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1867.

Sudder Court at Agra has lately solemnly overruled their finding in the case now in appeal, in that of THAKOORAIN Mussumat Mooneea v. Dhurma (a). Even if the SAHIBA title to the estate was to be deduced through, and MOHUN LALL. immediately from, Chowdree Oodai Chund, yet the Re

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THIS was a regular appeal (No. 20 of 1866) from the decision

of W. S. Pater, Esq., the Judge of Agra, and heard on the 13th of
June, 1866, before F. B. Pearson, Esq., and R. Spankie, Esq.,
Officiating Judge of the Sudder Dewanny Adawlut, North-West
Provinces, Agra.

It was a claim to establish title to real estate in the town of
Agra, and to prevent alienation by the Appellants.

The case was thus set forth in the Judge's decision :--"The Plaintiff states that Mussumat Mooneea has illegally adopted Mithoo as her husband's heir. Her husband, Mool Chund, Uncle of the Plaintiff, died about two years ago. A Hindoo Widow cannot adopt an heir. The income from the property is ample for her during her lifetime.

"The Defendants in reply urge, first, that the Plaintiff, as Nephew, has no title to oppose the adoption; second, that Mool Chund himself acquired the property, and not by inheritance; third, Mithoo is a relative of the deceased Mool Chund, and the adoption is legal. Mithoo was brought up by him during six years, and shortly before his death Mool Chund authorized me to adopt him.”

The material issues were-first, was the Plaintiff, as nephew of Mool Chund, entitled to oppose the adoption of Mithoo; second, did Mool Chund authorize his wife, Mussumat Mooneea, to adopt Mithoo? and third, is Mithoo a relative of the deceased Mool Chund, and is the claim void on that score?

Upon these issues the following judgment was pronounced :"I find, first, that the Plaintiff is Nephew of the deceased Mool Chund, and is so entitled to oppose any illegal adoption by Mus

*This case not having been reported in the Court below, and being recognized and confirmed by the judgment of their Lordships in the present appeal, is here inserted.

v.

MUSSUMAT
MOONEEA

v.

DHURMA.

SAHIBA

V.

1867. spondent was not one of the nearest reversionary heirs, THAKOORAIN expectant on the determination of the estate of his Widow, inasmuch as it appears that he claimed as the MOHUN LALL. Son of a Daughter, and that there were two other Daughters of Chowdree Oodia Chund alive, who by sumat Mooneea; second, it is not shown that Mool Chund authorized Mussumat Mooneea to adopt Mithoo. Had he done so, Mithoo would sooner have been adopted by her. It appears that a misunderstanding had arisen between Mussumat Mooneea and the Plaintiff's wife; and upon that Mussumat Mooneea sent for Mithoo from a distant village, and then represented him to be the adopted heir of Mool Chund, and this occurred only about six months ago, as shown in the evidence on both sides; third, Mithoo is not shown to be related to the deceased Mool Chund, but only one of the brotherhood, or connection. I decree in favour of the Plaintiff, with costs."

On the appeal to the Sudder Court it was contended, amongst other objections, by the Respondent, that the Plaintiff, being Mool Chund's sister's son, could not inherit his property, and, therefore, the suit should have been dismissed as barred by the Hindoo Law.

The Sudder Court's judgment was in these terms:-" We think it unnecessary to refer to the other pleas, and confine ourselves to the objection in bar of the suit. We are of opinion that the objection is fatal to the suit. We are aware that there is a ruling of this Court in the case of Sahiba Thakoorain and Chowdree Jai Chund v. Mohun Lall, dated 18th of April, 1863, which declares that a sister's son may inherit his maternal uncle's property, but this decision only accepts him as an heir in the absence of any lineal male descendant of the fourteenth degree, or distant kindred. We, however, observe that the weight of precedent and opinion is against this ruling. Macnaghten, Vol. II., p. 87, does not admit of such a claim; nor does Strange, Vol. I., 147. We do not find a Sister's son in the table of succession in the Mitacshará. The Sister's son appears to be regarded as sprung from and belonging to a different family. In the Madras Presidency he would not inherit. Madras Sud. Ad Dew. 1859, p. 249, quoted in p. 14, Appx. translation of Law of Inheritance according to the Mitacshará, and the Mitacshará has paramount authority in that part of the Country. We are further confirmed in our opinion on this case by a decision of the High Court, dated the 6th of September, 1864, (Morgan and Shumboonath Pundit, Judges), which rules that a

1867.

THAKOORAIN

SAHIBA

v.

the Hindoo law were his nearer and immediate heirs. Again, the Court below was wrong in casting the onus on the Appellants of proving that there was no nearer heir than the Respondent, and treating him as MOHUN LALL. in the class of Hindoo heirs called Bundoos, or distant kindred, although he never could be heir. The onus of proving himself, which he failed to do, the immediate and nearest heir in expectancy of Koor Inderjeet Sing properly lay on him as Plaintiff, seeking to dispossess the Appellant, Jai Chund Chowdree, and to set aside his adoption.

