Judgement JUDGMENT :- This second appeal raises an interesting question in the Hindu law of inheritance, I should say pristine Hindu law. The suit is one for declaration of the plaintiff's title to the suit properties as the sole heir of one Athiadiyan and for recovery of possession of the same from the defendants. The appellants are defendants 3 and 4 and the legal representatives of deceased defendants 1 and 2. There were various defences to the action but now in second appeal they have crystallised into a question of law. The parties are governed by the Mitakshara system of Hindu law and the pedigree hereunder (Females underlined) gives the relationship of the parties. The suit properties had belonged to Neelan the common ancestor of Athiadiyan the propositus and the plaintiff. After Neelan, one half of the property was taken by Chinna Kannu, the father of the propositus and the other half by the plaintiffs maternal great grandfather. The suit is in respect of the half share that had devolved to Chinna Kannu. Chinna Kannu died leaving surviving the propositus his only son Adiadayan, and his widow Arumugha Valli. The suit properties devolved on Adiadiyan and when he died leaving his surviving widow Chinnal and daughter Ananthammal, the properties devolved on his widow Chinnal. After Chinnal's death the daughter of Adiadiyan, Ananthammal inherited the properties. She died in 1929, issueless, and the properties were inherited by Arumugha Valli as the mother of the propositus. Arumugha Valli died sometime later. The widow Chinnal, daughter Ananthammal and the mother Arumugha Valli had only a Hindu women's estate in the properties and succession has now to be traced to the suit properties from Adiadiyan. Admittedly there is no Gotharaja Sapinda and the plaintiff who is the father's father's son's son's daughter's son, claims the properties as a bandhu of the propositus. He is ranked 27 in the table or succession among Atmabandhus found in Mullah's Hindu Law, 13th Edn. In Mayne's table of Bandhu succession as the paternal uncle's son's daughter's son he ranks as the 33rd, the maternal uncle's son's son taking the 27th place in Mullah's table. The competing claimants defendants 1 to 4 are the second husband's sons of the mother of the propositus. Arumugha Valli, the mother of the propositus on the death of her husband took Previ Perumal as her second husband and the defendants are his sons. The competing claimants defendants 1 to 4 are the second husband's sons of the mother of the propositus. Arumugha Valli, the mother of the propositus on the death of her husband took Previ Perumal as her second husband and the defendants are his sons. 2. Neither the factum of second marriage nor its validity is now in question. Defendants 1 to 4 contend that as the sons of the mother of the propositus, they are his nearest heirs. As descendants of the mother, sons born to her in lawful wedlock, it is contended that the primary test or Mitakshara succession propinquity in blood is most satisfied. Learned counsel for the appellants, Sri C. S. Swaminatha Iyer, submits that the fact the propositus and defendants 1 to 4 are sons by different fathers can be no bar to Bandhu succession and it would be a mockery of Hindu law to say that the mother's sister's son can succeed and not the mother's own sons by a different father where there is no illegitimacy. It is urged that unless it be held that on remarriage, the mother ceases to be and naver to have been the mother of the propositus, logic and reasoning and the text of Hindu law placing propinquity of blood that is kinship, the primary test of Bandhu succession require the recognition of the claim of the appellants. The contention of Sri Chellaswami, learned counsel for the respondent is that there is not a single case of succession to the first husband's son of a woman by her second husband's son or vice versa. It is submitted that recognition of heritable relationship between sons of different husbands would be opposed to the basic principles of Hindu law of Inheritance. Sri Chellasami's argument is that Section 2 of the Hindu Widows' Remarriage Act, Act 15 of 1856, providing for forfeiture by a widow who remarries of all rights and interests which she may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors is itself a clear indication on remarriage there is a complete cessation of all relationship to the agnatic family of her husband. And so, it is said, that it must follow that her son by the second husband cannot seek any heritable relationship through her with the son by her first husband. 3. And so, it is said, that it must follow that her son by the second husband cannot seek any heritable relationship through her with the son by her first husband. 