Holding

The family is governed by the Bombay School of Hindu law, making the plaintiff a lawful heir and the gift deed void.

Summary

The plaintiff, Bhikubai, claimed possession of a house inherited from her brother Rakhmaji, asserting that under the Bombay School of Hindu law a female bandhu is an heir. The respondents argued that the family, having migrated from Mathura, was governed by the Banaras School where a female bandhu cannot inherit, and that the gift deed and mortgage were valid. The trial court held in favour of the plaintiff, but the High Court reversed, relying solely on an Indore Gazette entry to deem the family migrants from Mathura. The Supreme Court held that migration must be proved, the burden lies on the party alleging it, and the Gazette alone is insufficient; the family had only migrated from Ahmednagar (Bombay Province) to Indore, so the Bombay School applies, making the plaintiff a rightful heir and rendering the gift deed void. Consequently, the appeal was allowed, the High Court decree set aside, and the trial court decree restored for house No. 88 with costs.

Issues considered

The applicable school of Hindu personal law (Bombay vs Banaras) for the parties.
Whether migration from another province must be proved and who bears the burden.
The admissibility and weight of statements from a government Gazette under the Evidence Act.
Whether a female bandhu is an heir under the applicable school of Hindu law.
Whether the gift deed and subsequent mortgage are void as they were made by a limited owner.

Legislation cited

Indian Evidence Act, 1872s. 37, s. 57, s. 81

Subjects

Hindu personal lawBombay School of Hindu LawBanaras School of Hindu LawMigrationBandhuFemale heirEvidence ActGovernment GazetteSuccessionGift deedMortgagePossession

Judgment

VIMLA BAI (DEAD) BY LRS.
{ A
' v.
HIRALAL GUPTA AND ORS.

DECEMBER 22, 1989

[L.M. SHARMA AND K. RAMASWAMY, JJ.] B

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 '(Jazetteer-Admissibility as evidence.
c
One Hariba Bhagwat had a son Appaji and daughter Bajabai.
Appaji in turn had a son Rakhmaji and a dangbter Bhikubai, the
plaintiff who had filed 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 prefer- D
red this appeal by special leave confined to one of the houses, the parties
having settled their dispute regarding the other house •
... Bajabai 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 (She- E
pards) 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 snit property 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 torn hypothecated the House to one Hira Lal,
the first respondent on September 21, 1948. Sonnbai died in 1947. F

' The case of the plaintiff was that the family is governed by the
Bombay School of Hindu Law wherein f~male Bandhu is an heir aitd
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 G
donot bind her and the respondents are in unlawful possession as tress-
passers. The material defence relevant for the disposal of this appeal is
that_ the persons concerned are ~overned by the Banaras School of
Hindu Law under which a female bandhu is not an heir. H iralal's case
was that he had no objection to hand over the possession provided he
was paid the consideration ofRs.12,000 borrowed by Shanker Lanke, the H
).. donee.
159
760 SUPREME COURT REPORTS I1989] Supp. 2 S.C.R.
t
The Trial Court came to the conclusion that the parties are gover~
A
ned by the Bombay School and not the Banaras School of Hindu Law
and the plaintiff is the heir of Rajkbmaji. 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
B belonged to Dhangar caste, being migrants from U.P. (Mathura) tu
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 Matbura and thereby they were governed by the
c Banaras School of Hindu Law under1whicb the female Bandhu is not an
heir to succeed to the estate of the last male bolder. Reversing the
decree passed by the Trial Court, the suit was dismissed.

This Court in allowing the appeal by the legal representative of
the plaintiff,
D
HELD: In India a Hindu is governed by bis personal branch of
law which be carries with him where ever be g~s. 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 pre-
E sumption will be that be is governed by the law or the special custom by
which he would have been governed in his earlier borne at the time of
migration. [767B-C]

Migratim;i is changing one's abode, quitting one's place of birth
and settling permanently at another place. The burden of proving
F migration lies on the person setting up the plea of migration. Migra- \
lion can llot be presumed but it must be established by adduction of
evidence. [7640-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
G 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 .,I
H course of the discharge of the official dillies on private affairs or on
VIMLA BAI v. HIRALAL GUPTA 761
/

