Patna High Court
Bikal Chandra Gope And Anr. vs Manjura Gowalin And Ors. on 28 November, 1972
Equivalent citations: AIR1973PAT208, AIR 1973 PATNA 208
JUDGMENT S. Anwar Ahmad, J.
1. The appellants before this Court are defendants Nos. 2 and 3 to a suit for partition. The plaintiff-respondent claimed one-third share in the lands situate in village Nagatumang, P. S. Rajnagar, district Singhbhum, appertaining to old Khata No. 23, and now Khata No. 33, fully described in Schedule A to the plaintiff.
2. The case of the plaintiff-respondent was that Rajendra, Mahendra and Madhu were three brothers and they held the suit lands, jointly as their raiyati lands. On the death of Rajendra, his share devolved upon his two sons, the appellants. On the death of Mahendra, his one-third share came in possession of his widow Ghasu Gowalin, mother of the Plaintiff-respondent. Ghasu Gowalin died about six years after the death of her husband, leaving the plaintiff-respondent as her only heir. Since then, the plaintiff-respondent has been coming in possession of the one-third share of her father Mahendra. The third brother Madhu (original defendant No. 1) died during the pendency of the suit and his heirs have been substituted as defendants Nos. 1 (a) to 1 (d). The suit was mainly contested by defendants Nos. 2 and 3, appellants before this Court. According to them, in the matter of inheritance and succession, the parties were governed by the Mitakshara School of Hindu Law and not by the Dayabhaga School of Hindu Law as was the case of the plaintiff-respondent. According to the contesting defendants, Mahendra died more than forty years ago and, on his death, his interest devolved upon the other coparceners by survivorship and the share held by him came into the possession of his brothers. Rajendra and Madhu. Ghasu Gowalin did not get any share in the property left by her husband Mahendra, nor did she claim any possession over any portion of the suit lands. Some other pleas were also raised but they are not material for the purposes of this appeal.
3. The learned Subordinate Judge, who tried the suit, came to the conclusion that the parties were governed by the Dayabhag School; that there was unity of title and possession between the parties and that there had been no previous partition in so far as the suit lands were concerned. Having come to these conclusions, he decreed the suit for partition to the extent of one-third share in favour of the plaintiff.
4. Defendants Nos. 2 and 3 went up in appeal. The lower appellate Court also, in agreement with the learned Subordinate Judge, came to the conclusion that the parties were governed by the Dayabhag School of Hindu Law. It also found that the plaintiff was entitled to bring the suit for partition. Accordingly, it affirmed the judgment and decree passed by the Subordinate Judge.
5. The only point urged by Mr. Sudhir Chandra Ghose, learned Counsel for the appellants, is that the finding of the Court of appeal below that the parties were governed by the Dayabhaga School is not sustainable, on account of the fact that there is no finding in any of the two judgments that the ancestors of the parties migrated from Burdwan and not from Mathura as was the case of the appellants. Alternatively, it was argued that the fact that the parties speak Bengali language or even follow some of the customs prevalent in Bengal cannot be a deciding factor as has been thought by the Courts below in coming to the conclusion that the parties were governed by the Dayabhag School of Hindu Law. So far as the argument of learned Counsel regarding migration of the ancestors of the parties is concerned, it has to be accepted that there is no finding in any of the two judgments that the ancestors of the parties came from Bengal as was the case of the plaintiff-respondent. Mr. Nripendra Narayan Roy, for the respondent, had to admit this position but his submission was that although there is no specific finding on that score, both the Courts below have relied upon the evidence adduced on behalf of the plaintiff-respondent and negatived those on behalf of the defendants-appellants.
Reading that along with the finding that the parties were governed by the Dayabhag School makes up the deficiency, if any, and, in this view of the matter, no scope is left for remanding the case for giving a positive finding that the parties came from Bengal as was the case of the plaintiff. It cannot be doubted that the Courts below have accepted the evidence of the plaintiff's Witnesses in preference to that of the defendants-appellants. In order to see whether any evidence has been adduced on behalf of the plaintiff that the parties came from Burdwan (Bengal), the evidence of the plaintiffs witnesses was placed before me. The Courts below were wrong in thinking that all the witnesses examined on behalf of the plaintiff, Viz., P. W's. 1 to 10, state that the parties came from Burdwan. In fact, P. W's. 1, 2, 3, 8 and 10 have made no such statement, but the finding of the Courts below is sustainable on the evidence of P. W's. 4, 5, 7 and 9; P. W. 9 being one of the defendants himself (defendant No. 1 (a)). As there is evidence on behalf of the plaintiff supported by the evidence of one of the defendants himself that the parties came to Singhbhum district from Burdwan (Bengal), I do not think any useful purpose will be served by remanding the case for giving an express finding to that effect. The Courts below have held that the parties were governed by the Dayabhaga School of Hindu law and, having preferred the evidence of the plaintiff-respondent to that of the defendants-appellants, impliedly come to the conclusion that their ancestors came from Burdwan and not from Mathura as was the case of the defendants-appellants.
