PETITIONER:
VIMLA BAI (DEAD) BY LRS.
Vs.
RESPONDENT:
HIRALAL GUPTA AND ORS.
DATE OF JUDGMENT22/12/1989
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
SHARMA, L.M. (J)
CITATION:
1989 SCR Supl. (2) 759 1990 SCC (2) 22
JT 1989 Supl. 448 1990 SCALE (1)49
ACT:
Hindu Law: Hindu governed by his personal branch of
law-Migration cannot be presumed but to be established by
evidence.
Indian Evidence Act: Sections 37, 57, 81–Statements
made in Government Gazetteer–Admissibility as evidence.
HEADNOTE:
One Hariba Bhagwat had a son Appaji and daughter Baja-
bai. Appaji in turn had a son Rakhmaji and a daughter Bhiku-
bai, the plaintiff who had flied a suit for possession and
mesne profits of two houses. The suit was decreed by the
Trial Court but on appeal reversed by the High Court. The
Legal representative of the plaintiff then preferred this
appeal by special leave confined to one of the houses, the
parties having settled their dispute regarding the other
house.
Bajabal and her husband Ganpat Rao Page being issueless
had adopted Rakhmaji. All of them belonged to villages
situated in Ahmednagar District of Bombay Province, and are
Dhangars (Shepards) by caste but had migrated to Indore. On
Rakhmaji’s death Sonubai his childless widow succeeded to
the properties as limited owner. She gifted the suit proper-
ty i.e. house No. 88 to Shanker Lanke a Brahmin, the first
defendant by a registered gift deed dated October 31, 1944.
Shanker Lanke in turn hypothecated the House to one Hira
Lal, the first respondent on September 21, 1948. Sonubai
died in 1947.
The case of the plaintiff was that the family is gov-
erned by the Bombay School of Hindu Law wherein female
Bandhu is an heir and thereby she was entitled to succeed to
the estate of Rakhmaji; Sonubai, the issueless widow of
Rakhmaji as limited owner had no power to dispose of the
properties, so the gift deed and mortgage are void and do
not bind her and the respondents are in unlawful possession
as trespassers. The material defence relevant for the dis-
posal of this appeal is that the persons concerned are
governed by the Banaras School of Hindu Law under which a
female bandhu is not an heir. Hiralal’s case was that he had
no objection to hand over the possession provided he was
paid the consideration of Rs. 12,000 borrowed by Shanker
Lanke, the donee.
760
The Trial Court came to the conclusion that the parties
are governed by the Bombay School and not the Banaras School
,of Hindu Law and the plaintiff is the heir of Rajkhmaji.
The gift deed was declared void and not binding on the
plaintiff and the suit was decreed and the claim for refund
of the mortgage money was rejected. Hira Lal appealed. It
was contended before the High Court that the plaintiff’s
family belonged to Dhangar caste, being migrants from U.P.
(Mathura) to Aurangabad from where they had migrated to
Central Province (now Madhya Pradesh) and were governed by
the Banaras School of Hindu Law. This contention found
favour with the High Court which placing reliance solely on
the recital of the Gazetteer concluded that the parties had
migrated from Mathura and thereby they were governed by the
Banaras School of Hindu Law under. which the female Bandhu
is not an heir to succeed to the estate of the last male
holder. Reversing the decree passed by the Trial Court, the
suit was dismissed.
This Court in allowing the appeal by the legal represen-
tative of the plaintiff,
HELD: In India a Hindu is governed by his personal
branch of law which he carries with him where ever he goes.
