1. The suit from which this appeal arises was brought by the respondents, claiming to be the nearest reversioners of one Pandurang Rayaji, for a declaration that the adoption of defendant No. 1 by Godubai defendant No. 2 is invalid.
2. Godubai's husband was the younger brother of Pandurang Rayaji. He died without issue in about 1865. There was an elder brother Bhimrao who died about 1877 leaving no son, but, as the plaintiffs allege, leaving a daughter Venkubai who married Hanmant the great-grandfather of the plaintiffs. The following pedigree shows the relationship of the parties :-
| | |
Bhimrao Pandurang Ramchanda = Godubai
| | (defendant No. 2).
| | |
Venkubai = Hanmant Umaji Hanmant
| (defendatn No. 1)
Umaji Pandurang = Tulsabai
(plaintiff No. 1) (Plaintiff No. 2).
3. The family was a joint Hindu family. The case of an alleged partition in 1852 attempted to be made in the lower Court has not been argued before us. Thus after the death of Bhimrao, Pandurang became the owner of the whole estate by survivorship. He adopted in 1888 one Umaji, who, plaintiffs say, was the son of Venkubai and Hanmant and the brother of the plaintiffs' grandfather. Umaji having died without issue in 1901, Pandurang Rayaji became once more the owner of the estate, and on his death in 1903 Godubai succeeded as the widow of his brother.
4. In 1905 one Dattatraya Balwant put forward a claim to have been adopted by Godubai. The plaintiffs' grandfather Pandurang Hanmant sued as reversioner for a declaration that the adoption had not taken place and was anyhow invalid. Godubai was a defendant in the suit. Dattatraya contended that Pandurang Hanmant was not a reversioner of Pandurang Rayaji because the latter's brother Bhimrao had no daughter Venkubai nor any daughter at all. But this contention was overruled. Pandurang Hanmant was held to be the nearest reversioner as the son of Venkubai daughter of Bhimrao, and the adoption of Dattatraya being also found to be not proved and not valid, the declaration prayed for was granted. This decree was confirmed in appeal.
5. In 1933 Godubai adopted Hanmant defendant No. 1 in this suit, and the plaintiffs, who are the grandsons of the plaintiff in the suit of 1907, contend that the adoption is invalid. Moreover as Godubai died pending the suit, they have amended the plaint and claim possession of the estate. The suit has been decreed by the trial Court and defendant No. 1 has appealed.
6. The first issue is the same as in the suit of 1907, viz. whether plaintiffs are reversioners of Pandurang Rayaji. Defendant No. 1 denies that Venkubai through whom the plaintiffs claim was a daughter of Bhimrao. He has also contended that in any case the plaintiffs are not heritable bandhus, being more than live degrees in descent from the common ancestor Rayaji. The other points taken in the appeal, which do not appear to have been urged in the Court below, are that even if plaintiffs are heritable bandhus, they are not nearer reversioners than the defendant and are not entitled to dispossess him, and that in any case they are not entitled to that part of the estate which is watan property.
7. The fact that plaintiffs are descended from Pandurang Rayaji's brother Bhimrao through Venkubai has been held by the trial Judge to be res judicata, but he has also decided it in plaintiffs' favour on the merits.
8. To take the point of res judicata first, plaintiffs are claiming through the plaintiff in the former suit. Defendant No. 2 was a party to both suits. Defendant No. 1 in this suit does not claim under Godubai, but if she represented the estate he would be bound by the decree. It has been argued that he is not bound, firstly, because the suit of 1907 was collusive, secondly, because Godubai in the former suit was not interested in the question of Pandurang Hanmant's relationship to Pandurang Rayaji but only wanted to get rid of the adoption of Dattatraya. The learned advocate for the appellant mentioned as circumstances indicating collusion that Godubai put in no written statement in the suit of 1907 and she afterwards filed a suit herself to set aside the adoption. This, he says, must have been done at the instigation of Pandurang Hanmant. However, we can see no real reason for drawing any such inference and we think the evidence is quite insufficient to prove any sort of collusion between Godubai and the plaintiff in the former suit.