3. It is rather surprising that though more than century has elapsed since remarriage of widows was validated by law, and all through custom had permitted remarriage among certain sections, there is no decided case directly on a problem like the one under consideration. The effect of Act 15 of 1956 is to legalise the marriage of Hindu widows and Section 1 says :- "No marriage contracted between Hindus shall be invalid and the issue of no such marriage shall be illegitimate, by reason of the woman having been previously married." So the second husband's sons are as legitimate as the sons by the first husband. As regards the consequences of such marriage with reference to her rights to and interests in property Sections 2 and 5 must be read together. A combined reading of the two sections shows that the forfeiture of property by a widow on remarriage is confined to the category of cases detailed in Section 2. Section 5 provides, that except as provided in the preceding sections, a widow shall not, by reason of her remarriage, forfeit any property, or any right to which she would otherwise be entitled; and every widow who has remarried shall have the same rights of inheritance as she would have had, had such marriage been her first marriage. The contention for the plaintiff that for all purposes on remarriage with reference to the members of the first husband's family she must be deemed to be civilly dead overlooks that the fiction of her civil death on remarriage is only in relation to the rights and property which she forfeits under Section 2 and not beyond. A fiction has to be limited to its purpose and cannot be extended. And civil death by itself even as natural death does not put an end to blood relationship. Law has to say so, if it so intends. The mother does not cease to be the mother of her children by reason of her second marriage and the mother's father and mother's mother would continue to be the maternal grandfather and grandmother of her issue by her first husband. 4. Law has to say so, if it so intends. The mother does not cease to be the mother of her children by reason of her second marriage and the mother's father and mother's mother would continue to be the maternal grandfather and grandmother of her issue by her first husband. 4. The contention of Sri Chellaswami is that male issue of a woman by different fathers even though her marriage with the fathers may be valid are not brothers as understood in Hindu law. That is so. Wherever brother and half brother are referred to in Hindu law, the reference is to the male issue by the same father. When the reference is to brothers of the whole blood and brothers of half blood, the reference is to the sons of the same father by different mothers. See Mt. Sahodra v. Ram Babu, AIR 1943 PC 10; half sister does not include one who has not the same father. The same connotation is maintained under the Hindu Succession Act XXX of 1956. In Ekoba v. Kashiram Totaram, ILR 46 Bom 716 : (AIR 1922 Bom 27 (1)), the Bombay High Court decided that there is no provision in the Mitakshara or elsewhere for the sons born of the same mother after her remarriage being treated as brothers born of the same womb for the purpose of inheritance as to be included in the meaning of the word (Bharatarah) used in the tests. The sons of the same mother by a different father belong to a different family and are not the heirs referred to as "brothers". In ILR 46 Bom 716 : (AIR 1922 Bamb 27 (1)) the proppsitus was the first wife's son. The first wife had been divorced and she took a second husband. The male children of the second husband were claimants on one side. The father of the propositus had remarried and his son by the second wife was the claimant on the other side. The second husband's sons laid claim to the property of their mother's son by the first husband, as brothers and the claim was rejectsd, if I may say so, with respect rightly. 5. Having regard to the argument for the plaintiff that there can be no heritable relationship between children by different fathers it is necessary to refer to two lines of decisions. 