Decided on November 03,1954

Kartar Singh And Others Appellant
Niranjan Singh And Others Respondents


Gurnam Singh, J. - (1.) THIS regular second appeal arises but of a suit for declaration in respect of adoption of the respondent by Mst. Partapo, widow of Bhajna.
(2.) ON 3 -5 -2004 Bk., Mst. Partapo adopted Niranjan Singh respondent by means of a registered deed. The plaintiffs -appellants, who are Bhinna Gotra Sapindas of Bhajna, husband of Mst. Partapo, instituted the present suit for declaration that the deed of adoption was ineffective and inoperative against their reversionary rights. The allegations in the plaint were that the adaptor succeeded to her husband by inheritance as a limited heir and thus was incompetent to alienate the property. The plaintiffs also averred that the parties were governed by Hindu law and that the adoption being without consent of Bhajna was not valid. Lastly it was asserted in the plaint that if the parties were not governed by Hindu law even then custom permitted the plaintiffs to sue. The defendants in their written statements denied the allegations of the plaintiffs and asserted that the parties were governed by custom. They further averred that the plaintiffs being removed beyond 5th degree from the common ancestor were not competent to bring the suit. It was thus liable to be dismissed. The trial Court framed four issues arising out of the pleadings of the parties. The Court found that the parties were governed by their personal law. The plaintiffs who were Bhinna Gotra Sapindas being removed beyond 5th decree from the common ancestor were not heritable Bandhus. The Court for these reasons dismissed the suit. In appeal by the plaintiffs to the District Judge the findings or the trial Court were confirmed. The plaintiffs appeal to this Court. The main Question for determination before us is whether according to Mitakshara school the plaintiffs are heritable bandhus. By now the law is well settled that a bandhu must, in order to be heritable in female line, fall within five degrees from the common ancestor and must be so related to the deceased person that they were mutually sapindas of one another. This aspect of the case was considered by their Lordships of the Privy Council in a very exhaustive judgment reported in - 'Ramchandra v. Vinayek', : AIR 1914 PC 1 (A) and it has since been followed consistently in a series of cases by various High Courts. Their Lordships observed that the word bandhu has in the system of the Mitakshara a distinctive and technical meaning, in other words it signifies a bhinna -gotra sapinda. The appellants as being the paternal grandfather's son's son's daughter's daughter's sons of a deceased Hindu, claimed to succeed to his property as his next -of -kin or bandhus under the Mitakshara law. The respondents contended that the appellants had no heritable light in the property as they did not come within the category of bandhus entitled to succeed. Held, (a) that the sapinda relationship on which the heritable right of collaterals is founded ceases in the case of the 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, he must be so related to the latter that they are sapindas of each other. The appellants, therefore, being sixth in descent from the common ancestor, and there being no sapinda relationship between them and the porosities, they came within neither (a) nor (b) and were not entitled to inherit.
(3.) PLAINTIFFS have produced the pedigree -table Which is given in the judgment of the trial Court. The Learned Counsel for the appellants concedes that the tests laid down by their Lordships of the Privy Council were not satisfied. It is not denied that the appellants are removed beyond fifth degree from the common ancestor and that they are not so related to the deceased Bhajna as to be sapindas of one another. That is to say the claimants and the propositus are not related to each other in such a way that each is a sapinda of the other within the degrees indicated by the first test. The matter is, therefore, concluded between the parties and the plaintiffs are held not to be heritable bandhus.;

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