Kanhaiya Lal, J.
1. The dispute in this appeal relates to fixed-rate tenancy belonging to Sumera, who died leaving a widow Musammat Partapi. The plaintiff claims to be the nearest heir of Sumera deceased. He denied that Musammat Partapi 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 Musammat Partapi to Harihar Prasad, for a consideration of Rs. 300 on the 4th 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 Sumera 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 13 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 Musammat Budhia. Sumer was the son of Hanuman. The plaintiff is the son of Gangu, the son of Musammat 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, (Chapter II, Section 6, paragraph 1) runs as follows:
On the failure of agnates, the cognates are heirs. Cognates are of three 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, paternal, aunt, the sons 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, the sons of his mother's maternal aunt; and the sons, of his mother's maternal uncle must be reckoned his mother's cognate kindred.
4. 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.
5. The text above quoted is variously attributed to Vriddha Shatatap or to Baudhayana. It defines and illustrates the different classes of bandhus 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 bandhus entitled to inherit, but only as an authority for or illustration of his proposition that there were three classes of bandhus, namely atma 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 Viramitrodaya, points out that the maternal uncle is recognized 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 Mitakshara, suggests that the words 'sons' includes daughters, and that the sisters and their sons are not excluded.
6. In Girdhari Lall Roy v. The Government of Bengal 10 W.R.P.C. 31 : 12 M.I.A. 448 : 1 B.L.R.P.C. 44 : 2 Suth P.C.J. 159 : 2 Sar. P.C.J. 382 : 20 E R. 408, 3 Mad. Jur. 386 : 1 Ind. Dec. (N.S.) 28 (P. C) their Lordships of the Privy Council accordingly held that the enumeration of bandhus in the text is only illustrative and not exhaustive; and in Buddha Singh v. Laltu Singh 30 Ind. Cas. 529 : 42 I.A. 208 : 29 M.L.J. 431 : 2 L.W. 897 : 13 A.L.J. 1007 : 18 M.L.T. 409 : 17 Bom. L.R. 1022 : 20 C.W.N. 1 : 22 C.L.J. 481; (1915) M.W.N. 772 : 37 A. 604 (P.C.) and Adit Narayan Singh v. Mahabir Prasad Tiwari 60 Ind. Cas. 251 : 48 I.A. 86 at p. 95 : 40 M.L.J. 270; (1921) M.W.N. 153 : 19 A.L.J. 208 : 2 P.L.T. 97 : 33 C.L.J. 263 : 29 M.L.T. 240 : 6 P.L.J. 140 : 23 Bom. L.R. 692 : 25 C.W.N. 842 : 14 L.W. 20 (P.C.) their Lordships declared that the word 'sons' used there is used in a generic sense and includes a grandson.
7. 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 degree 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.
8. Commenting on the text of Yagnyavalkya (I, 52-53), 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 (he should marry,). 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 grandson 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 of the same body (the paternal grandfather) have entered (into his and theirs); likewise 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) because they together beget one body (the son). In like manner brother's wives also (are sapinda relations to each other) because they produce one body (the son) with those (severally) 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. Vignyaneshvara then proceeds to refute the theory that the sapinda relationship with maternal relations rests on the Connection arising from obsequil 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 fifth, on the father's side in the father's line, after the seventh (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 sixth descendant beginning with the son and one's self (counted) as the seventh (in each case) are sapinda relations.
10. The sapinda relationship thus ceases beyond the fifth ancestor from the mother's side and beyond the seventh from the father's side. The plaintiff is the fourth in descent from the common ancestor, namely the grandfather of Sumer, and 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 Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 41 I.A. 290 : 18 C.W.N. 1154 : 27 M.L.J. 333 : 1 L.W. 831 : 10 N.L.R. 112 : 16 M.L.T. 447; (1914) M.W.N.. 835 : 16 Bom. L.R. 863 : 12 A.L.J. 1281 : 20 C.L.J. 573: 42 C. 384 (P.C.) but the general conclusion there arrived at after a 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 fifth 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 fourth in degree from him. In Adit Narayan Singh v. Mahabir Prasad Tiwari 60 Ind. Cas. 251 : 48 I.A. 86 at p. 95 : 40 M.L.J. 270; (1921) M.W.N. 153 : 19 A.L.J. 208 : 2 P.L.T. 97 : 33 C.L.J. 263 : 29 M.L.T. 240 : 6 P.L.J. 140 : 23 Bom. L.R. 692 : 25 C.W.N. 842 : 14 L.W. 20 (P.C.) 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 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, i.e., where the Mitakshara applies persons connected by particles of one body.
13. Within the agnatic circle, sapindaship is always mutual. But among cognates or bandhus the question of 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. But as regards the grandson of the father's sister, there would be a common ancestor near enough to whom both 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 three is the funeral cake ordained: the fourth (in descent) is the giver (of these oblations); the fifth has no concern with them.
14. Professor Rajkumar Sarvadhikari, applying the principle of religious benefit as a test of mutuality treats the father's sister's grandson as within the heritable line (Sarvadhikari's Hindu Law, 2nd Edition, page 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, pages 74 and 294).
