NARAIN Vs. MOTISA

JUDGEMENT

(1.) VERY nearly the whole of the argument addressed to the Court by the learned Counsel for the appellants was taken up with the contention that the plaintiffs and the defendants Narayan and Jani followed the Bombay School of Hindu Law and not the Benares School. That matter was finally settled by the judgment of this Court on the 29th of March 1924 when the case was remanded for consideration of another point. The defendants were appellants in that case also, and paragraph 6 of the judgment is as follows: The fourth point is as regards the School of Hindu Law by which the parties to this suit are governed. It is argued that the Court ought to have ascertained this from the parties and need not have assumed that they were governed by the lex loci namely the Benares School. This point, which involves question of the original abode of the parties, is a question of fact and not being raised by the defendants-appellants at the stage of the trial, they can not be allowed to urge it at the stage of appeal. I therefore disallow this objection to the decree of the lower Court.

(2.) THE evidence subsequently given on the point and the long discussion of it in the judgment of the lower Court now under appeal, as well as the disquisition on it in this Court based on extensive historical research, represent a deplorable waste of time, effort and money.

(3.) BUT it was late in the fifteenth century that Ajmer was conquered from Gujarat, which is about the time at which the ancestors of the plaintiffs left it, and the Mayukha was not written till some time in the seventeenth century. The treatise is certainly a record of preexisting custom, but, as was pointed out by Kanhaiya Lal, J., in Jawahir Lal v. Jarau Lal A.I.R. 1924 All. 350 it does not record the custom of a woman-taking an absolute estate in property inherited from her father that is a later interpretation of the work of which the earliest record we have is in the judgment of the Bombay High Court delivered in 1859 in Pranjivan Das v. Deo Kuar Bai 1 B.H.C. 130. It must be held therefore that Sita did not take an absolute estate in property inherited from her father.