1. This is a plaintiff's appeal and arises out of a suit for a declaration that the property in dispute is the personal property of the plaintiff. The property consists of certain buildings in the town of Allahabad and is detailed in the plaint in Schedules A and B. It originally belonged to Jagannath who died about the year 1865. The basis of the claim is that Mukandi Lal, the father of the appellant, was a foandhu, having heritable rights, of Jagannath, that Mukandi Lal succeeded to the property on the death of Jagannath's widow Mt. Lalta Bibi in November 1908 and that the appellant is entitled to the property by succession as an heir to his father along with his brother Janki Prasad who is defendant 5 in the suit. Several pleas were taken by the defendants, but it is not necessary to mention all of them. The Court below has found that the pedigree set up by the plaintiff is proved but that Mukandi Lal, the father of the Appellant, being five degrees removed from the common ancestor, Ghasi Ram, was not a bandhu with heritable rights and that therefore he never succeeded to Jagannath's estate. The Court below has also found on an examination of the evidence that the two deeds of will executed by Mt. Lalta Bibi in the years 1903 and 1907 by which she dedicated the property to an idol Shri Beharji, were executed by her with the express authority of her husband who had admittedly installed the deity in his house. It has also been found by the lower Court that the present suit is barred by the doctrine of res judicata be cause of the decision in Suit No. 85 of 1927. There is also a finding that the suit is barred by Section 42, Specific Belief Act. In consequence of the decision on these points the suit has been dismissed.
2. The point which has been argued before us is that the decision of the Court below that Mukandi Lal, the father of the plaintiff-appellant, was not a heritable bandhu of Jagannath is erroneous. The learned Counsel appearing for the appellant has very properly stated that if our decision on this point is against him, he would not be justified in taking up the time of this Court in arguing the other points. The pedigree set up by the plaintiff, appellant ia as given below:
GHASI RAM|----------------|---------------|Brij Nath Mohan Lal| |Bishnath Rikhi Ram| |Jagnnath = Mt. Lalta Bibi Mt. Banno|Babu Lal|Mukandi Lal||--------------------|Janki Prasad Brij Mohan Lal.
3. The defendants did not admit this pedigree and contended that the evidence on which the plaintiff relied in proof of this pedigree was not admissible. The Court below has not accepted this contention arid has held that although the depositions in this case of the plaintiff-appellant, Brij Mohan, and his witness, Suraj Prasad, were inadmissible, certain previous statements of the plaintiff's father Mukandi Lal and one Gopal Das were admissible. In our opinion the Court below is not correct in its view that those statements are admissible. They were made in a suit filed on behalf of the Secretary of State for India claiming the property left by Jagannath on the ground that no heir of Jagannath was in existence and that the property had escheated to the Crown. The wills executed by Mt. Lalta Bibi creating the trust were also challenged. It would thus appear that the question as to whether Jagannath had left any heirs or not had arisen and the question of the alleged relationship of Mukandi Lal with Jagannath was in controversy. We therefore hold that the statement of Mukandi Lal relied upon is also inadmis. sible. The statement of Gopal Das has not been printed, nor has it been shown what special means of knowledge he had. Furthermore, it is admitted that the statement of Gopal Das also was recorded in the same litigation which we have mentioned above. Therefore Gopal Das's statement was also inadmissible. The Court below has not relied on any other evidence in proof of the pedigree, nor has the learned Counsel appearing for the plaintiff-appellant been able to refer to any other evidence. It may be pointed out that in her will dated 14th March 1907 Mt. Lalta Bibi makes this definite statement:
There is no legal heir of me or of nay husband who should perform the religious rites and ceremonies.