9. As regards the other point, it cannot reasonably be said that Godubai, who undoubtedly represented the estate, was not interested in Pandurang Hanmant's claim to be the nearest reversioner. The nearest reversioner was the only person who could in any way restrict her powers of enjoyment of the estate during her lifetime. Although Godubai did not put in a written statement, the trial was not ex parte. She was, it appears, represented by a pleader, and even an ex parte decree of course may be res judicata. We think therefore that the trial Judge was right in holding that this particular contention of the appellant is barred.
10. On the merits also we are of opinion that the plaintiffs have established their claim to be bandhus although owing to the lapse of time and the disappearance of some of the evidence their task is much more difficult than it was in the suit of 1907. There was a good deal of direct evidence of relations then which is. for the most part not now available. True we have some direct evidence, viz., that of Tulsabai the widow of Pandurang Hanmant and two uncles of hers, Chandrabhat and Banaji. They all depose that Venkubai was the daughter of Bhimrao, but obviously they can remember very little about her since she died about 1880. Their evidence therefore cannot be said to be worth very much.
11. The documentary evidence also is in some ways rather unsatisfactory. There is no evidence available now as to the heirship inquiry which took place on the death of Bhimrao. The earliest document we have is exhibit 141, a pedigree which was produced in 1884 for the purpose of the preparation of the Pali Register, i.e. the register of representative watandars. In this pedigree Venkubai is not shown. That however is obviously of no importance, because in the first place she had died in 1880, four years before, and in the second place there was no object in showing daughters in a pedigree prepared for the purpose of the Pali Register. This has been admitted by a witness examined for the defendant, Narso Bhimaji.
12. Exhibit 163 is a pedigree produced by Pandurang Rayaji in 1887. It may have been produced in connection with his proposal to adopt Umaji. In this pedigree below Bhimrao's name there is the sign which indicates nirvansh, i.e. absence of issue. But here again it may well be that the absence of male issue was all that was meant.
13. Exhibits 143 and 144 are entries in the remarks column of the Inam Register, referring to an application made by Pandurang Rayaji in which according to the entries he described Umaji as his sister's daughter's son. There is clearly some confusion in these entries because in one case it is said to be his elder sister's daughter's son and in the other case his younger sister's daughter's son, the words for elder and younger sister in Kanarese being different. Unfortunately the application made by Pandurang is not now available. Some support for the idea that Umaji was the sister's daughter's son (or rather son's son) of Pandurang Rayaji is derived from a statement which appears to have been made by Hanmant in 1888. It is referred to in the judgment of the suit of 1907. Hanmant described himself as the grandson of Pandurang Rayaji's sister Narsawwa. This would be consistent with the description of Umaji given by Pandurang Rayaji in his application if it really was as appearing in these entries. But of course Pandurang Hanmant the plaintiffs' grandfather would be equally a bandhu whether he were descended from a daughter or a sister of Bhimrao, and it is possible that he may have been descended from both.
14. An important piece of evidence is the fact that in the adoption deed executed by Pandurang Rayaji in 1888 he referred to Umaji as his dawhitra, which means the son of one's daughter or a brother's daughter or, it may be, the son of any daughter in the family. Exhibit 142 is a pedigree produced by Godubai in 1904 in the heirship inquiry after Pandurang Rayaji's death. In this there are two genealogies placed side by side. On the left hand side we have Rayappa and his three sons Bhimrao, Pandappa and Ramappa, with Ummappa (that is Umaji) shown as the adopted son of Pandurang, and on the right hand side with the heading 'Genealogy in the Female Line' there is the family of Hanmant, great-grandfather of the present plaintiffs. The fact that these two genealogies are placed side by side and the fact that that of Hanmant is headed 'Genealogy in the Female Line' seems clearly to indicate that the two families were connected. That might be either because Hanmant married a daughter of Bhimrao or a daughter of Bhimrao's sister.
15. Mr. Madbhavi has argued that that is not the only conceivable way in which the two families might be connected. He says it might be deduced from the evidence of Tulsabai that Hanmant the father of Umaji was Pandurang Rayaji's wife's brother's wife's brother's son. But obviously that would not make Umaji the dawhitra of Pandurang Rayaji, and we have to look for some other connection to explain exhibit 142.
