Sapinda | Definition of Sapinda by Merriam-Webster
attended with danger, dangerous. m sfipind-ya, n. relationship of a Sapinda. m because it readily makes its meaning understood (referring to the theory of. Santan, is a Sanskrit expression whose ordinary meaning is 'progeny Sapinda, (i) sapinda relationship, with reference to any person extends as far as the. (of doubtful meaning) either 'doing injury' (= [limo/m, Say.), or ' having the same Bnpipdana, n. investing with the relationship of a Sapinda, Cat. ncsuk.info, m.
In Bombay also where women are permitted to inherit as Bandhus, the preferential claim of the father's line over that of the mother has been recognized to the extent of postponing the mother's full brother to the father's half sister [Saguna v. Sadashiv Pandu 26 B. The rule that the nearer line excludes the more remote is accepted by Sir Ernest Trevelyan Hindu Law, 2nd Edition, pagesubject to the rule that in each of the 3 classes of Bandhus preference is given to those related through the father over those connected through the mother.
In laying down the order of succession, however, in the case of Atma Bandus it is obvious that he does not exhaust the nearer line before bringing in the more remote. His reason appears to be that sons of daughters of the family i. Subject to this the nearer line is preferred to the more remote. But he follows consistently what he regards as the dominant rule that in each of the 3 classes the Bandhus of the deceased connected with him through his father have preference over those connected through his mother.
In this he is supported by Dr. Rajkumar Sarvadhikari and Dr. The authority of the former as an expounder of Hindu Law has been recognized by their Lordships of the Privy Council on more than one occasion and the reputation of the latter is well known.
The question for determination is, I feel, one of some doubt and difficulty, but I think the principles to be gathered from the text of the Mitakshara and the weight of authority on the subject favour the claim of the plaintiff and, in my opinion, the sister's daughter's son should be preferred to the maternal uncle. I am of opinion that the defendant must succeed. The term Bandhu is said to have been used for the first time in Hindu Law by Yajnavalkya.
To him the term was synonymous with Bandhava and applied indiscriminately to relatives in general, both agnates and cognates, and even to friends. In some out of the 17 tests in which he uses the term, he applies it to the kinsmen on the mother's side reserving for other kinsmen related through a female the term "Yonisamandba.
In truth the concession was made in deference to the continuous disintegration of communistic life. Though economic causes had begun to operate long before Gautama and the sages compromised with individualism by adopting spiritual benefit as a condition of heirship, Yajnavalkya found a further advance necessary and brought widows, daughters and some others within the circle of heirs who were incapable of offering the funeral cake. Not so courageous was his predecessor Manu who, while bowing before the advancing wave and affirming the principle of affinity by blood relationship, seems still to have retained, allegiance to the principle of spiritual benefit, rendering himself liable to the charge of indecision and inconsistency by such texts as "the funeral cake follows the family and the estate.
The efforts of the lawgivers, however, were powerless and compromises did not avail. Little use was it for Gautama to seek to stem the tide by ruling that "Those who are allied by the funeral cake should take the wealth of the deceased" or for Manu to temporize or for Yajnavalkya to extend the heritable right while still clinging to Gautama's rule. But the vitality of Hindu institutions is proverbial and although that commentator in clear and unequivocal terms declared Sapinda relationship to be dependent on community of blood, nevertheless between the 11th and the 15th centuries spiritual benefit still continued to affect the preferential right.
In my opinion this explains why Vijnaneswara did not insist upon the father's line being exhausted before any of the grandfather's line were admitted. The position in the 16th century ' is further elucidated by the Viramitrodaya, which repeatedly contains passages to the effect that "comparative propinquity is evidenced by the amount of spiritual benefit conferred on the deceased proprietor and that spiritual benefit can be conferred by the presentation of Pindas in the Parbana Sradh held in honour of the deceased and of his ancestors.
Again in book II, Section 1, verse 23 of that work, Mitra Missir, the author, gives the following remarkable opinion: If we know the one, we know the other. Where there are many claimants to the heritage among the Gotrajas and the like, then the fact of conferring spiritual benefits on the deceased merely settles the question of precedence among the heirs. The next stage in the development of the theory of religious benefit is furnished by the Dayabhaga, which finally and definitely recognised it as a ground of preference in the case of both agnates and cognates.
