BENOY KRISHNA Vs. STATE OF W B

JUDGEMENT

(1.) The trial court having decreed the suit for partition on the finding that the suit-properties are Mitakshara coparcenery properties and the appellate court having dismissed the suit on reversal of the finding, the only question involved in this second appeal is whether the suit properties are Mitakshara coparcenary properties as found by the trial Judge or are separate properties as held by the appellate Court. There does not appear to be any misapprehension of the relevant laws either by the trial court or by the appellate court. But we are satisfied that there has been such serious misreading of the relevant portions of the plaint and the evidence by the appellate court as to have amounted to 'no-reading' at all warranting our intervention in second appeal under S.100 of the Civil P.C., as it stood before the Amendment of 1976, governing this appeal.

(2.) Parties, though residing for generations in the Dayabhagi State of Bengal (now West Bengal), are still governed by the Mitakshara School of Hindu Law having migrated from a Mitakshara State. As is well-known, as the domicil of origin attaches to a person wherever he goes until he accepts a new domicil of choice. the original school of law also continues to govern a migrating Hindu family, wherever it goes, until it adopts another school of law operating at the place of its new settlement. Both the courts below have proceeded on the basis, and in our view rightly, that the parties having migrated from Uttar Pradesh to West Bengal are still governed by the Mitakshara School of Hindu Law, they not having adopted al any stage the Dayabhaga School of Hindu Law prevailing in West Bengal.

(3.) It is the categorical case of the plaintiffs in para 4 of the plaint that the suit properties are "Coparcenary ancestral properties" that they have acquired interest therein by "right by birth" (Janmadhikar Bale), by right of survivorship (Uttarjibi Sutre) and that the properties were "Paitamahik Sampathi''. It should be noted that the Sanskrit word for ancestral is Paitamaha, meaning belonging to Pitamaha. This word Pitamaha, though ordinarily applied to the father's father, means in the plural number, all the paternal male ancestors of the father in the male line, how highsoever (Sarkar-Sastri's Hindu Law - 8th Edition - page 257).