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Judgment
Ayling, J.—This Second Appeal arises on of a suit by Government to obtain possession as an escheat of the property of one Shanmuga
Yogeeswaraswami. The facts found are that the latter was a Sudra ascetic, not entitled to enter the order of yati or sanyasi, that the suit property
was his secular property, not endowed in favour of any institution, that he died leaving no relations, and that fourth defendant was his chief ""sishya
or disciple. The sole question for our decision, is whether the claims of the fourth defendant to inherit as ""sishya"" are sufficient to stop the escheat to
Government. Both the Lower Courts decided in favour of Government. Defendants 1 and 3, who have acquired the rights of the fourth defendant
by purchase, appeal.
Both the Lower Courts have decided the question as if it were concluded by the ruling in Dharmapuram Pandara Sannadhi v. Virapandiyam
Pillai I.L.R.,(1899) Mad., 302 , but as a matter of fact that has no application to the present case. Appellants here rely on the passages in
Yajnavalkya, Chapter II, verse 137, and Mitakshara, Ch. II, Section 7, which recognize in ordinary cases of succession the claims of a pupil or
fellow-student to succeed in default of kindred. The text in Yajnavalkya runs thus:
The lawfully wedded wife and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil and a fellow-student,
on failure of the first among them, the next in order is the heir to the estate of one who departed for heaven, leaving no male issue. This rule extends
to all classes.
The learned Judges in Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai I.L.R., (1899) Mad., 302, on the other hand, were considering
the applicability of a totally different section of the Mitakshara, Section 8, which is based on Yajnavalkya, Chapter II, verse 138, and lays down a
special rule of succession to a hermit or ascetic whereby the claims of kindred are dismissed in favour of those of ""a preceptor virtuous pupil and
spiritual brother or associate in holiness."" This is an exception to the ordinary rule: and it was held in the above quoted judgment that it did not
govern the case of a Sudra ascetic. The dispute there was between the spiritual and natural heirs.
What has to be determined here is whether the rule in Yajnavalkya, Chapter II, verse 137, which is stated to apply to all classes should be given
effect to as against the escheat claim of Government: or whether, as urged by the learned Government Pleader, the rule is obsolete and should be
disregarded, I need hardly say that where the meaning and applicability of ancient texts is concerned, I come to a conclusion with great diffidence;
but in the present instance there seems to be no doubt as to the meaning of the texts themselves while as to their applicability I am not unfortified by
authority and the conclusion to which I feel forced is not so unreasonable, even to western ideas, as it might seem at first sight.
I have already quoted the text of Yajnavalkya which is not only perfectly specific but purports to be of universal application. Chapter II, Section
7 of the Mitakshara is equally clear (quoting Apastamba):
If there be no male issue the nearest sapindas inherit: or in default of kindred the preceptor, or failing him the disciple. If there be no pupil, the
fellow-student is the successor.
And the last paragraph of the section limits the king''s right of escheat as regards property of Kshatryas or other inferior castes (i.e., non-
Brahmans) to cases of ""failure of all heirs down to the fellow-student.
The same section makes it clear (paragraph 2) that in dealing with the case of preceptors, pupils and fellow-students, we have only to consider
purely religious instruction--a consideration which would largely limit the application and prevent the undesirable extension of the rule--vide also
Manu IX, 18, which in dealing with the same point speaks of ""the spiritual teacher of the pupil."" Having regard to the importance of religious
teaching in Hindu ideas, and to the fact that this kind of heirship, only operates on failure of natural heirs and to defeat the claims of the State, this
seems to me to present the rule in a much less unreasonable and fantastic light, than one might be at first inclined to view it in.
In this connexion it may be useful to refer to a passage from a judgment of the Judicial Committee of the Privy Council in Ramchandra Martand
Waikar v. Vinayek Venkatesh Kothekar (1915) I.L.R., 42 Calc., 384 (P.C.). Their Lordships were there dealing with an attempt to secure
recognition as heirs of sapinda relations beyond the fifth degree. They say (page 421):
It was urged that it is hardly likely Vijnaneswara would give a right of inheritance to a spiritual preceptor or guru before kinsmen however remotely
connected. This argument, appears to ignore the peculiar and intimate relationship which their Lordships understand exists in the Hindu system
between the pupil and the guru who has to initiate him into the mysteries of the vedic laws and rites, and under whose roof he has to pass many
years of his life. It is easy to suppose that in such circumstances the mystical relationship between a spiritual preceptor and a pupil should be
regarded as creating a far closer tie than remote relationship of blood.
The spirit of these remarks seems to me to militate strongly against any tendency to brush aside appellants'' claim as based on an obsolete and
unreasonable rule.
In another case, Gridhari Lall Roy v. The Bengal Government (1868) 12 M.I.A., 448, their Lordships also comment (at page 463) on the
extreme jealousy with which the Hindu Law regarded the right of the king to take on a failure of heirs. They quote the provisions of the Mitakshara
to which I have referred; and they do so without any suggestion that the rules should not be given effect to.
