PAKULA MAJHI Vs. SUBHADRA BHOTRUNI

JUDGEMENT

(1.) THE short point that arises for consideration in this appeal is whether a father's brother's daughter is a Bandhu entitled to succeed under Mitakshara Law as administered in the district of Kora-put which once formed a part of the Madras presidency. Guru Majhi, father of the respondent Subhadra and the father of the propositus Mangala were two brothers. Guru Majhi died long ago leaving behind him his daughter Subhadra as the only heir. Mangala died some time in 1954 leaving behind him no other relation excepting the respondent Subhadra. In this case Subhadra claims to succeed, to the properties of Mangala as his sole surviving heir against the appellants who claim the properties under a deed of gift from Mangala. The trial Court and the first appellate court have disbelieved the story of the alleged gift in favour of the defendants and decreed the plaintiff's suit. In second appeal, the main contention advanced on behalf of the appellants was that the plaintiff-respondent is not a Bandhu under the Benaras School of mitakshara law which is prevalent in Orissa and that as such irrespective of the truth or otherwise of the defence set up by the appellants who admittedly are in possession of the suit properties, she is not entitled to recover possession of the same. Hon'ble Das, J. who heard the second appeal held that although the plaintiff is not a Bandhu according to the Benaras School of Hindu Law which is prevalent in Orissa, she is a Bandhu according to the Madras School of Hindu Law which in this case must govern the parties, who belong to the district of Koraput which once formed a part of the Madras Presidency and in the absence of any evidence to show that the parties, after 1936 when Koraput district became part of the orissa State, had adopted the law prevalent in Orissa. In this view of the matter he dismissed the appeal. In pursuance of the leave granted by the learned Judge this appeal has been filed.

(2.) THE main contention advanced by Mr. Y. S. N. Murty appearing for the appellants is that as Koraput district is now a part of the Orissa State since 1936, the law applicable to the parties must be deemed to be the Benaras School of hindu Law which does not recognise a female Bandhu; and even if it is held that the Madras School of Hindu Law governs the case there is no instance in Madras where a father's brother's daughter has been recognised as Bandhu. Neither of these two contentions appears to have any merit. As early as in Raghunath v. Brajakishore, ILR 1 Mad 69 (PC) the Privy Council assumed that in respect of the oriyas of Madras Presidency the Dravida School of Law prevails in matters of adoption. In Bodo Annanda v. Dando Naiko, AIR 1952 Orissa 307 which was again a case of adoption, it was held by a Division Bench of this Court that,

(3.) THE question then is whether a father's brother's daughter is a heir under the hindu Law as administered in Madras. Gotraj Sapindas and Samanodakas are all agnates, that is, persons connected with the deceased by an unbroken line of male descent. Admittedly the plaintiff is neither a Gotraj-Sapinda nor a Samanodak of late Mangala. The Bandhus or Bhinna Gotraj-Sapindas are all cognates, that is, persons related to the deceased through a female or females. The Bandhus of a person are his blood relations connected through females who have passed into other families or gotras. It therefore follows that every Bandhu must be related to the deceased through at least one female. Judged by this test the plaintiff subhadra cannot be deemed to be a Bandhu of Mangala because no female intervenes between her and Mangala. The Benaras School of Hindu Law does not recognise any exception to this Rule. In Madras however certain females are recognised as Bandhus, on the basis that if they would have been males and would have been heirs as Bandhus being connected to the propositus within the prescribed limits, they should not be ebarred from succession merely by reason of their sex. Accordingly the Madras School had held that the brother's daughter, sister's daughter, brother's sons' daughter and father's sister are heirs. Under the hindu Law of Inheritance (Amendment) Act 1929 the son's daughter, the daughter's daughter and sister were ranked as heirs. The daughter-in-law and son's daughter-in-law have been added after the Hindu Women's Right to Property act 1937 came into force. Over and above these female heirs, certain other female heirs have been recognised in Madras from time to time like a son's daughter, ILR 14 Mad 149, daughter's daughter, ILR 15 Mad 421 and brother's sons' daughter, air 1940 Mad 545 although some of these were not connected with the propositus through a female.