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Venkanna Narasinha Vs. Laxmi Sannappa - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberLetter Patent Appeal No. 6 of 1949
Judge
Reported inAIR1951Bom57; (1951)53BOMLR192; ILR1951Bom576
ActsHindu Law; Code of Civil Procedure (CPC) , 1908
AppellantVenkanna Narasinha
RespondentLaxmi Sannappa
Appellant AdvocateU.S. Hattiangadi and ;G.N. Vaidya, Advs.
Respondent AdvocateG.P. Murdeshwar, Adv.
DispositionAppeal dismissed
Excerpt:
hindu law - mitakshara-north kanara district-residents of-whether governed by bombay school or madras school of hindu law.; the hindu residents of the north kanara district are governed by the bombay school of hindu law and not by the madras school of hindu law.; manjappa hegade v. lakshmi (1890) i. l. r. 15 bom. 234, mahableshwar v. durgabai (1896) i. l. r. 22 bom. 199, vithappa v. savitri (1910) i. l. r. 34 bom. 510, s. c. 12 bom. l. r. 487 and hosbanna devanna v. devanna sannappa (1924) i. l. r. 48 bom. 488, s. c. 26 bom. l. r. 424 followed.; somasekhara royal v. sugutur mahadeva royal (1935) 33 bom. l.r. 317, p. c., referred to and explained. dattatraya maruti shanbhag v. laxman jattappa shanbhag (1941) 44 bom. l.r. 527., and shantaram sadashiv v. mahabaleshwar vinayak (1946) 49 bom......bhagwati, j. 1. these three appeals raise a common question of law whether the hindu residents of the north kanara pistrict are governed by the madras school of hindu law or the bombay school of hindu law.2. one narayan, a haveek brahmin of north kanara district, died leaving him surviving two sods narasinha & putta. narasinha, & putta effected a severance of joint status inter $e. putta had three grandsons, timmanna, shankar & venkappa, & in 1915 there was a partition between venkappa on the one hand & timmanna & shankar on the other. timmanna & shankar contitued joint inter se and shankar died leaving him surviving his widow kamali. timmannft thereafter became the sole surviving coparcener of the joint family & he died in 1936 leaving behind him no nearest heir but the widow kamali, of.....
Judgment:

Bhagwati, J.

1. These three appeals raise a common question of law whether the Hindu residents of the North Kanara pistrict are governed by the Madras school of Hindu law or the Bombay school of Hindu law.

2. One Narayan, a haveek Brahmin of North Kanara district, died leaving him surviving two SODS Narasinha & Putta. Narasinha, & Putta effected a severance of joint status inter $e. Putta had three grandsons, Timmanna, Shankar & Venkappa, & in 1915 there was a partition between Venkappa on the one hand & Timmanna & Shankar on the other. Timmanna & Shankar contitued joint inter se and Shankar died leaving him surviving his widow Kamali. Timmannft thereafter became the sole surviving coparcener of the joint family & he died in 1936 leaving behind him no nearest heir but the widow Kamali, of his brother Shankar. After the death of Timmanna. aa aforesaid the name of Kamali was entered in the record of rights as his heir & she took possession of all the properties, Kamali continued to enjoy the properties until her death in 1989. After her death Yenkanna, the deft who belonged to Narasinha's branch of the joint family, got his name entered into the record of rights on 12-6-1939. The pltf. who was the widow of the son of Venkappa, filed the suit, out of which the L. P. A. nO, 6 of 1949 arises, against the deft, claiming to recover possession of the properties & the future mesne profits & costs, alleging that, as the widow of a gotraja sapinda nearer in propinquity than the deft, she was entitled to succeed to the estate of Timmanna as his heir. This claim of the pltf. was denied by the deft, who contended that the law applicable to the parties was not the Mitaksbara law as administered in the Bombay Presidency but that it was a different one as they belonged to the Baudhayana Sutra. It was also contended that the District of North Kanara was originally comprised in the Madras Presidency & the law applicable to the residents of the said district was the one as administered in the Madras Presidency, & that therefore the pltf. being the widow of Timmanna'a brother's son would not be the heir to the estate of Timmanna in preference to thedeft. The suit was filed on 18-12-1989. The learned Subordinate Judge at Sirei who triedthe suit held that the parties were not governed by the law applicable in the Madras Presidency in the matter of inheritance or succession & that the pltf. was the nearest heir to Timmanna's estate after Kamali's death & passed a deoree in favour of the pltf. This decree was passed on 20-1-1941. The deft, filed an appealin the District Ct. of Kanara at Karwar & the learned Dist. J. on 7-6-1943, allowed the appeal, reversed the decree of the lower Ct. &dismissed; the pltf.'s suit with costs throughout, holding that the law prevailing in tha Madras Presidency was applicable to the case. Thepltf. preferred a second appeal, being S. A. No. 977 of 1943, from this decree of the appellate Ct. The second appeal came on for hearing & final disposal before Gajendragadkar J.& on 17-1-1946, he delivered an interlocutory judgment observing that it was desirable that the pltf. should be allowed to allege specifically that the community to which the parties belonged was governed by the Bombay school of Hindu law in matters of succession & the deft should be allowed to make a denial of the aaid plea, & that after the pleadings were thus amended a proper issue should be framed as towhether in matters of succession the parties to the suit are governed by the Bombay school of Hindu law or by the law as administered in the Madras Presidency. The matter being thus remanded came before the learned Civil Judge, Junior Division, Sirsi, who, on 19-8-1946, recorded the finding that the parties were not governed by the Bombay school of Hindu law in n atters of succession & that they were governed by the law as administered in the Pro-vince of Madras. This finding was considered by the learned Dist. 3. Kanara, & on 22-10-1946, he found that the people of all communities in the Kanara District including thehaveeks to which the parties belong were governed by the Bombay school of Hindu law at any rate till 1936 in the matter of succession, adoption & maintenance & that thereafter it would have to be d' emed that they were governed by the Madras school of law in view ofthe two decisions discussed by him, viz., Somasekhara Royal v. Sugutur Mahadeva Royal and Dattatraya Maruti v. Laxman Jattappa : AIR1942Bom260 . After these findings were recorded, the g. A.No. 977 of 1943 came on for hearing before Bavdekar J. on 9-7-1947. Bavdekar J. discussed the whole position in law & came to the conclusion that the parties in the case were governed by the Bombay school of Hindu law. In regard however, to the claim of the pltf. which was on the basis of her being the widow of a gotraja sapinda entitled to inherit to a propositus in preference to a more remote male gotraja sapinda, he considered that his opinion that the parties were governed by the Bombay School of Hindu law was not sufficient to dispose of the case. He was of the opinion that the decision of their Lordships of the P. C. in Lulloobhoy Bappoobhoy v. Cassibai 7 I. A. 212 : 15 Bom 110 was based on the, ground of positive acceptance & usage & not on any interpretation of either the Mitakshara or the Mayukha. He, therefore, made a further order of remand to frame a ffurther issue & record the finding upon it, viz., whether in the North Kanara District a widow of a gotraja sapinda has by positive acceptance & usage a right to inherit to a propositus. The matter on this further remand was heard by the learned Civil Judge, Sirsi, & on 26-11-1947, he recorded a finding in the affirmative. This finding was considered by the learned Dist. J. at Karwar on 12-1-1948, who confirmed the same certifying his finding in the affirmative on the issue stated above. The S.A. No. 977 of 1948 came on ultimately for hearing & final disposal before Bavdekar J. on 8-1-1949, & he held, accept, ing the findings as had been recorded by the Cts. below, that just as in the rest of the Presidency the view of the expounders & lawyers of the Bombay sehool that the widow of a gotraja sapinda was entitled to inheri was accepted in Karwar also. He, therefore, set aside the decree of the first appellate Ct. & restored the decree of the trial Ct. In so far, however, as the point of law involved was an important one affecting the Hindu residents of the North Kanara District, he granted leave to appeal under the Letters Patent. The L. P. A. No. 6 of 1949 was thus filed against this decision of Bavdekar J. & it came on for hear, ing before us on 19-10-1950.