\ historical facts ii:! some cases is best evidence of facts stated thereii:i and
A
is entitled to due consideration bot should not ·be treated as concmsive
in respect of matters requirii:igjudicial adjudication. (7668-C]
•
The onus lies on the person allegii:ig that the family bad renounced
the law of the origii:i and adopted that prevailii:ig ii:! the place to which
be had migrated. The plaii:itiff and her family on· migration from B
Ahmednagar carried with them to Indore their personal law, namely
the Bombay School of Hii:idu Law under which a Hii:idu female is recog-
nised to be an heir to last male bolder of the Estate and takes the
property as an absolute owner. The Plaintiff beii:ig the only nearest
bandhu of Rakhmaji, is entitled to succeed to bis estate as an heir and
thns entitled to the possession of the House in question with mesne
profits. [767D; 7688; A) c

Keshao Rao Bapurao & Anr. v. Sadasheorao Dajiba, AIR 1938
Nagpur 163; Rajah Mattu Ramalinga Setupati v. Perianayagum Pillai,
[1873--74] L.R. 1 IA 209 at p. 238; Marland Rao v. Malhar Rao, (1927-
28] L.R. 55 IA 45 at 48; Arunache/lam Chetty v. Venkatachellapathi D
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 Commis-
sioner, Hindu Religious & Charitable Endowments, (1962] Suppl. 2
SCR 276: Mahant Shri Srinivasa Ramanuj Das v. Surajnarayan Dass &
Anr., (1966] Supp. SCR 436 at p. 447; Ba/want Rao & Ors. v. Baji Rao E
& Ors., AIR 1921 P.C. 59;. Udebhan Rajaram v. Vikram Canu, AIR
[1957] M.P. 175; Bhagirathibai v. Kahnujirav, ILR 11 Bombay 285;
Girdhari Lall Roy v. The Bengal Government, (1867-79] Moore's In-
dian Appeals 448 and Muthuswami Mudaliyar & Ors. v. Sunamedu
Muthukumaraswami Muddaliyar, [1895-96] LR 23 IA 83, referred to.
F
' 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.
_. G
Awadh Bihari Rohtagis Vivek Gambhir and S.K. Gambhir for the
Appellants.

U.R. Lalit and G.B. Sathe for the Respondents.

1'. TheJudgment of the Court was delivered by H
762 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.

A 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
0.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
B 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 tum had a son by name Rakhmaji and a daughter Bhikubai
(the plaintiff). Bajabai was married to Ganpatrao Page of Madhava-
C goan village. 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
D by a registered gift deed dated October 31, 1944 under Ex-D 1-5.
Shankar Lanke in tum hypothecated House No. 88 to Hiralal, fifth
defendant/first respondent on September 21, 1948 under Ex-5-03.
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 bandhu. The case of the plaintiff was that the
E family is governed 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 dis-
pose 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 unlaw-
ful possession as trespassers. The suit was resisted by the first
F defendant, the donee, on diverse grounds. The material defence rele-
vant 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
G 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
H Rakhmaji as his mother's brother's daughter, and though the consi- .A
VIMLA BAI v. HIRALAL GUPTA [K."RAMASWAMY, J.J 763
(
' deration was paid under the mortgage obtained by Hirata!, it was not
A
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 B
that the plaintiff's family belonging to Dhangar caste were migrants
from U .P. (Mathura) to Aurangabad from where they had further
migrated to Central Province (now Madhya Pradesh). They are gover-
ned 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 c
Indore State Gazette of 1931 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 migrated to Aurangabad District and there-
after Phaltan Pargana. At page 90, it was mentioned about Dhangars D
in general and that in Indore Shepard caste was the ruling family.
Many of the Dhangars were Shivaji'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, namely, Rakhmaji's father and Ganpatrao Page were resi- E
dents 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 defen-
dent No. 1 and his witness, D.W. No. 8c Placing reliance solely on the
recital in the Indore State Gazette, it was concluded that the parties F
' had migrated 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. G
3. At the outset, it is made clear that neither Hiralal, nor
Shankar Lanke pleaded that the plaintiff or her ancestors had mig-
rated from Mathura and settled down in Ahmednagar District. The
specific plea of the plaintiff in paragraph 5 of the plaint that they were
.: original residents of Ahmednagar District was not disputed. Hiralal H
764 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

