1. All these appeals except First Appeal No. 128 of 1953 arise out of a suit instituted by the Plaintiff Shankarrao fagainst fifteen persons for partition and separate possession of certain properly alleged by him to be the joint family property of his adoptive father Sitaram and of Gopala, the adoptive father of the Defendant No. 4 Sheshrao. The Plaintiffs Nos, 2 and 3 are the alienees of some of the properties from the Plaintiff No. 1. During the pendency of the suit some of the Defendants were given up and their names have been struck off. They are Defendants No. 9 Pandurang, No. 11 Parashramji, No. 12 Balkrishna and No. 14 Mst. Yashwadabai. Four persons were also joined as Defendants to the suit. They are Defendants No. 16 Vinayak, No. 17 Sadasheo, No. 18 Rajaram and No. 19 Bhagwan.
2. The following genealogical tree will explain the contentions which have been raised onbehalf of the Defendant No. 4 Sheshrao and the Defendant No. 7 Waman, who are the main contestants to the Plaintiff's claim and who also haveraised a contest inter se:
| | |
Raoji Gajmalji Chintamanji
| | |
Raghunath ----------------------------- |
| | | | |
Krishna Narayan Yeshwanta Laxman |
| | |
Govinda -------------- |
| | | |
Punjab (deft. 7) Nathu Chandrabhan |
| | |
Bhagwat Bhaurao |
(i) Gopika -- Sitaram -- (ii) Yashoda Jagoba (d. 1915)
(d. 1936) | (d. 1921) (deft. 14) |
| (iii) Renuka |
| (deft. 13) (i) Annapurna -- Gopalrao -- (ii) Manakarnikaba
Saraswati (d. 1930) | (d. 1943) (deft. 2)
| | (iii) Kautikabai
------------------------- | (deft. 3)
| | | |
Krishanrao Shanker (Plff.) Vishwas ---------------------------------------
| | |
Sheshrao (adopted) (deft. 4) Lila (deft. 5) Indu (deft.6)
3. It is admitted before us that Rajas Patil was the common ancestor of the family, and Chintamanji was his third son. Chintamanji had two sons, Sitaram and Jagoba. Jagoba died in the year 1915, leaving behind his son Gopalrao who died in 1943. Sitaram died in the year 1921, leaving behind three widows, Gopika who died in the year 1936, Yashoda, Defendant No. 14, and Renuka, Defendant No. 13, and a daughter Saraswati who died in the year 1930, leaving behind two sons. The elder of the two, Kashirao, is alleged to have been taken in adoption by Yashoda on 25th March 1944. His name was changed to Shankar and he is the Plaintiff in the suit. Gopalrao left three widows, Annapurna, Defendant No. 1, Mankarnika Defendant No. 2, and Kautika, Defendant No. 3. The Plaintiff has admitted that the Defendant No. 1 Annapurna took the Defendant No. 4 Sheshrao in adoption on 29th April 1944. He, therefore, claimed half share in the property which was the joint family property of Sitaram and Jagoba.
4. The Plaintiff has stated in the plaint that Chintamanji's family originally resided at mouza Paoni, tahsil Morsht, that he belonged to the Tirole Kunbi caste, and that the family is Maharashtrian in origin and is governed by the Bombay School of Hindu Law. He has also stated that all Maharashtrian customs and practices are followed in the family.
5. The first three Defendants were joined as parties to the suit because they are widows of Gopalrao, and the fifth and the sixth Defendants, because they are the daughters of Gopalrao in whose favour the Defendant No. 4 has transferred part of the joint family property by executing a deed of gift. He has also joined the Defendant No. 7 as a party to the suit because he was calling himself an adopted son of Gopalrao. The Defendant No. 8 Bapurao is an alienee of fields khasra Nos. 43/2 and 43/3 of mouza Wadegaon from Amiapurna and of khasra. No. 1/2 of mouza 'Wadegaon from Sheshrao. The Defendants Nos. 10 and 15 are also alienees of some propertyfrom Sheshrao and were joined as parties to the suit because those alienations are challenged by the Plaintiffs. The Defendants Nos. 16 and 17 were later joined as parties to the suit because they claimed to have obtained a deed of transfer from Waman, the Defendant No. 7, of his alleged half share in the family property. The Defendants Nos. 18 and 19 are transferees from the Plaintiff himself and were, therefore, joined as parties to the suit on their applications.
6. The Defendant No. 4 filed his writ ten-statement jointly with the Defendants Nos. 1, 5 and 6, and then: substantial defence is that the adoption of the Plaintiff is invalid because the family is governed not by the Bombay School of Hindu Law but by the Benaras School of Hindu Law, and that no express authority had been given by Sitaram to any of his wives to make an adoption. They also alleged that the Plaintiff being a married man at the date of his adoption could not have been validly taken in adoption by Yashodabai. The facture of adoption was also denied in the Court below, but Mr. Bobde who appears for these Defendants before us has not challenged the finding of the lower Court to the effect that the actual giving and taking of the Plaintiff in adoption has been established.