16. If we had to decide de novo, there might be a doubt as to whether the plaintiffs' grandfather Pandurang Hanmant was descended from a daughter or a sister of Bhimrao, or, as I have said, he might be descended from both. But if he were descended from one or the other, he would in either case be a bandhu, and we think the most probable conclusion even on the evidence now available is that the plaintiffs are connected with Pandurang Rayaji through a female member of his family and are therefore bandhus.
17. They are, however, more than five degrees from the common ancestor and that leads us to the appellant's second point, which is that heritable bandhus are limited to five degrees. The argument for the plaintiffs, which the learned trial Judge has accepted, is that in the case of bandhus claiming through their father the limit is seven degrees and not five.
18. The leading case on the limits of the heritable right of bandhus is Ramachandra Martand Waiker v. Vinayak Venkatesh Kothekar. (1914) L.R. 41 IndAp 290 The actual point for determination in that case was whether the appellants, who claimed through their mother and were sixth in descent from the common ancestor, were heritable bandhus or not, and the Privy Council held that they were not. The question whether bandhus claiming through their father are also subject to the limitation of five degrees did not therefore directly arise for determination. But several passages in the judgment of their Lordships appear to show that they recognised no distinction in that respect and laid down the five degree limit as applicable to all bandhus whether claiming through the father or the mother. The question for determination is set out at page 297 of the report. It was :
whether the term bandhu is to be construed as the plaintiffs argue in the broadest sense, or whether it is subject to any limitation, and in the latter case what that limitation is according to the law by which the parties are governed.
19. Having stated the issue in this general form, their Lordships say at page 309 :
The limitation of five degrees clearly applies, and can only apply, to the bhinna-gotra sapindas.
(Which of course is another term for bandhus). Then at pp. 310, 311 they say :
As has already been observed, the right of inheritance is founded on sapinda relationship, which, under the Mitakshara, means consanguinity, in a distinct legal sense clearly explained by the author. This bond comes to an end with the fifth degree when the descent is through a female.
Finally at p. 312 we have the summing up as follows :-
The general conclusion to which a close examination of the authorities leads their Lordships may be briefly stated as follows : (a) that the sapinda-relationship, on which the heritable right of collaterals is founded, ceases in the case of bhinnagotra sapinda with the fifth degree from the common ancestor; (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, which is only a paraphrase of Manu's rule.
20. We are not here concerned with Clause (b) which deals with what is called mutuality. Clause (a) is on the face of it a general statement applicable to all bhinna-gotra sapindas or bandhus, and consequently in the headnote we have the rule laid down in the same general terms. As has been pointed out by Mayne in his Hindu Law, tenth edition, p. 166, and as has been admitted in Mulla's Principles of Hindu Law, p. 50, the suggested distinction between bandhus claiming through the father and mother respectively would lead to some very absurd results and it is difficult to see what logical foundation there could be for it. We do not, however, suggest that the question can be decided merely on logical grounds.
21. Ramchandra v. Vinayak was relied on in a later Privy Council case, Adit Narayan Singh v. Mahabir Prasad Tiwari. In a passage towards the end of the judgment in that case their Lordships said (p. 95):-
Of course a bandhu must, in order to be heritable in a female line, fall within the fifth degree from the common male ancestor and must be so related to the deceased person that they were mutual sapindas of one another.
It was suggested by the learned advocate for the respondents that the use of the words 'heritable in a female line' indicated a distinction between bandhus claiming through the mother and those claiming through the father. But it is quite plain if the judgment is read as a whole that no such distinction was intended to be made. It is most important to note that the claimant in that case, one Rajendra, claimed through his father. According to the argument of the plaintiffs here therefore the limit in his case should have been seven degrees. But their Lordships applied the limit of five degrees to the case, saying 'In this case Rajendra is an atma bandhu, and is within the fifth degree of descent from Ghanu Misra the common ancestor.' This seems to us to be a very clear indication that their Lordships themselves understood Ramchandra v. Vinayak as laying down a general rule and as making the fifth degree limitation applicable to all bandhus alike, whether claiming through the father or the mother.