But the law of the province wherein he resides prima facie
governs him and in this case and to this extent only the law
of domicile is of relevance or importance. But if it is
shown that a person came from another Province, the presump-
tion will be that he is governed by the law or the special
custom by which he would have been governed in his earlier
home at the time of migration. [767B-C]
Migration is changing one’s abode, quitting one’s place
of birth and settling permanently at another place. The
burden of proving migration lies on the person setting up
the plea of migration. Migration can not be presumed but it
mast be established by abduction of evidence. [764D-G]
Section 37 of the Evidence Act 1872 postulates that any
statement made in Govt. Gazette of a public nature is a
relevant fact. Section 57(13) declares that on all matters
of public history, the Court may resort for its aid to
appropriate books or documents of reference and section 81
draws a presumption as to the genuineness of Gazettes coming
from proper custody. [764H; 765A]
The State of facts contained in the official Gazetteer
made in the course of the discharge of the official duties
on private affairs or on
761
historical facts in some cases is best evidence of facts
stated therein and is entitled to due consideration but
should not be treated as conclusive in respect of matters
requiring judicial adjudication. [766B-C]
The onus lies on the person alleging that the family had
renounced the law of the origin and adopted that prevailing
in the place to which he had migrated. The plaintiff and her
family on migration from Ahmednagar carried with them to
Indore their personal law, namely the Bombay School of Hindu
Law under which a Hindu female is recognised to be an heir
to last male holder of the Estate and takes the property as
an absolute owner. The Plaintiff being the only nearest
bandhu of Rakhmaji, is entitled to succeed to his estate as
an heir and thus entitled to the possession of the House in
question with mesne profits. [767D; 768B; A]
Keshao Rao Bapurao & Anr. v. Sadasheorao Dajiba, AIR
1938 Nagpur 163; Rajah Mattu Ramalinga Setupati v. Peria-
nayagum Pillai, [1873-74] L.R. 11A 209 at p. 238; Martand
Rao v. Malhar Rao, [1927-28] L.R. 551 A 45 at 48; Arunachel-
lam Chetty v. Venkatachellapathi Guru Swamigal, [1919] L.R.
46 IA 204; Narayan Bhagwantrao Gosavi Balajiwale v. Gopal
Vinayak Gosavi & Ors., [1960] 1 SCR 773 at p. 788; The
Poohari Fakir Sadavarthy of Bomdilipuram v. The Commission-
er, Hindu Religious & Charitable Endowments, [1962] Suppl. 2
SCR 276: Mahant Shri Srinivasa Ramanuj Das v. Surajnarayan
Dass & Anr., [1966] Snpp. SCR 436 at p. 447; Balwant Rao &
Ors. v. Bali Rao & Ors., AIR 1921 P.C. 59; Udebhan Rajaram
v. Vikram Ganu, AIR [1957] M.P. 175; Bhagirathibai v. Kah-
nujirav, ILR 11 Bombay 285; Girdhari Lall Roy v. The Bengal
Government, [1867-79] Moore’s Indian Appeals 448 and Muthus-
wami Mudaliyar & Ors. v. Sunamedu Muthukumaraswami Muddali-
yar, [1895-96] LR 23 IA 83, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 322 of
1973.
From the Judgment and Order dated 4.12.1970 of the
Madhya Pradesh High Court in First Appeal No. 90 of 1962.
Awadh Bihan Rohtagis Vivek Gambhir and S.K. Gambhir for
the Appellants.
U.R. Lalit and G.B. Sathe for the Respondents.
The Judgment of the Court was delivered by
762
K. RAMASWAMY, J. 1. This appeal by special leave by the
legal representatives of the plaintiff, Bhikubai, arises
from decision in First Appeal No. 90/62 of the High Court of
Madhya Pradesh, Indore Bench, dated July 18, 1982 reversing
the decree of the trial court in O.S. No. 29/51 filed for
possession and mesne profits of two houses, Nos. 88 of 89
situated at Nandlalpura, Indore City, mentioned in the
plaint’schedule. In this appeal, we are only concerned with
House No. 88 as the parties have settled their dispute
regarding to the other house. The admitted facts are that
one Hariba Bhagwat of Mouza Pisore village had a son by name
Appaji and a daughter Bajabai. Appaji in turn had a son by
name Rakhmaji and a daughter Bhikubai (the plaintiff).
Bajabai was married to Ganpatrao Page of Madhavagoan vil-
lage. As they were issueless they adopted Rakhmaji. Both the
villages are situated in Ahmednagar District of Bombay
Province. They are Dhangars (Shepard) by caste. All of them
migrated to Indore. Rakhmaji died in 1918 and Sonubai his
childless widow succeeded to the two houses and other
properties as limited owner. She gifted House No. 88 to
Shankar Lanke, a brahmin, first defendant by a registered
gift deed dated October 31, 1944 under Ex-DI-5. Shankar
Lanke in turn hypothecated House No. 88 to Hiralal, fifth
defendant/first respondent on September 21, 1948 under
Ex-5-D3. Sonubai died on March 11, 1949. Rakhmaji was the
natural brother of Bhikubai, but by operation of law namely
adoption, he became her father’s sister’s son, i.e. a band-
hu. The case of the plaintiff was that the family is gov-
erned by the Bombay School of Hindu Law wherein female
bandhu is an heir and thereby she was entitled to succeed to
the estate of Rakhmaji. Sonubai, as limited owner, had no
power to dispose of the properties by way of gift and so the
gift deed and the mortgage are void and do not bind her. The
respondents are in unlawful possession as trespassers. The
suit was resisted by the first defendant, the donee, on
diverse grounds. The material defence relevant for the
disposal of this appeal is that the persons concerned are
governed by the Banaras School of Hindu Law under which a
female bandhu is not an heir, Hiralal’s case was that the
mortgage was for consideration and that he had no objection
to hand over the possession of the property provided the
consideration of Rs. 12,000 borrowed by Shankar Lanke was
paid to him.
