VIMLA BAI Vs. HIRALALGUPTA

JUDGEMENT

(1.) This appeal by special leave by the legal representatives of the plaintiff, Bhikubai, arises from decision in First Appeal No. 90 of 1962 of the High court of Madhya Pradesh, Indorebench, dated 18/07/1982 reversing the decree of the trial court in O. S. No. 29 of 1951 filed for possession and mesne profits of two houses, Nos. 88 and 89 situated at Nandlalpura, Indore City, mentioned in the plaint schedule. In this appeal, we are only concerned with house No. 88 as the parties have settled their dispute regarding the other house. The adnutted facts are that one Hariba Bhagwat of Mouza Pisore village had a son by name Appaji and a daughter Bajabai. Appaji in turn had a son by name Rakhmaji and a daughter Bhikubai (the plaintiff). Bajabai was married to Ganpatrao Page of Madhavagoan village. As they were issueless they adopted Rakhmaji. Both the villages are situated in Ahmednagar District of Bombay Province. They are Dhangars (shepherd) 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 by a registered gift deed dated 31/10/1944 under Ex. Dl-5. Shankar Lanke in turn hypothecated house No. 88 to hiralal, fifth defendant/first respondent on 21/09/1948 under ex. 5-D3. Sonubai died on 11/03/1949. Rakhmaji was the natural brother of Bhikubai, but by operation of law namely adoption, he became her fathers sisters son, i. e. a bandhu. The case of the plaintiff was that the 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 dispose 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 unlawful possession as trespassers. The suit was resisted by the first defendant, the donee, on diverse grounds. The material defence relevant 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. Hiralals 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. 00 borrowed by 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. 6-a, 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 Rakhmaji as his mothers brothers daughter, and though the consideration was paid under the mortgage obtained by Hiralal, ft was not 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 that the plaintiffs familybelonging 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 governed by the Banaras School of hindu Law. There is no proof that and key abandoned the personal law, namely, Banaras School of Hindu Law, and adopted Bombay School of hindu Law. This contention found favour with the High court, which relied upon the statement made in Indore State Gazette of 1931 at page 20, wherein it was claimed to have been recorded that Holkars belonged to the Dhangar caste and it would appear that they were originally residents of the countryside around Mathura and they migrated to aurangabad District and thereafter Phaltan Pargana. At page 90, it was mentioned about Dhangars in general and that in Indore Shepherd caste was the ruling family. Many of the Dhangars were Shivajis trusted maoles used for guerilla warfare. In domestic life as also in language, dress and food they closely resemble the Marathas, though in the caste scale theur position is lower. Their deity is Khandoba. The High court also found that the parties, namely, Rakhmajis father and Ganpatrao page were residents 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 (Public Witness 4) , but also the admission made by defendant 1 and his witness, DW 8. Placing reliance solely on the recital in the Indore State gazette, it was concluded that the parties 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.

(3.) At the outset, it is made clear that neither Hiralal, nor Shankar lanke pleaded that the plaintiff or her ancestors had migrated 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 did not also plead that the Banaras School of Hindu Law would apply to the plaintiffs family. Shankar Lanke vaguely pleaded this but adduced no evidence in proof thereof. Both the courts have concurrently 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 maharashtrians, vide DW 8 Kusumrao; 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 beproved that in a particular case they have given up their law of origin, i. e. the Banaras School of Hindu Law, and adopted the law of domicile, i. e. the Bombay School of Hindu Law. Accordingly, it was held that the parties are governed by the Banaras School of Hindu Law.