3. One Shankar, a haveek Brahmin of North Kanara District, died in 1987 leaving behind him his young widow Mihalevi & two daughters by his pre deceased wife Bhagirathi, the elder daughter being named Laxmi. When Shankar died his wife Mahadevi was a minor of about 17 years & her brother Mahadev became her guardian & began to manage her properties inherited from her husband. Certain properties which were mulgeni holdings were sold in execution of a decree obtained against Mahadevi for arrears of rent & were purchased by Mahadevi's mother who was also named Bhagirathi. Mahadevi thereafter adopted her brother Satyanarayan aa a son to her deceased husband. Laxmi thereupon filed a suit on 15-8-1948, against Mahadevi, Satyanarayan & Bhagiratni for a declaration & injunction contending inter alia that the adoption of Satyanarayan was made without the permission of the deceased husband in that behalf & that the adopted boy's upanayanum had already taken place prior to the adoption. She alleged that these defects were fatal according to the law of the Madras Presidency which is the law supposed to be prevalent amongst the kaveek Brahmins in the North Kanara District These allegations were denied by the defts. Mahadevi & Satyanarayan. They contended that the adoption was Talid according to all the canons of Hindu law prevalent in the Bombay Presidency which is the law adopted by the haveek Brahmins of the North-Kanara District. The learned Subordinate Judge at Kumta who heard the suit came to the conclusion that the parties were governed by the Hindu law as prevalent in the Madras Presidency & that therefore the adoption of Satyanarayan by Mahadevi was invalid. He, 'therefore, decreed the pltf's. claim except in regard to the purchase by Bhagirathi of themulegni holdings. The defts. filed an appeal against this decision in the District Ct. of Kanara at Karwar. The learned Dist. J. heldon 1-4-1948, that the Bombay school of Hindu law applied to the parties to this case & allowed the appeal, set aside the lower Cts. decree &dismissed; the pltf's. suit with costs throughout. It was from this decision of the learned Dist. J. that S. A. No. 651 of 1948 was filed by Laxmi the original pltf. This second appeal was also placed on board for hearing & final disposal before us in so far as it involved the questionwhether the Hindu residents of the North Kanara District were governed by the Madras school of Hindu law or the Bombay school of Hindu law.

4. One Krishna Salunke, a Konkau Maratha of the North Kanara District died leaving him surviving his two sons by name Appa & Govind & a widow by name Rukmini who was their step-mother, Govind died on 6-8-1988, leaving him surviving his widow by name Radhabai. Eadhabai filed a suit against Appa, impleading Bukmini as a party deft, to the suit claiming to recover possession of her half share in the suit properties after partition by metes & bounds & for future mesne profits & 'costs from Appa According to her Rukmini was only entitled to maintenance & residence out of the joint family properties. Rukmini, however,contended that as the mother she was entitled to an equal share with her sons Appa & Govind & claimed a one-third share in the joint family properties. The suit was filed on 12-8-1941, & the learned First Class Subordinate Judge at Karwar passed a decree on 81 8-1944, in favour of the pltf. decreeing a half share in the suit properties in her favour. He held that in the matter of succession & inheritance the parties were governed by the law of the Madras Presidency & according to that law the mother was not entitled to a share. He came to this conclusion on the basis that North Kanara District formed part of the Madras Presidency formerly & therefore the parties were governed by the law prevailing in the Madras Presidency so far as inheritance & succession was concerned. The defts. filed an appeal in the District Ct. at Karwar against this decision of the learned Subordinate Judge. The learned Disk J, who heard the appeal on 17-10-1946, thought it desirable that Rukmini should be allowed to allege specifically that the community to which the parties belong is governed by the Bombay school of Hindu aw in matters of succession & inheritance. He, therefore, allowed the pltf. to put in a counter-written statement & directed that after the pleadings were thus amended a proper issue should he framed as to whether in the matters of succession & partition the parties to the suit are governed by the Bombay School of Hindu law or by the law as administered in Madras Presidency. The matter came on remand before the learned Civil Judge, Senior Division, at Karwar & on 15-11-1947, he recorded his finding in the negative on the issue, viz.,

'Does deft 2 (Rukmini) prove that in the matter of succession & partition the parties to the suit (who are Konkan Marathas) are governed by the Bombay School of Hindu law ?'

On this finding being recorded, the appeal case came on for hearing before the learned Dist. J. at Karwar on 31-1-1948, & he held that the only legitimate inference was that the Bombay school of Hindu law governed the residents of the North Kanara District because it was the law that prevailed in that country despite the various political changes. He held that the parties before him even if they were original residents of North Kanara, should be held as having been governed by the Bombay school of Hindu law &, that being so, Rukmini was entitled to a one-third share in the property. He, therefore, allowed the appeal partly & modified fcho lower Ct's. decree by awarding to Rukmini her one-third share in the suit properties. Badhabai, the original pltf. filed the S. A. No. 877 of 1948 from this decree of the appellate Ct.This appeal was also placed on board along with the two previous appeals in view of the common question of law which was involved therein, viz. whether the residents of the North Kanara District were governed by the Madras school of Hindu law or the Bombay school of Hindu law.