2. The trial court framed as many as 14 issues with
sub-issues on each count. It found on issue No. 6a, which is
material for the purpose of this case, that the parties are
governed by the Bombay School, and not the Banaras School,
of Hindu Law; the plaintiff is the heir of Rakhmaji as his
mother’s brother’s daughter, and though the consi-
763
deration was paid under the mortgage obtained by Hiralal, it
was not taken after due inquiry about existence of legal
necessity and in good faith. The gift deed was declared void
and does not bind the plaintiff. The plaintiff was held
entitled to possession and mesne profits. The claim for
refund of the mortgaged money was rejected. Accordingly, the
suit was decreed. Hiralal and another filed the appeal.
Shankar Lanke did not file any appeal. It was contended
before the High Court that the plaintiff’s family belonging
to Dhangar caste were migrants from U.P. (Mathura) to Auran-
gabad from where they had further migrated to Central Prov-
ince (now Madhya Pradesh). They are governed by the Banaras
School of Hindu Law. There is no proof that they abandoned
the personal law, namely, Banaras School of Hindu Law, and
adopted Bombay School of Hindu Law. This contention found
favour with the Hindu Court, which relief upon the statement
made in Indore State Gazette of 193 1 at page 20, wherein it
was claimed to have been recorded that Holkars belonged to
Dhangar caste and it would appear that they were originally
residents of the country-side around Mathura and they mi-
grated to Aurangabad District and thereafter Phaltan Parga-
na. At page 90, it was mentioned about Dhangars in general
and that in Indore Shepard caste was the ruling family. Many
of the Dhangars were Shivail’s trusted Maoles used for
Gureilla warfare. In domestic life as also in language,
dress and food they closely resemble the Marathas, though in
the caste scale their position is lower. Their deity is
Khandoba. The High Court also found that the parties, name-
ly, Rakhmaji’s father and Ganpatrao Page were residents of
Ahmednagar District. Their family God is Malhar Jijori,
which is situated in the District of Poona. They migrated
from Maharashtra to Indore. This finding is based on the
evidence of, not only the plaintiff (PW-4), but also the
admission made by the defendant No. 1 and his witness, D.W.
No. 8- Placing reliance solely on the recital in the Indore
State Gazette, it was concluded that the parties had migrat-
ed from Mathura and thereby they are governed by the Banaras
School of Hindu Law, under which the female Bandhu is not an
heir to succeed to the estate of the last male holder.
Alternatively, it also found that even applying the Bombay
School of Hindu Law (Mitakshara), the plaintiff had not
established that she was an heir to Rakhmaji. Accordingly,
the appeal was allowed.
3. At the outset, it is made clear that neither Hiralal,
nor Shankar Lanke pleaded that the plaintiff or her ances-
tors had migrated from Mathura and settled down in Ahmedna-
gar District. The specific plea of the plaintiff in para-
graph 5 of the plaint that they were original residents of
Ahmednagar District was not disputed. Hiralal
764
did not also plead that the Banaras School of Hindu Law
would apply to the plaintiff’s family. Shankar Lanke vaguely
pleaded this but adduced no evidence in proof thereof. Both
the Courts have concurrently found that the plaintiff,
Rakhmaji, and Ganpatrao Page are Dhangars by caste; their
family God is Khandoba of Jijori; their manners and customs
were also of Maharashtrian, vide D.W. 8 Khsumrao; and the
High Court also further found that, “Undoubtedly true that
the customs, manners, marriages and the way they worship the
God are all the same as that of Maharashtrians or of the
Marathas.” But the customs, dress, language and manners may
not by themselves show that person migrating from Mathura
has given up the law of origin, though they are relevant
facts. It must also be proved that in a particular case that
they have given up their law of origin, i.e. the Banaras
School of Hindu Law, and adopted the law of domicile, i.e.
the Bombay School of Hindu Law. Accordingly, it was held
that the parties are governed by the Banaras School of Hindu
Law.
