VENKANNA NARASINHA Vs. LAXMI SANNAPPA

JUDGEMENT

(1.) THESE three appeals raise a common question of law whether the Hindu residents of the North Kanara pistrict are governed by the Madras school of Hindu law or the Bombay school of Hindu law.

(2.) ONE Narayan, a haveek Brahmin of North Kanara district, died leaving him surviving two SODS Narasinha and Putta. Narasinha, and Putta effected a severance of joint status inter $e. Putta had three grandsons, Timmanna, Shankar and Venkappa, and in 1915 there was a partition between Venkappa on the one hand and Timmanna and Shankar on the other. Timmanna and Shankar contitued joint inter se and Shankar died leaving him surviving his widow Kamali. Timmannft thereafter became the sole surviving coparcener of the joint family and he died in 1936 leaving behind him no nearest heir but the widow Kamali, of his brother Shankar. After the death of Timmanna. aa aforesaid the name of Kamali was entered in the record of rights as his heir and she took possession of all the properties, Kamali continued to enjoy the properties until her death in 1989. After her death Yenkanna, the deft who belonged to Narasinha's branch of the joint family, got his name entered into the record of rights on 12-6-1939. The pltf. who was the widow of the son of Venkappa, filed the suit, out of which the L. P. A. no, 6 of 1949 arises, against the deft, claiming to recover possession of the properties and the future mesne profits and costs, alleging that, as the widow of a gotraja sapinda nearer in propinquity than the deft, she was entitled to succeed to the estate of Timmanna as his heir. This claim of the pltf. was denied by the deft, who contended that the law applicable to the parties was not the Mitaksbara law as administered in the Bombay Presidency but that it was a different one as they belonged to the Baudhayana Sutra. It was also contended that the District of North Kanara was originally comprised in the Madras Presidency and the law applicable to the residents of the said district was the one as administered in the Madras Presidency, and that therefore the pltf. being the widow of Timmanna'a brother's son would not be the heir to the estate of Timmanna in preference to the deft. The suit was filed on 18-12-1989. The learned Subordinate Judge at Sirei who tried the suit held that the parties were not governed by the law applicable in the Madras Presidency in the matter of inheritance or succession and that the pltf. was the nearest heir to Timmanna's estate after Kamali's death and passed a deoree in favour of the pltf. This decree was passed on 20-1-1941. The deft, filed an appeal in the District Ct. of Kanara at Karwar and the learned Dist. J. on 7-6-1943, allowed the appeal, reversed the decree of the lower Ct. and dismissed the pltf. 's suit with costs throughout, holding that the law prevailing in tha Madras Presidency was applicable to the case. The pltf. preferred a second appeal, being S. A. No. 977 of 1943, from this decree of the appellate Ct. The second appeal came on for hearing and final disposal before Gajendragadkar J. and on 17-1-1946, he delivered an interlocutory judgment observing that it was desirable that the pltf. should be allowed to allege specifically that the community to which the parties belonged was governed by the Bombay school of Hindu law in matters of succession and the deft should be allowed to make a denial of the aaid plea, and that after the pleadings were thus amended a proper issue should be framed as to whether in matters of succession the parties to the suit are governed by the Bombay school of Hindu law or by the law as administered in the Madras Presidency. The matter being thus remanded came before the learned Civil Judge, Junior Division, Sirsi, who, on 19-8-1946, recorded the finding that the parties were not governed by the Bombay school of Hindu law in n atters of succession and that they were governed by the law as administered in the Pro- vince of Madras. This finding was considered by the learned Dist. 3. Kanara, and on 22-10-1946, he found that the people of all communities in the Kanara District including the haveeks to which the parties belong were governed by the Bombay school of Hindu law at any rate till 1936 in the matter of succession, adoption and maintenance and that thereafter it would have to be d' emed that they were governed by the Madras school of law in view of the two decisions discussed by him, viz. , Somasekhara Royal v. Sugutur Mahadeva Royal, 88 Bom. L. R. 817 : (A. I. E. (23) 1936 P. C. 18) and Dattatraya Maruti v. Laxman Jattappa, 44 Bom. L. E. 627 : (A. I. E. (29) 1942 Bom. 260 ). After these findings were recorded, the g. A. No. 977 of 1943 came on for hearing before Bavdekar J. on 9-7-1947. Bavdekar J. discussed the whole position in law and came to the conclusion that the parties in the case were governed by the Bombay school of Hindu law. In regard however, to the claim of the pltf. which was on the basis of her being the widow of a gotraja sapinda entitled to inherit to a propositus in preference to a more remote male gotraja sapinda, he considered that his opinion that the parties were governed by the Bombay School of Hindu law was not sufficient to dispose of the case. He was of the opinion that the decision of their Lordships of the P. C. in Lulloobhoy Bappoobhoy v. Cassibai, 7 I. A. 212 : 15 Bom 110 P. C.) was based on the, ground of positive acceptance and usage and not on any interpretation of either the Mitakshara or the Mayukha. He, therefore, made a further order of remand to frame a ffurther issue and record the finding upon it, viz. , whether in the North Kanara District a widow of a gotraja sapinda has by positive acceptance and usage a right to inherit to a propositus. The matter on this further remand was heard by the learned Civil Judge, Sirsi, and on 26-11-1947, he recorded a finding in the affirmative. This finding was considered by the learned Dist. J. at Karwar on 12-1-1948, who confirmed the same certifying his finding in the affirmative on the issue stated above. The S. A. No. 977 of 1948 came on ultimately for hearing and final disposal before Bavdekar J. on 8-1-1949, and he held, accept, ing the findings as had been recorded by the Cts. below, that just as in the rest of the Presidency the view of the expounders and lawyers of the Bombay sehool that the widow of a gotraja sapinda was entitled to inheri was accepted in Karwar also. He, therefore, set aside the decree of the first appellate Ct. and restored the decree of the trial Ct. In so far, however, as the point of law involved was an important one affecting the Hindu residents of the North Kanara District, he granted leave to appeal under the Letters Patent. The L. P. A. No. 6 of 1949 was thus filed against this decision of Bavdekar J. and it came on for hear, ing before us on 19-10-1950.