5. All these three appeals are capable of being disposed of by one judgment on the common question of law which we have stated above, & this judgment will accordingly govern the decision of all these three appeals.

6. It is necessary at the outset to give a historical survey of the North Kanara District. The history of this District, can be traced as far back as 240 B. G. (Vide. Gazetteer Bombay Presidency, Vol. XV [15] Kanara, Part II) when this district seems to have had association with the North rather than with the South. In the 6th century A. D. this District formed a part of the kingdom of Kadambas who had their capital Banavasi in Sirsi taluka. During the subsequent period, the District had been successively under tho Bashtrakutas, Chalukyas, Hoysalas, Yadavas of Devagiri & under the Vijayanagar Empire. The District was under the rule of Yijayanagar kings from 1330 to 1580. Thereafter it was under Bijapur kingdom from 1600 to 1670. Subsequently from 1672 to 1763 it was ruled by the Sonda kings & during this period the Marathas held the coast of Kanara for some time. Later on from 1763 to 1799 the District became subject to the rule of Haidar Ali & his son Tippu Sultan. After the defeat to Tippu Sultan in 1799 it became a part of the Company's possessions &, was annexed to tho Madras Presidency. After the third Mysore War, the present North Kanara District as well as South Kanara District were formed into one collectorate & Sir Thomas Munro was appointed as Collector of Kanara by the British Company Govt. in 1799. Thus for the first time the District formed part of the Madras Presidency in 1799. It formed part of tho Madras Presidency from 1799 to 1861 when it was transferred to the Bombay Presidency for the purposes of administration. Tho District was thus a part of the Madras Presidency for 62 years, i. e., from 1799 to 1861, while it is a part of the Bombay Presidency since 1861, i. e., for more than 80 years. It is also borne out from the Kanara Gazetteer that the District formed part of the Karnatag along with Dharwar, Belgaum & Bijapur.

7. This historical survey cannot necessarily lead to the inference that the North Kanara District was necessarily governed by the Bombay school of Hindu law like the Districts of Dharwar, Belgaum & Bijapur, but it certainly shows that prior to the annexation of the District to the Madras Presidency, it had associations with the North rather than with the South. This circumstance will be of great significance when we come to consider the observations of West & Buhler in connection with the law applicable to the North Kanara District.

8. There are no reported cases which would go to show what was the law applicable to the Hindu residents of North Kanara District prior to 1861 when it was transferred to the Bombay Presidency for the purposes of administration. Even though the District formed part of the Madras Presidency between 1799 & 1861 there is no record anywhere to show that the Hindu residents of the North Kanara District were during that period governed by the Madras school of Hindu law. On the contrary within only 17 years of the District being transferred to the Bombay Presidency we have in the second edition of West & Buhler's Digest of Hindu Law of Inheritance & Partition (1878) a statement to the effect following (p. 13):

'The relative position of those works to each other-may be described as follows : --In the Maratha country & in Northern Kanara the doctrines of the Mitakshara are paramount; the Vyavahera mayukha, the Vira mitrodaya & the rest are to be used as secondary authorities only. They serve to illustrate the Mitakshara & to supplement it. But they may bo followed BO fur only as their doctrines do not stand in opposition to the express precepts or to the general principles of the Mitakshara. Among the secondary authorities the Vyavaharamayukha takes precedence of the Virmitrodaya.'

This second edition of the Digest is not available in the Library, but the learned Dis. J. at Karwar himself had seen it & quoted the above passage which occured at p. 2 of that edition as appears from his judgment at print p. 9 in S. A. Ho. 377 of 1948. The first edition of this Digest was published in about the year 1868 & it presumably contained the very same statement as quoted above. But even if it were not so, it stands to reason that the statement having been made only about 17 years after the North Kanara District became a part of the Bombay Presidency, the law applicable to the residents of the North Kanara District. cannot have changed within that short interval & a different law from that which they were governed by before 1861 adopted by them without any visible signs of protest. The compilers of the Digest were persons of very great repute & authority as is evident from the observations of their Lordships of the P. C, in Lulloobhoy Bappoobhoy v. Cassibai 7 I. A. 212 : 5 Bom. 110 :

'Great weight is undoubtedly due to this decision not only from the learning & research displayed in the judgments separately delivered by Westropp C. J. & West J., but also from the circumstance that both these learned Judges have had great & peculiar opportunities of becoming acquainted with the law of inheritance prevailing in Western India. The ChiefJustice has passed a long judicial career in the Cts. of Bombay, & West J. is one of the compilers of thedigest of the Law of Inheritance to which reference has already been made.'

This passage from West & Buhler's Digest, therefore, shows that as early aa 1878, if not earlier, the result of the investigations made by the compilers of that Digest waa that in the Maratha country & in Northern Kanara the doctrines of the Mitakahara were paramount, the Vyavaharamayukha & the Viramitrodaya were to be used as secondary authorities only. Similar statement is to be found in Mulla's Hindu Law, 10th Edn., p. 12, Section 12 (2): 'As regards authorities in Western India the Mitakahara ranks first & paramount in the Maharashtra, Northern Kanara & the Ratnagiri District.' If one glances at the sub-divisions of the Mitakshara school as have been described in Section 12, one finds that the Vyavahara Mayukha is considered as an authority only in the Maharashtra or the Bombay school, though it ranks next to the Mistakshara & is to be followed so far only as the doctrine doea not stand in opposition to the express precepts or to the general principles of theMitakshara. The Madras school does not recognise Vyavaharamayukha as -any authority. It only considers SmritiChandrika, Parasara Madhaviya, Viramitrodaya Saraswati Vilasa as secondary authorities & next after Mitakshara. The authority of Vyavahara Mayukha in the North Kanara District, therefore, would clearly mark it out as a place which was governed by the Maharashtra or the Bombay school of Hindu law.

9. There are no reported decisions before or after 1878 in regard to this position until we come to Manjappa Hegade v. Lakthmi 15 Bom. 234. That is the first reported decision of our H. G. which relates to the Hindu residents of the North Kanara District. In that case the contest was between the widow of an undivided brother & the alienee of an undivided moity of the family property from another brother. Sargent C. J. observed that the widow of the undivided brother did not take a life estate but the entire property passed on her husband's death to the surviving coparcener, subject only to the right of the widow to maintenance, & the purchaser who had purchased the moiety of the estate from the other coparcener became entitled on his succession to the property to have a half share in it & was equally entitled against the widow who may perhaps be entitled to succeed to the surviving coparcener as a gotraja sapinda. Even though the point was not directly in issue, it was assumed by the learned Chief Justice that the widow might be entitled to succeed to the surviving coparcener as a gotraja sapinda in the absence of any alienation made by him during his lifetime. This was a recognition of her right as a female gotraja sapinda to succeed as an heir to the estate of the sole surviving coparcener. This recognition was made as early as 1890 and was incorporated in this judgment by the learned Chief Justice while delivering judgment in this case. This is the first judicial recognition though indirectly of the Hindu residents of North Kanara District being governed by the Bombay School of Hindu law after the statement to be found in 1878 in West & Buhler's Digest on Hindu law of Inheritance & Succession, 2nd Edn., quoted above. It was within 12 years of the recognition thereof by West & Buhler as above.