Whereas in the Mitakshara no cognate is allowed to succeed in preference to an agnate, however superior the offerings of the former may be in religious efficacy, the Dayabhaga adopted the more logical basis and applied the test equally to both.
The result was that many cognates, who were excluded by the Mitakshara, took precedence under the Payabbaga over more distant agnates.
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It would be wrong, however, to say that the Dayabhaga discarded the principle of propinquity by blood. Equally wrong would it be in my opinion to say that the Mitakshara took no account of the principle of religious merit. In my opinion both systems recognise propinquity of blood and religious efficacy. The only difference is that in the Dayabhaga religious merit arising from the celebration of the Parbana Sradh is accorded greater weight and that in the absence of religious merit accruing from Parbana rights, the ability to benefit the deceased by some other religious ceremonies is a sufficient foundation of a title to inherit.
The Mitakshara, on the other hand, regards oblations presented by cognate kinsmen as secondary and conferring no claim against the whole body of agnates. The Dayabhaga, admitting that the oblations are secondary as compared with agnates of the same line, insists that Parbana Pindas conferred by cognates should prevail against agnates of a remoter line. The point of difference between the two systems depends upon the interpretation of the scriptures relating to the efficacy of oblations presented by agnates and cognates.
It would be" wrong, therefore, to say that the doctrine of spiritual efficacy was, as has been observed by one learned author, a figment of the Brahminic brain in Bengal and that in the Mitakshara it has no place.
The true view appears to be that nearness of blood determines the heritable right, while the! The position of Bandhus could not fail to remain unaffected by the vicissitudes of the doctrine of religious efficacy and we find, therefore, that while Yajnavalkya left the question of their heritable right undetermined in his list of heirs and while he made express mention only of the "maternal uncle and the rest" in regard to their right to succeed a trader dying abroad, Vijnaneswara was the first to extend the list by the inclusion of nine selected cognates.
The next development that followed was the addition of the daughter's son as a special heir and for nearly four centuries thereafter the commentators appear to have recognised only ten Bandhus. Next Mitra Misser added three, namely, the maternal uncle of the deceased, of his father and of his mother. Since then the number does not appear to have been added to for the next years till the claims of the maternal uncle and of the sister's son came up for consideration in the case of Omrit Koomaree Babee v.
Luckhee Narain Chuckerbutty 2 B. In that case Mitter, J. Following the principles enunciated by their Lordships it seems to me clear that we must look to a large expansion of the list of heritable Bandhus, but at the same time there does not seem to me to be any doubt as to how the present case should be decided. Now the first point for consideration is, whether the plaintiff and Raghunandan have any heritable right at all.
They are undoubtedly cognate Sapindas. For the purpose of marriage Sapinda relationship is prescribed by the Mitakshara to extend to seven degrees when relationship is claimed through the father and five degrees when claimed through the mother. There was some divergence of opinion between text-book writers as to whether these limitations applied, also for the purpose of determining the heritable right and Professor Golap Chandra Sarkar was of opinion that Sapinda relationship for purposes of inheritance extended to seven degrees both on the father's and the mother's side.
Their Lordships of the Privy Council have, however, now ruled that the limits applicable to marriage also apply to inheritance, Ramchandra Martanda Waikar v. On this point also their Lordships of the Privy Council in the above-mentioned case have pronounced in favour of the view of their Lordships of the Calcutta High Court.
Their Lordships of the Privy Council have not, however, yet pronounced any opinion on the point whether Sapinda relationship through cognates can be claimed through an ancestor more remote than the father's or mother's grandfather. Professor Raj Kumar Sarbadhikari in his Tagore Law Lectures answers this question in the negative, basing his conclusion on the following passage of the Mitakshara where Vijnaneswara quoting the text of Vridha Satatappa observes as follows.