5. Having regard to the argument for the plaintiff that there can be no heritable relationship between children by different fathers it is necessary to refer to two lines of decisions. First the mother's right of succession to her first husband's son has been recognised by our court in Lakshmana Sasamallo v. Siva Sasamallayani, (1905) ILR 28 Mad 425. Following the decision of the Full Bench of the Calcutta High Court in Akorah v. Boreanee, (1869) 11 Suth WR 82, this court upheld the right of a Hindu widow who remarries during the lifetime of her son by her first husband to succeed to the son's property on his death. Reference may also be made to the Full Bench decision of the Bombay High Court in Basappa v. Rayava, (1905) ILR 29 Bom 91 (FB) to the same effect. The mother's right to inherit depends upon propinquity to her son and the fact of her being his mother. I heard no argument that the first husband's son by reason of his mother's remarriage cannot inherit to his mother or maternal grandfather or maternal uncle. The kindred relationship in this maternal family is not destroyed even as he retains his own relationship in his father's family. It follows, the mother's property would be inherited by the sons of the first and the second husband as heirs. Both will take. Even so, sons by the first and second husband would inherit to the same maternal grandfather. The position of a son qua a maternal grandfather as his daughters son is unique in Hindu law. As pointed out in Mullah's Hindu law, 13th Edn. at page 110, he is a binnagotra sapinda or bandhu and he comes in for succession to the maternal grandfather after the daughter before parents and other more remote gotraja sapindas. This right is not taken away on remarriage of his mother. Conversely the maternal grandfather could inherit to the sons of the first and second husband of a twice married woman. 6. In the next line of decisions we shall start with the decision of this court in Mayna Bai v. Uttaram, (1864-65) 2 Mad HCR 196, on remit by the Privy Council in Myna Boyee v. Oottaram, (1859-61) 8 Moo Ind App 400 (PC). The facts of the case are to be found in (1859-61) 8 Moo Ind App 400 (PC). In the next line of decisions we shall start with the decision of this court in Mayna Bai v. Uttaram, (1864-65) 2 Mad HCR 196, on remit by the Privy Council in Myna Boyee v. Oottaram, (1859-61) 8 Moo Ind App 400 (PC). The facts of the case are to be found in (1859-61) 8 Moo Ind App 400 (PC). It is sufficient for our present purposes to point out that the dispute related to succession inter se between the illegitimate children by an English man of a Brahmin married woman, who was living apart from her husband. This court observed : - "Our reasoning, therefore, is that there is no authority against the existence of heritable blood between the woman and her illegitimate offspring. Thaukuram and his brother the two illegitimate sons by the brahmin woman are decided to be Hindus. They are the Hindu sons of a woman, who was either a woman of a class lower than the fourth of Manu's classes and in this case the sons are cognate to her and to one another of the cognation between her and her offspring there exists no "doubt whatever." Referring to Roman law, this court said :- "Ulpian points to the true distinction, and one which precisely meets the present case and is entirely in conformity with the doctrines of Hindu law. As agnation and consanguinity are the offspring of a marriage by the jus civile, no spurious son can have, them, but he is related to his own mother and to his brother by that mother". In Subramania Iyer v. Ratnavelu Chetti, ILR 41 Mad 44 : (AIR 1918 Mad 1346 (FB)), Kumaraswami Sastriar J; observed that so far as the mother is concerned, no doubt has ever been cast on the decision in (1864-65) 2 Mad HCR 196 that illegitimate brothers succeed not only to their mother but to each other. We are here having a case where there is no illegitimacy. 7. Reference is pertinent in the context of the argument of the plaintiff against recognition of right to succession by the second husband's sons, on any theory of blood relationship, based upon an argument that under the Mitakshara law, the remarriage of a widow should be regarded as concubinage, to the decision of this court in State of Madras v. Ramanatha Rao, AIR 1960 Mad 436 . In that case the illegitimate son by a concubine inherited the property from his putative father and died unmarried and issueless. The question arose whether the mother's mothers sister's sons of the propositus succeeded to the property as mathrubandhus or the property went to the State Government by escheat. The Division Bench of this court (Rajamannar C. J. and Basheer Ahmed Sayeed J.) held that the succession to the property was governed by the ordinary rule of succession under Hindu law and that the claimants were entitled to succeed to the property of the illegitimate son as mathrubandhus. This Court proceeded in the view that as between the mother and son there is no question of any illegitimate descent. It was observed- "It must be remembered that in the present case, the respondents claimed only through the mother's mother, of Jagannathan, who was no other than the sister of1 the mother, of the respondents (claimants). Though Jagannathan might have been the illegitimate son of