15. The cross-objection as regards the extent of the legal necessity is futile.
16. The appeal and the cross-objection must, therefore, fail and are dismissed with costs including fees in this Court on the higher scale.
17. This appeal arises out of a suit instituted by a person calling himself the next reversioner to the estate of one Sumer deceased to obtain a declaration that transfer of Sumer's property made by his wife Musammat Partapi to one Harihar Prasad was not made for legal necessity and is not binding to the reversioner for the time being on the death of Musammat Partapi.
18. The suit failed in the first instance, but it succeeded in the lower Appellate Court which found that the sale consideration was good and supported by legal necessity to the extent of Rs. 50.
19. The appeal is by the defendant and his contention is two-fold (1) the respondent, who claims as a bandhu, has failed to prove that there was no male agnate within fourteen degrees of Sumer living at the date of suit and the second is that under the Hindu Law the respondent is not a bandhu at all. The plaintiff-respondent Ram Daur has filed a cross-objection urging that no legal necessity had been established.
20. To take the last point first, it appears that on this point both the Courts were of the same opinion and they held that the sum of Rs. 50 having been borrowed originally by Sumer, his wife was justified in paying it off. This point, therefore, is decided against the plaintiff-respondent.
21. The first contention of the appellant has no weight. The learned District Judge finds that nobody has been able to even suggest that there is any closer relation than the plaintiff living. Indeed, in a former suit instituted by One Sheo Nandan, who is shown in the pedigree to be found in the plaint, the appellant pointed out the present plaintiffs father Gangu as nearer reversioner than Sheo Nandan. Both Sheo Nandan and Gangu claim through females and it is clear that if there had been a male agnate of Sumer living Gangu would not have been pointed out as a nearer reversioner than Sheo Nandan.
22. On point No. 2, there can be no doubt that the plaintiff-respondent is a bandhu and is as such entitled to succeed to Sumer, if Musammat Partapi should now die. Among the bandhua expressly mentioned in the Mitakshara is a father's sister's son. It has been held by the Privy Council in the case of Adit Narayan Singh v. Mahabir Prasad Tiwari 60 Ind. Cas. 251 : 48 I.A. 86 at p. 95 : 40 M.L.J. 270; (1921) M.W.N. 153 : 19 A.L.J. 208 : 2 P.L.T. 97 : 33 C.L.J. 263 : 29 M.L.T. 240 : 6 P.L.J. 140 : 23 Bom. L.R. 692 : 25 C.W.N. 842 : 14 L.W. 20 (P.C.) that the word 'sons' in the text includes grandsons. Thus by an express text of the law the plaintiff Ram Daur is a bandhu of the deceased himself and as such is entitled to succeed. On behalf of the appellant we were pressed with the Privy Council case of Ram Chandra Martand Waikar v. Vinayak Venkatesh Kothekar 25 Ind. Cas. 290 : 41 I.A. 290 : 18 C.W.N. 1154 : 27 M.L.J. 333 : 1 L.W. 831 : 10 N.L.R. 112 : 16 M.L.T. 447; (1914) M.W.N.. 835 : 16 Bom. L.R. 863 : 12 A.L.J. 1281 : 20 C.L.J. 573: 42 C. 384 (P.C.). It was contended that their Lordships of the Privy Council had held that a bandhu in order to succeed must be within five degrees of the deceased counting both the deceased and the claimant. This contention, however, is not sound and the case is no authority for any such proposition. Where, the claimant is, related to the deceased through his father seven degrees have to be counted and not five. It is only when the claimant is connected with the deceased through his mother that five degrees have to be counted. This was held by this Court in the case of Shib Sahai v. Saraswati 30 Ind. Cas. 903 : 13 A.L.J. 786 : 37 A. 583. In that case the claimant was 8th in degree and, therefore, lost his suit. The method of counting adopted in this case is open to objection. The counting is to be done from the common ancestor, as was held in the case of Adit Narayan Singh v. Mahabir Prasad Tiwari 60 Ind. Cas. 251 : 48 I.A. 86 at p. 95 : 40 M.L.J. 270; (1921) M.W.N. 153 : 19 A.L.J. 208 : 2 P.L.T. 97 : 33 C.L.J. 263 : 29 M.L.T. 240 : 6 P.L.J. 140 : 23 Bom. L.R. 692 : 25 C.W.N. 842 : 14 L.W. 20 (P.C.) by their Lordships of the Privy Council. Applying this test, the applicant is amply within five degrees from the common ancestor Kashi, and Sumer is well within seven degrees of the same person.
23. As for the test of mutuality, it also exists. For, I have already shown that Gangu the father of the claimant, was the father's sister's son to the deceased and Sumer is Ram Daur's pitribandhu, being Gangu's maternal uncle's son.
24. Partapi, the transferor, has not been served with notice of the appeal, having been impleaded as a respondent, But this does not affect the appeal. I hold that the respondent was rightly successful.
25. I would dismiss both the appeal and the cross-objection.
26. The appeal and the cross-objection fail and are dismissed with costs including in this Court fees on the higher scale. The name of Musammat Partapi who has not been served will be removed from the record.