1. These two appeals arise out of two suits filed in each instance by one Krishna Ganu to recover from different defendants possession of certain property. The defendants are purchasers from one Bhau Govinda.
2. The property involved in each suit originally belonged to one Nana Bala who died on January 20, 1929, without leaving any issue. It appears that Government took possession of Nana's property in the belief that Nana had no heir to succeed to his estate. Thereafter by miscellaneous application (No. 16 of 1933) Bhau Govinda obtained on July 15, 1933, a succession certificate to the property of Nana and on the strength of the certificate he obtained possession of Nana's property. On August 30, 1933, Bhau Govinda sold to Vinayak Gangadhar Phadnis (defendant in suit No. 163 of 1940) the property involved in the suit, viz. Survey Nos. 16-1, 17-1, 18-2 and 19-1 + 2 for Rs. 2,500. On the same day Bhau Govinda sold to Raghunath Narayan Jadhav (defendant in suit No. 168 of 1940) the property involved in that suit which is Survey Nos. 14-2, 432-5 and 459-2 for the consideration of Rs. 500.
3. On December 12, 1933, Krishna Ganu filed against Bhau Govinda a suit (No. 1549 of 1933) to obtain a declaration that he was the lawful heir of Nana Bala, and to recover from Bhau possession of the property. In that suit the learned First Class Subordinate Judge raised issues (1) Is the plaintiff the heir of the deceased Nana Bala and (2) Who is the nearest heir to him; whether the plaintiff or the defendant; and he answered the first issue in the affirmative and the second issue in favour of the plaintiff. In the result, he passed in favour of the plaintiff a decree for possession of the suit property with costs of the suit. From that decree the defendant preferred in this Court First Appeal No. 86 of 1936 and on August 9, 1939, this Court affirmed the finding of the trial Court that the plaintiff was the heir of the deceased Nana Bala, but this Court made certain consequential orders on Bhau's contention that as the plaintiff had sold certain survey numbers, he could not sue for possession of the same.
4. In 1940 Krishna Ganu commenced the present suits against defendant Phadnis and defendant Jadhav for possession of the property, costs and mesne profits alleging that he was the heir of Nana Bala and that his title had been established in Civil Suit No. 1549 of 1933. Pending the suits, Krishna died and his widow Kasa was substituted in his place.
5. The defendant in each case raised the contentions that the plaintiff was not the heir of Nana Bala and that as each of the defendants was not a party to the previous suit, the finding recorded in the previous suit was not binding upon them.
6. The two suits were with the consent of the parties tried as companion suits. The learned trial Judge dismissed each of the two suits, holding that the plaintiff was not a bandhu and as he had no title he should fail. On the question of res judicata he held that the defence was not barred by res judicata. On appeal, the learned Extra Assistant Judge confirmed the decrees of the trial Court, holding that deceased Krishna was not a heritable bandhu of Nana Bala, that Bhau Govinda was not a samanodaka of Nana Bala, that the defence was not barred by res judicata, that Survey Nos. 19-1 and 432-5 did not belong to the estate of Nana Bala, and that as Krishna's right to recover possession of Survey No. 16-1 had been negatived in First Appeal No. 86 of 1936, the plaintiff's claim was not sustainable. Against the appellate decrees the plaintiff's heir has filed these two appeals. As the suits and the appeals were disposed of by a common judgment in the Courts below, it will also be convenient here to dispose of them by a common judgment.
7. On behalf of the appellant two points have been taken. It is contended that as the defendant in each suit claims through Bhau Govinda, the defence that the plaintiff was not the heir of Nana Bala was barred by reason of the decision in Suit No. 1549 of 1938. The Courts below took the view that the contention was not barred. It should be noted here that the former suit had been filed by the plaintiff against Bhau Govinda, through whom the defendant in each suit claims title to the suit property. But the purchases on which each of the defendants relies took place prior to the institution of the former suit. It is observed at p. 66 of Mulla's Civil Procedure Code, 11th Edition, that-
In order that a decision in a suit between A and B may operate as res judicata in a subsequent suit between A and C, it is necessary to show that C claims under B by a title arising subsequently to the commencement of the first suit. Thus, a purchaser, mortgagee, lessee or donee of a property is not estopped by a decree obtained in a suit against the vendor, mortgagor, lessor or donor commenced after the date of the purchase, mortgage, lease or gift.
