JUDGMENT

Kanhaiya Lal, J. - The dispute in this appeal relates to a fixed rate tenancy belonging to one Sumera, who died leaving a widow, Mt. Pratapi. The plaintiff claims to be the nearest heir of Sumera, deceased. Ho denied that Mt. Pratapi was lawfully married to Sumera, but the Courts below found on that point against him. The fixed rate tenancy in question has been sold by Mt. Pratapi to Harihar Prasad for a consideration of Rs. 300 on the 4fch July 1919, out of which only Rs. 50 have been found to have been taken for legal necessity.

2. The main question for consideration in this appeal is whether the plaintiff is the nearest reversionary heir of Sumora, deceased, and as such entitled to impeach the validity of the sale. The Court of first instance found against him, but the lower appellate Court held, relying on the pedigree proved in the case, and on an admission of the contesting defendant himself in a previous suit, that the plaintiff was the nearest bandhu or reversionary heir of the deceased and entitled as such to protect his reversionary right.

3. It appears from the pedigree that the common ancestor of the plaintiff and Sumera, deceased, was Kashi, who had a son Chikuri alias Hanuman, and a daughter, Mt. Budhia. Sumera was the son of Hanuman. The plaintiff is the son of Gangu, the son of Mt. Budhia. There is no nearer kinsman, agnate or cognate shown to be alive in the family. The rule as to the succession of Bandhus, laid down in the Mitakshara (Ch. 2, Section 6, para. 1) runs as follows:

On the failure of agnates, the cognates are heirs. Cognates are of throe 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 mother's sister, and the sons of his maternal uncle must be considered as his cognate kindred. The sons of his father's paternal aunt, the son 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, 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 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.

4. The text above quoted is variously attributed to Vriaha Shatatap or to Bavdhayana. It defines and illustrates the different classes or Bandhua, who are capable of inheriting. It was not cited by the author of the Mitakshara for the purpose of giving an exhaustive enumeration of the Bisudhus entitled to inherit, but only as an authority for or illustration of his proposition that there wore three classes of Bandhus, namely Atrna Bandhus or those related to the person himself, Pitri Bandhus or those related through his father, and Matri Bandhus or those related through his mother. Mitra Misra, the author of the Vira Mitrodaya, points out that the maternal uncle is recognised as an heir, but he is not mentioned there, and it would be anomalous if his sons are included and he is not included. Balam Bhatta, a lady commentator on the Mitakahara, suggests that the words "sons" includes daughters, and that the sisters and their sons are not excluded.

5. In Girdhari Lal v. The Government of Bengal 1867 12 M.I.A. 448 their Lordships of the Privy Council accordingly hold that the enumeration of Bandhus in the text is only illustrative and not exhaustive; and in Budha Singh v. Lalta Singh AIR 1915 P.C. 70 and Aditya Narayan v. Mahabir Prasad Tiwari AIR 1921 PC 53 their Lordships declared that the word "sons" used there is used in generic sense and, includes a grandson.

6. Manu declares (IX, 187) that the inheritance of a deceased Sapinda goes to the nearest of the Sapindas. He does not mention Bandhus specific