NARHAR DAMODAR VAIDYA Vs. BHAU MORESHWAR JOSHI

JUDGEMENT

(1.) The question before us is whether the Vyavahara Mayukha or the Mitakshara is, upon a point of disputed succession, the predominant authority in the town of Mahad in the Kolaba District. That question arises in this way. The property involved in the litigation belonged to one Narayan, and on his death was inherited by his sister Kashibai, who, under the law of this Presidency, took an absolute estate. Kashibai, dying, left a son and a daughter, and the controversy is as to which of these two is the preferential heir. Under the Mitakshara, the daughter, and under the Mayukha, the son. would be preferred. The present appellant, who was the plaintiff below, claims as a purchaser from the son of Kashibai and contends for the paramount authority of the Mayukha. The contention has been disallowed both in the lower appellate Court and in the trial Court, where the learned Subordinate Judge, Mr. Sabnis, has written a well-considered judgment. Geographically the town of Mahad is situate in the southernmost Talukaof the Kolaba District, and, though it stands on the Northern bank of the Savitri river, it is well within the Maratha or Maharashtra country, as that term is popularly understood. It is eight miles from Raigad, formerly a stronghold and capital of the Marathas. Prima facie it would seem, therefore, that the Vyavahara Mayukha would not be the prevailing authority.

(2.) It is, however, argued for the appellant that Mahad must be taken to fall within a somewhat ill-defined phrase " the Northern Konkan," where, it is said the Mayukha is predominant. Following the argument at the Bar, I will assume that the Mayukha is predominant in the Northern Konkan, leaving that phrase for further explanation. There are dicta to that effect of many Judges, and it is unnecessary for our present purposes to question the authority of these dicta.

(3.) The question, then, will be whether the town of Mahad falls within or without what was meant by the Judges when they said that the Mayukha is the prevailing authority as well in the North Konkan as in the island of Bombay and the province of Gujarat. In the first place, it is desirable to have a clear understanding as to what is meant by the " Konkan. " That phrase is explained in the first sentence in the introduction to the Bombay Gazetteer, Vol. I, Part II, where we read :- "The Konkan is now held to include all the land which lies between the Western Ghats and the Indian Ocean, from the latitude of Daman on the North to that of Terekhol, on the Goa frontier, on the South." In Vol. II, at p. 20 of Mr. Erskine s History of the Emperors Babar and Humayun, the learned author says :- After the death of Munaffar Shah, several of his descendants increased the territory of Gujarat. His grandson, Ahmed Shah, a very distinguished prince and the founder of Ahmedabad, reduced under his power nearly the whole country that forms the present Gujarat, including the lowlands to the South below the Ghats, the Northern Konkan and the island of Bombay.