7. These Defendants denied that Chintamanji and his family resided originally at Paoni. They also denied that the family is a Maharashtrian or Maratha family and follows the rites, rituals and customs prevailing in Maharashtra. They, however, admitted that the family name is Satpute and that the family belongs to the sub-caste of Tirole Kunbis. According to them, the Satpute family, though tinged by contact with the Tirole Kunbis of Berar in the matter of its dress and dialect, continued and continues to this day to worship its own Gods Devi and Khandoba and follows its own usages and the Mitakshara Law as interpreted by the Benaras School, which was and is the lex loci of the Central Provinces, applies to the family.
8. According to these Defendants, Rajas alias Raju Patel lived till his death in Wadegaon in Kundanbahi Pargana, where he held his ancestral property. With the aid of the ancestral property he acquired lands and malguzari shares in the neighbouring village of Manikwada. At the family partition which took place after his death, the lands and the proprietary shares in the village Manikwada were allotted to the shares of Raoji and Gajmalji, while the village Wadegaon with all its lands and proprietary rights was allotted exclusively to the share of Chintamanji. Sitaram and Jagoba made accretions to the ancestral property and acquired lands at Paoni in Berar as well as malguzari shares and Jands at Kinhi and Pipala in Arvi tahsil. The family did not leave its original residence at Wadegaon at any time and thus that was their ancestral home.
9. Further according to these Defendants, certain disputes arose between the Plaintiff and his adoptive mothers on the one hand and the Defendants Nos. 1 to 4 and the lessee Punjab from Gopalrao on the other, as regards the possession of the fields at Paoni after the death of Gopalrao and so proceedings were started by the Sub-Divisional Magistrate, Morsi, under Section 145 of the Code of Criminal Procedure. In those proceedings, the possession of party No. 1 which consisted of Defendants Nos. 1 to 4 was upheld, and the party No. 2 consisting of the Plaintiff Shankarrao and the two widows of Sitaram, Yashoda and Renuka, were directed to establish their claim in the Civil Court. Neither the Plaintiff Shankarrao nor the widows, Yashoda and Renuka, instituted a suit to establish their title within three years and consequently the Plaintiffs claim to obtain partition of those properties was barred by Article 47 of the Limitation Act and was extinguished under Section 28 of that Act.
10. These Defendants denied the adoption of Waman, Defendant No. 7, by Gopalrao. According to them, Gopalrao did not take any one in adoption before his death on 30th December 1943. It is common ground that Gopalrao was ill for 2-3 weeks before his death at Wadegaon. According to them, Gopalrao was too ill to make an adoption and that, therefore, he conferred an express authority upon his seniorrnost widow Annpurna to take a boy in adoption.
11. The Defendant No. 4 admitted that he had alienated some property in favour of the Defendants Nos. 5 & 6 who are the daughters of Gopalrao. The Defendant No. 6, being an unmarried daughter, bad a right to have provision for her education and marriage and it was for that reason that some property was transferred to her. He has also stated that the Defendant No. 5 had also a claim upon the property left by her father for her choli bangadi. For these reasons, according to him, the transfers made by him in their favour are binding on the family. These Defendants have also supported the transfers made in favour of the Defendants Nos. 8, 10 and 15.
12. The Defendant No. 7 who is admittedly a descendant of Gajmalji the brother of Chitamanji, claims that he was taken in adoption by Gopalrao fifteen days before his death. He admits that no formal deed of adoption was executed but, according to him, a priest had been called on that day, that there was actual giving and taking by his mother and Gopalrao, respectively, and that a memorandumwas drawn up stating the fact of adoption. This, memorandum, according to him, bears the signature, of Gopalrao and is attested by as many as ten persons who were present at the time of adoption. Thus, according to him, it is he and not Sheshrao who is entitled to half interest in the family property. This Defendant denied the fact of the adoption of Sheshrao by Annapurna and also contended that his adoption in any case was invalid on the ground that she had no authority to adopt a son to Gopalrao. Thus, by implication he also, seems to contend that the family was governed by the Benaras School of Hindu Law and not the Bombay School of Hindu Law.
