HARIHAR PRASAD Vs. RAM DAUR AND MUSAMMAT PARTAPI

JUDGEMENT

(1.) The dispute in this appeal relates to fixed-rate tenancy belonging to Sumera, who died leaving a widow Musammat Partapi. The plaintiff claims to be the nearest heir of Sumera deceased. He denied that Musammat Partapi was lawfully married to Sumera; but the Courts below found on that point against him. The fixed-rate tenancy in question has been sold by Musammat Partapi to Harihar Prasad, for a consideration of Rs. 300 on the 4 July 1919, out of which only Rs. 50 have been found to have been taken for legal necessity.

(2.) The main question for consideration in this appeal is whether the plaintiff is the nearest reversionary heir of Sumera deceased, and as such entitled to impeach the validity of the sale. The Court of first instance found against him, but the lower Appellate Court held, relying on the pedigree proved 13 the case and on an admission of the contesting defendant himself in a previous suit, that the plaintiff was the nearest bandhu or reversionary heir of the deceased and entitled as such to protect his reversionary right.

(3.) It appears from the pedigree that the common ancestor of the plaintiff and Sumera deceased was Kashi, who had a son, Chikuri alias Hanuman, and a daughter Musammat Budhia. Sumer was the son of Hanuman. The plaintiff is the son of Gangu, the son of Musammat Budhia. There is no nearer kinsman, agnate or cognate, shown to be alive in the family. The rule as to the succession of bandhus, laid down in the Mitakshara, (Chapter II, Section 6, paragraph 1) runs as follows: On the failure of agnates, the cognates are heirs. Cognates are of three kinds, related to the person himself, to his father, or to his mother, as is declared by the following text: The sons of his own father's sister, the sons of his own mother's sister, and the sons of his maternal uncle, must be considered as his cognate kindred. The sons of his father, paternal, aunt, the sons of his father's maternal aunt and the sons of his father's maternal uncle must be deemed his father's cognate kindred. The sons of his mother's paternal aunt, the sons of his mother's maternal aunt; and the sons, of his mother's maternal uncle must be reckoned his mother's cognate kindred.