I give the translation made by West and Buhler, which is now accepted as more correct than that made by Colebrooke and which differs from the latter on the point whether the term Sapinda means connected by particles of the same body or connected by funeral oblations. The passage runs thus: On failure of agnates, the cognates are heirs. The 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 father's paternal aunt, the sons of his mother's maternal aunt, and the sons of his father's paternal uncle must be deemed as 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 maternal uncle must be reckoned as his mother's cognate kindred. On failure of them his father's cognate kind red, or if there be none, his mother's cognate kindred.
This must be the order of succession here intended. Mitakshara II Section 6. This indeed is the only other text besides the text of Yajnavalkya regarding the goods of a trader dying abroad in the whole of Hindu Law as at present known to us which is of any assistance in determining the limits of the heritable right of Bandhus.
From this text Professor " Sarbadhikari derives the following rules: A Bandhu is a cognate Sapinda within four degrees counting, 1 from the deceased himself, in ascent or descent: The right of inheritance accrues to a Bandhu if the late owner and the person claiming the heritable right were related as Sapindas to each other, either directly through themselves or through their mothers or fathers.
In other words, a heritable Bandhu is a cognate Sapinda within four degrees counting from-- 1. The deceased in ascent or descent. Deceased's paternal ancestor within four degrees. Deceased's maternal ancestor within four degrees. Deceased's father's maternal ancestor within four degrees.
Deceased's mother's maternal ancestor within four degrees. If the deceased or his ancestor be related through father's mother, then five degrees instead of four should be counted in both directions. Thus grandson's daughter's grandson is related to the deceased or his paternal ancestor through father's mother.
The cognate descendant of each of these classes is excluded from inheritance when i the deceased or ii the deceased's ancestor does not belong to-- a His maternal grandfather's line. The cognate ascendant of the deceased is excluded from inheritance when he does not belong to: The learned Professor proceeding upon these rules classifies Atma Bandhus into Atma Bandhus ex parte paterna, namely, the sons of the daughters of the family, sons of the daughters' sons of the family, sons of the daughters' daughters of the family; next into Atma Bandhus ex parte materna beginning from mother's father; next into Atma Bandhus ex parte paterna to whom the deceased was Atma Bandhu ex parte paterna; next into Atma Bandhus ex parte materna to whom the deceased was Atma Bandhu ex parte materna; next into Atma Bandhus ex parte paterna to whom the deceased was Pitri Bandhu; and finally into Atma Bandhus ex parte materna to whom the deceased was Matri Bandhu.
He adopts the same method for Pitri Bandhus and Matri Bandhus. Now it is to be observed that the learned Professor's two rules of exclusion are inconsistent with the text which includes within the circle of Bandhu heirs all who claiming through the mother are within five degrees of the common ancestor.
Mayne in his work on Hindu Law would seem to partially accept Professor Sarbadhikari's view, for he does not seem to give the heritable right to the heirs of the maternal grandfather's grandfather though he gives him the 27th place in his chart. In the case of Ramchandra Martand Waiker v. Lowndes in his address to their Lordships of the Privy Council noticed this inconsistency between the text on marriage and the rule adopted by Professor Saibadhikari, but it became unnecessary for their Lordships to decide the point.
Following Professor Sarbadhikari, Professor Jogendra Nath Bhattacharya and Professor Trevelyan would seem to base their conclusion on that part of Vridha Satatappa's text which appears to limit Pitri and Matri Bandhavas to those descended from the mother's or father's grandfather. This conclusion might perhaps be justified if, as was thought by Mitter, J.
Speaking with the greatest respect I think this is the correct rendering of the term and that Professor Sarbadhikari's rules of exclusion are not warranted by the text. In my opinion Satatappa in enumerating the nine Alma, Pitri and Matri Bandhavas did not intend to limit heritable right - to the descendants of the mother's and father's grandfather within five degrees.
Nor is there anything to show that Vijnaneswara was of a different view to that which I have ventured to take. If this is the correct interpretation of Satatappa's text, then it follows that the classification given in the text into Atma, Pitri and Matri Bandhus applies only to the nine Bandhavas specially enumerated therein. All other Bandhus are subject to one and only one limitation, namely, that given in the text on marriage.
