DEBI DAS Vs. MUKAT BEHARI LAL

JUDGEMENT

(1.) This is an appeal against a judgment and decree, dated 24 August 1936 of the Subordinate Judge of Bareilly in a suit for possession of immovable property and for recovery of its mesne profits. The property in suit which consists of certain villages in Bareilly District is alleged to be the estate of a Hindu named Chhote Lal, who died in or about the year 1914 leaving two widows, Mt. Janki Kuer and Mt. Sunder Kuer. The last surviving widow died on 12 August 1933 and on 2lst May 1935 the plaintiffs, Debi Das and Beni Ram, who are two own brothers, raised an action in the Court of the Subordinate Judge of Bareilly for recovery of possession of the said estate with its mesne profits against 16 persons who were alleged to hold the said estate under various transfers from the said widows of Chhote Lal. The plaintiffs claimed that they were the reversionary heirs of the said Chhote Lal and on the death of the last widow without any issue they were entitled to the said estate. The relationship of the plaintiffs with the deceased Chhote Lal will appear from the following pedigree :

(2.) The defendants contested the claim inter alia on the ground that the plaintiffs were not the reversionary heirs of Chhote Lal as Chhote Lal had left a sister's grandson by the name of Asharfi Lal who was a preferential heir against the plaintiffs and in the presence of Asharfi Lal the plaintiffs had no right to claim possession of the estate from the defendants. The trial Court found in favour of the defence and dismissed the claim. Against that judgment and decree the plaintiffs have made this appeal.

(3.) The parties are twice-born Hindus governed by the Mitakshara or Benares School of Hindu law and the pedigree set out above and the relationship of the plaintiffs and of Asharfi Lal with the deceased Chhote Lal as set out in that pedigree is not in dispute. Chhote Lal admittedly has left no other heir except the plaintiffs and Asharfi Lal, and while Asharfi Lal is Chhote Lal's sister's grandson, the plaintiffs are Chhote Lal's first cousin's daughter's sons and the question which falls to be determined in the case is a pure question of law, viz., as between a sister's son's son and a cousin's daughter's son who is the preferential heir ? It is obvious that both the claimants are claiming as bandhus. It is not disputed that both fall within the class of atma bandhus. It is also admitted that both are within five degrees from the common ancestor and while the plaintiffs are fifth in descent from the common ancestor, Asharfi Lal is only fourth in descent from his common ancestor and thus Asharfi Lal is one degree nearer than the plaintiffs. It is also not disputed that the plaintiffs can confer some spiritual benefit upon Chhote Lal by offering funeral oblations to their maternal ancestor whereas Asharfi Lal cannot confer any benefit whatever and the controversy in the case is whether the capacity to offer spiritual benefit on the deceased is a ground of preference to such an extent so as to override the claim of nearness of line and nearness of degree.