JIWAN BEAS Vs. MUSAMMAT INDRA KUAR

JUDGEMENT

(1.) This is the plaintiffs appeal arising out of an action in which as reversioner of one Musammat Indra Kuer, the adoption of Kishore Lal alias Ganesh Krishna by the Musammat who is the widow of one Kanhaya Lal deceased, is questioned. In short, it is stated that the adoption was without the consent of Indra Kuer's late husband and therefore invalid.

(2.) The lady inherited village Askaripur Ganghauli in the District of Gaya as a Hindu widow and it is contended by the plaintiff that being governed by the Mitakshara School of Hindu Law consent of her husband to adopt was necessary. There were two plaintiffs in the action, admittedly, the next two reversioners of the lady, but only one of the plaintiffs, namely, Jewan Beas appeals against the decision of the Subordinate Judge who held that the family was governed by the Mayukha School, coming as they did from Gujrat and that therefore the adoption, although without the consent of the deceased husband of the lady, was valid. The family, of which the lady is a member, is admittedly Varnagar Brahmin which at some date migrated from Gujrat to Benares, the plaintiffs alleging that the migration was direct from Gujrat, the defendants on the other hand, contending that the migration took place via Ahmedabad, the contention that the migration was direct having a bearing on the question of the date of the migration.

(3.) The case of the plaintiffs in the Court below was that this migration took place between eight hundred and a thousand years ago, whereas the defendants allege that they come via Ahmedabad, a city founded not earlier than the 15 century, the migration being in modern times and fixed by the learned Judge in the Court below as not earlier than 1652 A. D. The Mayukha was written by a Maratha Pandit at about the beginning of the 17 century and it was the -case of the plaintiffs relying on the authority of Balwant Rao V/s. Baji Rao 57 Ind. Cas. 545 : A I R 1921 P C 59 : 47 I A 213-48 C 30 : 39 M L J 166 : (1920) M W N 483 : 22 Bom L E 1070 : 28 M L T 157 : 18 A. L. J 1049 : 12 L W 679 : 16 N L B 187 : 25 C W N 243 (P C), that the family having left some 801 years ago at the time at which the law of Gujrat was the Mitakshara, the family was governed by the school prevailing at the time of their departure unaffected by subsequent developments. This contention hardly re-presents the view as expressed by Lord Dunedin but with that, if necessary, I shall deal later.