With respect, we agree with this statement of the law. That being so, we confirm the finding of the trial Court that the defendant in each of the two suits is not estopped from disputing the title of Krishna Ganu as the legal representative of deceased Nana Bala by reason of the decision in Civil Suit No. 1549 of 1933 and in First Appeal No. 86 of 1936.
8. It is next contended on the appellant's behalf that plaintiff Krishna was a heritable bandhu and as such entitled to succeed to Nana Bala's estate. In order to understand the relationship between Krishna Ganu and Nana Bala it will be necessary to set out the pedigree which appears at page 5 of the print and which is as follows:-
Piraji Ghorpade| Sadu----------------------------------- || | |Ganu Mohana=Bapu| |Krishna Bala(plaintiff) |Nana
With respect to this pedigree the plaintiff and the defendants are not agreed in one respect. While the plaintiff says that Mohana was the wife of Bapu, the defendants assert that she was the wife of Sadu and the mother of Bapu. On the evidence the appellate Court holds that Mohana was the wife of Sadu and not of Bapu. Upon this finding the appellate Court holds that Krishna was not a heritable bandhu of Nana and was not, therefore, entitled to succeed to his estate. The appellate Court holds that if the plaintiff's contention was right the plaintiff would be a heritable bandhu and his place would be at serial No. 4 in the list of pitri bandhus set out at page 64, Mulla's Hindu Law, 9th edition. As, however the learned Judge held against the plaintiff, he recorded a finding that plaintiff Krishna was not a heritable bandhu of deceased Nana Bala.
9. The learned advocate for the appellant accepts the position that Mohana was the wife of Sadu and contends that even so, the plaintiff was entitled to succeed. He says that the plaintiff was a heritable bandhu and according to him Nana would be the claimant's father's father's daughter's son's son's son and as such he is the person mentioned at serial No. 30 at page 63 of Mulla's Hindu Law, 9th edition. Upon the basis of the finding the plaintiff would be Nana's father's father's maternal grandfather's son's son. On the other hand, the learned advocate for the respondent contends that from what appears at p. 64 of Mulla's Hindu Law, 9th edition, the plaintiff would not be a heritable bandhu according to the Allahabad view though according to the Madras view he would certainly be an heir.
10. In dealing with this question it is necessary first to ascertain the principles applicable to this case. The Mitakshara (Chapter 2, Section 6, paragraph 1) mentions three classes of bandhus, namely (1) atma bandhus, that is, one's own bandhus (2) pitri bandhus, that is, the father's bandhus, and (3) matri bandhus, that is, the mother's bandhus, and enumerates nine relations as bandhus. (See Mulla's Hindu Law, 9th edition, p. 45). It is obvious, therefore, that only nine relations have been expressly mentioned in the Mitakshara as bandhus. It is well settled that the enumeration of bandhus in the Mitakshara is illustrative and not exhaustive. This means that there are other bandhus than those nine relations, and a question arises as to what are the principles in order to determine whether a particular person is a bandhu. In Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar (1914) L.R. 41 I.A. 290, s.c. 16 Bom. L.R. 863 the headnote is as follows:-
The word 'bandhu' has in the system of the Mitakshara distinct and technical meaning and signifies the bhinna-gotra sapindas.
The sapinda-relationship, upon which the heritable right of collaterals is founded, ceases in the case of bhinna-gotra sapindas with the fifth degree from the common ancestor; further, in order to entitle a bandhu to inherit he must be so related to the deceased person that they are mutually sapindas of one another.
The right of inheritance, consequently, does not extend to a deceased person's paternal grandfather's son's son's daughter's daughter's sons, since they are bhinna-gotras beyond the fifth degree and the element of mutuality of sapindaship is wanting.
The question in that case was whether the plaintiffs, who claimed through their mother, but were bhinna gotra sapindas beyond the fifth degree, could inherit, and it was held that they could not. This case was referred to in Adit Narayan Singh v. Mahabir Prasad Tiwari (1921) L.R. 48 I.A. 86, s.c. 23 Bom. L.R. 692. At p. 95 this is what is stated:-
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 mutually sapindas of one another, that is to say, where the Mitakshara applies, persons connected by particles of one body: see Ramchandra Martand Waikar v. Vinayak Kothekar; but if these conditions are satisfied that rule takes effect.
