1. The respondent sued to recover a house from the appellant. The appellant relied on a usufructuary mortgage in support of his possession, but failed to establish it. The house in question belonged to one Subbaraya Chetti, who is now dead, and the appellant pleaded that the respondent, who is the grandson of the maternal uncle of Subbaraya Chetti's mother, was not his heir, and that one Ammani Murugappa, who went abroad about six years ago, was his undivided paternal uncle's son and as such his heir-at-law. Both the Lower Courts held that it was not proved at all that Murugappa was alive, and the District Munsif further observed that the defendant's witnesses said that they did not know how Murugappa was related to Subbaraya, and that the relationship set up by the respondent was not proved.
2. It is urged on second appeal that the Lower Courts are in error in holding that, as a bandhu, the respondent is Subbaraya's heir under the Mitakshara law.
3. We have the authority of the Privy Council for saying that the enumeration of bandhus in the Mitakshara is not exhaustive. On this ground the Judicial Committee held in Girdhari Lall Roy v. The Bengal Government 12 M.I.A. 448 that a maternal uncle was a bandhu. It was also held by a Full Bench at Calcutta that a sister's son was an heir, though he is not named in the Mitakshara. [Amrita Kumari Debi v. Lakhinaraya Chuckerbutty 2 B.L.R. 29 This decision was approved by the Judicial Committee in the case before cited and was followed by this Court in Chekkani Tirupati Rayanin Garu v. Rajah Suraneni Vencata Gopala Narasimha Rau Bahadur 6 M.H.C.R. 279.
4. The author of the Mitakshara Chap. II, Section 5, Section 3, declares that kinsmen sprung from a different family, but connected by funeral oblations, are indicated by the term cognate. Bhinna, gotra sapindanam bandhu sabda qra-hanat, and in Section 6 that cognates bandhus are of three kinds--related to the person himself, to his father, or to his mother. The great-grandson of the mother's maternal grandfather is a sapinda of that common ancestor and therefore a cognate related to the mother, matrubandhu. The mother's maternal uncle, though less remote, succeeds in virtue of a similar affinity.
5. On this ground we affirm the decision of the Lower Appellate Court and dismiss this appeal with costs.