Ramphal Thakur v. Pan Mati Padain

Stanley, C.J and Griffin, J.:— This is an untenable appeal. The plaintiff sued to enforce payment of a debt secured by a mortgage bond of the 31st of January, 1896, executed by one Musammat Phulmani, deceased, and her daughter Musammat Pan Mati. The court of first instance decreed the claim, but upon appeal the decision of that court was reversed and the plaintiff's suit dismissed on the ground that Musammat Phulmani had only a limited interest in the mortgaged property, namely, a widow's estate, and that the plaintiff had failed to prove that the mortgage in suit was made for legal necessity.

We think that this decision is correct. The property formerly belonged to Beni, and upon his death it descended to his widow, Musammat Chunna. After her death it came to Musammat Phulmani. Musammat Phulmani had two daughters, namely, Musammat Pan Mati and Musammat Parbati. Musammat Parbati has two minor sons, the defendants, Sundar Pande and Earn Piare Pande. According to the Hindu law Musammat Parbati and Musammat Pan Mati, the daughter's daughters of the owner Beni, could not inherit his property. Consequently Musammat Pan Mati had no interest in the property which she could mortgage. The mortgage not having been shown to have been made for legal necessity, it is clear that no interest passed to the mortgagee beyond the life estate of Musammat Pulmani. But it is contended that this mortgage ought to prevail in the absence of reversionary heirs to dispute its validity. It is said that there are no reversionary heirs, but this is not the case. It has been held by a Bench of this Court, and we think rightly, that under the Mitakshara the son of a daughter's daughter is an heir. In the case of Ajudhia v. Ram Sumer Misir (1) our brothers Banerji and Tudball held that a daughter's daughter's son is a bandhu, and in the absence of any other heir he is entitled to succeed to the estate of the last owner. The plaintiff in that case was the son of the daughter's daughter of one Sheo Narain and our learned brothers observe:—“He is clearly a sapinda of Sheo Narain within the meaning of the Mitakshara, and being a bhinnagotra sapinda, who claims through a female belonging to the family of Sheo Narain, namely, his daughter Chaura he is Sheo Narain'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, 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 specifically mentioned as a bandhu of the deceased (see p. 688), and on page 707 the daughter's daughter's son is specified in the list of the man's own bandhu. Having regard to the definition of a bandhu as understood in the Mitakshara, we must hold 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.” Applying the ruling in that case to the present, Sundar Pande and Earn Piare Pande being the sons of a daughter's daughter of Beni are, as such, in the absence of other heirs, the heirs to his estate. We dismiss the appeal with costs.

Appeal dismissed.