GOPAL JANA Vs. BROJA MOHAN SWAMI

JUDGEMENT

(1.) After hearing Mr. Jogesh Chandra Roy, the learned advocate for the appellants, we did not think it necessary to call upon the respondents for a reply, for we think that the findings of fact arrived at by the Courts below are sufficient to conclude this second appeal. The plaintiffs now respondents brought a suit out of which this appeal arises as reversionary heirs of one Hati Jana. They were admittedly sister's sons of Hati Jana. Their case is that the disputed land was sold without legal necessity by the widow of Hati Jana who died sometime in the year 1330 B. S. The defendants now appellants resisted the claim on several grounds. They say, that in view of the relationship of parties which is shown in the genealogical table printed at p. 9 of the paper-book, the plaintiffs are not the reversioners of Hati Jana after the death of his widow. This contention has been negatived by both the Courts below. In order to consider the soundness or otherwise of the conclusion arrived at by the Courts below it is necessary to consider the case set up by the defendants that the reversioners are not the plaintiffs but that the reversioner is Rakhal, son of Mayuri, daughter of Hatijan, and Mani Bewa, defendant 16, in the present suit. The question depends on the proof of the fact alleged by the defendants that Mayuri was chaste during the lifetime of her husband, if the case is governed by the Bengal School of Hindu law. If Mayuri had become unchaste during the lifetime of her husband she would not succeed to the property of her father. In order to establish that she had not become unchaste during the lifetime of her husband evidence was led by the defendants; the plaintiffs on the other hand put forward evidence to show that she had become unchaste from before her husband's death. After consideration of the evidence on both sides the lower appellate Court has come to the conclusion in concurrence with the Court of first instance that Mayuri defendant 16 had become unchaste during the lifetime of her husband. This is sufficient to dispose of the first ground raised, namely, that the conclusion arrived at by the Courts below on this point is not right.

(2.) The next point taken is that in any event Rakhal defendant 15 should have been held by the Courts below to be the preferential heir for Rakhal is said to be a legitimate son of Mayuri by her marriage with one Khetro Das subsequent to the death of her first husband. On this point the question which requires consideration is as to whether the marriage between defendant 16 and Khetro has been established. This is a question of fact on which the lower Courts have come to a concurrent finding. The lower appellate Court states that the evidence on this part of the case is mainly hearsay and that none of the people who are said to have been present at the time of the subsequent marriage which is said to have been celebrated in the Bhaisnaba form came to depose and that consequently the defendants have failed to establish the factum of marriage. It has been argued by Mr. Roy that in a marriage of this kind which is celebrated merely by exchange of kanthi it was sufficient if the evidence established that the parties lived as husband and. wife and if they had such repute in the village in which they lived. We do not think that such a contention should be accepted. The marriage in the Bhaisnaba form has to be established by legal evidence. But in this case none of the persons who are alleged to have been present at the time came to prove the marriage. In the circumstances, we think that the District Judge was right in holding that the marriage was not established.

(3.) The next point taken is that the parties are governed by the Mitakshara School of Hindu law and as such the plaintiffs could not be reversioners after the death of Moni Bewa as Mayuri even if she be taken to have been unchaste during the lifetime of her husband would still succeed to the estate of her father under the Mitakshara School of Hindu law and several authorities have been referred to in support of this contention. This may be conceded. The question however is whether the defendants have established that the parties are really governed by the Mitakshara School of Hindu law. Their residence is in Midnapur, a district in Bengal and prima facie the law which governs them is the law which is prevalent in Bengal, namely Dayabhaga School of Hindu law. In order to rebut this prima facie case the defendants relied on the written statement which is said to have been filed by the plaintiffs father which is marked as Ex. C in the case in a suit which was brought by him in the year 1922. It is to be noticed that the admission made by the plaintiffs father that he was governed by the Mitakshara School of Hindu law does not bind the plaintiffs as the plaintiffs did not claim the disputed property through their father.