Singaravelu, still it cannot by any means be contended that Jagannathan was not the son of Dhanabagyam (concubine). The certain factor is that Jagannathan was born to Dhanabagyam, and that being so, if Dhanabagyam could succeed to the estate left by Jagannathan as his mother, and if Dhanabagyam's properties could be succeeded to by her mother, then certainly on the death of Dhanabagyam's mother, if there are no other heirs, her sister and her children in succession will be entitled to inherit the properties of Jagannathan's mother's mother. That is how the bandhu relationship comes into existence, and this relationship is not in any way affected by the last male holder having been an illegitimate son of his putative father. Respondents' relationship is traced only through the mother of the illegitimate son and not through his father." 8. In the instant case, the second marriage is a perfectly valid marriage. The marriage carries with it all the sanctions of Hindu Law with reference to inheritance but for the exceptions statutorily provided which do not affect the matter under consideration. The second husband's children make no claim and trace no kinship or inheritance through the first husband. They are neither "half brothers" nor "stepbrothers", they are neither related as 'full blood' or as "half blood' as these expressions are understood and used in inheritance law among Hindus. Only through the common mother, relationship is established. The second husband's children make no claim and trace no kinship or inheritance through the first husband. They are neither "half brothers" nor "stepbrothers", they are neither related as 'full blood' or as "half blood' as these expressions are understood and used in inheritance law among Hindus. Only through the common mother, relationship is established. The Allahabad High Court in Jagar Nath Gir v. Sher Bahadur Singh, ILR 57 All 85 (100) : (AIR 1935 All 329 (337)) points out, that with reference to the mother the original text is that the mother (not the wife of the father) succeeds to her son. It is in the background of the foregoing discussion that the problem before us has to be considered. 9. Now under the Mitakshara law, propinquity or proximity of blood relationship is the Criterion of heirship. The principle is fundamental, that the primary test on all questions of inheritance, is propinquity in blood. As the Privy Council observed in Ramachandra Martand v. Vinayak Venkatesh, ILR 42 Cal 384 : (AIR 1914 PC 1) the Mitakshara law of succession in the quaint language of Hindu writers is rested on the community of particles of the same body. Manu's aphorism "to the nearest sapinda the inheritance next belongs" is the foundation of the Hindu Law of Inheritance. After dealing with the rights of widows, daughters and daughters sons, rights of parents and rights of brothers, to inherit to the estate of one who leaves no male issue, in the earlier Sections of Ch. II of the Mitakshara, Section V of the chapter of Vijnaneshwara's commentary takes up the succession of Gotrajas or gentiles, and Section VI deals with the bandhus, or Binnagotra sapindas. 10. The text of Yajnavalkya on which the Mitakshara Law of inheritance to one who leaves no male issue is founded, runs thus : "The wife and the daughters also, both parents, brothers likewise, and their sons, gentiles, (gotrajas), cognates (Bandhus), a pupil, and a fellow student; on failure of the first among these, the next in order is indeed heir to the estate of one, who departed for heaven, leaving no male issue. This rule extends to all persons and classes." Mitakshara, Chapter II Section I, Pr. 2.; Colebrooke - Hindu Law of Inheritance, Mitakshara. It is unnecessary to elaborate on the principles of inheritance based upon propinquity, as it is well established. This rule extends to all persons and classes." Mitakshara, Chapter II Section I, Pr. 2.; Colebrooke - Hindu Law of Inheritance, Mitakshara. It is unnecessary to elaborate on the principles of inheritance based upon propinquity, as it is well established. Blood relations under Mitakshara fall into two classes, Gotraja sapindas or gotrajas, that is sapindas belonging to the gotra of the family of the deceased and binna gotrasapindas or bandhus, that is sapindas beloging to a different gotra or family from the deceased. The classification is between agnates, persons connected with the deceased by an unbroken line of male descent or ascent and cognates that is, blood relations of the deceased through a female or females. Bandhus succeed after the gotrajas. There are some statutory heirs and certain heirs whose rank is specified in the texts. The claim here by defendants 1 to 4 is not as brothers as in the Bombay case ILR 46 Bom 716 : (AIR 1922 Bom 27 (1)). They claim by kinship through their mother, as bandhus nearer in degree of relationship to the deceased than the plaintiff. 