakshara giving a right to uncles of the half-blood, and the son of an uncle of the whole blood is therefore entitled to inherit before an uncle of the half-blood. The High Court decided chiefly upon the authority of the Madana Parijata of Visvesvara Bhatta, which the judgment refers to as a commentary upon the Mitakshara/ That work is not a commentary upon the Mitakshara upon which the present question has to be decided, although the Subodhini by the same author is so Sarvadhikaris Hindu Law, p. 411; Colebrookes Preface to Stokes Hindu Law Books, p. 177. The principles of inheritance under the Mitakshara differ from those of the Dayabhaga in depending upon community of corporeal particles, and not upon the offering of funeral oblations [Suba Singh v. Sarfaraz Kunwar (( 1896) I. L. R. 19 Allah. The principles of inheritance under the Mitakshara differ from those of the Dayabhaga in depending upon community of corporeal particles, and not upon the offering of funeral oblations [Suba Singh v. Sarfaraz Kunwar (( 1896) I. L. R. 19 Allah. 215.); Nathiappa Gounden v. Kishen Sahai (( 1915) 28 Madr. L. J. 1.); Vithalrao v. Ramrao (( 1899) I. L. R. 24 Bomb. 317.); Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar (( 1914) L. R. 41 Ind. Ap. 190, at p. 199.) ; Mitakshara, ch. II., s. 4, vv. 5, 6,7 and 8; and Vyavahara Mayukha, ch. IV., s. 8 (16.), were also rferred to.] Manu, ch. IX., w. 212 and 217, and the Shastras make it clear that in early times only relations of the whole blood were entitled to inherit. De Gruyther, K.C., and Dube, for Kesri and others, By the Mitakshara, ch. II., s. 4, vv. 6,7, 8, it is clear that a brother of the half-blood excludes the son of a brother of the whole blood. On the same principle, which is that of propinquity, a paternal uncle of the half-blood excludes the son of a paternal uncle of the whole blood. The Mitakshara is not exhaustive; having Laid down the principle as between brothers and nephews it is not expressly Laid down again. The word " successively " in s. 5, v.4, impliedly introduces the principle as to each class of relation named. The Madana Parijata is recognized as of high authority on questions of inheritance. The decisions referred to by the appellants do not support their contentions. [Maynes Hindu Law, 7th ed., pp. 774, 775, and 777, was referred to.] Ross, K.C., replied. The judgment of their Lordships was delivered by MR. AMEER ALI. These several consolidated appeals from certain decrees and judgments of the High Court of Allahabad arise out of three suits brought in the Court of the Subordinate Judge of Farrakhabad. The plaintiffs in two of these suits, claiming adversely to each other to be the heirs of one Bahadur Singh, deceased, sought to recover from the appellant Ganga Sahai a one-third share of the properties specified in their respective plaints which he had purchased at a sale held in execution of a decree upon a mortgage to which reference will be made presently. The third suit was brought by Kalka Pershad, one of the plaintiffs in the above suits, to recover from the respondent Chunni Lal certain shares in mauza Malkapur belonging to the estate of Bahadur Singh which had been conveyed to him by one Gulab Koer, Bahadurs stepmother. Their Lordships propose to deal first with the two suits in which Ganga Sahai was the defendant. The mortgage bond referred to above was executed so long ago as the year 1869 by one Jai Chand Chowdhry, in favour of Bahadur Singh and Debi Din, the ancestor of Ganga Sahai, hypothecating two villages named respectively Tahsipur and Bilaspur. One-third of the amount advanced on this transaction admittedly belonged to Bahadur Singh, and the other two-thirds to Debi Din. On default of payment by Jai Chand, a suit was brought in 1891 by Bahadur Singh in conjunction with Bhima Singh and Ganga Sahai, the heirs and representatives of Debi Din (who had died in the meantime). Bahadur Singh died during the pendency of the suit, and his widow, Lachman Koer, was brought on the record in his place. On November 21, 1891, the usual mortgage decree under s. 88 of the Transfer of Property Act (IV. of 1882) was made by the Court. This was followed on April 27, 1893, by the final decree under s. 89 of the Act. It appears from the record that Lachman Koer died in 1894. On December 20, 1897, Ganga Sahai applied for execu tion of the mortgage decree against the heir and representative of the mortgagor. In his application he expressly reserves the rights of Lachman Koers heirs. The passage in question is important in view of the contention now raised by him. He states " Bhaman Singh, another decree-holder, has died a natural death. His sons, Mauji Ram and Raj Kunwar, are his heirs ; but they do not join in the application, hence, under s. 231 of the Code of Civil Procedure, this decree-holder alone makes this application, and prays that the decree may be executed subject to the rights of the heirs of Musammat Lachhman Kunwar and Bhaman Singh." Bhaman Singh is evidently the same person as Bhima Singh. The mortgaged properties were accordingly put up to sale on February 20, 1899, and purchased by Ganga Sahai. The mortgaged properties were accordingly put up to sale on February 20, 1899, and purchased by Ganga Sahai. The sale appears to have been duly confirmed, and two sale certificates were issued to him in respect of Tahsipur and Bilaspur respectively, and he is admittedly now in possession of the properties. The two sets of plaintiffs, as already stated, claim to be the heirs of Bahadur Singh adversely to each other; but as against the appellant Ganga Sahai they seek identical relief. They say that the purchase by Ganga Sahai of the properties in question was not exclusively for himself, but for the benefit of the heirs and representatives of both mortgagees. The Courts in India have upheld their contention. Ganga Sahai has appealed to this Board and takes his stand on the first clause of s. 317 of the Civil Procedure Code of 1882, which was in force when the sale took place. That clause provides as follows " No suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf of any other person, or on behalf of some one through whom such other person claims." In their Lordships opinion the provisions of that