Kanhaiya Lal, J.
1. The dispute in this appeal relates to a fixed rate tenancy belonging to one Sumera, who died leaving a widow, Mt. Pratapi. The plaintiff claims to be the nearest heir of Sumera, deceased. Ho denied that Mt. Pratapi was lawfully married to Sumera, but the Courts below found on that point against him. The fixed rate tenancy in question has been sold by Mt. Pratapi to Harihar Prasad for a consideration of Rs. 300 on the 4fch July 1919, out of which only Rs. 50 have been found to have been taken for legal necessity.
2. The main question for consideration in this appeal is whether the plaintiff is the nearest reversionary heir of Sumora, deceased, and as such entitled to impeach the validity of the sale. The Court of first instance found against him, but the lower appellate Court held, relying on the pedigree proved in the case, and on an admission of the contesting defendant himself in a previous suit, that the plaintiff was the nearest bandhu or reversionary heir of the deceased and entitled as such to protect his reversionary right.
3. It appears from the pedigree that the common ancestor of the plaintiff and Sumera, deceased, was Kashi, who had a son Chikuri alias Hanuman, and a daughter, Mt. Budhia. Sumera was the son of Hanuman. The plaintiff is the son of Gangu, the son of Mt. Budhia. There is no nearer kinsman, agnate or cognate shown to be alive in the family. The rule as to the succession of Bandhus, laid down in the Mitakshara (Ch. 2, Section 6, para. 1) runs as follows:
On the failure of agnates, the cognates are heirs. Cognates are of throe 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 cognate kindred. The sons of his father's paternal aunt, the son of his father's maternal aunt and the sons of his father's maternal uncle must be deemed his father's cognate kindred. The sons of his mother's paternal aunt, sons of his mother's maternal aunt and the sons of his mother's maternal uncle must be reckoned his mother's cognate kindred.
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.
4. The text above quoted is variously attributed to Vriaha Shatatap or to Bavdhayana. It defines and illustrates the different classes or Bandhua, who are capable of inheriting. It was not cited by the author of the Mitakshara for the purpose of giving an exhaustive enumeration of the Bisudhus entitled to inherit, but only as an authority for or illustration of his proposition that there wore three classes of Bandhus, namely Atrna Bandhus or those related to the person himself, Pitri Bandhus or those related through his father, and Matri Bandhus or those related through his mother. Mitra Misra, the author of the Vira Mitrodaya, points out that the maternal uncle is recognised as an heir, but he is not mentioned there, and it would be anomalous if his sons are included and he is not included. Balam Bhatta, a lady commentator on the Mitakahara, suggests that the words 'sons' includes daughters, and that the sisters and their sons are not excluded.
5. In Girdhari Lal v. The Government of Bengal [1867-69] 12 M.I.A. 448 their Lordships of the Privy Council accordingly hold that the enumeration of Bandhus in the text is only illustrative and not exhaustive; and in Budha Singh v. Lalta Singh A.I.R. 1915 P.C. 70 and Aditya Narayan v. Mahabir Prasad Tiwari A.I.R. 1921 P.C. 53 their Lordships declared that the word 'sons' used there is used in generic sense and, includes a grandson.
6. Manu declares (IX, 187) that the inheritance of a deceased Sapinda goes to the nearest of the Sapindas. He does not mention Bandhus specifically. But later writers have pointed out that Bandhus are also Sapindas, though of a different Gotra. The sapinda relationship arises according to the Mitakshara between people who ' are connected by particles of one body; but as such a relationship might exist in some remote decree in a very wide circle, the author of the Mitakshara has discussed the limits within which such Sapinda relationship exists in his dissertation on marriage, to which similar considerations are applicable.
7. Commenting on the text of Yajnyavalkya (152-53) requiring that a man should marry a girl who is not his sapinda that is within seven and five degrees from the father and mother respectively the author of the Mitakshara says:
She is called his Sapinda who has (particles of) the body (of some ancestor etc) in common (with him). Non-sapinda means not his sapinda. Such a one (ho should marry).