10. The next reported case from the North Kanara District is that of Mahableshvar v. Durgabai 22 Bom. 199. It was a second appeal from the decision of the learned Dist. J. of Kanara reversing the decree of the First Glass Subordinate Judge of Karwar. The question that arose waa in regard to the inquiry into the motives of the adoptive widow where her motives were called in question. In the course of that discussion, Farran C. J. who delivered the judgment of the Ct. referred to the position as it obtained according to the Madras school of Hindu law in regard to the widow requiring the assent of the sapindas of the deceased husband. Even so in regard to the position as it obtained in accordance with the Bombay school of Hindu law the learned Chief Justice stated that here the consent of the husband's kinsmen was not required. That waa the position which waa considered as applicable to the parties before the Ct. & the whole discussion thus centred round the motive which actuated the adoptive widow in making the adoption. If the Madras school of Hindu law had been considered to apply, the fact that the adoption was made without the consent of the husband's kinsmen would have been enough to dispose of the case. The learned Judges of the appellate Ct., however, proceeded to consider the matter on the basis that the Bombay school of Hindu law applied, that the consent of the husband's kinsmen was not required, & that it was necessary to inquire into the motives of the adoptive widow where her motives were called in question. It appears from the facts of this case that the deceased had died on 18-9-1878, & his widow Parvatibai had subsequently adopted Mahableahwar as a son to him, which adoption had been challenged by the pltfs. who were the sisters of the in their capacity as his reversionary heirs. This decision also, therefore, shows that the Bombay school of Hindu law was all along considered to be applicable to the Hindu residents of North Kanara District.

11. The nest reported case after this is that of Vithappa v. Savitri 34 Bom. 510: 7 I.C. 445 it was a second appeal from the decision of the Dist. J. of Kanara reversing the decree of the Subordinate Judge of Honavar, One Vishnu had died leaving him surviving two daughters Kuppi & Savitri. Kuppi was married to Rama Hedgde & she died in 1899 leaving her surviving her husband Rama. In 1907 Rama Hedgde brought the present suit against Kappabhatta Vishunbbatta, the tenant of the land, as deft. 1 & against Savitri as deft. 2 to recover a share in the rent which devolved upon him as heir of hia wife Kuppi, deceased. The Subordinate Judge found that both Kuppi & Savitri were heirs to their father & therefore he allowed the claim. On appeal by deft. 2 the Dist. J. reversed the decree & dismissed the suit on the ground that Kuppi's right of heirahip passed to her sister Savitri by survivorship. The contest was thus between the Bombay School of Hindu law & the Madras school of Hindu law. It was contended on behalf of the resp. that the case had come from Kanara which at the beginning of the last century formed part of the Madras Presidency & that therefore the Cts. should follow the rulings applicable to the Madras Pre sidency which laid down that according to the Mitakshara, as interpreted by the Madras H. C. daughters inheriting from their father take jointly & do not take absolute interests in separate shares. It was contended, on the other hand, that in the Bombay Presidency it had long been held that a daughter taking property from her father inherited it as stridhan & it therefore followed that two daughters taking from their father took their shares separately & absolutely, with the result that they held the property aa tenants-in-common & not as joint tenants & between them there could be no survivorship. The appellate Ct. however, observed that the rule which had been always followed in cases affecting inheritance of property under Hindu law was to adhere to the decisions of the Ct. to which the district from which the case arose was subject, & it had not been contended that in the District of North Kanara any different rule had been laid down by the Bombay H. C from that which applied to the rest of the Presidency in the case of property inherited by daughters from their father. They, therefore, reversed the denree of the District Ct. & restored that of the Subordinate Judge. This decision was a clear pronouncement in regard to the position as it obtained in North Kanara District. The law which had been applied by the Bombay H. Ct. was the same in North Kanara District as in the other districts of the Presidency & the Bombay school of Hindu law was taken to apply to the Hindu residents of the North Kanara District, Here also the right of the parties had accrued in any event by 1899 though the decision in that behalf was reached in the year 1910.

12. The last reported case in this behalf is that of Hosbanna Devanna v. Devanna Sannappa 48 Bom. 468: A. I. R. 1924 Bom. 444. It was a second appeal from the decision of the Dist. J. of Kanara amending the decree passed by the Subordinat Judge of Karwar. It was a case of partition between father & sons & the question which arose was whether the step-mother was entitled to a share on partition One of the sons had filed a suit for partition against his father and his step-brothers. The step, mother was afterwards added as a party resp. in the appeal. The lower Ct. had pasted a partition decree directing that the pltf. should be declared the owner of one-seventh share in the property of the joint family. The question, however, arose in appeal whetber tbe stepmother was also entitled to a share on partition. The Dist. J. held that the step mother was entitled to a share. The learned Judges of the appellate Ct. confirmed the decision of ther Dist. J. & Shah J. in the course of his judgment observed that the case came from the District; of Kanara & the parties would be governed by the Mitakshara. He further observed that event though the case of Jairam v. Nathu 31 Bom. 54 : 8 Bom. L. R. 692 was governed by the Vyavahara Mayukha, it was sufficient to state that on this point there was no difference between the Vyavahara Mayukha & the Mitakshara, & that that conclusion was based upon the express text of Yajnavalkya. It may be observed that in this decision also the Hindu residents of the North Kanara District were taken to be governed by the Bombay school of Hindu law & no other. This decision was reached in the year 1024.

13. The position as it emerges from the above discussion is that since in any event the year 1878, if not earlier, right up to 1924 the Hindu residents of North Kanara District were treated as being governed by the Bombay school of Hindu law. There was an authoritative statement in that behalf contained in West & Buher's Digest on Hindu Law of Inheritance and Succession. There were also authoritative judicial pronouncements made by our appellate Court in that behalf ranging from 1890 up to 1924. This was the opinion of the legal experts This was also the, under standing of the Hindu residents of the North Kanara District. We do not find anything in the reported decisions of our H. Ct. which goes counter to this accepted notion until we come to Dattatraya Maruti v. Laxman Jattappa : AIR1942Bom260 a decision which was reached by our appellate Ct. in the year 1941, under the circumstances hereinafter set out.

