RAM SIA Vs. BUA

JUDGEMENT

(1.) This appeal raises a question of Hindu Law, namely, whether claimants Ram Sia and Sheo Prasad are heirs as bandhus to the deceased Basi. The pedigree is given in the judgment of the learned Subordinate Judge, hearing an appeal, who dismissed the suit on the ground that the plaintiffs, on their own showing, were no heirs to the last male holder of the property. The pedigree, it must be understood, was not found by the learned Subordinate Judge as correct, for he did not apply his mind to this question of fact. The judgment of the Subordinate Judge was confirmed by a learned Judge of this Court and hence this Letters Patent Appeal. The pedigree for the sake of easier reference is given below:

(2.) The learned Subordinate Judge dismissed the suit relying on certain dicta of this Court in the case of Shib Sahai V/s. Saraswati 30 ind. Cas. 903 : 37 A. 583 : 13 A.L.J. 786. There can be no doubt that the actual decision of the case was correct and nobody, impeaches the correctness of the decision. But their Lordships at pages 584-5 page of 37 A-Ed. express themselves as follows: "Therefore, for the bandhu relationship to exist, it is essential that the person claiming to be the bandhu and the last owner must have been sapindas of each other. The rule of sapinda relationship has been laid down in the Mitakshara and it extends to 7 degrees on the father's side...including the last owner. Taking the pedigree put forward by the plaintiff, which will be found at page 9 of the paper-book, it is clear that Bulaki was one degree beyond the 7 degree counting from the last owner Khairati Rai. We are asked to count the 7 degrees from the great grandfather of Khairati who was the common ancestor, and it is said that computing from the common ancestor Khairati is within the 7 degree, but this computation would leave out of consideration altogether Khairati himself and his father. The mode in which relationship should be computed is stated in Sarvadhikari's Tagore Law Lectures (1880) page 707 and that is a mode which the lower Appellate Court has adopted.

(3.) The learned Subordinate Judge counted 7 degrees from Basi to the plaintiffs through Mandhat and found that they were within 7 degrees of the propositus. He added that, as the plaintiffs claimed through their mother and as it was necessary that they also should be sapindas of Basi, the latter must be within 5 degrees from themselves in order that Basi might be their sapinda. Thus counting from plaintiff to Basi through Mandhat he found that Basi was beyond the 5 degree. Thus, he said, there was no mutuality of sapindaship between the claimants and Basi and he held that the plaintiffs were out of Court.