4. Migration is changing one’s abode, quitting one’s
place of abode and settling permanently at another place.
The burden of proving migration lies on the person setting
up the plea of migration. As seen the respondents neither
pleaded nor proved that the plaintiff’s family migrated from
Mathura to Ahmednagar in Bombay Presidency. When the plain-
tiff was examined as a witness no attempt Was made to elicit
from her that they or their ancestors were migrants from
Mathura and settled down in Ahmednagar. On the other hand
the specific plea of the plaintiff in her plaint that they
were the original residents of Ahmednagar District remained
undisputed. In Hindu Law by Raghavachariar, 8th Edition,
1987 edited by Prof. S. Venkataraman who was himself an
authority on Hindu Law, in paragraph 32 stated that a fami-
ly’s original place of abode can be inferred from the Chief
characteristics of the family. In Keshao Rao Bapurao & Anr.
v. Sadasheorao Dajiba, AIR 1938 Nagpur 163. Vivian Bose, J.,
as he then was, held that wherever a family is found cling-
ing to its individuality and retaining its identity as
Maharashtrian, it must be presumed until the contrary is
shown that it hailed from the race of group of people known
as Maharashtrians and carried the law of Maharashtra with
them. Thus, it is clear that migration cannot be presumed
but it must be established by abduction of evidence. The
question then arises is whether the recital in Indore State
Gazette relied on, at the appellate stage, can form the sole
base to establish that the plaintiff’s family were the
migrants from Mathura in U.P. Section 37 of the Evidence
Act, 1872 postulates that any statement made in a Government
Gazette of a public nature is a relevant fact. Section
57(13) declares
765
that on all matters of public history, the Court may resort
for its aid to appropriate books or documents of reference,
and Section 81 draws a presumption as to genuineness of
Gazettes coming from proper custody. Phipson on Evidence,
The Common Law Library (Thirteenth Edition) at page 510
paragraph 25.07 stated that the Government Gazettes ……
, ………… are admissible (and sometimes conclusive)
evidence of the public, but not of the private matters
contained therein. In Rajah Muttu Ramalinga Setupati v.
Perianayagum Pillai, [1873-74] L.R. 1 IA 209 at p. 238 the
Judicial Committee, while considering the reliability of a
report sent by the District Collector to the Commissioner
about the management of a temple, held that when the reports
express opinions on the private rights of parties, such
opinions are not to be regarded as having judicial authority
or force. But being the reports of public officers made in
the course of duty, and under statutory authority, they are
entitled to great consideration so far as they supply infor-
mation of official proceedings and historical facts, and
also in so far as they are relevant to explain the conduct
and acts of the parties in relation to them, and the pro-
ceedings of the Government rounded upon them. Same view was
reiterated in Martand Rao v. Malhar Rao, [1927-28] L.R. 55
IA 45 at 48 on the question of reliability of official
reports relating to succession to a Zamindari, and held that
“their Lordships consider it necessary at the outset to
point out that, though such official reports are valuable
and in many cases the best evidence of facts stated therein,
opinions therein expressed should not be treated as conclu-
sive in respect of matters requiring judicial determination,
however, eminent the authors of such reports may be. In
Arunachellam Chetty v. Venkatachellapathi Guru Swamigal,
[1919] L.R. 46 IA 204 it was held that while their Lordships
do not doubt that such a report (Inam register) would not
displace actual and authentic evidence in individual cases;
yet the Board, when such is not available, cannot fail to
attach the utmost importance, as part of the history of the
property, to the information set forth in the Inam register.
This view was followed by this Court in Narayan Bhagwantrao
Gosavi Balajiwale v. Gopal Vinayak Gosavi & Ors., [1960] 1
SCR 773 at p. 788. Same is the view expressed in The Poohari
Fakir Sadavarthy of Bomdilipuram v. The Commissioner, Hindu
Religious & Charitable Endowments, [1962] Suppl. 2 SCR 276
and held that Inam register is of great evidentiary value
but the entries cannot be accepted on the face value without
giving due consideration to other evidence on record. In
Mahant Shri Srinivasa Ramanuj Das v. Surajnarayan Dass &
Anr., [1966] Supp. SCR 436 at p. 447 relied on by Shri
Lalit, learned senior counsel for the respondents, it was
held that the statements in the Gazetteer can be consulted
on matters of public history. This is also
766
the case relating to entries in Inam Register. Inam Fair
Registers are maintained while exercising the statutory
power and the entries were made in the relevant columns
during the course of discharging official duties and so they
are entitled to weight and great consideration, while as-
sessing the evidence. Therefore, this Court did not lay any
rule contrary to what has been laid by the Judicial Commit-
tee or by this Court in the decisions referred to hereinbe-
fore.