14. In the year 1929, a decision was reached by the Madras H. Ct. which is reported in Somasekhara v. Mahadeva 53 Mad. 297: A.I.R 1930 Mad. 496 which for the first time in the annala of the Madras E. Ct. & also in the records available in the Madras Presidency laid down that the Lingayats of the North Kanara District were not governed by the Mayukha law of adoption but were governed by the Madras school of Hindu law; & that therefore the adoption of a married man of that community was invalid. In that case the pltf. was admittedly a married man at the time of the adoption. The parties were Lingayats & the question that arose for the consideration of the Gt. was whether the adoption of a married man by a Lingayat was valid. The learned Judges of the Madras H. C. observed that the North Kanara originally formed part of the dominions of Hyder Ali & his son Tippu who were the Rulers of Mysore, & in 1799 on the fall of Tippu Sultan, North Kanara & other territories were ceded to the East India Company & formed part of the Madras Presidency till 1861, when for administrative purposes the administration of that district was transferred to the Bombay Presidency. They further observed that (p. 302):

'When the North Kanara District formed part of the Madras Presidency, the law as administered by the Madras H. Ct. was that the adopti n of married men was invalid & it would have been necessary for a person there who sets up a custom to the contrary to prove it. The transfer of North Eanara to the Bombay Presidency for administrative purposes would not by itself change the personal law of persons residing in the North Kanara District. Whether it is a case of an individual migrating from one province to another or a case of territory where he resides being transferred from one province to another, the presumption until the contrary is shown is that he carries his personal law with him, & it is difficult to see how the Mayukha can be said to apply to the North Kanara District, simply because it was transferred to the Bombay Presidency.'

The learned Judges of the Madras H. Ct. thus took it as an established fact that when the No th Kanara District formed part of the Madras Presidency the law as administered by the Madras H. C. was that the adoption of a married man waa invalid & it would have been necessary for a person there who sets up a custom to the contrary to prove it Merely because the law as administered by the Madras H. Ct. was that the adoption of a married man waa invalid they took it that all the Hindu residents of the North Kanara District were governed by that law. They did not consider what was the law by which they were governed prior to 1799 when the North Kanara District became a part of the Madras Presidency. They simply took it that because North Kanara District formed part of the Madras Presidency between 1799 and 1861 the Madras School of Hindu law applied to the parties & the parties must be deemed to continue to be governed by the same even after the District was transferred to the Bombay Presidency for administrative purposes unless it was proved that they adopted some other school of Hindu law as their own. This decision was reached by the learned Judges of the Madras H. Ct. in the year 1929, & without anything more by way of probing into the actual position in law as it obtained during the period 1799 to 1861, they took it for granted that the Hindu residents of the North Kanara District were governed by the Madras school of Hindu law. A statement as to what was the position in law between 1799 & 1861 was thus made in the year 1929 merely on an assumption that the North Kanara District having formed part of the Madras Presidency must have had administered to it the law as recognised by the Madras H. Ct. for all persons resident within its jurisdiction, viz. the Madras school of Hindu law. This assumption was, however, as we have already pointed out above, not warranted by the true position as it has been disclosed in the passage from West & Buhler's Digest of Hindu Law of Inheritance & Succession, which first published in the year 1868 & in any event contained the, statement of the law above referred to in the second edition which was published in the year 1878.

15. This decision of the Madras H. Ct. went in appeal before the P. C. & the judgment of their Lordships of the P. C. is reported in. Somasekhara Royal v. Sugutur Mahadeva. Royal 38 Bom L. R. 377: A. I. R 1986 P C. 18. It was conceded by counsel at their Lordships' bar that according to the law of the Madras Presidency which applied to the residents there the adoption of a married man would be invalid & that this law applied to North Kanara while it remained part of the Madras Presidency. There was no judicial pronouncement made by their Lordships of the P. C in behalf of this question. It is well-known that obiter dicta of their Lordships of the P C. are entitled to the greatest respect, but this was not even an obiter. This statement was made by their Lordships merely on a concession made by counsel at their Lordships bar & would not have the sancity of an endorsement of a particular legal position by their Lordships of the P. C. The only thing which was pronounced by their Lordships was that such transfer of Noth Kanara District from the Madras Presidency to the Bombay Presidency for administrative purposes was not sufficient to affect the present law of the residents therein unless & until it was shown in the case of any resident that he intended to change & had in fact changed his personal law. This decision of their Lordships of the P. C., therefore, could not be urged to have set its seal of approval on the position contended for by the protagonists of the Madras school of Hindu law.

16. The above judgment of their Lordships of the P. C. was pronounced in the year 1985 & was considered & followed by a Division Bench of our H. C. in the year 1941 in a decision reported in Dattatraya Maruti v. Laxman Jattappa : AIR1942Bom260 . The parties belonged to the community of Goud Saraswat Brahmins of Karwar & the question that arose for decision was whether the Goud Saraswat Brahmins residing in the Karwar District were governed in matters of personal law by the lex loci, i. e. by the Mitakshara law as prevailing in the Madras Presidency, or by the Bombay school of Hindu law. In that case the adoption had been made without the authority of the deceased husband or the consent of the coparceners. Such an adoption would be valid according to the Bombay school of Hindu law but nob valid elsewhere in India. The learned Judges of the appellate Gt., Broomfield & Sen JJ., considered themselves bound by the decision of their Lordships of the P. C. in Somasekhara Royal v. Sugutur Mahadeva Royal following upon Somasekhara v. Mahadeva 53 Mad. 297 : A. I. R. 1930 Mad. 496 & they observed that North Kanara where the parties resided was part of the Madras Presidency until it was transferred to Bombay for administrative reasons in 1861, but that that transfer did not affect the lex loci, that Hindus in North Kanara were presumed to be governed by the Hindu law as prevailing in the Madras Presidency unless the contrary was shown & that that was clear from Somasekhara v. Mahadeva,53 Mad. 297 : A. I. R. 1930 Mad. 496 which was affirmed by the P. C. in Somasekhara Royal v. Sugutur Mahadeva Royal . The learned Judges took the view that according to what their Lordships of the P. C. stated all the Hindus residing in the Madras Presidencyincluding those residing in the North Kanara District were governed by the Madras school of Hindu law, & applying that ratio to the parties before them came to the conclusion that they also were governed by the Madras school of Hindu law & that therefore the adoption in question was invalid.