11. The Mitakshara rule as to succession of bandhus, Ch. II Section 6 is thus rendered by Colebrooke : "1. On failure of gentiles (agnates) the cognates are heirs. 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 maternal uncle, must be considered as his own cognate kindred. The sons of his father's paternal aunt, the sons of his 'father's maternal aunt, and the sons of his father's maternal uncle must deemed to be his father's cognate kindred. The sons of his mother's paternal aunt, the sons of his mother's maternal aunt, and ,the sons of his mother's maternal uncle, must be reckoned his mother's 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 if there be none, his mother's cognate kindred. This must be understood to be the order of succession here intended". 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 if there be none, his mother's cognate kindred. This must be understood to be the order of succession here intended". The cognates related through females corresponding nearly to the Cognati of the Roman law are heirs and they are placed under three classifications, atma-bandhu, pitrubandhu and matrubandhu related to deceased himself, to his father and to his mother and the three classes take the order enumerated first the atmabandhu, then pitrubandhu and then matrubandhu. It is also now well established that beyond the classifications, atmabandhu, pitru-bandhu and matru-bandhu in para I rendered above, what follows are merely illustrative of what the three classes severally mean and the enumeration of bandhus in the text is not exhaustive. 12. The two fundamental principles of inheritance under the Mitakshara laid down by the Judicial Committee in ILR 42 Cal 384 : (AIR 1914 PC 1) are- (a) that the sapinda relationship on which the heritable right of collateral is founded ceases in the case of bhinnagotra sapindas with the fifth degree from the common ancestor, and (b) that in order to entitle a man to succeed to the inheritance of another, he must be so related to the latter that they are sapindas of each other. The Mitakshara sapinda relationship arises between two people through their being connected by particles of one body namely that of the common ancestor, from the community of blood in contradistinction to the Dayabhaga system where the capacity to confer spiritual benefit on the deceased owner is the determining factor. In one bold sweep Vijnaneswara gave for the component 'pinda' in the crucial word "sapinda" which was previously read "community in the offering of funeral oblation (pinda) another arisable meaning in Sanskrit-the body or the corporeal frame of the person, and defined sapinda relationship as arising between two persons through their being connected by particles of one body. Vijnaneswara's new orientation naturally found ready acceptance as based on human values and natural kinship and propinquity took its place as the principal factor in determining the question of succession. Vijnaneswara's new orientation naturally found ready acceptance as based on human values and natural kinship and propinquity took its place as the principal factor in determining the question of succession. Vijnaneswara followed his explanation to the word sapinda with the express injunction that wherever the word sapinda occurs in Mitakshara, it should be known as only meaning a connection with one body either immediately or by descent. See ILR 42 Cal 384 : (AIR 1914 PC 1) and Nagamma v. Lingareddi, ILR 1943 (Mad) 759 : ( AIR 1943 Mad 437 ) (FB). Mayne points out (11th Edn. page 592) that Vijnaneswara's new definition was intended not only to include bandhus or cognates but to divest the word "sapinda" of its religious meaning which it had brought with it from the sphere of religion and ritual into the sphere of law. This was in keeping with the new turn which he gave to Vyavahara or civil law by treating property and inheritance as purely secular matters. The crucial text of Yajnavalkya was specially expressed to be applicable to all persons and all classes and Vijnaneswara rested the rules of law on purely practical and rational considerations. 