BABU RAM BARAN RAI Vs. KAMLA PARSHAD

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff claiming as a next reversioner to Bindhachal Rai to obtain a declaration that he is entitled to the estate of the deceased after the death of his mother, Musammat Rajwanti Kunwar, and that a deed of compromise, dated the 5 June 1908, was void and ineffectual as against him. In paragraph 5 of the plaint he stated that the defendant first party had brought a suit against Rajwanti Kunwar to recover possession of the property left by Bindhachal Rai, that they colluded and on the 5 of June 1908, filed a compromise in the suit to the effect that the defendant 2nd party (i.e. Rajwanti Kunwar) would remain the owner and possessor of the property left by Bindhachal Rai as long as she was alive, and ihat after her death the defendant first party would become entitled to the possession of the aforesaid property. In paragraph 6, the plaintiff urged that this compromise was prejudicial to him as according to Hindu Law he is the heir of Bindhachal Rai and the defendant first party could not in , any way be deemed to be his heirs. With the plaint was filed a pedigree which will be found at page 7 of the paper-book. In this pedigree, one Lala Rai is shown as the common ancestor from whom Bindhachal Rai and also the defendants Rambaran Rai, Sita Ram Rai and Swarath Rai, are descended. Bindhachal Rai is shown as being in the thirteenth degree from Lala Rai while the defendants are shown in the fourteenth degree from him. The defendants in their written statement filed another pedigree, which will be found at page 9 of the paper-book, in which they show themselves as within 6 or 7 degrees of Lala Rai. They also raised a plea that the plaintiff was the son of Bindhachal Rai's step- sister and not of the sister born of his own mother. The Court of, first instance granted the plaintiff a declaration that the compromise made by Rajwanti Kunwar on the 5 of June (sic), was collusive and that the declaration therein that the defendants were the heirs after her, was not binding on the plaintiff. This decree was upheld on appeal. In this Court, it is urged that on the plaintiff's own pedigree, the defendants-appellants are the reversioners next entitled to take the estate of Bindhachal Rai on the death of Rajwanti Kunwar and that, therefore, the plaintiff has no cause of action to obtain the declaration which he seeks as the compromise does nothing more than declare that the defendants are the next reversioners according to Hindu Law. On behalf of the respondent, it is urged that the appellants cannot be the next reversioners because they are too remote from Lala Rai, the common ancestor. It is next urged that under the compromise in question, the mother recognized the title of the appellants as actual owners of the property on the date of the compromise, and that this was prejudicial to the interests of the plaintiff at least as a remote reversioner. In regard to the first point, on page 686 of Sarvadhikari's Principles of Hindu Law of Inheritance, it is laid down: "In default of Gotraja Sapindas, says the Mitakshara, the succession devolves on Samanodakas, and they must be understood to reach to seven degrees beyond the Gotraja Sapindaso or else as far as the limits of knowledge as to birth and name extend" At page 778 of Mayne's Hindu Law, 7 edition, in paragraph 574 where Mr. Mayne discusses Salculyas and samanodakas, "he says the former extend to three degrees both in ascent and descent beyond the sapindas, "and the latter to seven degrees beyond the salculyas or even further so long as the pedigree can be traced." The same question arose before the Bombay High Court in the case of Har Devkari V/s. Amrit Ram, Jamiat Ram 10 B. 372. It was then held that the word Samanodakas, meaning literally those participating in the same oblation of water, includes descendants from a common ancestor more remotely related than the thirteenth degree from the propositus. Mitakshra, Chapter II, Section 5, p. 6 was quoted, which runs as follows: If there be none such, the succession devolves on kindred connected by libations of water, and they must be understood to reach to seven degrees beyond the kindred connected by funeral oblations of food, or else as far as the limits of knowledge as to birth and name extend." It is quite clear, on the authorities and on the face of the pedigree filed by the plaintiff himself, that the defendants-appellants are nearer reversioners to Bindhachal Rai than the plaintiff, who at the utmost, being a sister's son, is a bandhu.

(2.) In regard to the argument that the mother did more than acknowledge the rights of the appellants as reversioners, this is entirely a new case which has been put before the Court for the first time on this appeal. The plaint, the pleadings in the lower Courts as well as the judgments of the lower Courts show clearly how the compromise was read by the parties in those Courts. We have nothing before us to show what were the pleadings and the issues in the suit which was originally brought by the defendants-appellants against Musammat Rajwanti Kunwar. We have before us only the compromise that the defendant should remain in possession in lieu of maintenance daring her life-time, and that after her death the then plaintiffs would get the property as heirs and owners after Bindhachal Rai. In our opinion the plaintiff has no right whatever to put forward at this late stage a new case. As the case stood in the lower Court, the plaintiff claimed to be a nearer reversioner than the defendants and on that ground sought a declaration that the compromise was not binding as against him. As has been shown above, he is a remote reversioner, and the defendant appellants on his (plaintiff s) own showing are nearer heirs to the estate of Bindhachal Rai. The compromise does nothing more than acknowledge the right of the mother Rajwanti Kunwar to remain in possession for her life-time and the right of the defendants-appellants to enter into the estate on her death if they are then alive. In our opinion the plaintiff has no cause of action whatsoever for the present suit.

(3.) We allow the appeal and set aside the, decree of the lower Courts. The suit will stand dismissed with costs in all Courts including in this Court fees on the higher scale.