13. The Defendant No. 8 who is also a contesting Defendant denied the fact that there was. any valid adoption of the Plaintiff No. 1. Further, he alleged that the transfers in his favour were valid and binding on the family because there was good consideration for them. According to him, he was one of the munims of Gopalrao and Rs. 600 were due to him in respect of arrears of pay at the time of Gopalrao's death. Similarly, he continued to serve the family after the death of Gopalrao and Rs. 900 were due to him on account of arrears of salary. It was in consideration of this amount of Rs. 1,500 that Annapurnabai who was recorded as the lambardar of the property at Wadegaon created him as an occupancy tenant of khasra Nos. 43/2 and 43/3. He has also alleged that the transfer was made in the course of village management and was binding on the family. As regards khasra No. 1/2 he says that the Defendant No. 4 in consideration of Rs. 700 received by him from the Defendant No. 8 for meeting the expenses of cultivation transferred that field to him on the 27th April 1949. This transfer being for consideration and also having been made in the ordinary course of village management is alleged by him to be binding on the family. It is not necessary to mention the defences of the Defendants Nos. 10 and 15 because the transfers in their favour have not been upheld by the Court below and they have not preferred any appeals. Similarly, it is not necessary to consider the defences of the Defendants Nos. 16 to 19 as they are merely formal Defendants. The defences of the Defendants Nos. 2 and 3 are more or less identical with the joint defence of the Defendants Nos. 1, 4, 5 and 6.
14. The trial Court held in favour of the Plaintiffs on the main issue in the case, that is, regarding the validity of the Plaintiff No. 1's adoption. According to the trial Court, the family originated from Paoni in Berar, and that it is a Maharashtrian family and is governed by the Bombay School of Hindu Law. No authority from Sitaram was, therefore, necessary to take the Plaintiff in adoption. Similarly, the adoption of a married person being permissible under the Bombay School of Hindu Law, the Plaintiff's adoption could not be assailed on that ground either. The trial Court, however, held that fields Nos. 34/1 and 79 of Paoni could not be included in the partition because the order under section 145 of the Code of Criminal Procedure having become final and no suit on the basis of title having been instituted by the Plaintiff within three years thereof, his right toclaim possession of these fields was extinguished under Section 28, read with Article 47 of the Limitation Act Similarly, the trial Court upheld the transfer in favour of the Defendant No. 8 Bapurao with respect to khasra Nos. 43/2 and 43/3 of mouza Wadegaon and excluded them from the decree for partition passed by it.
15. The Plaintiff in his appeal has challenged the findings of the trial Court with respect to these four fields. The Defendant No. 4 has in his appeal challenged the findings of the trial Court on certain issues.
16. In First Appeal No. 128 of 1953 the Defendants Nos. 1 to 3 had challenged the decree for maintenance passed in the suit out of which 'this appeal arises. That suit was for maintenance. The Plaintiffs in the suit were Yashodabai and Renuka-bai, widows of Sitaram. Yashodabai died during the pendency of the suit, while Renukabai has died during the pendency of the appeal. In the circumstances, Mr. Bohde said that he did not want to pies that appeal. Accordingly we dismiss that appeal but make no order as to costs therein.
17. The first question which we have to decide in this appeal is whether the family is governed by the Bombay School of Hindu Law or the Benaras School of Hindu Law. The main contention of the Defendants Nos. 1 to 4 and some other Defendants is that the lex loci of the Central Provinces is the Benaras School of Hindu Law and, therefore, if nothing else is known about the family but that family is found resident in the Central Provinces, it must be presumed that it is governed by the Benaras School of Hindu Law. Mr. Bobde contends that the first time that we hear of this family is in the year 1859, Exhibit 4-D-l which is a certified copy of an extract of the wajib-ul-arz of mouza Wadegaon runs as follows:
'Clause 1--Particulars regarding the village. This village was formerly propulated by Gangadhar Deshmukh. He was the malguzar for many days and then left it 30 years ago. Then Sambhaji Patil did malguzari for 15 years. He left it on account of loss. Then my father acquired it 15 years ago. As my father Raju Patil died one year ago, I alone am in possession and we three brothers are equal share-holders. The property of the aforesaid village was gifted to Raju Patil by the Settlement Officer. But he being dead, I alone am in possession.'
