Norris and Banerjee, JJ.
1. This appeal arises out of a suit brought by the plaintiffs, respondents, for possession of two-thirds of two houses with mesne profits, on the allegation that the houses belonged to one Ram Saran Ram; that on Ram Saran Ram's death the two plaintiffs and their brother defendant No. 2, as Ram Saran Ram's mother's sister's sons and his nearest heirs, became entitled to the same in equal shares; and that defendant No. 1, setting up a purchase from defendant No. 2, has been keeping the plaintiffs out of possession of their two-thirds share.
2. Defendant No. 2 did not enter appearance, but defendant No. 1 defended the suit, urging, among other matters, not necessary now to consider, that the plaintiffs were not the heirs of Ram Saran Ram; that they were not related to him as they alleged, their mother Sonia and Ram Saran Ram's mother Keola not being sisters, but being cousins, that is, daughters respectively of one Hardoyal and his sister Anandi, as shewn in the genealogical table fried with the written statement; and that Ram Saran Ram had a sister's son, named Gokul, who was his nearest heir if the adoption of Ram Saran Ram by his maternal undo as set up in the defence was not made out.
3. The first Court overruled all the objections of the defendant No. 1, and gave the plaintiffs a decree, holding that it was not shewn that Ram Saran had any sister's son, that the plaintiffs were related to Ram Saran as stated by them, and that, even if the genealogy given by the defendant was correct, still the plaintiffs would, under the Mitakshara, be the heirs of Ram Saran as his bandhus.
4. On appeal by the defendant No. 1 the Lower Appellate Court, while setting aside the finding of the first Court upon the question of the plaintiffs' relationship with Ram Saran, and accepting the genealogy set up by the defendant as correct, has affirmed the first Court's decree on the ground that, according to the defendants' genealogy, the plaintiff's are still the heirs of Ram Saran Lal as his bandhus.
5. Against this decision the defendant No. 1 has preferred this second appeal, and it is contended on his behalf: first, that the relationship set up by the plaintiffs being found not established, the Lower Appellate Court is wrong in giving them a decree upon a case not made in the plaint; and, secondly, that the Lower Appellate Court is wrong in holding that, according to the genealogy set up by the defendant and accepted as true, the plaintiff's were heirs as bandhus of Ram Saran.
6. We do not think there is any force in the first contention. If the defence had been a simple denial of the plaintiff's alleged relationship and right to inherit, then upon their failure to make out that relationship they would not have been entitled to succeed upon establishing a different relationship, at any rate without showing further that there was no nearer heir in existence. But that was not the nature of the defence here. The defendant not only denied the relationship set up in the plaint, but alleged what according to him was the true relationship between the plaintiffs and the late proprietor. He put in a genealogical table setting out this relationship, and he alleged that one Gokul, who was Ram Saran's sister's son, was the nearest heir, and after the first Court had held that Ram Saran had no sister's son, and that even according to the defendants' genealogical table the plaintiffs were the heirs of Ram Saran, the defendant, who was the appellant in the Court of appeal below, did not object to the plaintiffs being allowed to succeed upon the basis of a different relationship from that alleged in the plaint, on the ground of his being taken by surprise, and being prejudiced by such a course being followed, nor did he suggest that there was any nearer heir of Earn Saran. We are, therefore, of opinion that this contention must fail.
7. The second contention also, we think, is untenable.
8. The relationship that is found by the Lower Appellate Court to have subsisted between the plaintiffs and the late proprietor Ram Saran Ram will appear from the following genealogy (see ante p. 340).
9. The parties are admittedly governed by the Hindu law as laid down in the Mitakshara, and there is no question that the plaintiffs, if they are the heirs of Ram Saran Ram at all, can be his heirs only as his bandhus. The question, therefore, is, whether the plaintiffs are bandhus of Ram Saran Ram.
10. The term 'bandhu' is defined in the Mitakshara (Ch. IT, Section v. verse 3) as a 'bhinna gotra sapinda,' that is, one sprung from a different family and connected by common corporeal particles, or by consanguinity. Colebrooke incorrectly rendered sapinda as one connected by funeral oblation, but this inaccuracy in his translation was pointed out long ago, and the above rendering has now been accepted as the correct one. [See Lallubhai Bapubhai v. Manhuvarbai I.L.R. 2 Bom. 388, the same case on appeal Lallubhai Bapubhai v. Cassibai I.L.R. 5 Bom. 110, and Umaid Bahadur v. Udoi Chand I.L.R. 6 Cal. 119.]
11. There is also an enumeration of bandhus in the Mitakshara (ch. II, Section vi, verse l), which is as follows: 'Bandhus (cognates) are of three kinds-related to the person himself, to his father or to his mother, as is declared in the following text: The sons of one's own father's sister, the sons of one's own mother's sister, and the sons of one's own maternal uncle are his own bandhus. The sons of one's father's sister, the sons of one's father's mother's sister, and the sons of one's father's maternal uncle are his father's bandhus. The sons of one's mother's father's sister, the sons of one's mother's mother's sister and the sons of one's mother's maternal uncle are his mother's bandhus.' (The above translation is slightly different from Colebrooke, which is somewhat inaccurate).