6. Mr. Ghose is certainly right in his submission that language or even observance of certain customs and rites were not by itself sufficient to lead to the conclusion that the parties were governed by the Dayabhag School. As pointed out by learned Counsel, it was held in Krittibash Mahton v. Budhan Mahtani, AIR 1925 Pat 733 by a Division Bench of this Court that language is no criterion in coming to the conclusion as to from which place the parties migrated. The Courts below, therefore, were not right in coming to the conclusion that the ancestors of the parties came from Burdwan because they spoke Bengali language or wrote that script. But the matter does not end there. As I have already indicated, there is evidence on behalf of the plaintiff consisting of one of the defendants himself that their ancestors came from Burdwan and that evidence has been accepted by the Courts below in preference to the evidence of the defendants-appellants. It has, therefore, to be accepted that the ancestors of the parties came from Burdwan and not from Mathura, and if that is so, it has to be seen whether the parties would be governed by the Mitakshara School of Hindu Law or the Dayabhag School of Hindu Law, Mr. Ghose, in all fairness, brought to my notice three decisions of this Court in Krittibash Mahton v. Budhan Mahtani, AIR 1925 Pat 733, Chandra Choor Deo v. Bibhuti Bhushan, AIR 1945 Pat 211 and Mt. Saraswati Kuer v. Debendra Singh, AIR 1956 Pat 340 as well as to a decision of the then Nagpur High Court in Kesho Rao v. Sadasheorao, AIR 1938 Nag 163. The case of Krittibash Mahton v. Budhan Mahtani, AIR 1925 Pat 733 to which reference has already been made is not very helpful for the declaration of the matter in dispute. It may be safely said that the decision in AIR 1945 Pat 211 is directly en the point involved in the present case. In that decision, Chatterji, J., relied upon Balwant Rao v. Baji Rao, 47 Ind App 213 = (AIR 1921 PC 59) in which their Lordships of the Privy Council had accepted the following passage from Mayne's Hindu Law (8th edition paragraph 48) as laying down the correct view of law:
"Prima facie any Hindu residing in a particular province of India is held to be subject to the particular doctrines of Hindu Law recognised in that province. ...... But this law is not merely a local law. It becomes the personal law, and part of the status of every family which is governed by it: consequently, where any such family migrates to another province governed by another law, it carries its own law with it."
Reliance was also placed by his Lordship on the following observation of their Lordships of the Privy Council:
"Of course, if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In that sense only is domicile of importance. But if more is known, then in accordance with that knowledge his personal law must be determined; unless it can be shown that he has renounced his original law in favour of the law of the place to which he migrated."
The same law has also been laid down by Mulla in his famous book on Hindu Law. Article 14 of that book (thirteenth edition page 79) runs as follows:
"14. Migration and school of law. -- (1) Where a Hindu family migrates from one State to another, the presumption is that it carries with it its personal law, that is, the laws and customs as to succession and family relations prevailing in the State from which it came. But this presumption may be rebutted by showing that the family has adopted the law and usages of the province to which it has migrated."
7. To sum up, therefore, the law on the subject is that a Hindu residing in a particular province carries with him the laws and customs relating to succession and family relations prevalent in that province and is subject to the particular doctrines of Hindu law recognised in that province. But this law is not merely a local law. It becomes the personal law and part of the status of every family which is governed by it. Consequently, therefore, where any such family migrates from one province to another governed by another law, it carries its own law with it as it was at the time of migration. If nothing is known except that a man lived at a certain place, it will be assumed that his personal law is the law which prevailed at that place. But if more is known then his personal law must be determined, unless it could be shown that he had renounced his original law in favour of the law of the place to which he had migrated. The onus to prove it is on the person alleging that the family has renounced the law of its origin and adopted those prevailing in the place where he has migrated.
The view of law laid down in AIR 1945 Pat 211 Chandra Choor Deo's case was followed in AIR 1956 Pat 340, Mt. Saraswati Kuer's case. In AIR 1938 Nag 163 Vivian Bose, J., (as he then was), relying upon the case of Balwant Rai, 47 Ind App 213 = (AIR 1921 PC 59), to which reference has already been made, observed that there was great tenacity among the Hindus to hold their ancient usages and follow their ancient traditions and customs that mere length of time in itself made no difference. In that case the question to be decided was as to whether a particular family which originally belonged to Maharashtra having shifted to the Central Provinces would be governed by the Bombay or the Benares interpretation of the Mitakshara when migration was not proved in the sense that the exact origin of the family could not be traced. It was further held that wherever a family was found clinging to its individuality and retained its identity as Maharashtrian, it must be presumed until contrary was shown that it hailed from the race or group of people known as Maharashtrians and carried the law of Maharashtra with them. My attention was also drawn by Mr. Roy for the respondent to the decision in Chandrakanta Goswami v. Ram Mohini Debi, AIR 1956 Cal 577 where on a consideration of almost all the cases on the point, a Bench of the Calcutta High Court held:
"A Hindu family, residing in a particular part of India, is prima facie governed by the lex loci or the law of the place in which it resides. But, where a Hindu family is shown to have migrated from one part of India to another, the presumption is that it carried with it the law and custom as to succession and family relations, prevailing in the territory, from which it came, at the time of migration. This is because Hindu Law is not merely a local law but is the personal law and part of the status of every family which is governed by it. The presumption, however, is rebuttable by proof that the family has adopted the law and usages of the place to which it has migrated, which means that the original or the personal law would prevail unless it can be shown that such law has been renounced by the family in favour of the law of the place to which it has migrated, the onus to prove this exception being on the party, alleging it or setting up such renunciation."
So far as the present appeal is concerned, there is evidence on record that the ancestors of the parties came to Singhbhum from Burdwan. No evidence has been adduced by the appellants to show that they have given up the Dayabhag law by which the parties were originally governed. The onus to prove this fact was on the appellants but they have not said so in their written statements nor any evidence has been adduced by them on this score. It has, therefore, to be held that the Courts below were correct in holding that the parties were governed by the Dayabhag School of Hindu Law and in this view of the matter, the plaintiff was entitled to one-third share in the suit properties (mentioned in Schedule A of the plaint) i.e., the share of Mahendra in those properties, the rest two-thirds belonging to the branch of Rajendra and Madhu.
8. In the result, the appeal fails and It is dismissed. There will be no order for costs so far as this Court is concerned.