This entry is signed not only by the Settlement Officer but apparently also by the three brothers, Chintamanji, Raoji and Gajmalji. The earliest revenue records, however, do not mention Rajas Patil at all but mention Sitaram and Jagoba as having purchased the property in the year, 1871'. From these circumstances, Mr. Bobde wants us to conclude that the family originated in the Central Provinces. It may be mentioned that Wadegaon was an unpopulated village and was sought to be populated only after Gangadhar Deshmukh came on the scene. He, however, left it in the year 1829 or so. From 1829 to 1844 Sambhaji Patil was the malguzar of the village. From 1844, Raoji Patil was managing it as it was gifted to him by the Settlement Officer. This entry in the wajib-ul-arz does not, however, indicate that Raoji Patil was already aresident of Wadegaon before 1884. Mr. Bobde, however, contends that the Settlement Officer would not have conferred malguzari rights upon a total outsider and, therefore, we must infer from the fact that he was given the analguzari rights that he must have been a resident of the village for a good long time. We do not think that such an inference would necessarily follow. It is well-known that when the Waste Land Rules of 1865 were promulgated in Berar, a number of persons--some of them even living outside the district of Veotmal--acquired izara villages in that district. Quite a number of izaradars were residents of Yeotmal proper or of other towns in that district, and yet they acquired these izara villages. The object of the Government was to settle the villages and to ensure a certain revenue to the State, and, therefore, what they were interested in finding was a person who would undertake the liability to pay the revenue to the Government. Wadegaon is on the border of a reserved forest and it would not be reasonable to presume that any wealthy persons would be taking up residence therein unless they had any proprietary interest therein. It is, however, possible that Rajas Patil may have come from a neighbouring prosperous village in Arvi tahsil in which Wadegaon is situate but beyond that we cannot go. We will assume for the purposes of this case that the family was residing in some village in the Arvi tahsil in the neighbourhood of Wadegaon, or we would assume as Mr. Bobde wants us to assume that the family had taken up residence in Wadegaon and, therefore, belonged to Wadegaon. Even so, we do not think that it can be presumed that the family was governed by the Benaras School of Hindu Law. The reason is this that the former Bhonsla Kingdom of Berar comprised not only the present districts of Amravati, Akola, Yeotmal and Buldana, but also some other tracts including the Parganas of Ashti and Arvi. For this there is unquestionable authority. Dealing with the history of the Wardha district, H. Rivett-Carnae has observed as follows in his Report on the Land Revenue Settlement of the Wardha District of 1867:--
'Even were it desirable to commence with the deluge, it would not be easy to carry back the history of the Wardha district to anything approaching that date. There is indeed hardly any part of India of which until comparatively recently so little has been known, or so little written, as the territory Of which the Wardha district has always formed a part, and which although, included in Maharashtra, has home at different times according to political changes the name of Gondwanah; the 'territories of the Rajah of Berar'; and its more recent and best known name the Province of Nag-pore.'
Now, Arvi tahsil is a part of the Wardha district and consequently, according to the above passage it formed part of the territory of Berar which was till 1803 under the suzerainty of Bhonsla as Bajas of Berar. Under Article 4 of the Treaty of Deogaon entered into in the year 1803 between the East India Company and Raghojirao Bhonsle, it was agreed that the frontiers of the Bhonsla towards the territories of the Nizam of the Deccan shall be formed to the west by the river Wardha from its issue from the Injardy hills to its function withthe Godavari, and everything south of those hills and to the west of the river Wardha was to belong to the British Government cultivation their allies. The torts of Naruala and Gawilgarh were, however, to be retained by the Bhonslas.
18. In the book entitled 'British Relations with the Nagpur State in the 18th Century' in which the aforesaid treaty is included there is a map of the Nagpur State as it existed in the year 1800. In that map the boundaries of Berar as it then was have been delineated and we have appended to this judgment a copy of the map of Berar as it then was with the present boundaries of Berar superimposed thereon,' From this it will be clear that till the year 1800 the Parganas of Ashti and Arvi were included within the limits of Berar. The village Kondhali which is especially shown in the map is also included in Berar, We are mentioning the village Kondhali because in the Khewat and other revenue documents of the early nineteenth century, Wadegaon is shown as a village lying in the Pargana of Kondhali, while today it is shown as lying in the Pargana of Ashti. It would, however, seem that after the treaty of 1803 the above Parganas, i.e., the Parganas of Ashti and Arvi, actually passed to the Nizam along with the four districts of Amravati, Akola, Yeotmal and Buldana, because we find that there is a specific provision regarding them in the subsequent treaty, the treaty of 1822, to which the East India Company and the Nizam were the parlies. Under Article 4 of that treaty, the districts formerly belonging to the Raja of Nagpur, according to the schedule B annexed to the treaty, together with the forts of Naruala and Gawilgarh, were to belong in perpetuity to the Nizam. Apparently these districts were exchanged by the Nizam for certain territories which he in his turn handed over to the Bhonslas. Article 8 of that treaty provided that 'the Nizam also cedes, for purposes of their being transferred in perpetual sovereignty, to the Raja of Nagpoor, the whole of his participated rights and possessions situated on the east of left bank of the river Wurda, according to the Schedule D annexed to the present treaty'. Now, Schedule IV of the treaty clearly mentions the Parganas of Ashti and Arvi. It would, therefore, follow that in the year 1822 these two parganas ceased effectively to form part of Berar. The inference must, therefore, be that the people who were resident in these territories were all through governed by the same school of Hindu Law. If any authority is needed for this proposition, we would refer to the decision of the Privy Council in Somasekhara v. Mahadeva . In that case, Their Lordships observed that the mere transfer of a district to another presidency for administrative purposes was not sufficient to affect the personal law of the residents in that district, unless and until it was shown that in the case of any resident there that he had intended to change and had in fact changed his personal law. There is no suggestion here that Raju Patil or any of his ancestors ever intended to change their personal law by reason of the transfer of the Ashti Pargana from Berar to the Nagpur territory.