(3.) ONE Shankar, a haveek Brahmin of North Kanara District, died in 1987 leaving behind him his young widow Mihalevi and two daughters by his pre deceased wife Bhagirathi, the elder daughter being named Laxmi. When Shankar died his wife Mahadevi was a minor of about 17 years and her brother Mahadev became her guardian and began to manage her properties inherited from her husband. Certain properties which were mulgeni holdings were sold in execution of a decree obtained against Mahadevi for arrears of rent and were purchased by Mahadevi's mother who was also named Bhagirathi. Mahadevi thereafter adopted her brother Satyanarayan aa a son to her deceased husband. Laxmi thereupon filed a suit on 15-8-1948, against Mahadevi, Satyanarayan and Bhagiratni for a declaration and injunction contending inter alia that the adoption of Satyanarayan was made without the permission of the deceased husband in that behalf and that the adopted boy's upanayanum had already taken place prior to the adoption. She alleged that these defects were fatal according to the law of the Madras Presidency which is the law supposed to be prevalent amongst the kaveek Brahmins in the North Kanara District These allegations were denied by the defts. Mahadevi and Satyanarayan. They contended that the adoption was Talid according to all the canons of Hindu law prevalent in the Bombay Presidency which is the law adopted by the haveek Brahmins of the North-Kanara District. The learned Subordinate Judge at Kumta who heard the suit came to the conclusion that the parties were governed by the Hindu law as prevalent in the Madras Presidency and that therefore the adoption of Satyanarayan by Mahadevi was invalid. He, "therefore, decreed the pltf's. claim except in regard to the purchase by Bhagirathi of the mulegni holdings. The defts. filed an appeal against this decision in the District Ct. of Kanara at Karwar. The learned Dist. J. held on 1-4-1948, that the Bombay school of Hindu law applied to the parties to this case and allowed the appeal, set aside the lower Cts. decree and dismissed the pltf's. suit with costs throughout. It was from this decision of the learned Dist. J. that S. A. No. 651 of 1948 was filed by Laxmi the original pltf. This second appeal was also placed on board for hearing and final disposal before us in so far as it involved the question whether the Hindu residents of the North Kanara District were governed by the Madras school of Hindu law or the Bombay school of Hindu law.