CHUNNO LALL Vs. CHOTAY LALL

JUDGEMENT

(1.) THIS suit was brought by the Respondents, the Plaintiffs below, to try the right to considerable moveable property which was taken into the hands of the Administrator-General on the death of Luckhy Bibee, the wife of the Appellant, who was the Defendant below. The property in suit was the self-acquired property of Thakoordass Baboo, who died at Calcutta on the 13th of February, in the year 1860, without any male issue or widow, but leaving an only daughter, Luckhy Bibee. This daughter was married in November, 1865, to the Defendant, and died on the 4th of September, 1872, without issue, her husband, the Defendant, surviving her.

(2.) THE Plaintiffs are grandsons of a brother of Thakoordass, and it is admitted that they would have been the heirs of Thakoordass if Be had left no issue. The question now is, whether they or the Defendant as the husband of Luckhy Bibee became entitled to the property in question upon her death.

(3.) THE proceedings in the suit as to an inquiry into these customs certainly assume a somewhat singular shape, and the parties have apparently changed sides with regard to it in the course of the suit. The plaint in the first paragraph thus describes Thakoor-dass: " One Thakoordass Baboo, of the race or sect of Jains, and a resident in the North-West Provinces of India, in or about the year of Christ 1814 came to Calcutta, and there remained until his death, retaining and following the usages of his said sect." The written statement of the Defendant in the 9th paragraph contains this passage: " The said Thakoordass Baboo, deceased, was, and the Plaintiffs and the Defendant are, governed by the Mitakshara law of inheritance which obtains at Behar in the North-Western Provinces of India," That is a distinct and simple assertion that the family was governed by the law of the Mitakshara. There is no allegation that that law was modified by any custom of the Jains. This being the original allegation of the Defendant, now that the right has been decided according to the law of the Mitakshara which he had invoked, he turns round and alleges that this is wrong, and that the succession ought to be determined by the usage and custom of the Jains. Mr. Cowell, who very ably argued the case, has done all that possibly could be done to find a foundation for this contention, but the case does not really afford, when it comes to be examined, sufficient materials for the purpose.