13. Ancient Hindu Law also recognised the second marriage of a woman to an extent. It is clear from Manu, Ch. IX, verse 191, that in those ages a woman was allowed to marry more than once. The Hindu Law givers while emphasising almost in absolute terms single husbandedness as the most approved mode of life for woman, did at the same time recognise remarriage of woman. Life's realities were not lost sight of. We have texts of Narda and Parasara contemplating second marriage by a woman in five calamities - if the husband be unheard of, or be dead, or adopt a religious order, or be impotent or become outcasted - Sircar's Hindu Law, 8th Edn. page 139. In the light of the above discussion we have necessarily to conclude that the propositus in the case, and his mother's second husband's sons the defendants are bound by recognised ties of propinquity or blood relationship. The rule of propinquity laid down by Vijnaneswara clearly makes them Binnagotra sapindas. If illegitimate sons can claim bandhu relationship to their mother and with each other, clearly legitimate sons by different fathers, are entitled to such recognition inter se. The rule of propinquity laid down by Vijnaneswara clearly makes them Binnagotra sapindas. If illegitimate sons can claim bandhu relationship to their mother and with each other, clearly legitimate sons by different fathers, are entitled to such recognition inter se. Reason, justice and the spirit of the ancient laws call for such recognition. The ancient law givers laid down the fundamental laws in language applicable for all ages and times. They do not bar the application of the laws to new set of circumstances. As the social consciousness and mores of the community changes, fresh set of facts present themselves for the application of the law. The reach of the fundamental laws cannot be cut down by absence of its application in the past to questions that present themselves in changed social conditions. 14. Guidance is not wanting in texts for the very problem now before us. I find it resolved in striking language by Nanda Panditha in his. Vaijayanti, the well known commentary on Vishnu Smrithi composed in 1622. Colebrooke refers to it as an excellent and copious work which might serve like the Mitakshara as a body or Digest of law. Dr. Jolly in his History of the Hindu Law refers to Nandapanditha's extension of the rule of succession of the half blood to sons of the same mother by different fathers. The rule is not found anywhere except in Vaijayanti. The relevant part of the text of Nandapanditha runs thus : "Where there are both uterine brothers and step brothers, the uterine brothers shall take alone in spite of the existence of a step brother. And then the sons of the same father shall take first, and the sons of the same mother afterwards, because the seed is superior (to the womb) and because the nearness determines the order (of heirs). Thus, supposing a man to have had two wives and two sons by the one wife, one son by the other wife, the mother of the two sons subsequently marries another husband, and bears another son to him, so that she has three sons. In that case, it one of the two sons by her first husband should die, his property is taken by the son of the same mother and father in the first instance. In that case, it one of the two sons by her first husband should die, his property is taken by the son of the same mother and father in the first instance. On failure of him, it is taken by the son of the same father, though he is born of a different mother, because the seed is superior (to the womb). On failure of him, it goes to the son or the same mother and of a different father." History of Hindu Law Dr. Jolly p. 208 Sanskrit text at page 287. 15. This text directly applies to the case and establishes the heritable relationship between the propositus in this case and defendants 1 to 4. ILR 46 Bom 716 : (AIR 1922 Bom 27 (1)) directly falls within the rule. 16. This rule of Nandapanditha is referred to with approval in viswanatha Mudali v. Doraiswami Mudali ILR 48 Mad 944 : (AIR 1926 Mad 289), where the question was the right of the legitimate descendants of two sons of a Hindu dancing woman to succeed to each other. The right was recognised following (1859-61) 8 Moo Ind App 400 (PC). In the course of the discussion at page 954 it is observed :- "The sons of a mother though by different fathers were considered to have heritable blood between them for Nandapanditha gives the order of precedence among brothers and sisters of whole blood and half blood thus : 1. Brothers of the whole blood; 2. Sisters of the whole blood; 3. Sons of the same father and 4. Sons of the same mother the existence of heritable blood between the sons of the same mother by different fathers cannot therefore be through the father and is attributable only to their being sons of the same mother." The right of the defendants to be classed as bandhus of the propositus thus being established, the next question is between the plaintiff and the defendants who is to be preferred. Both of them are Atmabandhus of the propositus, the defendants through the mother and the plaintiff through the father. But