Banerji and Tudball, JJ.
1. This appeal arises out of a suit brought by Ram Sumer Misir, respondent, for possession of property which once belonged to one Sheo Narain. He also asks for a declaration that two mortgages, one effected by the widow of Sheo Narain, and the other by his daughter, be declared ineffectual as against his rights, being mortgages without legal necessity. He further claims mesne profits. Sheo Narain died many years ago and his property came into the possession of his widow, Mummmat Sughanda. He had a daughter, Musammat Chaura, and the plaintiff Ram Sumer Misir is the son of Musammat Chaura's daughter. Musammat Sughanda made a mortgage in 1860 in favour of Hanuman Misir, the grandfather of the defendants appellants. In 1883, after Sughanda's death, Musammat Chaura, who succeeded to the property, executed another mortgage in favour of Ajudhia, the defendant. Chaura died on the 20th of April, 1905, and thereupon the suit out of which this appeal arises was brought by the plaintiff as mentioned above.
2. The court of first instance decreed the claim and that decree has been affirmed by the lower appellate court.
3. It is contended that the plaintiff is not entitled to possession of the property of Sheo Narain and that he is not his legal heir. This contention is in our judgment not well founded. As we have said above the plaintiff is the son of Sheo Narain's daughter's daughter. He is clearly a sapinda of Sheo Narain within the, meaning of the Mitakshara and being a Bhinna gotra sapinda, who claims through a female belonging to the family of Sheo Narain, namely his daughter Chaura, he is Sheo Narain's bandhu. In the absence of any other heir he is entitled to succeed to the estate of Sheo Narain. It is urged that he being the son of Sheo Narain's daughter's daughter, cannot be regarded as a bandhu. In the Tagore Law Lectures for 1882 the descendant of a daughter's daughter of the same family to which the deceased belonged is specifically mentioned as a bandhu of the deceased (see page 688) and on page 707 the daughter's daughter's Son is specified in the list of the man's own bandhus. Having regard to the definition of a bandhu as understood in the Mitakshara we must hold that the plaintiff, who is the daughter's daughter's. son of Sheo Narain, fie last owner, is his bandhu and as such the heir to his estate.
4. It is next urged that the mortgages made by Sughanda, the widow of Sheo Narain, and Chaura, his daughter, must, be held to have been for legal necessity as necessity for the loans incurred by them is specified in the mortgage deeds. As regards the mortgage made by Chaura, it has been found that there was no necessity for it and that finding is conclusive. As regards the other mortgage, no doubt certain necessities are mentioned in the mortgage deed itself but that is not enough. It was for the defendants, who claim under a Hindu widow who has a limited interest, to show either that there was legal necessity for the mortgage, or at least that the mortgagee 'was led on reasonable grounds to believe that there was necessity for the alienation.' This according to the findings of the court below the defendants have failed to do. Therefore the mortgages made by the widow of Sheo Narain and by his daughter cannot enure beyond their life. Both the ladies being dead the property will now pass to the plaintiff and he is entitled to possession. As the defendants kept him out of possession he is entitled to mesne profits of which he was deprived by the defendants.
5. These are the only matters which were pressed before us. The other pleas mentioned in the memorandum of appeal were abandoned, they being untenable. We dismiss the appeal with costs.