History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.271
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.271
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v4.c63.t2.271.1
The first question is whether the enumeration of *bandhus* in the verses quoted is exhaustive or only illustrative. The V. P. expressly¹⁴⁵⁴ states that if the enumeration be held to be exhaustive absurd results would follow. For example, a maternal uncle's son is expressly named as an *ātmabandhu* in the verses quoted above, but his father (the maternal uncle), being not mentioned, would on that hypothesis be excluded. Therefore it was held by the Privy Council in a very early case¹⁴⁵⁵ that the enumeration of bandhus is only illustrative, that the maternal uncle though not mentioned is a nearer bandhu and would succeed in preference to his own son who is expressly mentioned. In *Balasubrahmanya v. Subbayya* 65 I. A. 93 it was held that under the Mitākṣarā the principle of proximity of blood relationship applies to the succession of bandhus, that in determining which of two ātmabandhus is entitled to succeed nearness of degree and not religious efficacy is the proper test to apply, that when the ātmabandhus are equal in degree the test of religious efficacy may be applied to determine preference and that the maternal uncle of the deceased is entitled to preference over the deceased's father's half sister's son. This was followed in *Virangauda v. Yellappa* I. L. R. (1943) Bom. 259 (F. B.) where the mother's brother of the deceased was preferred to the father's sister's son. So also the mother's father would be a bandhu.
v4.c63.t2.271.2
It is strange that the deceased's own descendants through a female or the deceased's father's descendants through a female such as the son's daughter's son, daughter's son's son, daughter's daughter's son, sister's son or sister's daughter's son, are not mentioned in any authoritative commentaries or digests as his *bandhus*. Further, the bandhus enumerated in the three verses do not go beyond the 4th degree from the common ancestor. But bandhu relationship extends up to five degrees at least. There is an ancient instance of the sister's daughter's son having succeeded to a Buddhist *bhikṣu* in Cambodia (in śake 586). This would be so only according to the principles of the Mit. Vide 'Indian Cultural Influence in Cambodia' p. 55 by Dr. Bijan Raj Chatterji (Cal. 1928). All the above (such as the son's daughter's son) have been recognized by the Indian Courts as ātmabandhus entitled to inherit. In *United Provinces v. Kanhaiya Lal* 16 Lucknow 551 it has been held that the father's father's daughter's son's son would be an ātmabandhu of the deceased. In an early case¹⁴⁵⁶ in British India two propositions were laid down, viz. (1) there must be mutuality of sapiṇḍa relation between the deceased and the claimant (i. e. each must be a sapiṇḍa of the other) and (2) that in order that a man may be an heritable bandhu of the deceased they must be related *directly* through themselves or through their mother or father.
v4.c63.t2.271.3
These propositions were accepted by the Privy Council,¹⁴⁵⁷ which further said that sapiṇḍa relationship extends in the case of bandhus only up to five degrees. The first proposition about mutuality has some support in the interpretation put on the famous verse of Manu IX. 187 by the Bālambhaṭṭī and the Subodhinī (vide above note 1418). But difficulty is created about mutuality by the unwarranted assumption that the common ancestor must be a member of one out of four families as stated by Sarvadhikari. The other propositions, however, are not supported by any texts or sound reasoning. Since the enumeration of bandhus is admitted to be not exhaustive, no sound inference can be drawn from the list of nine bandhus that a heritable bandhu must be connected with the deceased in any particular way. All that can be required is that he must be a bandhu as defined by the Mit. and connected with the deceased by having particles of the body of a common ancestor within the limits of sapiṇḍa relationship as laid down by the Mit. The limit of five degrees categorically laid down by the P. C. is not, it is submitted with great respect, based on very sure or strong foundations. The Mit. says that sapiṇḍa relationship extends to seven degrees when traced through the father, that wherever the word 'sapiṇḍa' is employed this meaning has to be understood and it extends up to five degrees when traced through the mother. Vide H. of Dh. Vol. II. pp. 454-455.
v4.c63.t2.271.4
What is material is not whether a female intervenes somewhere, but whether the person about whose sapiṇḍaship a question is raised traces his descent to a common ancestor through his father or through his mother. In the P. C. case the claimant claimed sapiṇḍaship with the deceased through his mother, and it was rightly decided that he being 6th from the common ancestor was not a bandhu. But to lay down as a universal rule that a bandhu in order to inherit under the Mit. should not be beyond five degrees from the common ancestor is against the definition of sapiṇḍa given by the Mit. itself and unduly narrows the express words of the Mit. The words of the P. C. 'the sapiṇḍa relationship, on which the heritable right of collaterals is founded, ceases in the case of the bhinna-gotra sapiṇḍa with the fifth degree from the common ancestor' (L. R. 41 I. A. 290 at p. 312) are very generally expressed and are susceptible of the interpretation that they lay down the rule of five degrees even when the claimant claims¹⁴⁵⁸ relationship with the deceased through his own father. Some support for the Privy Council rule that sapiṇḍa relationship ceases with the 5th degree from the common ancestor in the case of bhinnagotra sapiṇḍas may be found in the words of Mitramiśra in his commentary on Yāj. I. 52, in the implication of the words of Kullūka¹⁴⁵⁹ on Manu V. 60 and in the remarks of the Bālambhaṭṭī (p. 191).
v4.c63.t2.271.5
But this view is opposed to other weighty authorities such as the Nirṇayasindhu and the Dharma-sindhu.