5. The Statement of fact contained in the official
Gazette made in the course of the discharge of the official
duties on private affairs or on historical facts in some
cases is best evidence of facts stated therein and is enti-
tled to due consideration but should not be treated as
conclusive in respect of matters requiting judicial adjudi-
cation. In an appropriate case where there is some evidence
on record to prove the fact in issue but it is not suffi-
cient to record a finding thereon, the statement of facts
concerning management private temples or historical facts of
status of private persons etc. found in the Official Gazette
may be relied upon without further proof thereof as corrobo-
rative evidence. Therefore, though the statement of facts
contained in Indore State Gazette regarding historical facts
of Dhangars’ social status and habitation of them may be
relevant fact and in an appropriate case the Court may
presume to be genuine without any further proof of its
contents but it is not conclusive. Where there is absolutely
no evidence on record in proof of the migration of the
family of the plaintiff or their ancestors from Mathura
area, the historical factum of some Dhangars having migrated
from U.P. and settled down in Aurangabad District or in the
Central Province by itself cannot be accepted as sufficient
evidence to prove migration of the plaintiff family. Further
no evidence was placed on record connecting Holkars of
Indore with Dhangars of Bombay Province. Shri Lalit, learned
counsel, admits that the statement of facts of Dhangars
contained in Indore State Gazette is not conclusive evidence
but he says that it may be taken into account as evidence
connecting the family of the plaintiff. In the absence of
any evidence proving migration of the family of the plain-
tiff or their ancestors from Mathura to Ahmednagar, the
historical factum of the migration of Dhangars from U.P.
State mentioned in Indore State Gazette is of little assist-
ance to the respondents so as to hold that they carried with
them to Indore the Banaras School of Hindu Law prevailing in
Uttar Pradesh. Even as regards the Dhangars as migrants,
Thurston on Caste and Tribes of Southern India in Vol. III
p. 167 stated that the statement of the census Report of 190
1 establishes that Marathi Caste of Shepard are Dhangars and
their home speech is Marathi and they are the residents
767
Of Bombay Presidency. It would, thus, show that even in
1901, Dhangars were held to be original Marathis of Bombay
Presidency. We, therefore, hold that the case before us that
Bhikubai, the plaintiff, and her family had migrated from
Mathura to Ahmednagar District in Bombay Presidency has not
been proved and admittedly, they migrated from Ahmednagar to
Indore.
6. In India a Hindu is governed by his personal branch
of law which he carries with him wherever he goes. But the
law of the province wherein he resides prima facie governs
him and in this sense and to this extent only the law of
domicile is of relevance or importance. But if it is shown
that a person came from another Province, the presumption
will be that he is governed by the law or the special custom
by which he would have been governed in his earlier home at
the time of migration. An inference of migration can well be
made from the known facts of the chief characteristics of
the family, the language, observance of customs and rites
though they are not sufficient to prove that they are gov-
erned by a particular school of law. The presumption can be
displaced by showing that the immigrant had renounced the
law of the place of his origin and adopted the law of the
place to which he had migrated. The onus lies on the person
alleging that the family had renounced the law of its origin
and adopted that prevailing in the place to which he had
migrated vide Hindu Law by Raghavachariar, Eighth Edition,
para 32 at pages 30 & 31. The same view was expressed in
Mulla’s Hindu Law, edited by Justice S.T. Desai, 15th Edn.,
in para 13A and 14. In Hindu Law By S.V. Gupta (Vol. 1,
Third Edition p. 50) Art. 10 it is stated that in case of
migration of a Hindu from one part of India to another, it
is presumed that he and his descendants continue to be
governed by the law of the school to which he belonged
before migration. Such presumptions are rebuttable. In
Balwant Rao & Ors. v. Baji Rao & Ors., AIR 1921 PC 59. Lord
Dunedin speaking for the Board held that it is absolutely
settled that the law of succession in any given case is to
be determined according to the personal law of the individu-
al whose succession is in question. In that case it was
found that Bapuji’s ancestors at one time lived in Bombay
Province and his migration at the place of death was ob-
scured. Therefore, it was held that the original law that
prevailed in Bombay Province at the time of migration gov-
erns the succession to a Maharashtra Brahmin and Bombay
School of Mitakshara Law would apply and the daughter would
take her father’s property as an absolute owner and her
hefts alone would be entitled to succeed to her estate. This
was reiterated by Bose, J. in Keshav Rao’s case in consider-
ing the question of migration by a Maharashtra Brahmin
residing in Central
768
Provinces and was held to be governed by the Bombay School
of Mitakshara Hindu Law when migration is not proved in the
sense that the exact origin of the family cannot be traced.
