AJUDHIYA Vs. RAM SUMER MISIR

JUDGEMENT

(1.) This appeal arises out of a suit brought by Ram Sumer Misir, respondent, for possession of property which once belonged to one Sheo Narain. He also asks for a declaration that two mortgages, one effected by the widow of Sheo Narain and the other by his daughter, be declared ineffectual as against his rights, being mortgages without legal necessity. He further claims mesne profits. Sheo Narain died many years ago and his property came into the possession of his widow Musammat Sughanda. He had a daughter Musammat Chaura and the plaintiff Ram Sumer Misir is the son of Musammat Chaura's daughter. Musammat Sughanda made a mortgage in 1860 in favour of Hanuman Misir, the grandfather of the defendants-appellants. In 1883 after Sughanda's death Musammat Chaura who succeeded to the property executed another mortgage in favour of Ajudhia, the defendant. Chaura died on the 20 of April 1905, and thereupon the suit out of which this appeal arises was brought by the plaintiff as mentioned above.

(2.) The Court of first instance decreed the claim and that decree has been affirmed by the lower appellate Court.

(3.) It is contended that the plaintiff is not entitled to possession of the property of Sheo Narain and that he is not his legal heir. This contention is in our judgment not well-founded. As we have said above the plaintiff is the son of Sheo Narain's daughter's daughter. He is clearly a sapinda of Sheo Narain within the meaning of the Mitakshara and being a bhina gotra sapinda, who claims through a female belonging to the family of Sheo Narain, namely his daughter Chaura, he is Shoo Farain's bandhu. In the absence of any other heir he is entitled to succeed to the estate of Sheo Narain. It is urged that he being the son of Sheo Narain's daughter's daughter he cannot be regarded as a bandhu. In the Tagore Law Lectures for 1882 the descendant of a daughter's daughter of the same family to which the deceased belonged is specificially mentioned as abandhu of the deceased (see page 688) and on page 707 the daughter's daughter's son is specified in the list of the man's own bandhus. Having regard to the definition of a bandhu as understood in the Mitakshara, we must hold that the plaintiff, who is the daughter's daughter's son of Sheo Narain, the last owner, is his bandhu and as such the heir to his estate.