22. The High Courts have differed in their interpretation of Ramchandra v. Vinayak. The Madras High Court in Kesar Singh v. Secretary of State for India I.L.R. (1926) 49 Mad. 652 has taken the view that the limits laid down by the Privy Council as to the heritability of bandhus only apply to those claiming through the mother. (It may be mentioned that the observations on this point were obiter dicta. The point did not actually arise, as the head-note shows). This is the case which has been relied on by the learned trial Judge. On the other hand the latest decision of the Allahabad High Court, Brij Mohan v. Kishun Lal,  A.L.J. 670 has taken the view that the limit of five degrees applies to all bandhus. There the point actually arose for decision. A person claiming the inheritance through his father who was beyond the fifth but not beyond the seventh degree from the common ancestor was held not to be a heritable bandhu.
23. The commentators have also differed, Mayne (paragraphs 109 to 116 and 519) taking the view which may be called the Allahabad view, while Mulla obviously favours the Madras view, though realising (see p. 54) that the dispute can only be settled ultimately by the Privy Council itself. In the course of the discussion in Mayne there is a reference to Balambhat, the commentator on the Mitakshara, and we have been referred to a passage from his commentary which is worth quoting. It is Balambhat, Vol. I, Acharadhyaya, p. 190, in Gharpure's edition :
In this way as the sapinda relationship ceases in the case of those of the same gotra with the eighth, that is with the person in the eighth degree, and in the case of those of different gotra (bhinna-gotra) with the sixth, that is with the person in the sixth degree, there cannot be any possibility of the existence of sapinda relationship after descent from that degree.
24. Mr. Hungund's principal point is founded on the original texts. The Privy Council based their judgment on the Mitakshara commentary on a certain text of Yajnavalkya dealing with the prohibited degrees for marriage. In his commentary on this text Vijnaneswara defined his theory of relationship, and as the Privy Council have held he did so for all purposes, not merely in connection with marriage. The text of Yajnavalkya is quoted in the Privy Council judgment at p. 307. It runs thus :
He who has not lost his chastity, let him marry a girl ... who is not a sapinda of him ... who is descended from one whose gotra and pravara are different from his; and who is removed five degrees on the mother's and seven on the father's Side.
Vijnaneswara's commentary on this text contains the words :
On the mother's side, in the mother's line after the fifth; on the father's side, in the father's line, after the seventh (ancestor) the sapinda relationship ceases.
25. Mr. Hungund's argument is that as Yajnavalkya was dealing with the case of a girl whose gotra and pravara had to be different from that of her husband, the limit of seven degrees as well as the limit of five degrees must apply to a person of a different gotra, i.e. a bhinna-gotra sapinda. That is to say, according to this argument the text postulates a distinction between two kinds of bandhus or bhinna-gotra sapindas, whereas the other view is and has to be that where seven degrees are mentioned, the reference is to gotraja sapindas, not bandhus at all.
26. It must be admitted, we think, that there is some force in this argument, but we consider it impossible to suppose that the point was overlooked by the Privy Council. As I have said, the text of Yajnavalkya is quoted in full in the judgment. Moreover the seven degrees limit is referred to in a way which seems to indicate that their Lordships did regard it as applying in the case of inheritance to gotraja sapindas and not to bandhus. Thus in pp. 304 to 307 of the judgment they discuss passages in the Mitakshara and Viramitrodaya relating to the succession of gotraja sapindas or samana gotra sapindas, which is limited to seven degrees. They then say (p. 307):
This limitation of the seventh degree appears in Yajnavalkya's Institutes
(in the passage already quoted), and they conclude :
It is quite clear, therefore, that the limitation of the seventh degree with regard to the samana-gotra sapindas given by Mitra Misra in the Viramitrodaya is taken from the rule enunciated by Vijnaneswara on Yajnavalkya in the Achara-kanda in respect of the cessation of sapinda-relationship.