12. If this enumeration of bandhus had been exhaustive it would have been unnecessary to consider the definition of the term quoted above. But it has now been authoritatively settled that the enumeration is not exhaustive : see Giridhari Lall Roy v. Government of Bengal 1 B.L.R. P.C. 44 : 10 W.R. P.C. 31; Amrita Kumari Debt v. Lakhi Narayan Chuokerbutty 2 B.L.R. F.B. 28 : 10 W.R. F.B. 76; and Umaid Bahadur v. Udoi Chand I.L.R. 6 Cal. 119. It becomes necessary therefore to consider the definition of the term 'bandhu,' and to see whether the plaintiffs come within that definition, that is, whether they are 'bhinna gotra sapindas' of Ram Saran, or of his father, or of his mother. For in any one of these cases they will be entitled to inherit. See Mitakshara, ch. II, Section vi, verse 1; Umaid Bahadur v. Udoi Chand I.L.R. 6 Cal. 119; Andnda Bibee v. Nownii Lall I.L.R. 9 Cal. 315 (327). Now there is no question that the plaintiffs are bhinna gotras of Ram Saran, that is, that they are sprung from a gotra, or fatally, different from his. So the question is reduced to this, namely, whether they are the heritable sapindas of Ram Saran, either directly or through his father or his mother.
13. Now the term 'sapinda' is explained in an earlier part of the Mitakshara in the section relating to marriage when commenting on verses 52 and 53 of ch. I of Yajnavalkya's Institutes. Translations of portions of that explanation are set out in the judgment of this Court in Umaid Bahadur v. Udoi Chand I.L.R. 6 Cal. 119, and a complete translation of the entire passage is given by Babu Rajkumar Sarvadhikari in his Tagore Law Lectures on the Principles of the Hindu Law of Inheritance, pp. 601-605.
14. According to that explanation or definition a sapinda of a man means and includes (1) any descendant within the seventh degree reckoned from and inclusive of himself, that is, any of his first six descendants; (2) any ascendant within the seventh degree reckoned from and inclusive of himself in the paternal line, that is, any of his first six ascendants, in his paternal line; (3) any collateral descendant within the seventh degree reckoned from and inclusive of any of the six paternal ascendants, that is, any of the first six descendants of any of the first six ascendants in the paternal line; (4) any ascendant within the fifth degree reckoned from and inclusive of himself in the maternal line, that is any of the four maternal ancestors, namely, the mother, her father, her grandfather and the rest; and (5) any collateral-descendant within the fifth degree reckoned from and inclusive of any of the three maternal ancestors, beginning with the mother's father, that is, any of the first four descendants of any of the three maternal ancestors, beginning with the mother's father.
15. The mother's descendants are not here included, as they being ordinarily also the descendants of the father are included among collaterals on the paternal side. As to how the mother will stand with reference to descendants of the mother by a second husband upon her re-marriage after widowhood under the Widow Marriage Act we need not here consider,
16. Again, a sapinda of the propositus to be capable of inheriting must satisfy a further condition, namely, that he must be so related to the propositus, that the propositus is also a sapinda of him, either directly or through the father or the mother. This mutuality of sapinda relationship between the propositus and his heritable sapindas is assumed as a necessary condition in the case of Umaid Bahadur v. Udoi Chand I.L.R. 6 Cal. 119, and the authority for this is to be found in the text of Manu (ch. IX, 187), cited in the Mitakshara, ch. II, Section iii, verse 3, as interpreted by Balambhatta and Visweswara Bhutta, the two leading commentators on the Mitakshara. That text according to these commentators means this: 'The property of a near sapinda shall be that of a near sapinda.'
17. From this it is clear that a man in order to be a heritable sapinda of the propositus must be so related to him that they are sapindas of each other.
18. Let us now apply this definition of sapinda relationship, and this test of mutuality of that relationship, to the present case, and see whether the plaintiffs are heritable sapindas of Ram Saran, either directly or through the father or the mother.
19. We find that the plaintiffs are descended in the third degree from Mangru Ram who was Ram Saran's mother's maternal grandfather, and so they are Ram Saran's sapindas through his mother. We also find that Ram Saran Was the third in descent from Mangru Ram, who was the plaintiffs' maternal greatgrandfather, and so he was their sapinda directly. Thus we find that the plaintiffs and Ram Saran are mutually related as sapindas, the former through the mother and the latter directly. The plaintiff's are therefore sapindas and bandhus of Ram Saran, ex parte materna, and are his heirs.
20. The grounds urged before us, therefore, both fail, and this appeal must consequently be dismissed with costs.