These two cases have been referred to in a decision of this Court in Hanmant Ramaji v. Vasudev Hanmant (1942) 45 Bom. L.R. 95.
11. It seems, therefore, that in order to determine whether a particular person is a heritable bandhu two tests are necessary, viz. (1) test of degree and (2) test of mutuality. It is argued on behalf of the appellant that in the present case these two tests have been satisfied and indeed this is not disputed by M.M.P.V. Kane on behalf of the respondent. But he contends that besides these two tests there is a third test. According to the last mentioned test the propositus must be a descendant of a common ancestor who is a member of the following families, viz. (i) claimant's agnate family (ii) claimant's mother's agnate family (iii) claimant's father's mother's agnate family (iv) claimant's mother's mother's agnate family. (See Mulla's Hindu Law, 9th edition, page 52). This is based upon the view of Dr. Sarvadhikari. In support of this test there is clearly no text of Hindu law. It is evolved by Dr. Sarvadhirkari by way of inference from the enumeration of the bandhus in the Mitakshara. It is not easy to understand why such a restrictive rule should be deduced in the absence of a text or a pronouncement of the Privy Council to support it.
12. It may be mentioned that reference has been made to Sarvadhikari's Tagore Law Lectures in Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar (1914) L.R. 41 I.A. 290, 311, s.c. 16 Bom. L.R. 863. But their Lordships of the Privy Council have said nothing as regards the third test propounded by Dr. Sarvadhikari. Similarly, in Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349, 364, s.c. 24 Bom. L.R. 649 Raj Coomar Sarvadhikari (Hindu Law of Inheritance, p. 726) has been cited but nothing is said about this test. The result, therefore, is that this test has not been considered by their Lordships of the Privy Council.
13. It is, however, to be noted that Dr. Sarvadhikari's view has found acceptance in Gajadhar Prasad v. Gauri Shankar (1932) I.L.R. 54 All. 698, 732, 733, F.B. But the contrary view is to be found in Kesar Singh v. Secretary of State for India (1926) I.L.R. 49 Mad. 652 and Nagamma v. Lingareddi  Mad. 759, F.B. In the Allahabad case the claimants were daughter's son's daughter's sons of the common ancestor and in the first named of the two Madras cases the claimant was father's father's daughter's son's daughter's son. In the Madras Full Bench ease the relationship will be found set out at page 765 and there the propositus was father's daughter's son's daughter's son.
14. The position, therefore, is this. The third test is accepted in Gajadhar Prasad v. Gauri Shankar while it has not found favour in Kesar Singh v. Secretary of State for India and in Nagamma v. Lingareddi. In the last mentioned Madras case the headnote is as follows:-
Under the Mitakshara system of Hindu law the sister's son's daughter's son of a person is a heritable bandhu and is entitled to succeed in preference to the maternal uncle's grandson. According to that law there are only two tests for determining the heritable bandhus of a deceased person. They are: (i) the test of degree and (ii) the test of mutuality. A third test based on the 'line theory' of Dr Sarvadhikari is not supported by textual or other authority.
15. On behalf of the respondent reliance was placed upon the case reported in Lowji v. Mithabai (1900) 2 Bom. L.R. 842. There the owner of the property was one Canji and the plaintiff who claimed to succeed to his property was one Lowji. Plaintiff Lowji was the great grandson of the sister of the propositus, and the issue raised was whether he was entitled to succeed to the property of the propositus. At page 844 this is what is stated:-
Applying the definition of sapinda relationship, that a man in order to be the heritable sapinda of the propositus must be so related to him that they are sapindas of each other, to the present case it is clear that the plaintiff and the propositus are not mutually related as sapindas, as the propositus is not connected with the plaintiff either through his maternal grand-father's line or his father's maternal grand-father's line or his mother's maternal grand-father's line.
And the Court found the issue in the negative. The decision in the case assumed that bandhu would be found only in the four families. As, however, we take the view that such a restrictive rule should not be deduced we are unable to follow this decision. It may be observed that the weight of authority is at present clearly against that view.