In support of the view I take, it is to be noticed that neither Professor Sarbadhikari, nor Professor Bhattacharya, nor Mr. Mayne are agreed as to the classes within which certain heirs should be grouped. Indeed it has been said that Professor Sarbadhikari has been guilty of reading into the text words which do not occur therein, so as to give the status of Atma Bandhus to persons who would otherwise be classed as Pitri Bandhus.
In this state of doubt and uncertainty it would, in my opinion, be unsafe to insist on the classification within the group of Atma, Pitri and Matri Bandhu of heirs other than the nine specifically enumerated in the text. In my opinion the son of one of these nine is not entitled to claim member-ship in the class to which his father belongs and I think the doubt thrown out by Chamier, C.
In that case the learned Judges gave effect to their doubt by preferring one who would be a Matri Bandhu according to Professor Sarbadhikari's classification to ope who would be a Pitri Bandhu, because he was nearer in degree counting from the common ancestors in their respective lines, and also on the ground of religions merit.
It follows from the above view that when there is a contest between Bandhus other than the nine Bandhavas or between one of the former and one of the latter, the principle of numerical propinquity alone will determine the heritable right, supplemented in case of doubt by the rule of religious benefit and such other rules derived from the succession of agnates as may be appropriate.
Let us next consider what is the position of the claimants in the case now before us. Both parties seem to be agreed that the plaintiff and Raghunandan are Attna Bandhus. If Atma Bandhu is the same thing as Atma Bandhava and if Bandhava has not the special meaning of cousin brother or first cousin, then if a maternal grandfather's son's son is an Atma Bandhu in the sense of one specially near to the propositus, it would be reasonable to class the grandfather's son also as an Atma Bandhu.
But is the sister's daughter's son also an Atma Bandhu? I think not, although he has been classed as such by Professor Sarbadhikari. Their Lordships of the Calcutta High Court observed in Omrit Koomaree's case that the sister's son was both an Atma and Pitri Bandhu, but they seem to have classed him as a Pitri Bandhu on the ground that he was nearer in degree to the father of the propositus than to the propositus.
But as I have already observed, the Mitakshara does not warrant the inference that all Bandhus must be classified into the three classes assigned to the nine enumerated Bandhavas and I respectfully venture to differ from those decisions of the Madras Court which hold that every descendant of an Atma Bandhu within the requisite limits is entitled to claim the status of his ancestor. The difficulty in following out this classification logically in the case of the descendants of the daughters of the family compelled Professor Sarbadhikari to alter the text to an extent which has been pronounced unwarrantable by other textbook writers.
I think, therefore, that Bandhus other than the nine Bandavas named in the text cannot appropriately be placed in the three groups reserved for the latter.
Assuming, however, that the three classes are exhaustive on the point of classification and that there can be no heritable right without membership within one of these three classes, then I think Raghunandan being an Atma Bandhu and the plaintiff Pitri Bandhu, the former is entitled to preference. Let us assume next that both are Atma Bandhus as has been held by Professor Sarbadhikari. If the principle of nearness by particles of the body is applied, how is the calculation to be made?
We have no means of ascertaining how much the plaintiff has in common' physiologically with the deceased as compared with the maternal uncle. We can only estimate through the common ancestor through whom they respectively claim and if that test is applied, then obviously the maternal uncle and the deceased have greater community of blood than the plaintiff and the deceased. Let us take next the mode of counting sanctioned by the Hindu Law. The Indian Succession Actfollowing the principle of the civil law, prescribes that counting is to be made from the propositus upwards to a common ancestor, each ancestor representing one degree, and then downwards till the claimant is reached.
The Mistakshara prescribes that counting is to be made from the common ancestor, from whom the branch divides beginning with such common ancestor as the first degree. Adopting this mode of counting Raghunandan is two degrees removed while the plaintiff is four degrees removed. In the absence of any detailed order of succession for cognate Sapindas, I think Raghunandan is entitled to priority. But then it is said that the rule of the Mitakshara is that the nearer line excludes the more remote and, therefore, the line of the father of which the plaintiff is a member must be exhausted before the line of the maternal grandfather can come in.