19. It is not challenged before us that Tirole Kunbis of Berar are governed by the Bombay School of Hindu Law; on the other hand, the argument has throughout proceeded on the basis that the Tirole Kunbis of Berar are governed by the Bombay School of Hindu Law and that law is their personal law. The family of the Plaintiff and of the Defendant No. 4 belongs to the Tiroie Kunbi sub-caste and was, even according to the Defendants Nos. 1 to 4, resident in that part of the present tahsil Arvi which once formed the territory of Berar. They must, therefore, be governed by the same law as the Tiroie Kunbis living on the other side of the river Wardha. Upon this one ground alone, it can be held that the family of the Plaintiff and of the Defendant No. 4 is governed by the Bombay School of Hindu Law and not by the Benaras School of Hindu Law. However, we would reinforce our decision by relying on other grounds also.
20. It is in evidence that the Tiroie Kunbis of Berar and the Tiroie Kunbis living in the former Central Provinces intermarry and follow the same customs and worship the same deities. In this connection, we would refer to the evidence of Balwant (P. W. 4). who is himself a Tiroie Kunbi. He has stated.
'I have many relations both in Berar and Central Provinces ......Our mother-tongue isMarathi. We put on Maharashtrian clothes. There is no difference in the matter of dress and language and in customs between Tiroie Kunbis residing in Berar and those residing in Central Provinces. Marriage rites are performed in pursuance ot Maharashtrian style. 'Bhawari' is not performed in our marriages. It is performed amongst Marwaris and Rajputs.'
These statements have not been challenged in cross-examination.
21.Then there is Gulabrao (P. W. 4). His evidence is also to the same effect as that of the previous witness, as is also the evidence of Rajaram (P. W. 5), Manikrao (P. W. 6) and Renukabai (P. W. 7). Renukabai has ia addition deposed that pat marriages prevail in their caste. Even Bapurao (8-D. W. 1) who is also a Tiroie Kunbi by caste and who has contended that the Bombay School of Hindu Law does not apply to his family, has admitted that pat marriages prevail in his caste and that there is no difference in the customs and manners of Tiroie Kunbis and other sub-castes of Kunhis. He has also admitted that persons of Tiroie-Kunbi caste are spread over in certain districts of Berar and the former Central Provinces. He has also relatives in Berar. He has then stated that there are marriages between the Tiroie Kunbis of Berar and the Tiroie Kunbis of the former Central Provinces, and that the language of the Tiroie Kunbis of the Central Provinces is also Maratni. He has further admitted that there is no difference in manners, customs, dress, language and deities of the Tiroie Kunbis of Berar and the Tiroie Kunbis of the Central Provinces.
22. Bhagwan (4-D. W. 5) has deposed as follows in his cross-examination :
'There are many Tiroie Kunbi families in Berar, which belong to the caste to which I belong.There is no difference between Tirole Kunbis of Central Provinces and those of Berar as regards dress, custom, language and the deity of worship.'
To the same effect is the evidence of another defence witness Janba (4 D. W. 6) and Baghunath (4 D. W. 8). Even Annapurnabai, the adoptive mother, deposing as 4 D. W. 10 has stated:
'Our mother-tongue is Marathi. There is nodifference between Tirole Kunbis of Berar in dress,in manners and language.'
In view of this overwhelming evidence, it must, therefore, be held that the Tirole Kunbis settled on both sides of the Wardha river from one sub-caste and not only do they follow the same customs and worship the same deities but also inter-marry. If that is so, then the conclusion which would emerge from this would be that they arc governed by the same School of Hindu Law.
23. There are some decisions of the Nagpur High Court relating to the law applicable to the Tirole Kunbis. and we will notice them now. The first is in Second Appeal No. 624 of 1953 decided on the 4th November 1954 Krishnaji v. Govindrao. In that case one of the parties contended that the ancestors of the family hailed from Maharashtra, that they had settled down in the Central Provinces, and that they were governed by the Bombay School of Hindu Law. It was also contended that the village Sonegaon in which the family had settled being situate in the Poliona tract which once formed part of Berar, the Bombay School of Hindu Law must be held to be the lex loci of the territory and not the Benaras School of Hindu Law. Dealing with the second contention, Sinha, C. J., who delivered the judgment of the Court, observed in paragraph 11 of the Judgment :
'In this connexion it has to he borne in mind that the Courts below have found that Bapurao's family belonged to the caste of Tirole Kunbis. According to the tradition of this particular caste the caste derived its name from Therol in Rajputana from where they are supposed to have migrated to this part of the country, as would appear from the following statement in Rusell's Tribes and Castes of the Central Provinces of India.'