16. It may be convenient at this stage to refer to what the learned editors of Mayne on Hindu Law and Usage and Principles of Hindu Law by Mulla say upon the subject. Mayne on Hindu Law and Usage, 10th edition, at p. 642, approves of the Madras view in Kesar Singh v. Secretary of State for India and discusses the Allahabad view in Gajadhar Prasad v. Gauri Shankar (1932) I.L.R. 54 All. 698, 740-42, F.B., Similarly, in Mulla's Principles of Hindu Law, 9th edition, at p. 54, it is observed that the Madras view is correct.
17. The case in Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 Cal. 119, F.B. was also cited. The actual decision, however, does not support the respondent's contention though the obiter seems to be in his favour. The case in Babu Lal v. Nanku Ram (1894) I.L.R. 22 Cal. 339 was next cited but that again does not support the respondent's contention. In fact M.M.P.V. Kane fairly conceded that in support of his contention there was no text, and the only authorities on which he could rely were the decision in Lowji v. Mithabai, the obiter in Umaid Bahadur v. Udai Chand, and the decision in Gajadhar Prasad v. Gauri Shankar. We have referred above to the cases cited at the bar and we now proceed to indicate our conclusions.
18. With respect, we follow the principles laid down in Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar, Adit Narayan Singh v. Mahabir Prasad Tiwari and Hanmant Ramaji v. Vasudev Hanmant.
19. We think that the view taken in Nagamma v. Lingareddi, which approves of the decision in Kesar Singh's case, is correct and we should follow the same. We are unable to agree with the decision in Gajadhar Prasad v. Gauri Shankar. We think that the view taken in Lowji v. Mithabai is not correct.
20. Such being our view of the authorities, we must hold that the plaintiff Krishna is a heritable bandhu and as such entitled to succeed to Nana Bala's estate.
21. The lower appellate Court has held that it was not proved that Survey Nos. 19-1 and 432-5 belonged to the estate of Nana Bala. This is a finding of fact binding upon us in second appeal, and indeed the appellant's learned advocate has not disputed the finding.
22. The appellate Court has also held that the plaintiff was not entitled to recover possession of Survey No. 16-1. As to this land, it will be open to the appellant to take such steps as he may be advised. We leave the matter undecided.
23. We, therefore, allow Second Appeal No. 1105 of 1943, set aside the decrees of the Courts below dismissing Suit No. 163 of 1940 and direct that the appellant do recover from the respondent possession of Survey Nos. 19-2, 18-2 and 17-1. The appellant shall be entitled to future mesne profits and there will be an enquiry under Order XX, Rule 12(1)(c), of the Civil Procedure Code. The respondent to pay one-half of the appellant's costs in this Court and in the Courts below, and to bear his own.
24. For the same reasons we allow Second Appeal No. 1104 of 1943, set aside the decrees of the Courts below dismissing Suit No. 168 of 1940 and direct that the appellant do recover from the respondent possession of Survey Nos. 14-2 and 459-2. The appellant shall be entitled to future mesne profits and there will be an enquiry under Order XX, Rule 12(1)(c), of the Civil Procedure Code. The respondent to pay one-half of the appellant's costs in this Court as well as in the Courts below, and to bear his own.
25. I agree. I have nothing to add to my learned brother's review of the case law, and I accept it as established that there is no textual authority which in terms lays down the third restriction upon inheritance to a bandhu enunciated by Dr. Sarvadhikari. That however would be immaterial provided his theory proceeded from sufficient data. It proceeds in fact from the statement of the three classes of bandhus given in the Mitakshara, coupled with the nine illustrations-three for each class-mentioned in the same passage. If the nine illustrations were exhaustive, that would be an end of the matter; the restriction enunciated by Dr. Sarvadhikari would have to be accepted, and perhaps even still further narrowed. But these instances are recognised as being given by way of illustration only, and it is accepted that they are not exhaustive. To evolve by induction four lines of inheritance from only nine examples is not necessarily unsound logic, provided that the induction is treated as no more than a working hypothesis. But to go further and say that the general rule derived from these limited particulars is inviolable and covers every conceivable instance seems to me to be unscientific and logically indefensible.