preference accorded to the mother in the matter of inheritance is not extended to bandhus on her side of the family. Both of them are Atmabandhus of the propositus, the defendants through the mother and the plaintiff through the father. But preference accorded to the mother in the matter of inheritance is not extended to bandhus on her side of the family. At one time among the bandhus of the same class bandhus ex parte paterna (on the father's side) were given preference before bandhus ex parte materna (on the mother's side). In Vedachala Mudaliar v. Subramania Mudaliar, ILR 44 Mad 753 : (AIR 1922 PC 33), the Judicial Committee disapproved the application of the rule in cases where a different result would follow by reason of nearness in degree or superior spiritual efficacy. In that case the competing claimants were the maternal uncle and the father's sister's son's son both atmabandhus. The Judicial Committee reversed the decision of this court which preferred the father's sister's grandson, he being ex parte paterna. They upheld the preferential claim of the maternal uncle. In Nucherla Chengiah v. Subbaraya Aiyar 58 Mad LJ 562 : (AIR 1930 Mad 555), Venkatasubba Rao, J., after referring to ILR 44 Mad 753 : (AIR 1922 PC 33), observed that only if the two claimants are of the same degree, then and then alone, other considerations may arise, one of such being the question of efficacy of oblations. To similar effect are the observations of Madhavan Nair J., in his separate judgment. In that case the competing claimants were both Matrubandhus, being the mother's father's sister's son's son and mother's father's brother's grandson's son, the former being nearer in degree to the propositus than the latter. This court upheld the claim of the former as nearer in degree holding that the spiritual benefit which can be conferred by a bandhu upon the propositus can be used as a test for his preference as heir only when he and the competing bandhu who belongs to the same class of bandhus as Atmabandhus, Pitrubandhus or Matrubandhus are equal in degree and not when the competing bandhu is nearer in degree to the propositus. 17. 17. In Jatindranath Roy v. Nagendranath Roy, ILR 59 Cal 576 : (AIR 1931 PC 268), where the competing claimants were in equal degree of propinquity to the propositus, it was held that as the spiritual benefit conferred upon the propositus by offerings is a measure of propinquity to him, that ground was surer and more in accordance with previous rulings, than a preference to those claiming ex parte paterna. Where the degree of blood relationship furnishes no certain guide, the conferring of spiritual benefit through funeral oblations comes in as a measure of propinquity. In Navaneethakrishna Marudappa Thever v. The Collector of Tinnevelly, 69 Mad LJ 632 : (AIR 1935 Mad 1017) (Ramesam and Stone JJ.) which was affirmed by the Privy Council in Balasubramania v. Subbaya, ILR (1938) Mad 551 : (AIR 1938 PC 34), Stone J. summed up the following three rules as flowing from ILR 59 Cal 576 : (AIR 1931 PC 268), for determining who is entitled to succeed where the claimants are all atmabandhus : 1. The primary test is propinquity in blood; if that fails, then : 2. He comes first whose oblations are more spiritually efficacious; if that fails then : 3. Those ex parte paterna are to be preferred to those ex parte materna. The competing claimants were the maternal uncle and the father's sister's son, both atmabandhus, the former being nearer in degree than the latter to the last male holder. Both were descendants from ancestors of equal degree. . The maternal uncle as the one nearer in degree was preferred. The Privy Council here once again affirmed that under the general scheme of the Mitakshara only when the test of proximity failed, that of religions efficacy came in. Applying the tests, here the rival claimants are both atmabandhus of the propositus and the defendants are nearer in degree than the plaintiff. As the test of propinquity unmistakably shows the preferential heir, questions of religious efficacy and preference of one ex parte paterna do not arise. The plaintiff is four degrees removed from the common ancestor of the propositus in the paternal line, while the defendants are of equal degree with the propositus in the maternal line, sons of the same mother and have the same maternal grandfather. 18. The judgments and decrees of the courts below are therefore set aside and the suit dismissed with costs. 18. The judgments and decrees of the courts below are therefore set aside and the suit dismissed with costs. The second appeal succeeds. The parties will bear their respective costs in this court and in the lower appellate court. No leave. Appeal allowed.