Mr. Piffard, for the Respondent:

The objection now taken to the Respondent's right to sue is untenable. It is not for the Respondent to show that there were no intermediates entitled before him. As maternal grandson of Oodai Chund, he is entitled to the reversion of his selfacquired estate, after the deaths of Inderjeet Maharanee and Thakoorain Sahiba; Koor Inderjeet Sing having died without issue. By the Hindoo law, after the Brother's sons, the Sister's son succeeds. Vyavahára-Mayúkha, Ch. IV. sec. 16 (Trans. by Borrodaile), referred to in Venayeck Anundrow v. Luxumeebaee (a), and adopted in that case. It is admitted that a Sister's son cannot claim as one of the Bundhoo, or distant kindred, who are especially enumerated in the Mitacshará, Ch. II. sec. 6, and of whom the nearest is the Father's Sister's son. It is admitted, also, that there is no authority for placing the sister's son is no heir where the Mitacshará (the authority in Benares) prevails. We, therefore, consider the Plaintiff has no locus standi in Court, and that his suit should have been dismissed on that account. With this view of the case, we decree the appeal and reverse the decision of the Lower Court, with costs."

(a) 9 Moore's Ind. App. Cases, pp. 516-524.

1867.

SAHIBA

v.

Sister's son, as the Court below did, next after the THAKOORAIN Samanodacas. The text of the Mitacshará explicitly declares that after the Samanodacas shall come the MOHUN LALL. Bundhoos. Now, the Sister's son cannot be interpolated between these two classes, to neither of which he belongs. The true place of the Sister's son is with gotraja, or kinsmen who are also Sapindas, or connected with the deceased by funeral oblations; that is, that the relationship to the deceased is so near, that they are entitled, in the absence of still nearer relations, to conduct the funeral rites, and present the funeral cake. This is placed by some Text writers at the fifth, by others at the seventh, degree. Persons more remotely connected, although in the absence of any nearer relative they may conduct the funeral rites, are not, according to the Hindoo law, permitted to offer the funeral cake, but the libation of water only. Mitacshará, Ch. II. sec. 5, par. 6. The authority of Macnaghten and Strange, relied on by the Appellant, are really not independent authorities, but are based upon and refer to the dictum laid down in the case of Rajchunder Naraen Chowdry v. Goculchund Goh (a), in which it is taken for granted that the Sister's son, not being expressly mentioned in the Mitacshará, is excluded from inheritance. This is extrajudicial, as it was expressed on a point on which the Court was not called upon to decide, and is, therefore, not entitled to any weight. It is true that an opinion has prevailed among English Text writers that the law of Benares, which is subject to the Mitacshará, differs from the law of Bengal on the right of inheritance of a Sister's son, but that opinion is founded upon a misconception of

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(a) 1 Ben. Sud. Dew. Rep., 46; See also W. H. Macnaghten's
Hindu Law," Vol. II., Case 6, P. 125.

i

1867.

SAHIBA

v.

the effect of what is laid down in the third, fourth, and fifth pars. of the 2nd Chapter of the Mitacshará, and THAKOORAIN by not appreciating the true effect and meaning of the words "Gotraja," "Samanodaca," and "Bundhoo." MOHUN LALL. If the contention of the Appellant be correct, th Mitacshará presents the anomaly of totally excluding the Sister's sons from inheritance, while it admits the sons of both the Father's Sister and the Grandfather's Sister; and this without a single passage in the Text enjoining such exclusion. But this anomaly disappears if the wording of the Mitacshará is carefully considered. "Gotraja" means a kinsman, and includes all near relatives, both agnates and cognates. "Bundhoo" means a distant kinsman, and by itself would include all distant kinsmen, both agnates and cognates. "Samanodaca" means a relative bearing the same surname or family name; according to Hindoo law, as interpreted by Yájnyawalcya, or rather in the Commentary on his Institutes by Vignyáneswara, called "The Mitacshará." The relatives of the deceased who are not further removed from him than the fifth degree may, whether agnates or cognates, offer the funeral cake, and are called Sapindas. Of them an instance is a Daughter's sons; they are undoubted Sapindas, although they are not Samanodacas, inasmuch as they bear the surname of their Father, and never of their maternal Grandfather. The rule is inflexible, that no Hindoo can marry into a family bearing the same family surname, however remote the connection. Should there be no Sapindas, the only person who can perform the funeral rites, with any advantage to the soul of the deceased, are his Samanodacas, or kinsmen bearing the same family name, and these, when not Sapin

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