Thereafter the learned Chief Justice quoted the following passage :
'The highest sub-caste in the Central Provinces are the Tirole or Tilole, who now claim to be Rajputs. They say that their ancestors came from Therol in Rajputana, and, taking to agriculture, gradually became merged with the Kunbis'.
He also quoted the following extracts from, the Wardha District Gazetteer:
'The Tiroles are the most numerous and are found in large numbers in all three tahsils. The families who held the hereditary office of Desh-mukh, which conferred a considerable local position, were usually members of the Tirole sub-caste, and they have now developed into a sort of aristocratic branch of the caste, and marry among themselves when matches can be arranged. They do not allow the remarriage of widows nor permit their women to accompany the marriage procession. Some of them say that they were originally Rajputsand derive their name Tirole from a place called Therol in Rajputana, whence they say their forefathers migrated to these parts, and taking to agriculture gradually became merged with the Kunbis.' On the basis of these observations the learned Chief Justice said: 'It must, therefore, be held that the Bombay School of Hindu Law would not apply as the personal law of the parties either because their fore-fathers migrated from the State of Bombay or that they belonged to the Maratha Kunbi class, the indications being that they came from Rajputana side and thus are governed by the Banaras School of Hindu Law.'
Having made these observations, the learned Chief Justice observed as follows in paragraph 13 :
'But it is safer to proceed on the assumption, that it is not certain as to where the class of people now in question originally came from, So tar as it is settled law that the Central Provinces are governed by the Banaras School of Hindu Law-There is a long series of decisions to that effect . . . It would thus appear that there is no reported-case relating to kunbis holding that they are governed by the Bombay School of Hindu Law. On the other hand, the reported cases, so far as they go, show that the kunbi class is governed by the Banaras School of Hindu Law by application, of the rule of lex loci. The case of Maratha Kunbi stands on a special footing even as the case of Maharashtra Brahmins. But it has already been pointed that the Defendants have failed to prove that the family of the propositus belongs to that class. Hence, it must be held that according to the settled law of the Central Provinces the property of the propositus must devolve according to the Banaras School of Hindu Law as the lex loci.' This decision bas been referred to by a Division Bench of the Nagpur High Court consisting of Hidayatullab, C. J. and Kotval, J. in Laxinikant v. Vinayak, (F. A. No. 48 of 1946 decided on 3rd January 1956). In that case also, the question before the Court was whether the parties who were Tirole Kunbis were governed by the Benaras School of Hindu Law or the Bombay School of Hindu Law. The learned Judges observed as follows-in paragraph 34 : 'The fourth case, (S. A, No. 624 of 1953) (Nag) was no doubt a case of Tirole Kunbi, resident of Hinganghat tahsil of the Wardha district, and is directly applicable to the parties to this suit. Unfortunately in that case the attempt to establish that that family of Tirole Kunbis was governed by the Bombay School was not successful upon the evidence and so the Court had to fall back upon the well-established presumption that if nothing is known about a person except that he lives in a particular place, it will be presumed that bis personal law is the law which prevails in that place.'
Since one of the Judges in that case (Hidayatullah, C. J.). was a party to the decision in Second Appeal No. 624 of 1953, (Nag) we must attach the greatest weight to the view expressed in that case that the decision in Second Appeal No. 624 of 1953 (Nag) was not based upon the observations in Russell's Tribes and Castes and the Wardha District Gazetteer. The Division Bench rejected the claim ofthe parties to the effect that the Tirole Kunbis came to Berar from some place in Upper India called Therol.
24. Now, it must be said that there is not a single word in the pleadings in this case to the effect that the ancestors of the parties hailed from Rajasthan, The only ground on which - it is contended before us that the ancestors of the parties migrated from Rajasthan is that such is the result of the findings of Russell and that view of Russell has been accepted in the Gazetteer. We have already quoted the relevant passages from Russell as well as the Gazetteer, and from that it would appear that beyond saying that a claim of this kind was made by some members of the Tirole Kunbi Caste Russell has said nothing more and the Gazetteer does not go any further. Upon such slender material and in the absence of any pleadings, it would therefore be hazardous to hold that the Tirole Kunbis are the descendants of immigrants from Rajasthan.
