Natesan, J.@mdashThis 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 plaintiffs'' 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 of 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.
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 of
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 never 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. 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 u/s 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. 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 AIR 1943 10 (Privy Council) 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 Parashram Vs. Kashiram Totaram, 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 Bam 27 (1)) the propositus 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 rejected, 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. 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, ILR (1905) 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, ILR (1905) 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 daughter''s 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) 2 Mad HCR 196, on remit by the
Privy Council in Myna Boyee v. Oottaram, (1859) 8 Moo Ind App 400 (PC). The facts of the case are to be found in (1859) 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
cognition 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) 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 The State of Madras Vs. Ramanatha Rao and Another, . 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 of 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 Allahabad High Court in Jogar Nath Gir Vs. Sher Bahadur Singh, 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 AIR 1914 1 (Privy Council) 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 daughter''s 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. 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 belonging 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 Ekoba Parashram Vs. Kashiram Totaram, . 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 be 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.
The cognates related through females corresponding nearly to the Cognate of the Roman law are heirs and they are placed under three
classifications, atmabandhu, 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, pitrubandhu and matrubandhu in para 1 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 AIR 1914 1 (Privy Council) 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 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 AIR 1914 1 (Privy Council) ) and Seelam Nagamma and Another Vs. Reddem Lingareddi alias Ramalingareddi lately, .
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 or 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 husbandness 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. 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 fit resolved in striking language by Nanda Panditha in his Vaijayanti,
the well known commentary on Vishnu Smrithi composed in 1622. Colebrooke refers to fit 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, if
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 of 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 Ekoba Parashram Vs.
Kashiram Totaram, 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 1920 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 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 nave heritable blood between them for Nandapanditha gives the order of
precedence among brothers and sisters of whole blood and hall 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. 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 and Another Vs. Parasaram Subbaroya Aiyar and Others, , 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. In AIR 1931 268 (Privy Council) , 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 Thevar v. The
Collector of Tinnevelly, 69 Mad LJ 632 = (AIR 1985 Mad 1017) (Ramesam and Stone JJ.) which was affirmed by the Privy Council in AIR
1938 34 (Privy Council) , Stono J. summed up the following three rules as flowing from ILR 59 Cal 576 = (AIR 1981 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, them.
2. He comes first whose oblations axe more spiritually efficacious; if that fails them
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 religious
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 fine, 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. The second appeal succeeds. The
parties will bear their respective costs in this court and in the lower appellate court. No leave.