did not also plead that the Banaras School of Hindu Law would apply
I
A
to the plaintiff's family. Shankar Lanke vaguely pleaded this- but
adduced no evidence in proof thereof. Both the Courts have concur-
rently 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
B 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.
c the Banaras School of Hindu Law, and adopted the law of domicile,
'·
i.e. the Bombay School of Hindu Law. Accdrdingly, 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
D abode and settling permanently at another place. The burden of prov-
ing 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 plaintiff was examined as a witness no attempt was made to
elicit from her that they or their ancestors were migrants from
E 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. Venkatara-
man who was himself an authority on Hindu Law, in paragraph 32
stated that a family's original place of abode can be inferred from the
F 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 clinging to its individu-
ality 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
G with them. Thus, it is clear that migration cannot be presumed but it
must be established by adduction of evidence. The question then arises
is whether the recital in Indore State Gazette relied on, at the appel-
late stage, can form the sole base to establish that the plaintiffs family
were the migrants from Mathura in U.P. Section 37 of the Evidence
Act, 1872 postulates that any statement made in a Government
H Gazette of a public nature is a relevant fact. Section 57(13) declares :.
VIMLA BAI v. HIRALAL GUPTA [K. RAMASWAMY, J.] 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
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 conclu-.
sive) evidence o.f the public, but not of the private matters contained B
therein. In Rajah Muttu Ramalinga Setupati v. Perianayagum Pillai,
[1873-74] L.R. 1 IA 209 at p. 238 the Judicial Committee, while con-
sidering 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 c
statutory authority, they are entitled to great consideration so far as
they supply information 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 proceedings of the Government
founded upon them. Same view was reiterated in Martand Rao v. D
~
Malhar Rao, [1927-28] L.R. 55 IA 45 at 48 on the question of reliabi-
... lity 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 conclusive in respect of matters requiring judi- E
cial 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 F
' history of the property, to the information set forth in the Inam regis-
ter. This view was followed by this Court in Narayan Bhagwantrao
Gusavi Balajiwale v. Gupal Vinayak Gosavi & Ors., [1960] l 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 loam register is of G
great evidentiary value but the entries cannot be accepted on the face
value without giving due cosideration 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 rhe respondents, it was held that the statements in the
~- Gazetteer can be consulted on matters of public history. This is also H
766 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
">
I
A 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
assessing the evidence. Therefore, this Court did not lay any rule
contrary to what has been laid by the Judicial Committee or by this
B Court in the decisions referred to hereinbefore.

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 entitled to due consideration but should not be treated as con-
elusive in respect of matters requiring judicial adjudication. In an
c appropriate case where there is some evidence on record to prove the
fact in issue but it is not sufficient to record a fincting thereon, the
statement ·of facts concerning management private temples or histori-
cal facts of status of private persons etc. found in the Official Gazette
may be relied upon without further proof thereof as corroborative •
D evidence. Therefore, though ihe 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 appro- )
priate case the Court may presume to be genuine without any further
proof of its contents but it is not conlusive. Where there is absolutely
no evidence on record in proof of the migration of the family of the
~
E 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
F 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 plaintiff or their ancestors from Mathura to Ahmed-
nagar, the historical factum of the migration of Dhangars from U .P.
G State mentioned in Indore State Gazette is of little assistance 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 1901 establishes that Marathi Caste of Shepard are
~
H Dhangars and their home speech is Marathi and they are the .residents
VIMLA BAI v. HIRALAL GUPTA (K. RAMASWAMY, J.( 767
' •.
of Bombay Presidency. It would, thus, show that even in 1901,
Dhangars were held to be original Marathis of Bombay Presidency. A
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.
B
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 pro-
vince 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 c
'
' 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 suffi-
cient to prove that they are governed by a particular school of law. The
presumption can be displaced by showing that the immigrant had D
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 J-[indu Law, edited by Justice S.T. Desai, E
15th Edn., in para 13A and 14. In Hindu Law By S.V. Gupta (Vol. I,
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
Ba/want Rao & Ors. v. Baji Rao & Ors., AIR 1921 PC 59. Lord F
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 individual 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
obscured. Therefore, it was held that the.original law that prevailed in G
' Bombay Province at the time of migration governs 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 heirs alone would be entitled to succeed to her estate.
., . This was reiterated by Bose, J. in Keshav Rao's case in considering the
question of migration by a Maharashtra Brahmin residing in Central H
768 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
)- ~

