P L D 1967 Dacca 745 (PLP)

It would be noted that the decision as reported in 38 C W N 98, is a decision of 1932 and was a case of succession as an heir to the stridhan property of a woman and it was held that sister's son's son was no heir. There is no reference in this decision to the earlier decision as reported in I L R 58 Cal. 1392 which is a decision of 1931 nor is thereby reference to I L R 35 Cal. 721 which is a decision of 1908. So far as the decision is 30 C W N 357 goes, this is a decision of 1926 and there is no reference therein to the decision of 1908 as reported in I L R 35 Cal.

721. Suffice to state at this stage that the aforesaid two decisions reported in 38 C W N 98 and 30 C W N 357 do not seem to be well founded and have little reference or reliance upon the Hindu text. It appears from section 43 at page 46 of Mulla's Principle of Hindu Law, 10th Edition that under the Mitakshara School, sister's son was introduced as heir in 1929 by the Hindu Law of Inheritance (Amendment) Act 2 of 1929 and before that Act he ranked as a Bandhu only. Mr. Abul Quasem Bhuiya has argued that even sister's son having been included only by statute there was no room for inclusion of sister's son's son in the category of heirs even under the Mitakshara. But it appears that under section 46 at page 49 Mulla gives a list of Bandhus wherein sister's son's son has been included. Mr. Sen's argument is that the appellants will come in as Bandhus, there being no conflict between the two schools on the point of heirship. His argument is based on the principle that spiritual benefit is not always the guiding principle of inheritance. Section 79 of Mulla's Hindu Law is as under: "Spiritual benefit the governing doctrine‑succession according to the Bengal School is governed by the capacity for conferring spiritual benefit (a). Spiritual benefit, however, is not always the guiding principle of inheritance and in cases not contemplated by the Dayabhaga, the doctrine of propinquity as propounded in the Mitakshara may be applied." This shows that even according to Mulla, spiritual benefit is not the sole text. Coming to Golap Shastri's Treatise on Hindu Law reference may be made to pages 37 and 38 thereof in which it has been expressed as under:‑ "Mitakshara and Dayabhaga. The Mitakshara which is undoubtedly anterior to? the Dayabhaga is a running commentary on the Institutes of Vajnavalkaya, by Vijna?nesvara called also Vijnan‑Yogin who cites texts of other sages, and reconciles them where they seem to be inconsistent with the institutes of Yajnavalkya. This concise commentary is universally respected through out the length and breadth of India, except in Bengal where it yields to the Dayabhaga, on those points only in which they differ, but it may be consulted as an authority even in Bengal, regarding matters on which the Dayabhaga is silent. The Dayabhaga, however, is not a commen?tary on any particular Code, but professes, to be a digest of all Codes, while it maintains that the first place ought to be given to the Code of Mann. This commentary, or that portion of it which is now extent, is confined to the subject of partition or inheritance alone, whereas the Mitakshara is a commentary on all branches of law in its widest sense, professing as it does to elucidate the Institutes of Yajnavalkya. Hence the Dayabhaga is deemed as an enactment amending the Mitakshara Law in Bengal. This view follows from what is stated in the case of Collector of Madura v. Mootoo and also in Bhugwandeen Boobey's case. And in the well‑known case of Kerry Kolitan, Justice Dwarkanath Mitter after referring to a passage of the Mitakshara in a Bengal case, explains the same view, in these words,‑"It is true that there is no special discussion on this point in the Dayabhaga, but the reason of this omission is obvious. The authority of the Mitakshara, it should be remembered was at one time supreme even in Bengal, and as the author of the Dayabhaga did not intend to dispute the correctness of all the propositions laid down in that treaties, we need not be at all surprised at his silence in regard to some of them. It is for this reason that the Mitakshara is still regarded as a very high authority on all questions in respect of which there is no express conflict between it and the works prevalent in that school, as may be seen from the remarks made by the Privy Council in the case already referred to. ??????????? The Dayabhaga may also be referred to in a Mitakshara case. on points in which the latter treatise is silent; and; in fact, all the commentaries of the different schools may be consulted on points in which the treatises regarded by any school as of special authority are silent, in the absence of conflict with any doctrine maintained by that school." Reference may also be made to page 473 thereof: - Heirs under Mitakshara and Dayabhaga.