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Daya Khushal Vs. Bai Bhikhi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 976 of 1913
Judge
Reported in(1915)17BOMLR504
AppellantDaya Khushal
RespondentBai Bhikhi
Excerpt:
.....determined by ordinary law-hindu law-priority of succession.;under section 9 of the bombay matadars act, 1887, 'the heir next in succession' to a deceased representative matadar is to be ascertained by reference to the personal law which governs the parties.;the grandson of the step-brother of a deceased matadar is entitled to succeed in preference to the mother's sister's son's daughter. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application..........in order to ascertain the heir of a deceased matadar, the court is confined to the limits of the matadar family and can never travel outside those limits. i am obliged to differ from the learned judges below because i find nothing in the act to justify this view, while if that had been the intention of the draftsman, it would have been easy to express it beyond the possibility of misconception. not only is there no clear provision of that sort, but the section declares that the name of the heir next in succession in such a case as this shall be registered instead of the name of the deceased. taking these words in their natural meaning they seem to me to denote that the heir is to be ascertained in the first instance by reference to the personal law which governs the parties, for.....
Judgment:

Batchelor, J.

1. This is a case in which the point involved is as to the right of succession to certain Matadari property. The appeal arises in the following state of facts. The genealogy of the parties is as follows :-

Laxmi

|

-----------------------------------

| |

Mona Kashi=Kasanji=another wife

| | | (Jivi)

Fakira Ratanji Bhana

| (deceased |

Bhikhi Matader) Khusal

(Plaintiff 2) Dahya

(Defendant 1)

2. The present contest is between Bhikhi, the original 2nd plaintiff, and Dahya the 1st defendant. Ratanji Kasanji, the representative Matadar died in 1908 or 1909 without issue. Disputes as to the succession to the Matadari property immediately arose, and the Collector of the District and the Commissioner of the Division decided against the claim of the 1st defendant. The Government of Bombay, however, in 1912 took the other view, and reversing the orders of the Collector and the Commissioner declared the 1st defendant to be the next heir of the deceased, and accordingly ordered the entry of his name in the Matadari register. Thereupon, Bhikhi and another brought the present suit for a declaration that one of the plaintiffs, and not the 1st defendant, was entitled to succeed to the Matadari property, and both the trial Court and the lower appellate Court have decided in favour of the plaintiff Bhikhi. My own view is that the appellant Dahya is entitled to succeed.

3. The question is regulated by Sections 9 and 10 of Bombay Act VI of 1887. Section 9 enacts, so far as it is relevant to our present purposes, that on the death of a representative or other Matadar, ' the name of the heir next in succession, or if there are two or more heirs of equal degree, the name of the senior heir, shall, subject to the provisions of Section 2 of Bombay Act V of 1886 be registered in his stead.' I apprehend as a matter of grammatical construction that the words 'subject to the provisions of Section 2 of Bombay Act V of 1886' govern as well the case of a single heir as the case of two or more heirs of equal degree; but the point is not now material, as neither side contends that the decision of the present appeal is affected by the modification of the rule introduced by the incorporation of Section 2 of Bombay Act V of 1886. It is admitted, and, as the genealogy shows, rightly admitted, that if the ordinary Hindu law is to be enforced, Dahya, and not Bhikhi, is the preferential heir; for Dahya is a sagotra sapinda of the deceased Ratanji's, whereas Bhikhi is a bhinnagotra sapinda. The lower Courts have decided in favour of Bhikhi on the sole ground that, as they understand the scheme of the Act, it overrides the general law, and provides that, in order to ascertain the heir of a deceased Matadar, the Court is confined to the limits of the Matadar family and can never travel outside those limits. I am obliged to differ from the learned Judges below because I find nothing in the Act to justify this view, while if that had been the intention of the draftsman, it would have been easy to express it beyond the possibility of misconception. Not only is there no clear provision of that sort, but the section declares that the name of the heir next in succession in such a case as this shall be registered instead of the name of the deceased. Taking these words in their natural meaning they seem to me to denote that the heir is to be ascertained in the first instance by reference to the personal law which governs the parties, for instance, the Hindu law in the case of Hindus and the Mahomedan law in the case of Mahomedans. And by Section 10 it is enacted that if at any time any person shall by production of a certificate of heirship, satisfy the Collector that he is entitled to have his name registered in preference to the person whose name the Collector has ordered to be registered, the Collector shall cause the entry in the register to be amended accordingly. Again the section contains no words which indicate that the Court in its inquiry as to who is entitled to be considered the heir shall adopt any other principles than those which a Court would necessarily follow unless plainly directed otherwise.

4. It was urged that in Chinava v. Bhimangauda I.L.R. (1896) Bom. 787 a case decided with reference to the Watan Act, this Court recognised that one leading object of this Watan legislation is to keep the Watan property intact in the same family. That is perfectly true, but the question still is how far this object is to be pursued, whether within the limitations expressed in the statute, or beyond those limitations into an unexpressed disregard of the established principles by which heirship is determined. I cannot find in the Act any warrant for this larger extension. And it seems clear that the Act cannot avail to prevent the occasional devolution of the Mata outside the original family, as, for instance, where a deceased Matadar leaves a daughter as his sole heir. It was urged by Mr. Desai that to allow the appellant Dahya now to succeed would have the effect of creating a new Matadar family, but the answer to that appears to me to be that the effect will rather be that Dahya will come from outside into the already existing Matadar family. Then Mr. Desai sought to support his case by reference to the addition made to Section 2 of the Matadars Act by Bombay Act IV of 1910 which provides that in determining who is the heir to a Matadar for the purposes of the Act the rule of lineal primogeniture shall be presumed to prevail in the Matadar family. But that carries the case no further than this, that where there are lineal descendants of a deceased Matadar the rule of succession will be by primogeniture. Here we are dealing with a case where there are I no lineal descendants. On these grounds, as I am unable to discover in the Matadars Act any authority for the view that the Court in ascertaining the heir of a deceased Matadar is disabled from looking outside the Matadar family, I am compelled to give my decision in favour of the appellant Dahya. The result is that this appeal is allowed, the decree of the lower appellate Court is reversed and the plaintiff's suit is dismissed with costs throughout.


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