SITABAI NABYA KULMI Vs. TULJABAI TRIMBAK KULMI

JUDGEMENT

(1.) THIS Letters Patent appeal from a decision of Newaskar, J. , arises out of a suit filed by the appellant Sitabai for a declaration that the adoption of the respondent sitaram by her mother Gangabai was invalid and that, therefore, she was entitled to succeed to and get possession of the entire property left by her deceased father sukhlal. Sukhlal had two wives, namely, Gangabai and Dayabai. Sitaram is the grandson of Sukhlar being a son of his daughter Tuljabai born of Dayabai. Sitabai assailed the validity of adoption on various grounds, one of them being that the parties were governed by the Banaras School of Hindu law and accordingly it was necessary for the validity of the adoption of Sitaram by Gangabai that she should have been given express authority by the deceased Sukhlal and that she bad not any stick authority.

(2.) THE trial Court held that the parties were governed by the Banaras School of hindu law and that Gangabai had not obtained any authority from Sukhlal for the adoption made by her. Accordingly, Sitabai's claim was decreed. The decision of the trial Court was upheld in appeal by the first appellate Court. The defendants then preferred a second appeal to this Court. The learned Single Judge-held that the parties were governed by the Bombay School of Hindu law as they were Leva patidar Kulmees, which community migrated from Gujarat where the Bombay school prevailed, and there was no evidence to show that the family had adopted the law and usages of the Malwa tract where the Banaras School held the field. He accordingly held that it was not necessary for Gangabai to have obtained any authority from Sukhlal for making the adoption and that it was valid. On this view, the decisions of the original Court and the first appellate Court were set aside and the appellant's suit was dismissed.

(3.) ON the finding of fact that Gangabai was not given any express authority by the deceased Sukhlal to make the adoption, the sole question that arises for determination in this appeal is whether Sukhlal was governed by the Banaras school or by the Bombay School. If he was governed by the Bombay School, then clearly no authority for adoption was necessary. The question raised does not present any difficulty, and on the evidence on record there can be no doubt that sukhlal was governed by the Bombay school. It is firmly settled by numerous authorities that where a Hindu family migrates from one State to another, the presumption is that it carries with it its personal law, that is to say, the law and customs as to succession and family relations prevailing in the State from which it migrated. This is no doubt a rebutt-table presumption which can be rebutted by showing that the family has adopted the law and usages of the province to which it has migrated. Learned counsel appearing for the appellant before the learned Single Judge did not dispute that the overwhelming evidence on record led to the conclusion that the Leva Patidar Kulmees of Nimar migrated from Gujarat. The appellant's contention before the learned Single Judge, was that there was no evidence to show that Sukhlal's family migrated after Vyavahar Mayukh was written. Reliance was placed on Bhaskar v. Laxmibai, AIR 1953 Nag 326 in support of this contention. The learned Single Judge took the view that it was not necessary to show that the family migrated subsequent to the date when Vyavahar Mayukh was written by Nilkantha Bhattat He observed: