KASAMSHA CHIRAGSHA Vs. BABANRAO SHAMRAO DESHMUKH

JUDGEMENT

(1.) VIVIAN Bose, A.J.C. 1. The dispute in this appeal relates to a conflict between the lex loci in Berar and what is said to be the personal law of one Khushalsing now dead. Khushalsing owned the property in suit. He 'died, and the plaintiff claims that his father's sister, one Mt. Tani, through whom he claims, was his heir. It is conceded that if the lex loci, namely the Bombay interpretation of the Mitakshara applies, then Mt. Tani would be the heir. But the defendants contend that Khushal singh was a Rajput who had migrated from Rajputana, and so the Benares interpretation of the Mitakshara must apply. It is not disputed that Mt. Tani would not be an heir under that. Nothing is known about Khushalsingh beyond the fact that he is a Rajput and that he and his family have been resident in Berar for at least 40 years through three generations.

(2.) THE lower appellate Court; accepts the position that Khushalsingh was a Rajput, and that has not been contested here by the respondent. But it holds that since the defendants are unable to state when Khushalsing's family migrated to the Berars, and from what place in Rajputana, the lex loci must be applied. This decision is contested here. It is contended that once the fact of Khushalsingh's Rajput origin is accepted that in itself indicates a migration from the land of the Rajputs and displaces the lex loci. The contention is well founded. The law is enunciated by their Lordships of the Privy Council in Balwant Rao v. Bajirao AIR 1921 PC 59. Questions of succession must be determined by the personal law of the individual whose succession is in question and not by the law of his domicile. It is only when nothing else is known about a man except that he lived in a certain place that the lex loci is applied. It is a measure of last resort, and even then is applied only because it is assumed that his personal law is the law which prevails in that place.

(3.) THE plaintiff-respondent relies on a decision of this Court in Ramchandra v. Ramabai A.I. Rule 1930 Nag. 267. In that decision the Benares interpretation of the Mitakshara was applied to a family of Maharashtra Brahmins resident in the Central Provinces on the ground that that is the view of the law prevalent here. But that is understandable. Even as all Hindus are not governed by one law, so also those who once had their origin in Maharashtra have adopted differing views of the Mitakshara. The Benares interpretation of it has been so repeatedly applied to Maharashtrian residents of the Central Provinces that it has come to be. regarded as their personal law by them Consequently, if nothing more is known about a man except that he is a Maharashtrian resident of these Provinces, the presumption is that he has adopted the Benares view along with the rest of his compatriots. But there has been no such cleavage among Rajputs. They are. governed by but one law wherever they may be resident except in these cases where individual families have chosen to adopt some other law; and they are so few and so scattered as to be negligible for these purposes.