Provinces and was held to be governed by the Bombay School of
A
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. Accord-
ingly, we hold that the plaintiff and her family carried with them to
Indore their personal law, namely, Hindu Law of the Mitakshara ap-
B plicable to Bombay Province and not Banaras School of Hindu Law.

7. The question then is whether the plaintiff is an heir to Rakh-
ma ji, the last male holder of the estate left by Sonubai, his widow. In
Bhagirathibai v. Kahnujirav, ILR 11 Bombay 285 the Full Bench held
-r
that under the Hindu Law as prevailing in Bombay Presidency, a
daughter inheriting from a mother or a father takes as an absolute
c 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 whether the plaintiff is an heir as bandhu. In·
D Mayne's Hindu Law, 12th edn., revised by Justice Alladi Kuppus-
wami, 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
E kinship, as for instance in the Vishnusmriti and in some of the verses in
r Manusmriti. The Mitakshara explains that the term 'bandhavas' in the
above test of Manu means Atma Bandhus, Pitrubandhus and Matro-
bandhus, vide Mit. on Yajn. III, 24 (Setlur edn. 1169)·Naraharayya's
translation 56.

F In paragraph 543, at page 761, dealing with the third division of >
heirs, namely, 'bandhus' and of their enumeration in paragraph 544 it
was stated that the enumeration is only illustrative, which read thus:

Para543 "Bandhus-The third division of heirs consists of bandhus
(Table B). They are the sapindas related through a female,
G 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 relat- •
ing to succession, Vijnanesvara styles them as sapindas of a
different gotra. The term 'bandhu' has therefore acquired

H
in the system of the Mitakshara a distinctive and technical
meaning and signifies bhinnagotra sapindas. They are the
... <-
VIMLA BAI v. HIRALAL GUPTA [K. RAMASWAMY, J.} 769
•'
three classes: (1) atmabandhus or one's own bandhus, (2)
A
pitrubandhus or the father's bandhus and (3) matruband-
hus or the mother's bandhus. The relevant passage in the
Mitakshara 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 father'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 kindred of the deceased c
himself, are his successors 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.
D
Para 544 Enumeration only illustrative-Evidently, the enumeration
-.__ of the above nine bandhus was not intended to be exhaus-
live, 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 E
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 bhin-
nagotra 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 F
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 improper that their
sons are heirs but they themselves though nearer, are not G
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 collaterals within five degree H
770 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.

A inherit as ba~dhus in the order of propinquity, such as the son's daugh-
ter, 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
B 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
C 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
D uncle of the last male holder is a bandhu entitled to succession of the
estate of the deceased. While considering the question exhaustively of
the texts of Hindu Law on this topic including Sec. VI of Colebrooke's r
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
E 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
deceased 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
F 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
G 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 inherit-
ing the estate. This view was followed in Muthuswami Mudaliyar &
Ors. v. Sunamedu Muthukumaraswami Mudaliyar, [1895] 96 LR 23 IA
83. Accordingly, we hold that the enumeration of bandhus in various ,•
H schools of.Hindu Law of the rule of succession to the estate of the last
VJMLA BAI v. HIRALAL GUPTA [K. RAMASWAMY, J.] 771

• male Hindu as agnates or cognates or colJaterals, are only ilJustrative A
and not exhaustive. The Hindu Law of succession of Mitakshara
School prevailing in Bombay Presidency recognises 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
B
degrees through her mother, is entitled to succeed to his estate as an
heir. Accordingly, we hold that the plaintiff is entitled to the posses-
sion 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 c
was admittedly found to have been paid cannot be accepted as the
same was not paid to the plaintiff. So far as the mortgagee's claim
against the mortgagor is concerned, he may pursue any remedy avail-
able to him under law.

10. Accordingly, the appeal is allowed, the decree of the High D
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 alJowed.