Kartar Singh and others vs Niranjan Singh and others

Gurnam Singh, J.—This regular second appeal arises but of a suit for declaration in respect of adoption of the respondent by Mst. Partapo, widow of Bhajna.

On 3-5-2004 Bk., Mst. Partapo adopted Niranjan Singh respondent by means of a registered deed. The plaintiffs-appellants, who are Bhinna Gotra Sapindas of Bhajna, husband of Mst. Partapo, instituted the present suit for declaration that the deed of adoption was ineffective and inoperative against their reversionary rights. The allegations in the plaint were that the adoptor succeeded to her husband by inheritance as a limited heir and thus was incompetent to alienate the property. The plaintiffs also averred that the parties were governed by Hindu law and that the adoption being without consent of Bhajna was not valid. Lastly it was asserted in the plaint that if the parties were not governed by Hindu law even then custom permitted the plaintiffs to sue.

The defendants in their written statements denied the allegations of the plaintiffs and asserted that the parties were governed by custom. They further averred that the plaintiffs being removed beyond 5th degree from the common ancestor were not competent to bring the suit. It was thus liable to be dismissed.

The trial Court framed four issues arising out of the pleadings of the parties. The Court found that the parties were governed by their personal law. The plaintiffs who were Bhinna Gotra Sapindas being removed beyond 5th decree from the common ancestor were not heritable Bandhus. The Court for these reasons dismissed the suit. In appeal by the plaintiffs to the District Judge the findings or the trial Court were confirmed. The plaintiffs appeal to this Court.

The main Question for determination before us is whether according to Mitakshara school the plaintiffs are heritable bandhus. By now the law is well settled that a bandhu must, in order to be heritable in female line, fall within five degrees from the common ancestor and must be so related to the deceased person that they were mutually sapindas of one another. This aspect of the case was considered by their Lordships of the Privy Council in a very exhaustive judgment reported in - AIR 1914 1 (Privy Council) ) and it has since been followed consistently in a series of cases by various High Courts. Their Lordships observed that

the word bandhu has in the system of the Mitakshara a distinctive and technical meaning, in other words it signifies a bhinna-gotra sapinda.

The appellants as being the paternal grandfather''s son''s son''s daughter''s daughter''s sons of a deceased Hindu, claimed to succeed to his property as his next-of-kin or bandhus under the Mitakshara law. The respondents contended that the appellants had no heritable light in the property as they did not come within the category of bandhus entitled to succeed.

Held, (a) that the sapinda relationship on which the heritable right of collaterals is founded ceases in the case of the bhinna-gotra sapinda with the fifth degree from the common ancestor and

(b) that in order to entitle a man to succeed to the inheritance of another, he must be so related to the latter that they are sapindas of each other. The appellants, therefore, being sixth in descent from the common ancestor, and there being no sapinda relationship between them and the porosities, they came within neither (a) nor (b) and were not entitled to inherit.

Plaintiffs have produced the pedigree-table Which is given in the judgment of the trial Court. The Learned Counsel for the appellants concedes that the tests laid down by their Lordships of the Privy Council were not satisfied. It is not denied that the appellants are removed beyond fifth degree from the common ancestor and that they are not so related to the deceased Bhajna as to be sapindas of one another. That is to say the claimants and the propositus are not related to each other in such a way that each is a sapinda of the other within the degrees indicated by the first test. The matter is, therefore, concluded between the parties and the plaintiffs are held not to be heritable bandhus.

Failing to get support for his case from personal law Learned Counsel for the appellants falls back on custom. Even here, in my opinion, he cannot succeed. Plaintiffs positively asserted'' in the plaint that they were governed by their personal law. This assertion was later supported by evidence produced by them at the trial. The concurrent finding of fact of the Courts below is also in favour of this assertion. The parties being carpenters the initial presumption, in absence of allegations to the contrary, is that they are governed by Hindu law. Both parties led evidence in support of their respective claims. After consideration of the entire evidence it was found by the Courts below that they were governed by their personal law. We have been taken through the entire evidence and we do not find any good reasons to come to a contrary conclusion. Learned Counsel for the appellants relies on the position taken up by the defendant In favour of custom. He ignores the fact that the defendants have failed to prove their assertion. Even before us the Learned Counsel for the respondents concedes this fact. As already remarked the Courts below found that the parties were governed by Hindu law and indeed this was the assertion and evidence of the plaintiffs themselves. After duly considering the entire evidence we agree with the findings of the Courts below. We are, therefore, of opinion that in this particular case it is not proved that the parties are governed by custom. Under these circumstances, the plaintiff''s appeal must fail.

In the result the findings of the Courts below are confirmed and the appeal is dismissed with costs.

Mehar Singh J.

I agree.