Judgement Appeal from a judgment and decree of the High Court at Patna (August 7, 1916) affirming a judgment of the Subordinate Judge (Third Court) of Patna. The suit was instituted by the respondent against the appellant and others for possession of a mauza with mesne profits. The facts appear from the judgment of the Judicial Committee. The question for determination was whether one Hanuman, from whom the plaintiff-respondent derived title, was entitled upon the death of the widow of Dhanukdhari Misra to succeed to his property, there being alive at the date of the widows death one Rajendra. The family was governed by the Mitakshara school of Hindu law. Hanuman was Dhanukdharis mothers paternal aunts son ; Rajendra was Dhanukdharis mothers sisters grandson. The defendant-appellant alleged that Jagdeo, Rajendras paternal uncle, and therefore a degree nearer to Dhanukdhari than Rajendra, was also alive at the widows death, but he failed to establish that fact. The Subordinate Judge made a decree declaring the plaintiffs title and ordering that he should recover possession upon discharging a usufructuary mortgage granted to the appellant by Dhanukdharis widow. Upon appeal the High Court affirmed the decree. Chamier C.J., upon an examination of the evidence, agreed with the trial judge in finding that Jagdeo did not survive the widow of Dhanukdhari, and stated that both sides agreed that Rajendra was still alive. The Chief Justice referred to the text of Mitakshara, ch. II., s. 6 (1.) and (2.), and to the authorities with regard to the order of succession of bandhus in a Mitakshara family, and said ." There is thus an extraordinary diversity of judicial and other opinion on the meaning and application of the text of the Mitakshara quoted above. 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 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." He then referred to a passage in the judgment of the Judicial Committee in Buddha Singh v. Laltu Singh (L. R. 42 I. A. 208, 227.), in which it was laid down that it was clear that under the Mitakshara whilst the right of inheritance arises from sapinda relationship or community of blood, yet in judging of the nearness of blood relationship or propinquity among the gotraja, the test to be applied is the capacity of offer oblations, and said " These remarks were made in the case of a dispute between agnates but they seem to apply as well to the case of bandhus. 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. It appears to me that Hanuman was according to the Hindu law a nearer sapinda of the deceased Dhanukdhari than Rajendra is, 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." Jwala Prasad J. delivered judgment to the same effect. 1920. Nov. 15, 16. Dube for the appellant. The suit was for possession, and the onus was upon the respondent to prove that Hanuman through whom he claimed was entitled to succeed. The finding of the Courts in India that Jagdeo was not alive when Dhanukdharis widow died was erroneous, since it appears from the evidence that he was a witness in a suit tried after that event. The suit was for possession, and the onus was upon the respondent to prove that Hanuman through whom he claimed was entitled to succeed. The finding of the Courts in India that Jagdeo was not alive when Dhanukdharis widow died was erroneous, since it appears from the evidence that he was a witness in a suit tried after that event. If he survived he was clearly entitled to succeed in preference to Hanuman. But in any case Rajendra was so entitled. Rajendra was an atma bandhu according to the Mitakshara, ch. II., s. 6 (i.), since he was a sapinda related to the propositus himself. The son of the mothers sister is expressly mentioned among the examples of atma bandhus, and the Board held in Buddha Singh v. Laltu Singh (L. R. 42 I. A. 208.) that " son " is used in the text in a generic sense and includes grandson. In Bai Vilji v. Bai Prabhalakshmi (( 1907) 9 Bom. L. R. 1129.) the Bombay High Court expressly held that a mothers sisters grandson was an atma bandhu, and the same principle was applied by the Madras High Court in Krishna Ayyangar v. Venkatarama Ayyangar (( 1905) I. L. R. 29 M. 115.), in which it was held that a fathers sisters daughters son came before a paternal grandfathers sisters son. Rajendra being within five degrees from the common male ancestor, and he and Dhanukdhari being mutually sapindas, was a heritable bandhu Ramchandra Martand Waikar v. Vinayak Venkatish Kothekar. (( 1915) L. R. 41 I. A. 290.) The effect of the Mitakshara, ch. II., s.6 (ii.), is that the three classes named have to be exhausted in their order. That view was conclusively adopted by the Board in Muthuswami v. Sunabedu Muthukumaraswami. (( 1896) L. R. 23 I. A. 83.) The judgment of the Madras High Court (( 1892) I. L. R. 16 M. 23, 