17. This decision of our H. 0. was the first decision reached in the year 1941 following Somasekhara Royal v. Sugutur Mahadeva Royal which struck a discordant note in regard to what was till then accepted as the true position in law applicable to the Hindu residents of the North Kanara District. It is significant to note that the whole position as has been discussed by us above including the authorities of our H.C. commencing with Manjappa Hegade v. Lakshmi 15 Bom. 234 & ending with Hosbanna Devanna v. Devanna San-nappa 48 Bom. 468 : A. I. R. 1924 Bom. 444, was not brought to the attention of the learned Judges who constituted the Bench in Dattatraya Maruti v. Laxman Jattappa : AIR1942Bom260 . The decision was reached by the learned Judges merely on a consideration of Somasekhera v. Mahadeva 53 Mad 297 : A. I. R. 1930 Mad. 496 as affirmed by the P. C. in Somasekhara Royal v. Sugutur Mahadeva Royal .

18. After the year 1941, when Dattatraya Maruti v. Laxman Jattappa : AIR1942Bom260 was decided another occasion arose in the year 1946 when the same question came to be discussed by our appellate Ct. in a decision reported in Shantaram Sadashiv v. Mahabaleshwar 49 Bom. L. R 764 : A. I. R. 1948 Bom. 129. The question which arose before the appellate Ct. there was whether the Goud Saraswat & Daivadnya Brahmins in the North Kanara District were governed by the Bombay School of Hindu law or by the Madras school of Hindu law. The Division Bench there was constituted by Macklin & Gajendragadkar JJ. The learned Judges took into account the two recent decisions, viz. Somasekhara Royal v. Sugutur Mahadeva Royal & Dattatraya Maruti v. Laxman Jattappa : AIR1942Bom260 and appear to have felt themselves bound by the first of the two decisions which was a pronouncement of their Lordships of the P. C. In the case before them, however, a remand had been made on an earlier occasion & an issue had been framed whether the parties had not brought their own personal law to theDistrict of North Kanara when they had migrated thereto from Goa. In the result there had been concurrent findings of both the Cts. below that the Goud Saraswat Brahmins were in origin migrants from Goa where they were governed by the Bombay school of Hindu law A that they brought their personal law with them to North Kanara. The learned Judges of the appellate Ct., therefore, persuaded themselves to accept the pronouncement of their Lordahips of the P. C. in Somasekhara Royal v. Suguthur Mahadeva Royal & proceeded to consider the findings which had been recorded by both the Cts. below. They distinguished the decision in Dattatraya, Maruti v. Laxman Jattappa, : AIR1942Bom260 on the ground that even though that decision also proceeded on the basis of the P. C. decision in Somasekhara Royal v. Sugutur Mahadeva Royal the parties there had failed to prove that in matters of personal law they were governed by any other law than that of the Madras Presidency, the evidence in that behalf being insufficient to justify the acceptance of the contrary arguments. The learned Judges on the discussion of the evidence which had been recorded on remand came to the conclusion that the Goud Saraswat Brahmins & Daivadnya Brahmins had descended from families which migrated from Goa taking their personal law with them & that that personal law was the Hindu law according to the Bombay school, It may benoted that here also the decisions of our appellate Ct. beginning with Manjapp Hegade v.Lakshmi 15 Bom. 234 & ending with Hosbanna Devanna v. Devanna Sannappa 48 Bom. 488 ; A. I. R. 1924 Bom. 444, whichwe have discussed above, were not brought tothe attention of the learned Judges of theappellate Ct. & their decision in behalf of thebinding nature of Somasekhara, Royal v. Sugutur Mahadeva Royal was reached withoutconsidering what was the true position thathad obtained all throughout in the NorthKanara District, in any event after 1861.

19. These decisions, viz., Somasekhara Royalv. Sugutur Mahadeva Royal, ; DattatrayaMaruti v. Laxman attappa, : AIR1942Bom260 ; ShantaramSadashiv v. Mahabaleshwar Vinayak 49 Bom. L. R. 764 : A. I. R. 1948 Bom. 129 werethe decisions which were relied upon by theCts. below in the appeals before us where theyheld that the Hindu residents of the North1931 Bom. 9Kanara District were governed by the Madras school of Hindu law. They were, however, reached without carefully considering the position as it obtained by virtue of the decisions of our appellate Ot. in Manjappa, Hegade v. Lahshmi 15 Bom. 234; Mahableshivar v. Durgabai 22 Bom. 199; Vithappa v. Savitri 34 Bom 510 : 7 I. C. 445& Hosbanna Devanna v. Devanna Sannappa 48 Bom. 468 : A. I. R. 1924 Bom. 444. We are sure that if these decisions had been brought to their notice, they would have paused to consider before they definitely came to the conclusion that the Hindu residents of the North Kanara District were governed by the Madras school cf Hindu law. This position was thrashed out by Bavdekar J. when he delivered his interlocutory judgment in S. A. No. 977 of 1943 on 9-7-1947, & he also came to the conclusion that the parties in the case before him were governed by the Bombay school of Hindu law. We are in perfect accord with his opinion, but desire to record as a definite conclusion reached by us on a review of the authorities above men- / tioned that not only the parties before him, viz. the haveek Brahmins of the North Kanara District, but all Hindu residents of the Norbh Kanara District are governed by the Bombay school of Hindu law & not by the Madras school of Hindu law.

20. We are conscious that the above conclusion which has been reached by us runs counter to the conclusion which has been reached by a Division Bench of our own H. G. in Dattatraya Maruti v. Laxman attappa 44 Bom. L. R. 527 : A. I. R. 1912 Bom. 260. We do not take Shantaram Sadashiv v. Mahabaleshwar 49 Bom. L. R 764 : A. I. R. 1948 Bom. 129 as laying down any such proposition though indirectly it may bo construed as lending support to the same. The learned Judges in Shantaram Sadashiv v. Mahabaleshwar. 49 Bom. L. R. 764 : A. I. R. 1948 Bom. 129 based the decision mainly on the establishment of the taking of their personal law along with them by the migrants from Goa to the North Kanara District, & in view of the overwhelming evidence in that behalf their decision was amply justified. We do not, however, take that decision in Shantaram Sadashiv . v. Mahabaleshwar 49 Bom. JJ. 764 : A. I. R. 1948 BOM. 129 as directly laying down any such proposition as is contained in Dattaraya Maruti v. Laxman Jattappa : AIR1942Bom260 . It remains, therefore, to be considered how far we would be justified in holding that the Hindu residents of the North Kanara District are governed by the Bombay school of Hindu law& not by the Madras School of Hindu law in spite of a decision of a Ot. of coordinate jurisdiction to the contrary.