27. It is we think hardly credible that in a discussion so full and detailed as this their Lordships would have omitted to mention a class of bandhus to which the same seven degrees limit applied as in the case of gotraja sapindas, or would have laid down what purport to be general rules for all bandhus without reference to such a class, if they were prepared to admit its existence. As Mayne says (paragraph 115):
The decision of the Privy Council that the limit of five degrees clearly applies to bhinna gotra sapindas is not confined to such as are related through one's mother. That was a decision given after a discussion of the whole question and cannot be regarded as a mere dictum, as has been assumed in some of the cases.
28. It has already been pointed out that in the later Privy Council case, Adit Narayan Singh v. Mahabir Prasad, their Lordships have themselves given an indication of the meaning of the rule laid down in Ramchandra v. Vinayak,
29. Mr. Hungund's point therefore practically resolves itself into an argument that the reasoning of their Lordships in Ramchandra v. Vinayak is erroneous. That is the view which has been taken in Shastri's Hindu Law, eighth edition (see especially p. 88). Incidentally the learned commentator does not appear to have felt any doubt that their Lordships intended to make the five degrees limit applicable to all bandhus. The argument that the judgment is erroneous is of course not open to us to consider. We can do no more than construe the judgment. The effect of it in our opinion is correctly stated in the head-note and we must hold that a general rule has been laid down which is applicable to all bandhus. It follows that the plaintiffs in this case being beyond the fifth degree of descent from the common ancestor Rayaji are not heritable bandhus and not entitled to claim the estate.
30. That being so, the other points urged by the learned advocate for the appellant do not arise and may be briefly disposed of. The contention that defendant No. 1 is a preferable heir to the plaintiffs even on the assumption that they are heritable bandhus is not maintainable in view of the decisions in Radhabai v. Rajaram, (1937) 40 Bom. L.R. 559 Subrao Baji v. Dada Bhiwa (1940) 43 Bom. L.R. 492 and Madhavsang Haribhai v. Dipsang Jijibai. (1942) F.A. 130 decided by Broomfield and Macklin JJ., on January 26, 1942 (Unrep.) It is now settled so far as this High Court is concerned that an adoption by a widow of a gotraja sapinda is valid for religious purposes but does not affect any rights to property whether vested or contingent. For the same reason defendant No. 1 could have had no claim to the watan property on the assumption that the plaintiffs were competitors. Reference was made to Act V of 1886, Section 2, which provides that females and those claiming under them are postponed if there is a male ' qualified to inherit.' But an adopted son whose adoption confers upon him no rights to property which affect any other rights whether vested or contingent could hardly be described as a person qualified to inherit the estate. However, as we hold that the plaintiffs are not heritable bandhus and not in a position to put forward any claim against the defendant, it is not necessary to say anything more on these points.
31. The result of our finding on the second issue is that the appeal must be allowed and the suit dismissed with costs throughout.
32. I agree.
33. I appreciate that there is a distinct cleavage of opinion between some of the commentators and also between the High Court of Allahabad and the High Court of Madras as to the correct interpretation to be put upon the judgment of the Privy Council in Ramchandra Martand Waiter v. Vinayak Venkatesh Kothekar. (1914) L.R. 41 IndAp 290 Speaking for myself, after reading the judgment with some care, I have been unable to find any passage which indicates that the decision would or could have been any different if the claim in that case had been through plaintiff's father instead of through his mother. It seems to me that the observations of their Lordships are couched in general terms as an answer to a general question stated at the beginning of the judgment, and that there is no room for holding that the answer, stated in such general terms as their Lordships have stated it, is subject to any modification in the case of a bandhu claiming through his father. Moreover it seems to me that their Lordships themselves have interpreted Ramchandra v. Vinayak as containing a' universal rule in so far as in Adit Narayan Singh v. Mahabir Prasad Tiwari they found in favour of a plaintiff five degrees removed from the common ancestor who claimed through his father. The ground of the decision was that the plaintiff besides being an atma bandhu was within the fifth degree of descent from the common ancestor. Their Lordships did not say within the seventh degree of descent; and if it were possible to argue, as has been argued in this appeal, that in the case of a claim through the father the plaintiff would succeed if he were not more than seven degrees removed, I cannot help feeling that their Lordships would certainly have said so. The appeal must therefore succeed.