25. We have before us volume 4 of the Indian Antiquary and in its issue of April 1875 there is anarticle entitled 'Rough Notes on Khandesh' by W. F. Sinclair, Bo. C. S. It may be mentioned 'that the Indian Antiquary was a journal of oriental research in archaelogy, history, literature, languages, philosophy, religion, folklore and etc., and wasedited by one Jas. Burgess, M. R. A. S., F. R. G. S. Prima facie, therefore, it is an authoritative journal and a statement made in the article contained therein could be regarded as weighty. In the course ofthe article Sinclair observed:
'The Therol Kunbis profess to be immigrants from a place called Therol, in Hindustan, which I have never been able to identify. There is a place of this name on the Puma river in the Edalabad Peta of Khandesh itself. They also eat meat, and are not so strongly distinguished from Marathas as are the three castes of Gujar Kunbis.'
This 'passage was brought to the notice of the Nagpur High Court in First Appeal No. 48 of 1946, (Nag) and was accepted by the Court. If we acceptthe statements made in the passage, the claim made by some Tirole Kunbis to the effect that their ancestors hailed from Therol in Rajasthan will have to be rejected.
26. In the Amraoti District Gazetteer, while dealing with the principal castes of the inhabitants of the district, it is observed as follows:
'However, this may be, a similar process is even now going on for the Tiroles, the highest division of Kunbis, to which most of the Deshmukhs and many of the leading patels belong, are today on the borderland between the two castes. One rung of the ladder of social advancement is to provide oneself with a Rajput origin, and the Marathas accordingly claim to be Kshattriyas while the Tiroles derived their name from Therol in Rajputana. Butthe ordinary kunbi is confessedly a Sudra, and the pretensions just described are regarded with extreme suspicion both by pure Rajputs and by the Brahmans who are the ultimate arbiters.'
Now these observations give a clue to the reason why some Tirole Kunbis are laying claim to the fact that they are descendants of immigrants fromRajputana. We would also quote the following passage from Maharashtriya Dnyanakosh, Volume II, compiled by Dr. Ketkar :
^^oTgkMh dquch&e;/;izkar o oTgkMkar ;kaphyksd
la[;k yk[kkaoj vlwu xksaMkP;k [kkyks[kky ;kaphp
oLrh R;k izkarkr Qkj vks- gs xqtjkFkssarwu [kkunss'ko
[kkuns'kkarwu ;k izkarkr iq'dGo'kkZiwohZ vkys ossa 'krd -
ejkBh jkT; >kY;koj ;kaaph Hkjrh Qkjp >kyh-bdMhy
vkysysa vlwu] ;kaP;kar xksaM jDrkapsZ feJ.k vk
gyds letrkr- 5 frjksGs] gs mPp tkrhp vlwu ;kaP;kr
ns'keq[kkfn orunkj vkgsr-**
This passage would suggest that the kunbis of the Central Provinces and Berar formerly originated from Gujrat. Whether this is wholly correct or not, it is sufficient to say that it negatives the claim of the Tirole Kunbis to be descendants of the Rajputs. Further, if their ancestors hailed from Gujrat, even then the School of Law applicable to them would be the Bombay School and not the Benaras School.
27. Sherring in Hindu Tribes and Castes of the Central Provinces and Berar has said that Tirole Kunbis have migrated from Khandesb. According to him, Kurmis and Kunbis are in reality one class of people and yet are known in various parts of the country by separate designations.
28. There is only one other decision where the question as to which school of law applies to the Tirole Kunbis was considered and that is a decision of Datar and Naik, JJ. in First Appeal No. 10 of 1953 decided on 23rd February 1959 (Bom). In that case the Defendants who contended that the parties who belonged to a Tirole Kunbi family were originally residents of Dindargaon in Katol talisil and then migrated and settled at Dhaga in Morsi tahsil of the Amraoti district. This contention was negatived by the Court below and the learned Judges agreeing with the Court below held that the Defendants had failed to prove their contention. Then the learned Judges observed:
'That being the finding on questions of fact, it is not necessary to discuss the legal position any elaborately. It is sufficient to make a brief reference to the authorities that were cited at the bar.'
Then the learned Judges pointed out that the Kunbis had migrated to the Central Provinces and Besar from several parts of India and eventually settled down there. Some Kunbis had migrated from Gujarat first to Khandesh district and from Khandesh they spread over into the Central Provinces and Berar districts. There was a fresh influx of Kunbis in the 18th century at the time of conquest of the Central Provinces by Raghuji Bhosla. The learned Judges pointed out that this was from Maharashtra from where Raghuji came. It was conceded before them that the lex loci so faras the territory lying to the east or north of the Wardha river was concerned, was the Benaras school of Mitakshara Law and the lex loci to be applicable to the territories to the south and west of the Wardha river was the Bombay School of Mitakshara Law. On the basis of that concession, the learned Judges held that the family was governed by the Bombay School of Hindu Law because it was not established that it had migrated from Dindargaon to Dhaga.
29. Now, here we have dealt with the case on the basis of some additional material which was brought before us and have pointed out that even assuming, as was contended by Mr. Bobde, that the family hailed from Wadegaon, that place itself once formed part of Berar and the lex loci applicable would consequently be the Bombay School of Hindu Law and not the Benaras School.