Now this rule is not based upon any text. It is derived from the order of succession as given in the Mitakshara relating to certain named agnates, but even in that connection the rule is not of general and universal application. In the earlier decisions in Upper India the limit was placed on the authority of Colebrooke at the seventh lineal descendant, according to later decisions, in Madras [it was fixed at the second degree, while their Lordships of the Privy Council have now definitely held that the limit of collateral descent is three degrees in each line.
Thus the grandson's grandson, though a lineal and nearer descendant, is excluded by descendants within three degrees in the lines of the father and the grandfather. The Mitakshara in this respect is not singular, for we find that in other systems too the law has recognised the propriety of preferring some collaterals to lineal descendants of the fourth and the fifth degree.
If, therefore, the rule is limited in application with regard to agnates, I see no reason why it should be applied without restraint and restriction in the case of cognates. Upon the admitted mode of counting, a maternal uncle is nearer in degree than a father's daughter's daughter's son and I cannot find any equity in defeating his rights by a resort to analogy and by the arbitrary extension of a rule applicable to another class.
I am unable, therefore, to exclude Raghunandan on the ground that he claims descent through a more distant line than the plaintiff. If the principle is to apply at all, it must apply to oases where the respective candidates are numerically of the same degree. In such an event this test as well as other tests may be taken into account for the purpose of determining the preferential right.
Next it is said that the Mitakshara favours the male against the female heir, and, therefore, the plaintiff, who is connected through the father, is preferable to Raghunandan who is connected through the mother. Here again the rule is derived not from an express text in the Mitakshara but from the order of succession given by the sages as regards agnates.
But even among the latter the preference for males is not rigorously enforced and female relatives, such as a mother, daughter, and sister and a male relative descended through a female, namely, the daughter's son, have been accorded high places within the circle of agnatic heirs, the last named being even preferred to one nearer in degree on the male side, namely, the father's son.
Here again the question arises whether the preference for males shown by the Hindu Law in the case of agnates generally, and in particular in Satatappa's text as regards Bandhavas, is to be applied regardless of numerical nearness in degree.
It may be noticed that Satatappa and Vijnaneswara seem to limit the preference to cases where the degree of relationship is equal, as for instance when they give precedence to Pitri Bandhavas over Matri Bandhavas. Even in Madras where their Lordships of the High Court have applied the rules of agnatic succession to the case of Bandhus more freely than other Courts in favour of claimants who would be otherwise excluded,' the decisions have not been uniform and we find that inspite of the superiority ascribed by analogy to males a mother's sister's son has been preferred to a mother's brother's son.
I think, therefore, that the correct rule in regard to these analogies has been laid down by Professor Golap Chandra Sarkar as follows: Applying these rules I do not consider that the fact of plaintiff's being connected through a nearer branch or through a male' can operate in his favour. On the other hand if the latter fact operates in this case at all, then the circumstance that he claims through two females must also be taken into account as a counterpoise.
At the same time it must in fairness be remembered in this connection that although their Lordships of the Madras High Court in Appandai Vathiyar v. Ragubali Mudaliar 5 Ind.
Sapinda - Wikipedia
Rahim Bakhsh 34 Ind. Being, however, clearly of opinion that Raghunandan is nearer in affinity than the plaintiff from every point of view, I do not think the interposition of two females affects the present case. For the same reason the question of spiritual benefit also does not arise. In this respect the position, as I have already said, appears to be this, that while the Dayabhaga recognizes the principle of affinity as well as the principle of spiritual benefit for the purpose of creating the heritable right and admits into the circle of heirs persons by reason of their capacity to confer spiritual benefit alone, the Mitakshara makes affinity the sole test of the heritable right, leaving the preferential right to be regulated by the doctrine of spiritual benefit.
This position has been repeatedly affirmed by their Lordships of the Privy Council in a long line of decisions beginning from Gridhari Lall Roy v. Nil Kamul Roy 22 W. Applying this principle to the case under consideration, it is immaterial whether the plaintiff and Raghunandan are both ordinary Bandhus or both Atma Bandhus; in either event Raghunandan is clearly entitled to preference because he can offer spiritual benefit upon the maternal grandfather of the propositus, while the plaintiff can confer no spiritual benefit upon the propositus of any kind whatsoever.