30.) there affirmed expressly laid down among four rules that the three classes succeeded one another in the order in which they were named, and that the consideration of spiritual benefit arose only as between bandhus of the same class. The High Court in the present case relied upon Dr. Bhattacharyas Hindu Law, 2nd ed., p. 445 ; but the table of succession adopted by that work is in some cases inconsistent with the express text of the Mitakshara. The High Court in the present case relied upon Dr. Bhattacharyas Hindu Law, 2nd ed., p. 445 ; but the table of succession adopted by that work is in some cases inconsistent with the express text of the Mitakshara. The work was relied on in Chamanlal v. Ganesh Motichand (( 1904) I. L. R. 28 B. 453, 457.), but the authors view was not adopted. The passage in Buddha Singh v. Laltu Singh (L. R. 42 I. A. 208, 227.) relied on in the judgment appealed from has no application; it was directed merely to the question of the test to be applied to discover the preferential heir amongst those equally entitled on the ground of blood-relationship ; it merely affirmed the view expressed in Muthuswami v. Sunabedu Muthukumaraswami (( 1892) I. L. R. 16 M. 23, 30.) that in those circumstances preference is given according to efficacy of offerings. The decision now under appeal was considered by a Full Bench of the Patna High Court in Uma-shankar Prasad Parasari v. Nageswari Koeri (( 1918) 3 Patna L. J. 663.) ; in that case both the claimants were atma bandhus, and the decision is therefore not relevant. Hanuman was not a less number of degrees from the proposition than Rajendra. [Reference was also made to Appandai Vathiyar v. Bagubalai(( 1910) I. L. R. 33 M. 439.) and Balusami Pandithar v. Narayana Rau. (( 1897) I. L. R. 20 M. 342, 347, 348.)] The respondent did not appear. 1921. Jan. 18. The judgment of their Lordships was delivered by SIR JOHN EDGE. The suit in which this appeal has arisen was brought on April 22, 1911, by Mahabir Prasad Tiwari, who is the respondent to this appeal, against Adit Narayan Singh, who is the appellant here, and others, who were not necessary parties. It is a suit for the possession of mauza Bariapur, in the District of Patna. The mauza is in the possession of te defendant appellant under a usufructuary mortgage for Rs. 200 which was granted to him on September 1, 1902, by Monakka Kuar, the widow of Dhanukdhari, who was a separated Hindu of a family governed by the law of the Mitakshara, and at his death was proprietor of the mauza. He died about 1866 without issue. His widow, Monakka Kuar, died on September 13, 1902. 200 which was granted to him on September 1, 1902, by Monakka Kuar, the widow of Dhanukdhari, who was a separated Hindu of a family governed by the law of the Mitakshara, and at his death was proprietor of the mauza. He died about 1866 without issue. His widow, Monakka Kuar, died on September 13, 1902. She had power as a Hindu widow to grant the usufructuary mortgage. The heir of Dhanukdhari at his death or his successor in title was when this suit was brought entitled to possession of the mauza on payment to the defendant appellant of the Rs. 200 mortgage money. The plaintiff on September 1, 1908, purchased such right, title and interest as Devaki Nandan Tiwari and his brothers had in the mauza. They were the sons of Hanuman, who was living when Monakka Kuar died, but had died before the purchase. The question of title on which this suit depends is whether Hanuman was at the time when Monakka Kuar died, the heir of her deceased husband Dhanukdhari. If Hanuman was not then the heir of Dhanukdhari, no title to the mauza passed to the plaintiff by the purchase from his sons, and it is established in this suit that the plaintiff had no other title. As the defendant appellant was in possession it was for the plaintiff to prove a title to the possession of the mauza. The case for the defendant appellant was that on the death of Monakka Kuar, the heir of Dhanukdhari was not Hanuman, and was either Jagdeo or Rajendra. The following short pedigree will show the relationship of Dhanukdhari, Jagdeo, Rajendra and Hanuman to each other. “X” the ancestor | || Ghanu Misra Daughter | | | | 1st daughter 2nd daughter 3rd daughter Hanuman | | | | | Dhanukdhari Harihar Jagdeo sons ; vendors to (Died before the plaintiff Sept. 1902) | Rajendra The trial judge considered that it was not proved that Jagdeo was living when Monakka Kuar died. It was for the plaintiff to prove that Jagdeo had died in the lifetime of Monakka Kuar. The High Court found that Jagdeo had died before Monakka Kuar. Having regard to these findings, their Lordships assume that Jagdeo had died before Monakka Kuar. The pedigree shows that Rajendra is the mothers sisters grandson of Dhanukdhari, and that Hanuman was Dhanukdharis mothers paternal aunts