- (1.) THIS appeal was filed in the Mehkma Khas of the covenanting Kotah State against the order dated 27.1.48 passed by the Revenue Commissioner of the same State which has now been transferred to this Board.
(2.) THE facts of the case, in brief, are that holding No. 20 measuring 47 bighas and 15 biswas in village Bordi in Tehsil Baran was in the khata of one Manna who died issueless. On 5.2.42 it was entered in the name of Anandia, a nephew of the deceased and a minor. Subsequently the Nazim Baran came to know that mutation of the Khata in the name of Anandia had been made without thorough enquiry and that Anandia was in the eighth generation of the deceased Manna and that according to sec. 46 of Circular No. 3 of the covenanting Kotah State, he was not entitled to succession. He, therefore, submitted a report to the Revenue Commissioner for the cancellation of this khata from the name of Anandia. THE Revenue Commissioner on 23.6.44 passed orders accordingly and the tenancy right of the holding in question escheated to the State THE Nazim Baran on 16.1.48 made recommendation for the auction of this holding, and on 27.1.48 the Revenue Commissioner passed orders of its auction. It was against this order that this appeal was preferred in the Mehkma Khas of the above named covenanting State. Counsel for the appellant and the Inspector Mal Baran on behalf of the State were heard. The counsel for the appellant pleaded that there was a reunion of the holding in question with that which his client had got in succession from his father Madho, vide Sec. 342 of the Hindu Law, which provides that there can be reunion in the State between persons who were parties of the original partition. Since both the khata numbers, 20 and 17 originally belonged to Gaindi Lal, their common ancestor, therefore there could be reunion of these holdings. Besides this, Manna in his life time had adopted Anandia as his son, therefore also he was entitled to succeed to this property. The Inspector Mal replied that although Anandia is deceased Manna's younger brother Madho's son, yet since Madho had gone in adoption to Ghasi, therefore he is related in eight degrees to the deceased, as would be evident from the following genealogical table of this family: - F3 GAINDI LAL 2 4 F2 Deo Bux Nathu S1 1 5 F1 Krishna Uda S2 6 Manna (Deceased) Madho (Went in adoption to Ghasi) Ghasi S3 7 Madho (By adoption) S4 8 Anandia (Went in adoption to Manna) S5 Since according to sec. 46 (17) of Circular. No. 3 of the covenanting Kotah State which provides that only those relations who are related to the deceased within 7 degrees can succeed, therefore Anandia being eight degrees distant from the deceased cannot succeed to the property of Manna, nor can there be a reunion of these separate khatas. A careful examination of the arguments of the parties shows that the plea of the appellant regarding reunion of the property does not hold good, as sec. 342 of the Hindu Law lays down that a reunion can take place between persons who were parties to the original partition, and they have the intention to constitute a reunion. Thus it follows that there can be reunion only between those persons who were parties to the original partition and that there is an agreement between the parties to reunite in estate with the intention to reunite them to their former status as members of a joint family. In the present case, Anandia was not a party to the original partition, rather he was a minor at the time of Manna's death and thus legally unfit to make a contract. Therefore this plea of the appellant fails. The other point regarding adoption seems reasonable as clause 1 of sec. 46 of the above referred Circular No. 3 lays down that the term 'son' includes adopted son, which means that a tenant is allowed to adopt some one from his relations as a son, and in the absence of any provisions regarding adoption in the Revenue rules of the covenanting Kotah State it shall be presumed that a Hindu tenant has the right to adopt according to the Hindu Law. Since a perusal of the genealogical table of the family given above shows that Anandia is a sapinda of the deceased therefore he has the right to go in adoption. But the point of Anandia's adoption was not in issue in the lower court, therefore the evidence on record in this respect is incomplete. But before remanding the case for making an inquiry on this point it seems necessary to examine the mode of counting degrees adopted by the lower courts. The language of clause 17 of sec. 46 of the Circular No. 3 referred to above is as follows, "Digar Warisan Khandan Ander Sat Pusht" meaning thereby "those relations who are related to the deceased within seven degrees". In the explanation of sec. 39 (iv) of the Hindu Law of Mulla it has been stated that Sapinda relationship extends to seven degrees reckoned from and inclusive of the deceased, the purport of this language is exactly the same as in clause 17. Therefore the above referred clause 17 will mean that a sapinda of the deceased has a right to succeed to the property of the deceased, and the Hindu mode of counting these seven degrees in the ascending order is as below: - F6-S1-S2 - S3-S4 - S5 - S6. F5-S1-S2-S3 - S4 - S5-S6. F4 - S1 - S2-S3 - S4-S5-S6. F3-S1-S2-S3-S4-S5-S6. F2-S1-S2 - S3-S4-S5-S6. F1-S1-S2 - S3-S4-S5 - S6. DECEASED. All the relations stated in the above table are within seven degrees from the deceased. According to this table Anandia will be related to the deceased Manna as son in the fifth generation of his father's father's father. Thus he is related to the deceased only in four degrees inclusive of the deceased and is therefore fully entitled to succeed to the khata of the deceased Manna. I would, therefore, uphold the appeal and set aside the order passed by the lower court and order that the mutation of holding No. 20 in village Bordi be made in Anandia's name. This is subject to the concurrence of my learned colleague. Shri Hetu Dan Ujjwal - I concur.;