21. We have already stated that the decisions of our appellate Ct. in Manjappa, Hegade v. Lakshmi 15 Bom. 234; Mahabaleshwar v. Durgabai 22 Bom. 199; Pithappa v. Savitri 34 Bom. 610 : 7 I. C. 445 (6 Hosbanna Devanna v. Devanna Sannappa 48 Bom. 468 : A. I. R. 1924 Bom. 444, were not at all brought to the notice of the learned Judges who decided Dattctraya Maruti v. Laxman Jattappa : AIR1942Bom260 , with the result that there are these two sets of decisions, if they may be so called, which lay down contrary positions. The decisions commencing from Manjappa Hegade v. Laksmi 15 Bom. 234& ending with Hosbanna Devanna v Devanna Sannappa 48 Bom. 468: A. I. R. 1924 Bom. 444, definitely accept the position that the Hindu residents of the North Kanara District are governed by the Bombay school of Hindu Law. The decision in Dattatraya Maruti v. Laxman Jattappa : AIR1942Bom260 , which is based on the P. C. decision in Somasekhara Royal v. Sugutur Mahadeva Royal , lays down a contrary position, but that decision itself was reached on a concession made by counsel at their Lordships bar. There being these two contrary sets of decisions before us, & if necessary we will also put the decision in Shantaram Sadashiv v. Mahabaleshwar 49 Bom. L. R. 764 : A. I. R. 1948 Bom. 129 in the same category as the decision in Dattatraya Maruti v. Laxman Jattappa : AIR1942Bom260 , we feel free to follow the one or the other sets of decisions in accordance with what we consider to be the true position in law. Under the circumstances we prefer to follow the decisions of our appellate Ot. beginning with Manjappa Hegade v. Lakshmi 15 Bom. 234 & ending with Hosbanna Devanna v. Devanna Sannappa 48 Bom. 468: A. I. R. 1924 Bom. 444, above referred to, dissenting with the utmost respect from the decisions reached in Dattatraya Maruti v, Laxman Jattappa : AIR1942Bom260 & Shantaram Sadashiv v. Mahabaleshar 49 Bom. L. R. 784: A. I. R. 1948 Bom. 129.

22. There is also one further argumentwhich fortifies us in the conclusion which wehave come to & that is the application of theprinciple of stare decisis. This question ofadoption, succession, inheritance, etc. does affectthe devolution of property & titles to land, certainty (as well as justice) is the object of thehaw, & it is more so when questions of title toproperty are involved. Law which hag been laid down by the Cts. & which has been followed by subjects within jurisdiction should not be lightly unsettled. The principle of stare decisis has been recognised by our Ct. in Kashiram v. Pandu 4 Bom. L. R. 688 : 27 Bom. 1:

'It might be said that we should observe the maxim stare decisis, but outside the realm of property law that rule loses so much of its importance, that it ought not to weigh with us in the present case.'

And in Manilal v. Vanmalidas 7 Bom. L. R. 644 ; 29 Bom. 621:

'Then it has been said that we are infringing the principle of stare decisis as there is a long course of decisions in this Court opposed to the view which we have expressed.The principle of stare decisis is of undoubted value in its bearing on the law of property, but we know of no reason why in the department of procedure we should be frightened by that doctrine from bringing out practice, in this Ot. into conformity not only with the settled practice existing over the whole of India, bub also, as we think, the plain terms of the Code.'

And in Dinanath v. Malvi & Co. 32 Bom. L. R. 272 ; A. I. R. 1930 Bom. 213:

'These decisions have established the law relating to such deposits in contracts for the sale of immoveable property. It is important that there should be as little uncertainty as possible in contracts relating to the sale & purchase of land and parties who have contracted on the assumption that the law is settled should not be left to discover later that it is not. Probably there are at this moment many contracts outstanding in which such a clause relating to deposit has been inserted on the assumption that the law in this Presidency is settled & these would all be disturbed if a different view of the law were taken by us now. The principle of stare decisis is especially important in the case of contracts relating to land.'

And in Balu Sakharam v. Lahoo : AIR1937Bom279 :

'There are a great many Indian Cases dealing with the effect of adoption by a widow of a Hindu divided at the date of his death upon the divesting of his property. The rules established by those eases are summarised in Mulla's Principles of Hindu Law, 8th edn,, at p. 553 (published in 1936 after the decision in Amarendra's case as establishing that the adoption by such a widow cannot divest any estate by inheritance unless the estate at the time of adoption vested in the adopting widow either as her husband's heir or as the heir of her son dying without leaving auy wife, children, or other heir nearer than herself. These rules have existed for many years, & a great number of titles must depend upon them. In my opinion, it would be quite wrong for any Ot. in this country to hold that the P. C. intended to cast a doubt on long established rules which were not referred to, & to override cases not cited, on which titles depend. So to hold would in my judgment be mischievous in the extreme, & would open the gates of a flood of litigation.' (Per Beamont C. J.)

The principle of stare decisis is, therefore, a sound principle to follow, & in the circumstances which we have pointed out above, viz. that the law as applicable to the Hindu residents of North Kanara District was settled to be the Bombay school of Hindu law A theHindu residents of the North Kanara District as well as the lawyers advising them as also the Cts. of law administering the law unto them accepted the Bombay school of Hindu law as applicable to them, it would be unsettling the law if at this late stage after the lapse of 75 years & more we accept the contrary position A hold that they are governed by the Madras school of Hindu law.

23. The principle of stare decisis has been accepted not only in regard to the decisions of the Cts. of co-ordinate jurisdiction but also in regard to the decisions of Cts. which have only a conditional authority as precedents. Salmond in his Jurisprudence, 9th Edn., p. 26 (10th Edn., p. 185) has the following observations to make:

'For a conditionally authoritative precedent to be overruled it is also necessary that in so doing the Cts, should not run the risk of making the law uncertain, in their efforts to make it just; for until overruled it will have been law, & will have been relied upon as such in numerous instances, so that to alter it even for a more juat rule may cause grave inconvenience, & disturbance of men's affairs. Certainty as well as justice is the object of the law .....

It follows from this that, other things being equal, a precedent acquires added authority from the lapse of time. The longer it has stood unquestioned and un-reversed, the more harm in the way of untertninty & the disappointment of reasonable expectations will resuit from its reversal. A decision which might be lawfully overruled without hesitation while yet new, may after the lapse of a number of years acquire such increased strength as to be practically of absolute & no longer of merely conditional authority. This effect of lapse of time has repeatedly received judicial recognition.