son. The High Court found that Jagdeo had died before Monakka Kuar. Having regard to these findings, their Lordships assume that Jagdeo had died before Monakka Kuar. The pedigree shows that Rajendra is the mothers sisters grandson of Dhanukdhari, and that Hanuman was Dhanukdharis mothers paternal aunts son. Rajendra and Hanuman were bhinna gotra sapindas, bandhus, of Dhanukdhari. The trial judge found that Hanuman was on the death of Monakka Kuar the heir of Dhanukdhari, and made a decree in favour of the plaintiff for possession of the mauza on pay ment to the defendant appellant of the Rs. 200 mortgage money. From that decree the defendant appellant appealed to the High Court at Patna. The High Court in its view of the law of the Mitakshara came to the conclusion that on the death of Monakka Kuar the heir of Dhanukdhari was Hanuman, and was not Rajendra, and by its decree dismissed the appeal. From that decree of the High Court this appeal has been brought. There has been much discussion and much divergence of opinion in India as to how the right of succession amongst bandhus subject to the law of the Mitakshara is to be ascertained ; the subject was by no means an easy one, but their Lordships consider that it has now to a large extent been settled by decisions of the Board. According to the text of Manu, which is the foundation of the rules of inheritance of the Hindus, " the property of a near sapinda shall be that of a near sapinda." Vijnyaneswara in his commentary, which is known as the Mitakshara, in giving the rules for the succession of cognate kindred, bandhus, in ch. II., s. 6, as translated by Colebrooke, said " 1.—On failure of gentilas (gotrajas) the cognates (bandhus) are heirs. Cognates (bandhus) are of three kinds ; related to the person himself (atma bandhu), to his father (pitri bandhu), or to his mother (matri bandhu), as is declared by the following text The sons of his own fathers sister, the sons of his own mothers sister, and the sons of his own maternal uncle must be considered as his own cognate kindred (atma bandhus). The sons of his fathers paternal aunt, the sons of his fathers maternal aunt, and the sons of his fathers maternal uncle must be deemed his fathers cognate kindred (pitri bandhus). The sons of his fathers paternal aunt, the sons of his fathers maternal aunt, and the sons of his fathers maternal uncle must be deemed his fathers cognate kindred (pitri bandhus). The sons of his mothers paternal aunt, the sons of his mothers maternal aunt, and the sons of his mothers maternal uncles must be reckoned his mothers cognate kindred (matri bandhus). 2.—Here by reason of near affinity the cognate kindred of the deceased himself (his atma bandhus) are his successors in the first instance ; on failure of them, his fathers cognate kindred (pitri bandhus) ; or if there be none, his mothers cognate kindred (matri bandhus). This must be the order of succession here intended." With reference to these texts from the Mitakshara which are above quoted, the Board in Muthuswami v. Sunabedu Muthukumaraswami (L. R. 23 I. A. 83.) held that "To whatever extent rules of succession may have been founded on religious observances, or may now be explained by them, it is clear that fixed rules of law for succession have been established for ages, and equally clear that the Mitakshara professes to express such rules in the quoted text. Taking it to mean what it says, the question is whether its omission to mention a maternal uncle signifies that he is excluded from the first class of bandhus, or whether the writer is not rather classifying by sample without attempting to specify every member of each class. " Their Lordships are of opinion that even if the quoted text" (s. 6 of ch. II.) " stood alone, the only admissible construction would be the latter one; for no rational ground can be assigned for excluding the maternal uncle of the deceased while his more remotely allied sons are admitted to succeed. But in fact the text does not stand alone, and whatever difficulty might at one time have been felt in applying it has now been removed by judicial decision. " In the case of Gridhari Lall Roy v. Bengal Government (12 Moo. I. A. 448.), the person claiming to be heir was the maternal uncle of the deceaseds father. The High Court of Calcutta decided against his claim on the ground that he was omitted from the quoted text. " In the case of Gridhari Lall Roy v. Bengal Government (12 Moo. I. A. 448.), the person claiming to be heir was the maternal uncle of the deceaseds father. The High Court of Calcutta decided against his claim on the ground that he was omitted from the quoted text. On appeal, this Board referred to a passage in the Mitakshara which is not translated by Colebrooke, but which was translated and used for the purpose of that suit. In that passage, which