GAJADHAR PRASAD Vs. GAURI SHANKAR

JUDGEMENT

(1.) One important question raised in this appeal is that even if the dedication made by Mt. Rajwanti, a Hindu widow, was without the oral authority of her deceased husband, the alienation was only voidable at the option of the next reversioner, and therefore the defendants have no locus standi to challenge the alienation. This is based on the contention that according to the pedigree, as printed on p. 3 of the paper book, defendants 4 and 5 are not the heritable bandhus of the last male owner Suraj Prasad. The latter question is undoubtedly a substantial and important question of Hindu law which requires an authoritative pronouncement. The learned advocate for the plaintiffs strongly relies on the statement of the law as contained in Dr. Sarvadhikari's book on the Principles of the Hindu Law of Inheritance, Edn. 2, pp. 571-2, where he emphasized that if there are two females (on the father's side), these two again must be related as mother and daughter. He also strongly relies on the classification of the cognate sapindas who can be heritable bandhus given by the same learned author on pp. 591-2. Further reliance is placed on the case of Sheo Nandan V/s. Munni A.I.R. 1923 All. 398 decide by a Bench of this Court. In that case the plaintiff was the great- grandson of the sister of the father of the propositus. The learned Judges relying on the passage in Dr. Sarvadhikari's Principles of the Hindu Law of Inheritance, held that he was not an heir. With great respect we would say that we have some doubts as to the correctness of this decision. It is however pointed out that the test laid down by Dr. Sarvadhikari, and the rule of law in Sheo Nandan's case A.I.R. 1923 All. 398 were approved of by another Bench of this Court in Bam Sia V/s. Bua A.I.R. 1924 All. 790, where the previous decision of this Court in Shib Sahai V/s. Saraswati A.I.R. 1915 All. 409 was also explained.

(2.) On the other hand, there can be no doubt that a Bench of the Madras High Court in Kesar Singh V/s. Secy. of State A.I.R. 1926 Mad. 881 has expressly dissented from Dr. Sarvadhikari's view. The judgment of their Lordships of the Privy Council in the case of Bamckandra Mart and V/s. Vinayah Venkatesh A.I.R. 1914 P.C. 1, which was incorrectly reported in 12 A. L. J. 1281, does not reproduce the tests laid down by Dr. Sarvadhikari.

(3.) As the case is of a high valuation, we think that the following question of law should be decided by a larger Bench: On the pedigree as given on p. 8 of the paper book, are defendants 4 and 5 heritable bandhus of Suraj Prasad in the absence of any nearer heir.