No doubt the claim is a novel one so far as the Courts'' are concerned. Mr. Mayne in his book on Hindu Law, in paragraph 489, says:
I know of no instance in which a claim has ever been set up by a preceptor or pupil to the property of a man dying without heirs
and no case has been quoted to us. But it by no means follows that the rule has not been observed in practice: and I hesitate to treat a clear
direction of the texts as obsolete and negligible, when it involves no inequity or conflict, so far as I know, with even modern Hindu ideas, and when
it has been referred to by the highest tribunal in the terms I have quoted.
The learned Government Pleader has drawn our attention to a recent case of this Court in which the ancient Hindu rule disqualifying a person
born blind from inheriting was held to be obsolete. I do not find anything in the reasoning of the learned Judges which bears on the question before
us. The learned vakil for appellants also referred to a case of the Privy Council [Gunjeswar Kunwar v. Durga Prasad Singh (1918) I.L.R., 45 Cal.
17 (P.C.)], as throwing doubt on the correctness of the decision in that case.
On the best consideration I can give to the matter, I am inclined to think that the old rule appearing in the texts should not be treated as
obsolete. Its applicability will naturally be closely scrutinized by the Courts and strict proof required of the spiritual relationship alleged. But where,
as in the present case, that is clearly established, I can see no reason for refusing to give effect to it.
I would allow the Appeal and dismiss the suit with costs throughout.
Odgers, J.
This Appeal concerns the property of a certain Sudra ascetic, Shanmuga Yogeeswaraswami by name, who died without heirs or relations in
the ordinary sense of those words. The property of the deceased is claimed by the appellant, who was a ""disciple"" of the deceased, and by the
Government as escheat. The lower Courts have held that the Government is entitled, hence this Second Appeal. Dharmapuram Pandara Sannadhi
v. Virapandiyam Pillai I.L.R., (1899) Mad., 302, is relied on by both the lower Courts. This lays down that a Sudra is unable to enter the order of
yathi"" or sanyasi and that the ordinary law of inheritance regulates the devolution of his property. There, the property was decreed to the secular
heir, the brother of the deceased as against the members of the mutt into which the deceased had been admitted. There is no such contest in this
case. I am not called upon to decide between a devolution to an ordinary heir, e.g., a brother or a son and one to a religious institution. The
question is whether a disciple of a Sudra ascetic can be interposed between the deceased and the Government, who admittedly take by escheat
only in the last resort. It is admitted that there is no decision that the disciple of a Sudra ascetic is an heir and the case is therefore largely one of
first impression. Giyana, Sambandha Pandara, Sannadhi v. Kandasami Tambiran I.L.R., (1887) Mad., 375, is authority for holding that religious
training is not confined to Brahmans and the first authority relied on by the appellant for establishing his right is the first paragraph of Yajnavalkya,
Chapter II, verse 137--139, quoted at page 171 of J.C. Ghose''s book on Hindu Law. It runs as follows:
The lawfully wedded wife and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellow-student,
on failure of the first among them, the next in order is the heir to the estate of one who departed for heaven, leaving no male issue. This rule extends
to all classes.
(Note especially the last sentence)
The heirs to the property of a hermit, of an ascetic, and of a student in theology are in order (that is in the inverse order) the preceptor, a virtuous
pupil, and a spiritual brother and one belonging to the same hermitage.
The second paragraph admittedly cannot apply as a Sudra cannot be an ascetic: Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai
I.L.R.,(1899) Mad., 302; cf. also Colebroke''s Digest of Hindu Law, Volume 2, page 522, for the former of these texts and page 577 for the
second. Similar quotations are given from Yajnavalkya in Setlur''s Hindu Law Books on Inheritance, the Mitakshara, page 36, where it is stated
that the rule of Yajnavalkya must be understood as extending to all castes; at page 48, it is stated:
if there be no bandhus of the deceased, the preceptor, or on failure of him, the pupil, inherits under the texts of Apastamba (ii, 6, 14, 2-3) of. also
Sacred Books of the East, Volume II, page 133.
In the Laws of Manu, Chapter IX, Section 187 (Sacred Books of the East, Volume 25, page 366) it is stated;
Always to that (relative within three degrees) who is nearest to the (deceased) sapinda the estate shall belong, afterwards a sakulya shall be (the
heir, then) the spiritual teacher or the pupil.
Sir Thomas Strange in his book on Hindu Law, Chapter VI, page 148, puts it thus:
In default of natural kin, the series of heirs, in all the classes, that of the Brahman excepted, terminates with the preceptor of the deceased, his
pupil, his priest hired to perform sacrifices, or his fellow-student, each in his order--and, finally, failing all these, the lawful heirs of the kshatrya,
vaisya and sudra, are learned and virtuous Brahmans--a description, however special, yet too comprehensive to be consistent with the right of
escheat, for want of heirs, in the king; and, therefore, it has been narrowed in construction to such as reside in the same town or village.
It was laid down by the Privy Council in The Collector of Masulipatam v. Cavaly Vencata Narrainapah (1860) 8 M.I.A., 500 that the
Mitakshara is the highest authority on inheritance for this province. Their Lordships say, at page 525:
But when it is made out clearly that by the law applicable to the last owner, there is a total failure of heirs, then the claim to the land ceases (we
apprehend) to be subject to any such personal law.