section have no application to the present case. They were designed to create some check on the practice of making what are called benami purchases at execution sales for the benefit of judgment debtors, and in no way affect the title of persons otherwise beneficially interested in the purchase. An example of this will be found in the case of Bodh Singh Doodhooria v. Gunesh Chundar Sen (( 1873) 12 Beng. L. R. 317.), decided by this Board in 1873. The Courts in India were perfectly right in refusing to allow Ganga Sahai to perpetrate a fraud against his co-decree-holders under cover of this section. His application for execution was under s. 231 of the Code, and it was made subject to their rights. Had he not even embodied this reservation in his petition, the Court executing the decree would have of its own motion protected the interests of the other decree-holders. Their Lordships agree with the Courts in India that the heirs and representatives of Bahadur Singh are entitled to recover from Ganga Sahai a one-third share of the properties purchased by him in execution of the joint mortgage decree. Their Lordships agree with the Courts in India that the heirs and representatives of Bahadur Singh are entitled to recover from Ganga Sahai a one-third share of the properties purchased by him in execution of the joint mortgage decree. The question then arises who among the two sets of plaintiffs are entitled to the inheritance of Bahadur Singh. At the time of his widows death in 1894, when the succession passed to the collaterals, Rajaram, his uncle by the half-blood, was alive; and he claimed the properties in preference to Kalka Pershad and Jian Lal, the sons of a full paternal uncle named Gunga Pershad. Rajaram has since died and is now represented by his sons and grandsons who are plaintiffs in one of the suits and respondents before this Board. Jian Lal has also died, and his son, Munshi Lal, now stands in his place. Kalka Pershad and Munshi Lal were the plaintiffs in the second suit, and they claimed in opposition to Rajaram to be the heirs of Bahadur Singh by virtue of their relationship to him being of the whole blood. As the question of heirship was involved in all the three suits they appear to have been tried together; and the Court of first instance held in favour of Jian Lal and Kalka Pershad mainly on the authority of a decision of the Allahabad High Court, which it considered had settled the rule of succession in favour of the heirs related by the whole blood. The District Judge affirmed this decree. On appeal, however, to the High Court, the learned judges explained that in their judgment in Suba Singh v. Sarfaraz Kunwar (I. L. R. 19 Allah. 213.), on which the lower Courts had relied, they had Laid down no such principle as had been inferred ; what they meant to decide was simply this, that under the Mitakshara the distinction of whole blood was not confined to the brother and his sons, but extends further. And on an examination of the doctrines of the Mitakshara, they held in effect that this preference of the whole blood to the half-blood applied to sapindas of the same degree of descent from the common ancestor, and did not apply to persons of different degrees. And on an examination of the doctrines of the Mitakshara, they held in effect that this preference of the whole blood to the half-blood applied to sapindas of the same degree of descent from the common ancestor, and did not apply to persons of different degrees. They were accordingly of opinion that Rajaram being paternal uncle of the half-blood was entitled preferentially to the inheritance of Bahadur Singh to the exclusion of his cousins, although they were the sons of an uncle of the whole blood. They accordingly dismissed the claim of Munshi Lal and Kalka Pershad in their suit against Ganga Sahai and others, as also the claim of Kalka Pershad in his suit against Chunni Lal. They at the same time decreed the claim of Rajarams representatives against Ganga Sahai. Munshi Lal and the> representatives of Kalka Pershad, who died during the pendency of the suit, have appealed to His Majesty in Council from these decrees of the High Court dismissing their claim; and the main contention advanced on their behalf is that, although the Mitakshara expressly provides for the succession of the half-brother in preference to nephews of the whole blood, there is no such provision in respect of uncles; and further that as it provides for the succession of the grandmother on failure of the father and his descendants, it must follow that by the words "the uncles and their sons " Vijnaneswara meant that uncles of the whole blood and their sons should succeed in preference to the issue of another wife of the paternal grandfather. This argument, in their Lordships opinion, would apply with equal force to the case of half-brothers and the sons of brothers of the whole blood. But it is conceded that the author of the Mitakshara has expressly declared that brothers of the half-blood come before nephews of the whole blood, and in principle they see no reason to differentiate between the brothers of the propositus and the brothers of his father. Having regard to the general scheme of the Mitakshara, their Lordships think that the preference of the whole blood to the half-blood is confined to members of the same class, or, to use the language of the judges of the High Court in Suba Singh v. Sarfaraz Kunwar (I. L. R. 19 Allah. Having regard to the general scheme of the Mitakshara, their Lordships think that the preference of the whole blood to the half-blood is confined to members of the same class, or, to use the language of the judges of the High Court in Suba Singh v. Sarfaraz Kunwar (I. L. R. 19 Allah. 215.), to " sapindas of the same degrees of descent from the common ancestor," and that, therefore, on the death of Lachman Koer, Rajaram as uncle of the half-blood became entitled to the inheritance of Bahadur Singh to the exclusion of his cousins. In the result all the appeals will be dismissed. Kesri and the respondents joined with him will have all their costs from the appellant Ganga Sahai. There will be no order as to costs with regard to the other parties. And their Lordships will humbly advise His Majesty accordingly.