4. She had made a similar statement in the earlier will of 7th July 1903. By the second will of 14th March 1907 she had appointed Janki Prasad, the brother of the plaintiff, appellant, as one of the trustees. Janki Prasad had attested the first will dated 7th July 1903 and his father, Mukandi Lal, had identified the lady before the Sub-Registrar. We consider it very improbable that the lady, Mt. Lalta Bibi, would not have described Mukandi Lal and Janki Prasad as her relations and given the exact relationship in these two documents if the pedigree set up by the plaintiff had been true. In the written statement filed by Mukandi Lal in the suit brought by the Secretary of State for India he vaguely mentioned a relationship in para. 17 but did not set up the pedigree which is now relied upon by the plaintiff, appellant. Learned Counsel for the appellant has referred to the deposition of Baldeo Prasad, one of the witnesses produced by the defendants in the present suit. It is true that this witness states that the name of Mukandi Lal's maternal grandfather (Nana) was Rikhi Lal. He however states definitely that Jagannath's grandfather, Baij Nath or Brij Nath, had no brothers. It will also be noticed that according to the pedigree set up by the plaintiff-appellant Rikhi Ram was not the maternal grandfather of Mukandi Lal. For all these reasons we are of opinion that the plaintiff-appellant has failed to prove the pedigree set up by him. The plaintiff's suit really fails on the finding that his pedigree is not proved. But even if we accept that pedigree, we are of opinion that the decision of the Court below that Mukandi Lal was not a heritable bandhu according to Hindu law is correct. In Ram Chandra Martand v. Vinaik Venkatesh (1914) 1 A.I.R. P.C. 1 their Lordships of the Privy Council have after an elaborate examination of the texts of Hindu law laid down at page 312 the general conclusion at which their Lordships have arrived as the result of the examination of the texts. They are:
(a) That the sapinda relationship, on which the heritable right of collaterals is founded, ceases in the case of bhinna gotra sapinda with the fifth degree from the common ancestor and (b) that in order to entitle a man to succeed to the inheritance of another it must be so related to the latter that they are sapindas of each other.
5. This decision of their Lordships of the Privy Council was cited before the Full Bench in Gajadhar Prasad v. Gauri Shankar : AIR1932All417 . It will be noticed that it was not contended by the claimants in that case that a person who is more than five degrees removed from the common ancestor can be a heritable bandhu. What was contended was that the claimants being within five degrees, as ruled by their Lordships in Ram Chandra Martand v. Vinaik Venkatesh (1914) 1 A.I.R. P.C. 1, were entitled to succeed and no further restrictions should be laid upon them other than the rule of mutuality. We consider that their Lordships have clearly decided in Ram Chandra Martand v. Vinaik Venkatesh (1914) 1 A.I.R. P.C. 1 that a bandhu or a bhinna gotra sapinda in order to have heritable rights must not be beyond the fifth degree from the common ancestor. Learned Counsel for the appellant has argued that as his client's father, Mukandi Lal, was claiming not through his mother but through his father's mother, the rule laid down by their Lordships in Ram Chandra Martand v. Vinaik Venkatesh (1914) 1 A.I.R. P.C. 1 would not apply. Learned Counsel argues that this view is supported by the judgment of Mukerji J. in the Full Bench case in Gajadhar Prasad v. Gauri Shankar (1922) 19 A.I.R. All. 417 mentioned above. In the first place, we do not think that the learned Counsel is right in contending that the judgment of that learned Judge supports the proposition that be is contending for. In the second place, we consider that the decision of their Lordships of the Privy Council in Ram Chandra Martand v. Vinaik Venkatesh (1914) 1 A.I.R. P.C. 1 is clear and we are bound to follow it.
6. As stated above, the learned Counsel for the appellant has not thought it proper to take up our time in arguing any other question as we intimated to him that our view on the question of the right of Mukandi Lal being a heritable bandhu of Jagannath was against his contention. We may however observe that in our opinion the finding of the Court below that the wills executed by Mt. Lalta Bibi on 7th July 1903 and 14th March 1907 were executed in pursuance of authority given to her by Jagannath is correct. The Court below has mentioned the evidence in detail and we agree with the Court below in holding that the admissions of Mukandi Lal and Janki Prasad and the entire circumstances coupled with the statement of Ghanshiam Das make it abundantly clear that Jagannath had authorzied Mt. Lalta Bibi to make the wills and to dedicate the property to the idol. In the circumstances we do not consider it necessary to go into the question of res judicata or into the question of the suit being barred by Section 42, Specific Belief Act on which grounds also the Court below has decided against the plaintiff-appellant. For the reasons given above, we dismiss this appeal with costs.