In the various Courts in India the strongest resistance to the application of the doctrine of spiritual benefit has perhaps come from their Lordships of the Madras High Court and particular reliance' has been placed by the plaintiff' on Balusami Pandithar v. Their Lordships' declined to consider the principle of religious efficacy at all but with great respect, I venture to say that this view is not in accordance with that of other Judges of the same Court and is certainly in direct conflict with the latest pronouncement of the Privy Council.
As an illustration of this divergence of opinion I need only cite the case of Muttusami v. Simambedu Muthukumaraswami Mudaliyar 23 I. The unsatisfactory condition produced by subsequent conflicting decisions has been somewhat sharply commented upon in a recent judgment by Sadasiva Aiyar, J. His Lordship there, although approving of the claim of the father's sister's son as against a maternal uncle on the ground that the former is an Atma Bandhu ex parte paterna, characterizes Satatappa's text as illogical, incomplete and inconsistent, but feels himself bound to accept the law as settled by the Courts even though based on less authoritative treatises than the ancient authoritative Shastras, He points out that a mother's sister's son need not necessarily be always a Bhinna Gotra Sapinda, as sometimes the mother of the propositus and her sister might marry husbands of the same Gotra.
He is nevertheless of opinion that the rule as to religions benefit laid down in Muttusami v. He considers that Mr. Mayne's classification is inaccurate and misleading as he gives the maternal uncle the 9th place and the maternal grandfather the 17th place, and does not carry the class of Bandhus to the fifth degree.
He agrees with the decision of Aikman, J. Ram Parshad 3 A. The learned Judge's findings are admittedly -limited to the Madras Presidency where the Smriti Chandrika and other later commentaries have acquired special predominance, but his observations are of general application in so far as they indicate the possibility of a different mode of interpretation of the texts. So far as concerns the Province to which the parties before us belong and the territories which are now subject to the authority of the High Court at Patna, I am quite satisfied that the test of religious and spiritual benefit can and should be applied to determine the preferential right, that is to say, where the principle of affinity by blood relationship does not clearly indicate with which claimant the preference lies.
The result is that I would answer the reference in favour of the defendant. This result is in conflict with the lists prepared by Professors Sarbadhikari and Bhattacharya, while Mr. Mayne, who gives precedence to the sister's son as against the maternal uncle, does not consider at all the claim of a sister's daughter's son.
On the other hand Professors Golap Chandra Sarkar and Jogendra Nath Ghose would seem to support the claim of the maternal uncle on the rule of nearness laid down by them. In my opinion as the texts do not expressly declare the order of priority between the rival claimants we are entitled to apply the principles, of affinity and spiritual benefit, both of which have been pronounced by sages and commentators to be of universal application and here operate to establish Raghunandan's claim.
Other principles, inferred from the order of succession for agnates who have been specially mentioned by name in the texts, cannot be invoked in this case as the claimants are not numerically of the same degree of nearness.
English Meaning of sapinda
The question for determination is whether Uma Shanker or Raghunandan is the preferential heir of one Chaman Lal Upadhaya.
Uma Shanker is the sister's daughter's son of Chaman Lal. Raghunandan is the mother's brother, or maternal unole of Chaman Lal. The competition, therefore, is between a maternal uncle and a sister's daughter's son. The former bases his claim for preference over the latter on the following grounds: That he is nearer in degree to the propositus than the sister's daughter's "son inasmuch as he is 4 degrees removed from the propositus and 2 degrees from the common ancestor of the propositus the maternal grandfather and himself, whereas the sister's daughter's son is 5 degrees removed from the propositus and 4 degrees from the common ancestor of the propositus the father and himself.
That the maternal uncle offers Pindas or funeral oblations to two ancestors of the propositus, namely, the maternal grandfather and the great-grandfather, to whom also the propositus offers Pindas, whereas the sister's daughter's son offers no Pinda to any of the ancestors of the propositus, and thus the maternal uncle confers spiritual benefit to the propositus, whereas the sister's daughter's son confers none.
