SHAIKH TALEB ALI Vs. SHAIKH ABDUL RAZACK

JUDGEMENT

(1.) This appeal arises out of a suit for rent for the years 1326 -to 1328. The defendants denied the relationship of landlord and tenant between the plaintiffs and themselves and set up their own title. They succeeded in the first Court but the learned Additional District Judge of Midnapore decreed the plaintiffs suit. The present appeal is by the defendants and four points have been urged by the learned Advocate appearing on their behalf.

(2.) The property in suit, it appears, belonged to one Kirtibash Maity, who had in his keeping a woman of the name of Saraswati Devi. He executed a deed of gift of the property in suit in favour of his mistress in 1915. He left two children by Saraswati, a son Rampado and a daughter Haripriya. After that Saraswati died leaving these two children behind her, Haripriya having been married before her death. On the 16 October, 1920, the plaintiffs purchased the entire property from Rampado and on the 30 March, 1921, the defendants purchased the entire property from Haripriya. The plaintiffs have brought this suit for recovery of arrears of rent on the allegation that the property devolved upon Rampado and as purchasers from him they are entitled to receive rent from the defendants who admittedly were the tenants on the land under Saraswati and have since been in occupation of it. The defence as made out in the written statement was that Rampado was not born of the womb of Saraswati and therefore he was not her heir and that the purchase by the plaintiffs from Rampado was not genuine. The trial Court dismissed the plaintiffs suit on the ground that Saraswati was an up-country woman and presumably governed by the Mitakshara School of law; and as under that school the daughter is the preferential heir in respect of the stridhan property. Rampado did not inherit any interest in it and therefore the purchase by the plaintiffs did not give them any title to the property. On appeal the learned Additional District Judge has not given effect to this plea on the ground that it was not raised in the, pleadings and that it was only brought out in the cross-examination of one of the plaintiff's witnesses that Saraswati's father was an up-country man. The learned Judge notes that the witness after making the statement added that he did not know whether Saraswati's father was governed by the Mitakshara law or not.

(3.) In the first place, the learned Advocate for the defendant pressed for our consideration the point that Saraswati being governed by the Mitakshara school of law, succession to her property should be governed by that law. I am of opinion that the view taken by the learned Judge is correct and that we should not allow the defendants to raise this question at a late stage. I observe in the pleadings that the plaintiffs title was questioned only on the grounds- first that Rampado was not a son born of the womb of Saraswati; and, secondly that the purchase by the plaintiffs was not genuine. No suggestion was made in the written statement that the plaintiffs right could be challenged on any other consideration such as that the son of a person governed by the Mitakshara law has no right in preference to the daughter to succeed to stridhan property. It is undoubtedly a question of fact. The presumption that a Hindu migrating from one place to another carries with him his personal law is a rebuttable one. Since the defendants did not attack the plaintiffs title on this ground, the plaintiffs were unable to adduce any evidence to show by what law Saraswati was governed.