‑There is no difference between the two schools as to the persons that are heirs. To the question who are heirs ? The answer A is the same in both the schools, namely, relations, agnate and cognate are heirs. But there is some difference as to the order of succession. The term gotraja in Yajnavalkaya's text. (i) according to the Mitakshara, equivalent to sagotra or a member of the same gotra with the propositus. But the Dayabhaga explains the word to include cognates desended from a member of the gotra, such as the daughter's son, the sister's son, the father's sister's son, and so forth. And the word Bandhu which, according to the Mitakshara, signifies all cognates, is restricted by the Dayabhaga to cognate relations connected through the mother, the father's mother, and so forth. Thus Jimutavahana controverts the interpretation put on the texts of Yajnavalkya (j) by the Mitakshara which postpones all cognates save and except the daughter's son to agnates comprised by the terms sapinda and samanodaka. The author of the Dayabhaga follows the analogy of the succession of the descendants of the propositus himself in working out of the order of succession among the three paternal ancestor's descendants, and introduces their great grandson in the male line and their daughter's son, just after their son's son respectively. Thus, in addition to the daughter's son of the propositus three other cognates are introduced, namely, the son of the daughter of the father, of the grandfather and of the great grandfather. And then reciprocally to these four cognate descendants of the family, four maternal relations are intended to be introduced by the author of the Dayabhaga, namely, maternal grandfather reciprocally to daughter's son, maternal uncle reciprocally to sister's son, maternal uncle's son reciprocally to father's sister's son, and said uncle's son's son reciprocally to grandfather's sister's son. It should be observed that the maternal uncle and his son, and his son's son are the maternal relations who confer the greatest amount of spiritual benefit on the three maternal ancestors of the deceased, to whom he is said to be bound to offer pindas. But nevertheless the maternal grandfather must be placed before them; for, it is through him that they are related to the deceased, and they cannot confer any spiritual benefit so long as he is alive. The mother's sister's son may also be placed here by reason of his conferring special spiritual benefit on the maternal grandfather. Subject to this modification, the author of the Dayabhaga intended to leave the order of succession such as it is according to the Mitakshara which also is respected by the Bengal School as of high authority. From a perusal of the sixth section of the XI, Chapter of the Dayabhaga it would appear that it was not the intention of the author to deal so much with the distant succession as with the changes introduced by him. He simply touches upon the distant succession in a few paragraphs 2 and 27 parenthetically, and then returns to the changes which he introduced and which appears to engross his mind. This accounts for the incompleteness of the distant succession, his deficiency being supplied by his follower Ranghunandana who is, next to him, the highest authority in Bengal. Dayabhaga order of succession misunderstood. A question arose for the consideration of the Full Bench of the Calcutta High Court, whether a brother's daughter's son or the father's brother's daughter's son is an heir at all according to the Bengal School. There was another question in that case, namely, if he is heir, what is his position in the order of succession? As regards this latter question, an erroneous admission was made before the Division Bench by the learned pleader of the opposite‑party, namely, that if they were recognised as heirs their position would be before the Sakulya relations. The Dayattattava of Ranghunandhana was not noticed that the same position is assigned by that treatise to all cognates other than the eight mentioned above, as they hold under the Mitakshara, and that therefore the position of these cognates in the order of succession is exactly the same as under the Mitakshara. Doctrine of spiritual benefit no test of heirship. At one time it was supposed that the doctrine of spiritual benefit is the key to the Hindu Law of inheritance. It is, however, now admitted on all hands that the doctrine in not recognised by the Mitakshara School also the doctrine was for the first time introduced and relied on by Jimutavahana as a corroborative argument in support of his expositions of the texts of law relating to the order of succession. It is in fact a pretext by which he fortifies his s argument in support of the changes made by him in the order of succession, by the introduction of some near and dear cognates in preference to more distant agnates; it has nothing whatever to do with the question as to who are heirs; for as to that, both the schools are at one, and give the same answer, namely, the relations are heirs. The very definition of heritage clearly implies the same thing. Propinquity, or proximity of birth, is the