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Shib Sahai and ors. Vs. Saraswati and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Judge
Reported inAIR1915All409; (1915)ILR37All583
AppellantShib Sahai and ors.
RespondentSaraswati and anr.
Excerpt:
hindu law - mitakshara--bandhu--grandfather's great-grandson's daughter's son not a bandhu under the mitakshara law. - - ' the learned subordinate judge clearly misunderstood what was meant by a 'bandhu ex parte materna......bandhu and the last owner must have been sapindas of each other. the rule of sapinda relationship has been laid down in the mitakshara and it extends to seven degrees on the father's side and five degrees on the mother's side, including the last owner. taking the pedigree put forward by the plaintiff, which will be found at page 9 of the paper book, it is clear that bulaki was one degree beyond the seventh degree counting from the last owner khairati rai. we are asked to count the seven degrees from the great grandfather of khairati who was the common ancestor, and it is said that computing from the common ancestor khairati is within the seventh degree, but this computation would leave out of consideration altogether khairati himself and his father. the mode in which relationship should.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of a suit for possession of the property of one Khairati Rai. The plaintiff claims as transferee from Bulaki, who is alleged to be the bandhu of Khairati Rai, and thus to have inherited his property. According to the pedigree put forward by the plaintiff in the plaint, the relationship between Bulaki and Khairati Rai is this that Bulaki is the son of the daughter of a grandson of the paternal uncle of Khairati's father. The question, therefore, is whether the grandfather's great-grandson's daughter's son is a bandhu under the Mitakshara law. The court of first instance was of opinion that the plaintiff's vendor Bulaki was Khairati's bandhu 'ex parte maternd.' The learned Subordinate Judge clearly misunderstood what was meant by a 'bandhu ex parte materna.' According to the Mitakshara, bandhus are of three descriptions, namely, the owner's own bandhus, his father's bandhus, that is, 'bandhus ex parte paternd' and his mother's bandhus that is 'bandhus ex parte materna.' There is no question of Bulaki being a 'bandhu ex parte maternd' in this case. The question what constitutes a bandhu was fully considered by their Lordships of the Privy Council in the recent case of Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar (1914) 12 A.L.J. 1281 : L.R. 41 I.A. 230 and the present case is practically concluded by the ruling of their Lordships. The world 'bandhu' under the Hindu Law (as has been held in that case also) means a 'sapinda' who belongs to a different gotra, that is to say, a 'bhinna gotra sapinda.' Therefore, for the bandhu relationship to exist it is essential that the person claiming to be the bandhu and the last owner must have been sapindas of each other. The rule of sapinda relationship has been laid down in the Mitakshara and it extends to seven degrees on the father's side and five degrees on the mother's side, including the last owner. Taking the pedigree put forward by the plaintiff, which will be found at page 9 of the paper book, it is clear that Bulaki was one degree beyond the seventh degree counting from the last owner Khairati Rai. We are asked to count the seven degrees from the great grandfather of Khairati who was the common ancestor, and it is said that computing from the common ancestor Khairati is within the seventh degree, but this computation would leave out of consideration altogether Khairati himself and his father. The mode in which relationship should be computed is stated in Sarvadhikari's Tagore Law Lectures (1880) page 707, and that is a mode which the lower appellate court has adopted. We think that the decision of that court is right. We dismiss the appeal with costs.


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