They proceed, at page 526:
In the present case, if the Hindu Law had expressly provided that, upon the death of a Brahman, without heirs, ordinarily so-called, his property
should pass to some definite person or class of persons; if, for instance, it admitted, in the case of a Brahmanical succession, collaterals more
remote than it would admit in the case of succession to a sudra, there would be ground for excluding the title of the Crown, because there would,
by Hindu Law, be some person in the nature of an heir capable of succeeding; but here the Sudder Dewanny Adawlut rests its decision on what it
terms ''the primary declaration of Manu that the property of a Brahman shall never be taken by the king''.
It is therefore established in my opinion, that there is, on the authority of the texts quoted above, a rule of Hindu Law that the property of a
person such as the deceased should pass to a definite person or class of persons by the personal law of the deceased. Gridhari Lall Roy v. The
Bengal Government (1868) 12 M.I.A. 448 is also authority for saying that the Mitakshara recognizes the interposition of three classes of heirs, viz.,
preceptor, pupil, fellow-student, between the relatives of the deceased and the King.
In Ramchandra Martand Waikar v. Vinayek Venkatesh Kothekar (1915) ILR 42 Cal 384 (P.C.), a case before the Privy Council, their
Lordships say, at page 406:
It is to be remarked, as has been observed in previous cases before this Board, that the Hindu Law contains its own principles of exposition, and
that questions arising under it cannot be determined on abstract reasoning or analogies borrowed from other systems of law bat must depend for
their decision on the rules and doctrines enunciated by its own law-givers and recognized expounders;
again, after noticing the argument that it is hardly likely that Vijnaneswara would give a right of inheritance to a spiritual preceptor or guru before
kinsmen, however remotely connected, their Lordships remark:
This argument appears to ignore the peculiar and intimate relationship which their Lordships understand exists in the Hindu system between the
pupil and the guru who has to initiate him into the mysteries of the vedic laws and the rites and under whose roof he has to pass many years of his
life. It is easy to suppose that in such circumstances the mystical relationship between a spiritual preceptor and a pupil should be regarded as
creating a far closer tie than remote relationship of blood (page 421).
The answer to this argument is that the rule of Jaw and the texts on which it is based are obsolete and that in the absence of proof of a special
custom it is impossible or impracticable to apply it. The texts are also said to be too indefinite and vague. Reliance is placed on the text of
Brihaspathi, XXV (see Ghose, page 175):
Should a kshatriya, vaisya or sudra die without leaving male issue, or wife, or brother, their property shall be taken (as escheat) by the King, for he
is the lord of all.
The objection to this view is that Brihaspathi has admittedly nothing like the same authority as the Mitakshara, which, as pointed out above, has
been laid down by the highest judicial tribunal as being the authority for the Hindu Law of Inheritance in this part of India. There is also the
objection that Brihaspathi does not enumerate all heirs, bandhus, etc. I do not think it is impossible to apply the text--at least to a disciple. I admit
greater difficulty in the case of a ""fellow-student"" in modern days. It is not disputed that the appellant was a sishya or student of the deceased and
this was so found by the learned Subordinate Judge. With regard to the question of the rule of inheritance being obsolete, reference was made to
Surayya v. Subbamma I.L.R.,(1920) Mad., 4. In that case it was held that the rule which prevents a person ""born blind"" from claiming a share in
his ancestral property was obsolete, having regard to present day circumstances and modern methods to enable the blind to, at any rate partially,
overcome their defect.
However, in Gunjeswar Kunwar v. Durga Prasad Singh (1918) I.L.R., 45 Calc., 17 (P.C.) it was held that blindness, to exclude from
inheritance, must be congenital, adopting the statement of law in Rajkumar Sarvadhikari''s Hindu Law of Inheritance, page 956. Apparently the
attention of the learned Judges of this Court was not called to this authority when they decided Surayya v. Subbamma (1920) I.L.R., 43 Mad. 4 .
In any case, the Privy Council has upheld the rule of Hindu Law as far as congenital blindness is concerned. Further, the Full Bench case of Rajani
v. Nitai (1920) 32 C.L.J., 333 (F.B.) , is authority for saying that a Rule (in that case also a rule of inheritance) cannot be said to be obsolete
merely because there is no occasion for its application. The application of a rule like that under discussion must of necessity be extremely rare, but
I have already stated that in my opinion its application when necessity arises is neither impossible nor impracticable. It seems to me that whore we
have, as I think we have hero, a clear rule of inheritance deducible from the ancient Hindu authorities which is generally recognized and supported
by the highest judicial authority in recent times [cf. Ramchandra Martand Waikar v. Vinayek Venkatesh Kothekar (1915) ILR 42 Cal 384 (P.C.)],
it cannot, be said that the rule is obsolete because there happens to be no judicial decision exactly in point. For all these reasons I would allow the
Appeal and dismiss the suit throughout with costs.