SHRIMATI RAGHUVANSHI Vs. BAIJAY BAHADUR

JUDGEMENT

(1.) THIS appeal is directed against the concurrent decree of the lower Courts allowing the suit of the respondents for title and possession of property. The appellant -defendant had contended unsuccessfully, that in 1938 when her brother Bhola Brahman died the Hindu Law (Benares School) as in force in Gwalior State as it then was, already included the principles of the Hindu Law of Inheritance Act of 1929 (II of 1929), and as such preferred as heir, the sister to the Sapindas. The Courts, however, did not accept this.

(2.) IT is not the appellant's case that the said enactment of British India had been adopted or re -enacted in the Gwalior State; but it was argued that for one thing the Hindu Law of the Benares School (as in fact all the Mitakshara Schools) had been amended by this Act, and as the Law in Gwalior State was a School of Mitakshara, the amendment was in force here as well. For another the Maharaja had directed by his Departmental Order No. 5 of Samvat 1979, that the principles of the laws in force in the erstwhile British India, should be applied in the Gwalior State as well.

(3.) NO doubt the Hindu Law in force in the Gwalior State was the Mitakshara of the Benares School. But it was not, in all respects identical with the Benares School Mitakshara as in force in the neighbouring provinces of the erstwhile British India. It was identical in so far as it was based on the Smritis, and the same commentaries; it may also be considered to be identical in so far as it was declared or interpreted by the judicial decisions even of the British Indian Courts; this, because in theory the judicial decisions did not reform the law of the Smritis and the Bhashas but only interpreted and declared it. But the two were not identical in so far as the statutes, reformed and modified the older law. The statute of British India could obviously reform the Mitakshara law of the British provinces. As long as it was not adapted, or similar enactment was not made in the Gwalior State, the law in the latter is the Hindu Law (Benarasi Mitakshara) unreformed by the Statute.