principle of the order of succession, according to the Mitaksbara. This is admitted also by the Bengal School, but the capacity for spiritual benefit is also taken into consideration along with it. Object of Dayabhaga and the doctrine misunderstood. According to its traditional interpretation, the Dayabhaga was all along understood to lay down a particular well‑known order of succession. And this is clear not only from the order expounded by the Dayabhaga but also from the author's express statement its object was not to lay down the so‑called principle of spiritual benefit, and to leave the order of succession uncertain and unsettled. But Justice D. N. Mitter who was ignorant of Sanskrit, and therefore, had no access to the original works on Hindu Law, put a novel construction on the Dayabhaga, which is different from and opposed to, its traditional interpretation. That eminent Judge imagined that the object of the Dayabhaga was not to lay down an order of succession, but to lay down the principle of spiritual benefit, from which the order of succession of spiritual benefit, from which the order of succession is to be worked out. That this view is inconsistent with the Dayabhaga, and therefore unworthy of acceptance, is established by the following passage in the concluding portion of the judgment delivered by him in Guru Gobind Shaha Mudal's case. "Lastly it has been urged that the precise position which the son of a paternal uncle's daughter would be entitled to hold according to the principle of spiritual benefit, would interfere with that which has been assigned by the author of the Dayabhaga to some of the heirs specified in the earlier part (sections i‑5) of Chapter XI . . . . But this circumstance, even if true, cannot be accepted as a sufficient reason to justify the total exclusion or' one single heir who is competent to satisfy all the requirements of that principle. If in any case which may arise hereafter, it should become necessary for us to determine the precise position which the son of a paternal uncle's daughter is entitled to hold in the order of succession, the question would fairly arise, namely, whether the details of a work like the Dayabhaga ought to be permitted to override the principle upon which it is admittedly based. This passage shows that the principle of spiritual benefit as explained in the above judgment, is inconsistent with and opposed to the details of the order of succession among certain heirs, worked out and expressed in the clearest possible language, by the author of the Dayabhaga himself." ??????????? The author proceeds (pp. 513 to 515). "It has, however, been asserted that the whole of Chapter XI of the Dayabhaga is nothing but a mere elaboration of the doctrine of spiritual benefit. But with the greatest deference to those that take this view, it cannot be seen how such a conclusion can be come to, on a perusal of that Chapter. The object of the author appears, beyond the shadow of a doubt, to have been to lay down a particular order of succession, and to invoke the aid of that doctrine merely to fortify his positions. That doctrine itself has nowhere been fully and completely explained nor independently dealt with; but it has only been, in a subordinate manner referred to in the course of the arguments put forward in support of his propositions. And it may very fairly be doubted whether the induction of the doctrine of spiritual benefit and the generalizations made by the Full Bench in Gurugobinda Shaha Mundal's case are correct, when these are admittedly consistent with the order of succession specified by the author of the Dayabhaga. And nothing is found in that work from which the relative amount of spiritual benefits conferred by two relations can be ascertained in a case in which there is no opinion of the author himself, reading, of course, the work in the way in which the Privy Council says it should be read, viz.? "but even if the words were more open to such a construction than they appear to be, their Lordships are of opinion that what they have to consider is not so much what inference can be drawn from the words of Catyayana's text taken by itself, as what are the conclusions which the author of the Dayabhaga has himself drawn from them"." The doctrine appears, as has already been said, to have been introduced by the author of the Dayabhaga as a mere pretext for assigning in the order of succession a higher position to some dear and near cognates who, under the Mitakshara are all postponed even to the most distant agnate relation‑a pretext similar to that under which the Praetor Urbanus of Rome recognized the heritable right of cognates. Too much appears to be made of this doctrine for the sole object of recognizing the heritable right of the remaining cognates about whose heritable right and position in the order, the author of the Dayabhaga is silent; inasmuch he intended to leave them in the same state as they were under the Mitakshara, he had nothing to say about them. As to the cognates other than those named by all the authorities of the Bengal School as heirs before the Sakulyas, their order is, no doubt, not mentioned in the Dayabhaga. But that does not show any intention to exclude them unless the enumeration of heirs in that treatise be held to be exhaustive. Two questions arise with reference to this point (1) How is their inclusion to be reconciled with their omission in the enumeration of the order? Where are they to be placed? Before proceeding to consider these questions, it ought to be mentioned that the term cognate meant to include all those that are included under the term bandhu in Yajnavalka's text and in the Mitakshara. They are divisible into those that confer spiritual benefits by offering pindas, and those that do not. The Full Bench decision in Guru Govinda Shaha Mandal's case is silent as to the second class; and the first class are held to be included in the category of heirs by the principle of spiritual benefit. Now, the term bandhu occurs in the text of Vajnavalkaya laying down the order of succession. That text has been cited by the author of the Dayabhaga as an authoritative one while opening the subject of succession, and its authority has been invoked throughout the Chapter. Maternal uncle and the like are said by the author to come under this term bandhu. But no explanation of the term has been given so as to indicate who else are included by that term. The term bandhu has been explained in the Mitakshara, a work of the highest authority in all c the schools not excepting Bengal where however it yields to the Dayabhaga, on points in which they differ. But, when the Dayabhaga is silent, the Mitakshara is to be consulted in the Bengal School as well. This has been laid down by the Privy Council at least in two cases. Hence all relations that are bandhus under the Mitakshara are also heirs in Bengal. With this difference that the sister's son, the father's sister's son and the like who are descended from agnatic relations included, by the) author of the Dayabhaga, under the term gotraja. It has already been said that the enumeration of the distant heirs was not the object of the author of the Dayabhaga. It is rather given by way of digression from the subject he was considering. He was contending for the higher position of certain cognates; and, in doing so, he cited certain texts hearing upon the order of succession; and, as a commentator, he offered parenthetically his explanations of the same and then returned to his subject with which he concluded. It would, therefore, appear that he intended to leave the distant succession in the same state in which it was in the Mitakshara. This view is supported by Radhunandana the next highest authority in Bengal, who introduces the cognates again after the agnates." The quotation in extenso portions of which I have underlined* clearly indicate that spiritual benefit and heirship cannot be equated and that there is no such incompatible and radical difference as between the two Schools as observed by the learned Subordinate Judge. Even in Bengal spiritual benefit has not always been the criterion of heirship as indicated by the decision in I L R 58 D and 35 Cal. Even according to Mulla, the doctrine of propinquity as pronounced under Mitakshara may be applied in cases not contemplated by the Dayabhaga in the matter of inheritance. It appears that the principle of spiritual benefit really plays its part when the question is as to the order of succession and not when the question is merely of heirship. As indicated before the decision in 38 C W N which is a decision of 1932 has made no reference to the earlier decision of 1931 as reported in ILR58Cal. Nor has it made any reference to the decision of 1908 as reported in I L R 35 Cal. The decision in 30 C W N which is a decision of 1925 has made no reference to the decision of 1908 as reported in I L R 35 Cal. The position being that the I L R 58 Cal. and I L R 35 Cal. are more consonent to the Hindu texts as quoted, the value of the principle established by those decisions could not be minimised. I, therefore, take the view of I L R 58 and 35 Cal. and also what has been stated by Golap Shastri and Mulla as giving the correct position in the matter. There is no conflict on the point of heirship but there is difference only as to the order of succession. Hence relations that are Bandhus under Mitakshara which the appellants are, have to b‑‑ taken as heirs in the circumstances of the case. The appellants being the only near relations the doctrine of spiritual benefit should not be strictly applicable in their case. As shown by the texts spiritual benefit is not the sole test of heirship even under the Bengal School. Before the appellants there are no body earlier in the order of succession. In the result, the appeal is allowed. The judgment and decree passed by the learned Subordinate Judge are set aside and that of the learned Munsif is restored. There will be no order as to costs. K. B. A. Appeal accepted.