deals with the property of a trader dying abroad, his maternal uncle is included among bandhus capable of succeeding though the order of succession is not there stated. The Board also referred to a passage of the Viromitrodaya as a work of high authority at Benares and properly receivable to explain things left doubtful by the Mitakshara. That passage states that maternal uncles are to be comprehended in the quoted text; noting how objectionable it would be to exclude them while admitting their sons. This Board held that a grand-uncle fell within the same reasoning, and upheld the plaintiffs title." Having regard to this decision it appears to be clear that in families governed by the law of the Mitakshara the right of succession amongst the three classes of bandhus mentioned in the text is governed by the propinquity of the class ; and accordingly that a pitri bandhu does not succeed until the class of atma bandhus is exhausted, and a matri bandhu does not succeed until the classes of atma bandhus and pitri bandhus are exhausted. In the present case Hanuman was a matri bandhu, the son of a mothers paternal aunt being expressly included in that class. Harihar, as a son of a mothers sister, was an atma bandhu ; and the question to be determined is whether his son Rajendra was also included in that class. In their Lordships opinion he was. In the present case Hanuman was a matri bandhu, the son of a mothers paternal aunt being expressly included in that class. Harihar, as a son of a mothers sister, was an atma bandhu ; and the question to be determined is whether his son Rajendra was also included in that class. In their Lordships opinion he was. The word " sons " in a similar context has been construed in a generic sense and has been held to include a grandson Buddha Singh v. Laltu Singh (L. R. 42 I. A. 208.) ; and in any case the grandson of a mothers sister falls within the general description of an atma bandhu, a person related to the propositus himself, and is not to be excluded only because he is not mentioned among the illustrations in the text of the Mitakshara. A similar view was taken in Krishna Ayyangar v. Venkatarama Ayyangar (I. L. R. 29 M. 115.), where a fathers sisters daughters son was held to be an atma bandhu and to have priority over the paternal grand-fathers sisters son, and in Bai Vilji v. Bai Prabhalakshmi (9 Bom. L. R. 1129.), where a mothers sisters grandson was preferred to the paternal grandfathers sisters sons daughter. The learned judges of the High Court appear to have been influenced in arriving at their decision of the appeal to their Court in this suit by opinions which they expressed in their judgments to the effect that Hanuman could have made efficacious offerings to the maternal great-grandfather and the maternal great-great-grandfather of Dhanukdhari and that Rajendra could make no offerings to any ancestor of Dhanukdhari. It is not necessary for the decision of this appeal that their Lordships should express any opinion as to the right, if any, of Hanuman and Rajendra respectively to make efficacious offerings to any ancestor of Dhanukdhari, as Rajendra is of the class of atma bandhu and Hanuman was of the class of matri bandhu and the rule of succession as between them is the rule of the Mitakshara which has been cited above. That rule, in preferring the nearer to the more remote class of bandhus, is not dependent on individual propinquity or on the efficacy of offerings to a deceased person. That rule, in preferring the nearer to the more remote class of bandhus, is not dependent on individual propinquity or on the efficacy of offerings to a deceased person. Of course a bandhu must, in order to be heritable in a female line, fall within the fifth degree from the common male ancestor and must be so related to the deceased person that they were mutually sapindas of one another, that is to say, where the Mitakshara applies, persons connected by particles of one body see Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar (L. R. 41 I. A. 290.) ; but if these conditions are satisfied that rule takes effect. What the rule of succession under the Mitakshara may be as between bandhus of the same class it is not necessary to decide. In this case Rajendra is an atma bandhu, and is within the fifth degree of descent from Ghanu Misra. Rajendra and Dhanukdhari were mutually sapindas of each other, within the meaning of that term as used in the preceding paragraph, and Rajendra was the heir of Dhanukdhari on the death of Monakka Kuar. Hanuman was a matri bandhu and consequently was not entitled as heir on the death of Monakka Kuar as Rajendra was then living. Their Lordships will humbly advise His Majesty that this appeal should be allowed with costs, and that the decrees of the Courts below should be set aside and the suit dismissed with costs.