That the maternal uncle is related to the propositus through one female only, namely, the propositus's mother, whereas the sister's daughter's son is related to him through two females, namely, the sister and the daughter.
That the texts of the Mitakshara and Viramitrodaya give to the maternal uncle a high position among heirs. Reference has been made to the Mitakshara, Chapter II, Section 6clause 1, where the maternal uncle's son is enumerated as an' Atma Bandhu, to another part of the Mitakshara page3rd Edition, where be has been expressly mentioned as a principal heir of a trader dying abroad, to Acharkanda, Chapter I, verse 52, where the maternal uncle has been mentioned as a prominent Sapinda, and to Viramitrodaya, Chapter III, part VII, section V, where the maternal uncle has been mentioned as an heir superior to the three classes of Bandhus.
Sister's daughter's son or any of his ancestors, sister or sister's daughter, is not mentioned anywhere.
Sapinda - Wikipedia
The above facts are not disputed, but it is contended that the sister's daughter's son should be preferred to the maternal uncle on the following grounds: That he is related to the propositus through his father, whereas the maternal uncle is related to the propositus through his mother; and 2.
That he traces his descent, through a nearer ancestor of the propositus, namely, his father, whereas the maternal uncle traces his descent through a remoter ancestor, namely, the maternal grandfather of the propositus. The parties are governed by the Benares school of the Hindu Law.
These ancient texts are common to all the schools. The authority of a commentator was received in one and rejected in another part of India. Hence schools with conflicting doctrines arose. The Mitakshara, which is a commentary on the Institutes of Yajnavalkya by Vignaneswara Bhutta, is universally accepted by all the schools except that of Bengal where also it is received as of high authority, yielding only to Dayabhaga in those parts where they differ.
In like manner there are glosses and commentaries upon the Mitakshara-which are received by some of the schools that acknowledge the supreme authority of that treatise but are not received by all [Collector of Madura v. Moottoo Ramalinga Sathupathy 1 B. They differ in essential rules of law from those followed in the Benares school [ Buddha Singh v. C to be the most orthodox of the different schools, Viramitrodaya by Mitter Misser is followed con-currently with the Mitakshara [Omrit Koomaree Dabee v.
Their Lordships of the Judicial Committee as well as all the Courts, in India from the earliest times up to the present moment have recognized Viramitrodaya as an authoritative commentary on the Mitakshara and as governing the Benares school [vide Collector of Madura v. CLallubhai Bapubhai v.
Nand Ram 11 A. Sarafraz Kunwar 19 A. Laltu Singh 16 Ind. By virtue of section 5 of the Hindu Marriage Acta marriage will be valid only if both the parties to the marriage are Hindus. This section lays down five conditions for a valid marriage. Monogamy Sec 5 Clause 1 This provision Prohibits bigamy.
The marriage should be monogamous. Under the Hindu Law a person can validly marry if he or she is either unmarried or divorced or a widow or a widower. If at the time of the performance of the marriage rites and ceremonies either party has a spouse living and the earlier marriage had not already been set aside, the later marriage is void. A bigamous marriage is null and void and is made punishable. Mental Capacity Sec 5 Clause 2 The parties to the marriage should not suffer from unsoundness of mind, mental disorder or insanity.
In all the cases given in sec 5 clause 2 the party is regarded as not having the mental capacity to solemnize the marriage. So if a party who solemnize the marriage is suffer from unsoundness of mind, mental disorder or insanity, the marriage is voidable at the opinion of the other party.
The result is that at present even if a party to the marriage is subject to recurrent attacks of epilepsy, the marriage is valid and the other party cannot seek for nullity of marriage. Age to the parties Sec 5 Clause 3 At the time of marriage the bridegroom has completed the age of 21 years and the bride the age of 18 years.
If a marriage is solemnized in contravention of this condition is neither void nor voidable. Degrees of Prohibited relationship Sec 5 Clause 4 The parties to the marriage should not come within the degrees of prohibited relationship.