Same view was followed in Udebhan Rajaram v. Vikram Ganu,
AIR 1957 MP 175. Accordingly, we hold that the plaintiff and
her family carried with them to Indore their personal law,
namely, Hindu Law of the Mitakshara applicable to Bombay
Province and not Banaras School of Hindu Law.
7. The question then is whether the plaintiff is an heir
to Rakhmaji, the last male holder of the estate left by
Sonubai, his widow. In Bhagirathibai v. Kahnujirav, ILR 11
Bombay 285 the Full Bench held that under the Hindu Law as
prevailing in Bombay Presidency, a daughter inheriting from
a mother or a father takes as an absolute estate, which
passes on her death to her own heirs, and not to those of
the preceding owner. Thereby Hindu female is recognised
under the Bombay School of Hindu Law to be an heir to last
male holder of the estate and takes the property as an
absolute owner. The immediate question, therefore, is wheth-
er the plaintiff is an heir as bandhu. In Mayne’s Hindu Law,
12th edn., revised by Justice Alladi Kuppuswami, Chief
Justice (Retd.) of Andhra Pradesh High Court, in paragraph
504 at p. 735 & 736 stated the meaning of the word ‘bandhu’
thus: The term ‘bandhu’ or ‘bandhava’ meant relations in
general and included both agnates and cognates though it was
sometimes confined to agnates in some of the Smriti texts
relating to succession and gotra kinship, as for instance in
the Vishnusmriti and in some of the verses in Manusmriti.
The Mitakshara explains that the term ‘bandhavas’ in the
above test of Manu means Atma Bandhus, Pitrubandhus and
Matrubandhus, vide Mit. on Yajn. III, 24 (Setlur edn.
1169)Naraharayya’s translation 56.
In paragraph 543, at page 761, dealing with the third
division of heirs, namely, ‘bandbus’ and of their enumera-
tion in paragraph 544 it was stated that the enumeration is
only illustrative, which read thus:
Para 543 “Bandhus–The third division of
heirs consists of bandhus (Table B). They are
the sapindas related through a female, being
within five degrees from and inclusive of
common ancestor, in the line or lines in which
a female or females intervene (paras 121-126),
In the portion of his work relating to succes-
sion, Vijnanesvara styles them as sapindas of
a different gotra. The term ‘bandhu’ has
therefore acquired in the system of the Mitak-
shara a distinctive and technical meaning and
signifies bhinnagotra sapindas. They are the
769
three classes: (1) atmabandhus or one’s own
bandhus, (2) pitrubandhus or the father’s
bandhus and (3) matrubandhus or the mother’s
bandhus. The relevant passage in the Mitaksha-
ra is as follows: “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 fa-
ther’s sister, the sons of his own cognate
kindred. The sons of his father’s 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. Here,
by reason of near affinity, the cognate kin-
dred of the deceased himself, are his succes-
sors in the first instance; on failure of
them, his father’s cognate kindred; or if
there by none, his mother’s cognate kindred.
This must be understood to be the order of
succession here intended.
Para 544 Enumeration only
illustrative–Evidently, the enumeration of
the above nine bandhus was not intended to be
exhaustive, but only illustrative. When
defining sapinda, Vijnanesvara says,
“So also is the nephew a sapinda rela-
tion of his maternal aunts and uncles and the
rest, because particles of the same
body (the maternal grandfather) have
entered into his and theirs; likewise does he
stand in sapinda relationship with
paternal uncles and aunts and the
rest. In the light of this, his definition of
bandhus or bhinnagotra sapindas makes it clear
that maternal aunts and uncles and
their descendants as well as paternal aunts
and their descendants are bandus and
that his enumeration is purely
illustrative. Visvarupa and Mitra Misra in his
Vir amitrodaya recognised this by
including the maternal uncle and the
like in the term ‘bandhu’ purely by way of
illustra tion. Referring to the
maternal uncle’s sons, the Virami
trodaya says that it would be extremely im-
proper that their sons are heirs but
they themselves though nearer, are not
heirs. After some fluctuation of opinion, it
was finally settled that the enumeration of
bandhus in the Mitakshara is not exhaustive
but illustrative only.”
