BEN MADHU Vs. BAI MAHAKORE

JUDGEMENT

(1.) THE short question which arises in these appeals is one of succession under Hindu law. The contest is between the sisters on the one hand and the daughter's daughter on the other. This point arises in this way :

(2.) THE property in suit originally belonged to Prabhashankar on whose death it devolved upon his widow Kashi. While Kashi was in possession of this property as a limited owner she sold the same to the defendants under two sale deeds dated 23th January 1941, and 31st January 1941, for Rs. 400 and Rs. 1000 respectively. Subsequently Kashi died on 9th July 1941, leaving her surviving her daughter's daughter Madhu, and the present plaintiffs who are the sisters of her deceased husband. The present appeals arise from suits filed by the sisters claiming to recover possession of the properties left by their deceased brother on the allegation that the sales effected by Kashi in favour of the defendants were not for legal necessity and as such not binding on them. The defence was that the sales were justified by legal necessity and that in any event the title to the property vested in Madhu and not in the plaintiffs. On the question of legal necessity both the Courts have held against the defendants. It has been found that the sale deeds in question were not for legal necessity and do not bind the plaintiffs. On the question as to whether daughter's daughter was a preferential heir to the property in suit both the Courts have taken the view that she is not. The result has been that the suits by the sisters have succeeded and their claims for possession decreed. It is these decrees against which the purchasers have preferred the present appeals. On their behalf the only point which has been urged before us is that the Courts below were wrong in coming to the conclusion that the daughter's daughter was not a preferential heir to the property in suit.

(3.) MR. Patel for the respondents has argued that the whole of this Act cannot apply to the parties in the present case because they are governed by Mayukha and cannot be said to be subject to the law of Mitakshara as required by Section 1 (2) of the Act. This argument is based upon the assumption that the Mitakshara and Mayukha are two schools of Hindu law, independent and exclusive of each other and based upon different foundations. Unfortunately for Mr. Patel, however, this contention was raised before a Division Beach of this Court and has been negatived by them in Ambabai Bhaichand v. Keshav Bandochand, 43 Bom. L. R. 114 : (A. I. R. (28) 1941 Bom. 233), Divatia J. in his well considered judgment examined this question in detail and came to the conclusion that there are only two fundamental schools of Hindu law, the Mitakshara and the Dayabhaga, and Mayukha in spite of its different interpretation of the ancient texts on some points, belongs to the Mitakshara school of Hindu law. He pointed out that the phrase "the law of Mitakshara" used in Section 1 of the Act of 1929 includes all sub -divisions of the Mitakshara law and excludes the law of Dayabhaga. In support of this conclusion Divatia J. has also referred to Clause (b) of Section 3 which refers to the school of Mitakshara and has suggested that the word 'school' evidently refers to the Bombay school on the one hand and the Benares and the Madras schools on the other. With respect we agree with this conclusion. That being so, it is not open to MR. Patel to contend that the Act of 1929 does not apply to the parties because they are governed by the Mayukha.