8. The Sapinda relationship arises between two people through their being connected by particles of one body. Thus the son stands in sapinda relationship to his father, because of particles of his father's body having entered (his). In like manner stands the grandson (in sapinda relationship) to his paternal grandfather and the rest, because through his father particles of his (grandfather's) body have entered (into his own). Just so (is the son a sapinda relation of) his mother, because particles of his mother's body have entered (into his). Likewise the grand son stands in sapinda relationship to his maternal grandfather and the rest through his mother. So also (is the nephew) a sapinda relation of his maternal aunts and uncles and the rest, because particles off the same body (the paternal grandfather) have entered (into his and theirs): like-a wise does he stand (in sapinda relationship with paternal uncles and aunts and the rest). So also the wife and the husband (are sapinda relations to each other) be cause they together beget one body (the son). In like manner brother's wife also (are sapinda relations to each other be cause they produce one body (the son) with those who have sprung from one body. Therefore one ought to know that wherever the word sapinda is used, there exists (between the persons to whom it is applied) a connection with one body either immediately or by descent.
9. Vijnyaneshvar then proceeds to refute the theory that the sapinda relationship with maternal relations rests on the connection arising from obsequies offerings, the exception as regards obitual impurity being otherwise explicable, and referring to the passage in the text beyond the fifth and the seventh from the mother's side and the father's side respectively he observes:
On the mother's side in the mother's line after the 5th, on the father's side in the father's line, after the 7th (ancestor), the sapinda relationship ceases. These two latter words must be understood; and therefore the word 'sapinda' which on account of its (etymological) import, (connected by having in common) particles (of one body, would apply to all men, is restricted in its signification, just as the word Pankaja (which etymologically means 'growing in the mud' and therefore would apply to all plants growing in the mud, designates the lotus only) and the like, and thus the 6th descendant beginning with the son and one's self (counted) as the 7th (in each case) are sapinda relations.
10. The sapinda relationship thus ceases beyond the 5th ancestor from the mother's side and beyond the 7th from the father's side. The plaintiff is the fourth in descent from the common ancestor, namely the grandfather of Somer, and so as the nearest reversionary heir at the present time he is entitled to protect his reversionary right.
11. The learned Counsel for the appellant relies on the decision in Ram Chandra Martand v. Vinayak Venkatesh A.I.R. 1914 P.C. 1, but the general conclusion there arrived at after close examination of the authorities was (a) that the sapinda relationship on which the heritable right of collaterals was founded ceased in the case of bhinna gotra sapindas with the 5fch 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 would be sapindas of each other.
12. But the common ancestor in the present instance was Kashi and the plaintiff is only 4th in degree from him.
13. In Aditya Narayan v. Mahabir Prasad Tiwari A.I.R. 1921 P.C. 53, the mother's sister's grandson was given preference to the son of the mother's paternal aunt; and the principle there laid down was that under the Mitakshara in preferring the nearer to the more remote class of Bandhus, reliance was not to be placed on the individual propinquity or on the efficacy of offerings to a deceased person, but the rule was that a Bandbu must, in order to be heritable in a female line, fall within the 5th degree from the common male ancestor and must be so related to the deceased person that they were actually sapindas of one another i.e., where the Mitakshara applies to persons connected by particles of one body. Within the agnatic circle, sapindaship is always mutual. But among cognates or Bandhus the question of the mutuality of sapinda relationship is by no means easy of solution, specially where several females intervene, unless the principle of religious benefit which the Mitakshara seeks to exclude, is introduced.
14. But as regards the grandson of the father's sister, there would be a common ancestor near enough to whom he and the deceased, or one in the absence of the other, may have offered oblations, for Manu (IX. 186) says:
To three (ancestors) must water be given at their obsequies); for throe is the funeral cake ordained: the fourth (in descent) is the giver (of these oblations); the fifth has no concern with them.
15. Professor Rajkumar Sarvadhikari, applying the principle of religious benefit as a test of mutuality treats the father's Bister's grandson as within the heritable line (Sarvadhikari's Hindu Law 2nd edition P. 637). Mr. Golap Chandra Sircar excludes the principle of religious benefit and taking affinity by Sapindaship according to the Mitakshara law as necessarily mutual includes him within the heritable line (Shastri's Hindu Law, 4th edition, pp. 74 and 294).
16. The cross-examination as regards the extent of the legal necessity is futile.
17. The appeal and the cross-objection must, therefore, fail and are dismissed with costs including fees in this Court on the higher scale.