1. This appeal raises a question of Hindu Law, namely, whether claimants Ram Sia and Sheo Prasad are heirs as bandhus to the deceased Basi. The pedigree is given in the judgment of the learned Subordinate Judge, hearing an appeal, who dismissed the suit on the ground that the plaintiffs, on their own showing, were no heirs to the last male holder of the property. The pedigree, it must be understood, was not found by the learned Subordinate Judge as correct, for he did not apply his mind to this question of fact. The judgment of the Subordinate Judge was confirmed by a learned Judge of this Court and hence this Letters Patent Appeal. The pedigree for the sake of easier reference is given below:
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Kalu Bhori Sitaram
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Basi = (Musammat |
Musnmmat Anandi Musammat Sankariaj
Ram Sia, Sheo Prasad,
2. The learned Subordinate Judge dismissed the suit relying on certain dicta of this Court in the case of Shib Sahai v. Saraswati 30 ind. Cas. 903 : 37 A. 583 : 13 A.L.J. 786. There can be no doubt that the actual decision of the case was correct and nobody, impeaches the correctness of the decision. But their Lordships at pages 584-5 page of 37 A-Ed. express themselves as follows: '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 7 degrees on the father'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 7th degree counting from the last owner Khairati Rai. We are asked to count the 7 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 7th 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.
3. The learned Subordinate Judge counted 7 degrees from Basi to the plaintiffs through Mandhat and found that they were within 7 degrees of the propositus. He added that, as the plaintiffs claimed through their mother and as it was necessary that they also should be sapindas of Basi, the latter must be within 5 degrees from themselves in order that Basi might be their sapinda. Thus counting from plaintiff to Basi through Mandhat he found that Basi was beyond the 5th degree. Thus, he said, there was no mutuality of sapindaship between the claimants and Basi and he held that the plaintiffs were out of Court.
4. We have read the reference made in the judgment to Sarvadhikari's book, both the old and the new Edition. We have also, been referred to the Privy Council case of Ram Chandra Martand Waikar v. Vinayak Venkatcsh Kothekar 25. Ind. Cas. 290 : 12 A.L.J. 1281 : 18 C.W.N. 1154 : 27 M.L.J. 333 : 1 L.W. 831 : 10 N.L.R. 112 : 16 M.L.T. 147 : (1914) M.W.N. 835 : 16 Bom. L.R. 863 : 20 C.L.J. 573 : 42 C. 384 : 41 L.A. 290 (P. C). and to a later case decide by the same tribunal, namely, Adit Narain Singh v. Mahabir Prasad, Tewari 60 Ind. Cas. 251 : 19 A.I.J. 208 : 40 M.L.J. 270 : (1921) M. W.N. 153 : 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 : 48 I.A. 86 (P.C.). All the three authorities agree in laying down that the counting should be not from the propositus but from the common ancestor. Where a party claims through his father he must be within 7 degrees from the common ancestor, counting the claimant himself. Where a party claims through his mother, he must be within 5 degrees from the common ancestor, counting the claimant himself. The claimants in this case claim through their mothers and, therefore, they should show that they are within 5 degrees of the common ancestor and this they have shown. Taking the propositus, he is connected with the common ancestor through his father and he should be within 7 degrees of the common ancestor Mandhat and such is the case here. It is clear, therefore, that the plaintiffs ought to succeed.
5. Before leaving the subject we may point, out that in the 2nd Edition of Sarvadhi kari's book on Hindu Law of Inheritance-the case in Indian Law Report 37 Allahabad Shib Sahai v. Saraswati 30 Ind. Cas. 903 : 37 A. 583 : 13 A.L.J. 786 has been adversely criticised by the learned Editor. (Vide foot-note of page 499). As we have already stated the criticism is really towards what is practically an obiter dictum and not against actual decision of the case which was perfectly correct. In the case of Shib Sahai v. Saraswati 30 Ind. Cas. 903 : 37 A. 583 : 13 A.L.J. 786, the claimant Bulaki was claiming through his mother and he could not succeed since he did not prove that he was within 5 degrees from the common ancestor, being in the 6th degree.
6. The result is that we set aside the decree of this Court and the decree of the learned Subordinate Judge and remand the appeal to the Subordinate Judge for being disposed of according to law. The costs here and hitherto will abide the result.
7. A further test has to be applied, which test is meant to decrease the number of the people who but for the test would be entitled to inherit. This is laid down at pages 591 to 594 of Dr. Sarvadhikari's book (2nd Edition) which has always been accepted as very reliable on the point. This test was applied in the case of Sheo Nandan v. Munni 71 Ind. Cas. 1013 : 21 A.L.J. 288 : (1923) A.I.R. (A.) 398 by Gokul Prasad and Ryves, JJ. Applying this test, we find that, the plaintiffs maternal grandfather was Bhori, who was a sapinda, and the common ancestor was Bhori's father, also a sapinda of the plaintiffs. Mandhat, the common ancestor being directly in the father's line of the propositus, was his sapinda.