In paragraph 536, at page 757, it is stated that in
Bombay, the daughters of descendants, ascendants and collat-
erals within five degree
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inherit as bandhus in the order of propinquity, such as the
son’s daughter, the daughter’s daughter, the brother’s
daughter, the father’s sister and so on. In Raghavachariar’s
Hindu Law at page 412 in para 458, it is stated that the
daughters of descendants, ascendants and collaterals upto
fifth degree are bandhus and the test of nearness of blood
is to be applied in ascertaining their order of succession.
In Mitakshara and Dayabhaga by Colebrooke, 1883 Edn., at p.
99, it is stated in Sec. VI on the succession of cognate
kindred, bandhu that on failure of gentiles, the cognates
are heirs. Cognates are of three kinds; related to the
person himself, to his father, or to his mother. At page
100, it is further stated that heir, by reason of near
affinity, the cognate kindred of the deceased himself, are
his successors in the first instance: on failure of them his
father’s cognate kindred: or, if there be none, his mother’s
cognate kindred. This must be understood to be the order of
succession here intended.
8. In Girdhari Lall Roy v. The Bengal Government, [1867]
79 Moore’s Indian Appeals 448 the question arose whether the
maternal uncle of the last male holder is a bandhu entitled
to succession of the estate of the deceased. While consider-
ing the question exhaustively of the texts of Hindu Law on
this topic including Sec. VI of Colebrooke’s referred to
above of the order of succession by bandhus, it was held by
the Judicial Committee that if for the determination of the
question under consideration, their Lordships were confined
to the four corners of the Mitakshara, they would feel great
difficulty in inferring, from the omission of “the maternal
uncle” and “the father’s maternal uncle” from the persons
enumerated in this text, that either of those relatives is
incapable of taking by inheritance the property of a de-
ceased Hindu in preference to the King. Such an inference,
in the teeth of the passages which says that the King can
take only if there be no relatives of the deceased, seems to
be violent and unsound. For the text does not purport to be
an exhaustive enumeration of all Bandhus who are capable to
inheriting, nor is it cited as such, or for that purpose, by
the Author of the Mitakshara, as is used simply as a proof
or illustration of his proposition, that there are three
kinds of classes of bandhus, and all that he states further
upon it is, the order in which the three classes take, viz.,
that the bandhus of the deceased himself must be exhausted
before any of his father’s bandhus can take, and so on.
Accordingly, it was held that ‘the maternal uncle is capable
of inheriting the estate. This view was followed in Muthus-
wami Mudaliyar & Ors. v. Sunamedu Muthukumaraswami Mudali-
yar, [1895] 96 LR 231 A 83. Accordingly, we hold that the
enumeration of bandhus in various schools of Hindu Law of
the rule of succession to the estate of the last
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male Hindu as agnates or cognates or collaterals, are only
illustrative and not exhaustive. The Hindu Law of succession
of Mitakshara School prevailing in Bombay Presidency recog-
nises that a female is an heir as a bandhu to succeed to the
estate of the-last male holder through her mother’s side
within five degrees to the last male holder. The plaintiff
being the only nearest bandhu of Rakhmaji within five de-
grees through her mother, is entitled to succeed to his
estate as an heir. Accordingly, we hold that the plaintiff
is entitled to the possession of the plaint schedule House
No. 88 with mesne profits from the respondents.
9. The contention of Shri Lalit that the mortgagee
respondent is entitled, in equity, to a decree for refund of
the mortgage money which was admittedly found to have been
paid cannot be accepted as the same was not paid to the
plaintiff. So far an the mortgagee’s claim against the
mortgagor is concerned, he may pursue any remedy available
to him under law.
10. Accordingly, the appeal is allowed, the decree of
the High Court is set aside and that of the trial court is
restored to the extent of House No. 88, with proportionate
costs throughout.
R.N.J. Appeal
allowed.
773