'Viewed simply aa the decision of a Ct. of first instance, the authority of this case, notwithstanding the respect due to the Judges who decided it, is not binding upon us; but viewed in its character & practical results it is one of a class of decisions which acquire a weight & effect beyond that which attaches to the relative position of the Ct. from which they proceed. It constitutes an authority which, after it has stood for so long a period unchallenged, should not, in the interest of public convenience, & having regard to the protection of private rights, be overruled by this Ct. except upan very special considerations. For twelve years & upwards, the case has continued unshaken by any judicial decision or criticism. Pugh v. Golden Valley Railway Co. (1880) 15 Ch. D. 330 : 42 L. T. 863.

'When an old decided case has made the law on a particular subject, the Court of Appeal ought not to interfere with it, because people have considered it as establishing the law & have acted upon it.' Smith v. Keal (1882) 9 Q. B. D. 340 : 47 L. T. 143.

'We find the law to have been accepted as stated for a great length of time, & I apprehend that it is not now within our province to overturn it. Foakss v. Beer (1834) 9 A. C. 605 : 54 L.J.Q B. 130.'

The above passage which we have quoted from Salmond on Jurisprudence goes to establish that even in a case where the appellate Ct. would be normally entitled to overrule a decision reached by a subordinate Ct., it would apply the principle of stare decisis & not overrule the same after lapse of time, subjects acting upon that decision & the like considerations making it more expedient for the appellate Ct. not to unsettle the law which had been pro nounced at one time & acted upon by the subjects. This reasoning is the more applicable in the present case before us when we find the position in law laid down as early as in any event 1878 if not earlier in West & Buhler's Digest of Hindu Law of Inheritance & Succession & decisions of our appellate Ct. in Manjappa Hegade v. Lakshmi 15 Bom. 234 Mahabaleshwar v. Durgabai 22 Bom. 199, Vithappa v. Savitri 34 Bom. 510; 7 I. c. 445, & Hosbanna Devanna v. Devanna Sannappa 48 Bom. 468: A.I.R. 1924 Bom. 444.

24. We would, therefore, following this principle of stare decisis, be loath to reverse the trend of decisions which have been reached so far by our appellate Ct. & have been followed all throughout & have, if at all, been dissented from by our appellate Ct. only in the years 1941 & 1946, which are very recent dates ia comparsion with 1878 & 1889, being respective dates of the second edn. of West & Buhler's Digest of Hindu Law of Inheritance & Succession & the decision in Manjappa Hegade v. Lakshmi 15 Bom. 234. We are quite sure that it the attention of their Lordships of the P. C. had been drawn to this state of the law as we have discussed above, their Lordships would not have come to the decision which they did basing it merely on the concession made at their Lordships' bar by the counsel appearing before them. We are equally sure tbat the learned Judges of our appellate Ct. who decided Dattatraya Maruti v. Laxman : AIR1942Bom260 and Shantaram Sadashiv v. Mahabaleshwar 49 Bom. L. R. 764 ; A.I.R. 1948 Bom. 129 also would not have come to the decision they reached in that behalf if the above position of law had been brought to their notice by the counsel appearing in the respective cases before them.

25. It was urged that even in the case of adoption their Lordships of the P. C. did not apply the principle of stare decisis & an instance was quoted before us in the decision of their Lordships of the P. C. reported in Bhimabai v Gurunathgouda . It has, however, to be observed that their Lordships of the P C. did not consider this aspect with any seriousness for the simple reason that at p. 209 they observed :

'It was pressed on their Lordships that Ramji v. T. Ghamau 6 Bom 498. had been accepted & acted upon in the Presidency of Bombay since 1879, & that the decision should not be disturbed. But this is a belated appeal. It should have been made when Yadao'T. Namdeo A. I. R. 1922 P. C. 216 was before the Board. Yadao v. Namdeo. A.I.R. 1922 P. C. 216 was decided so far back aa 1921, & in the H. C. at Bombay, after that decision, followed Bamji v. Ghamau 6 Bom. 498 KB it was wrong in so doing.'

This argument, therefore, need not detain us any more.

26. Having regard to all the considerations which we have set out above, we have florae to the conclusion that the Hindu residents of the North Kanara District are governed by the Bombay school of Hindu law & nob by the Madras school of Hindu law.

27. The conclusion which we have reached above is sufficient to dispose of all the three appeals before us. In the case of the L. P. A. No. 6 of 1949, however, Bavdekar J. did not think it necessary to decide the case before him merely on this position in law & made an order of further remand sending down an issue as to whether the widow of a gotraja sapinda in the North Kanara District had, by positive acceptance & usage, a right to inherit to a propositus. Both the Cts. below found that in the affirmative, & Bavdekar J. himself on '8-1-1949, decided the S. A. No. 977 of 1948 in accordance with that finding which he accepted. It has been urged before us by counsel for Venkanna, the original deft, in that case, that there was no sufficient evidence of acceptance & usage which would justify the finding in the affirmative. There is no doubt that the evidence on the point is meagre. We, however, agree with Bavdekar J. in thinking that we are not here concerned with any question as to the custom overriding the ordinary law. What we are concerned with here ia whether juat as in the case of other parts of the Bombay Presidency the view of the expounders of the Bombay school of Hindu law was accepted in Karwar also to each an extent as it could be said that it had attained the force of law, & inasmuch as the only evidence which was on the record was in favour of such acceptance & usages, it must be held that that view has been accepted & sanctified by usage in the Karwar District also. Apart from the one instance which is to be found in Ex. 41 which leads to that conclusion the most glaring instance is the one in which the deft, himself was concerned, viz., the entering the name of Kamali in the Becord of Rights in 1836 as the heir of Timmanna. The deft, himself opposed that entry but the Mamlatdar negatived his contention & registered the name of Kamali in the Record of Eights as such heir. On a consideration of the whole evidence, which was recorded on the farther remand we are satisfied that the finding which was recorded by both the Cts. below & which was accepted by Bavdekar J. was correct &Laxmi;, the original pltf. has succeeded in establishing her contention that she, the widow of a gotraja, sapinda, has a right to inherit to the propositus Timmanna in preference to the deft. who is a more remote male gotraja sapinda of his.

28. Having regard to the conclusion which we have reached above, we dismiss the L. P. A. No. 6 of 1049 & confirm the decree which has been passed by Bavdekar J. The appellant in the L. P. A. No. 6 of 1949 will pay the reaps. costs of the appeal. We also dismiss the S. A. Nos. 551 of 1948 377 of 1948 & Confirm the decrees which have been passed by the lower appellate Cts. in each of them. The appelts. in both these appeals will of course pay the resps. costs of the respective appeals.


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