30. We will now consider whether there is material to support the finding of the Court below to the effect that the ancestral home of the family was at Paoni and not at Wadegaon as is contended by Mr. Bobde. In order to establish the point that the family originated from Wadegaon, besides relying on exhibit 4 D-1, it has relied on some other documents. Exhibit 4 D-3 is a certified copy of the khewat of mouza Manikwada of the year 1892-93. There Sitaram and Jago are both described as residents of Wadegaon. But it may be mentioned that in the khewat of Wadegaon for the very same year Sitaram is described as resident of Paoni, while Jago is described as resident of Wadegaon. To the same effect is the khewat exhibit 4 D-5 for the year 1910-11. He also relied upon exhibits 4 D-43 and 44 which are certified copies of khasra of mouza Wadegaon for 1869. There Chintaman is described as a resident of Wadegaon; but in exhibit 4 D-46 which is an extract of the Jama Bandi of mouza Wadegaon for 1892-93, Sitaram is described as resident of Paoni, while Jago is described as resident of Wadegaon. Similar entries are to be found in the Jamabandi for the year 1910 of mouza Wadegaon (exhibit 4 D-45). In exhibits 4 D-10 and 11 which are extracts from the Panchasala Khasra of 1935-36 to 1938-39 Gopala son of Jago and the adoptive father of Defendant No. 4 is shown as resident of Paoni. From these various documents, the inference which can safely be drawn is that the family had their homes at both the places, Paoni as well as Wadegaon at any rate after 1869 and before 1892. Some members chose to stay at Wadegaon while others chose to stay in Paoni. The distance between these two places is not very much. Can it, however, be said from these documents that because some members of the family chose to stay at Wadegaon, the family must be deemed to have its ancestral homo there? It may be mentioned that Raghunath and Gajmalji are shown in the revenue papers as residents of Manikwada. At no time are they shown as residents of Wadegaon. Since they were also a grandson and son respectively of Rajas Patil, they would have their ancestral home in Wadegaon if that was the place in which the family had settled down. However, we agree that is not a decisive circumstance.
31. Now, we have on record two documents, exhibit P-4 and exhibit P-5. The first of these relatesto survey No. 49 which was formerly survey No. 60. It is a copy of the record-of-rights of 1915-16 to 1920-21. In column 9 thereof the holders' names are shown as Sitaram and Gopal. In column 10 it is staled:
'Occupants by right of inheritance, on account of the death of father, from about the year 1876. Sitaram is the Karta.'
Exhibit P-5 relates to survey No. 80. It contains similar entries in columns 9 and 10. Apart from these documents, there is no material from which it could be ascertained as to how these two fields came into the possession of the family. The survey operations in the Amravati district were completed by the year 1868-69 and it must have been sometime thereafter that the revenue records with respect to the revenue paying lands in the district were prepared under the Berar Settlement Rules of 1866. Exhibit P-2 which is a certified copy of the Prati Book of mouza Paoni, dated the 4th January 1871 contains a classification of the soil of the old survey No. 60. There Sitaram Chintaman Satpute is shown as Sarkari Karda, which means that in the year 1871 this field was with him. There is no column in this document for setting out the mode of acquisition of title. Apparently there was no regular revenue record of any kind prior to the promulgation of the Berar Settlement Rules and, therefore, we have no information as to how this field came to be in the family of the party. It is contended before us that, bearing in mind the fact that the family has got an ancestral house at Paoni since a very long time it would be permissible to infer that this field has been in the family for generations and that the family belongs to this place. It is also contended that this inference can derive support from the admission of Bapurao (8 D. W. 1) to the effect that Gopalrao used to keep only kacha accounts at Wadegaon while pucca accounts used to be kept at Paoni. It is true that the witness was in a position to know this because he was, as already stated, a munjm of Gopalrao and that this circumstance as well as the admission of the witness that Gopalrao had built a temple at Paoni would lead to the conclusion that his ties with Paoni were very strong. We agree that the very fact that Wadegaon had to be populated by somebody, taken together with the fact that it is on the outskirts of a reserved forest, would suggest that the family could not have been resident of that village and probably took up residence there only after it acquired proprietary rights over the village. In this connection we may refer to the evidence of Chandrabhan (15 D. W. 3) that the only habitation at Wadegaon is of Gond people. Further, according to him, Gopalrao had cultivation at Paoni and that he used to reside there normally but used to go to Wadegaon for a couple of months during the harvest. His evidence is in consonance with the probabilities and we do not see any reason why it should not be accepted. But even so, it docs not take us very far. From the material on record to which our attention has been drawn it can be said that the family has owned property in Berar from a time prior to 1871 and that it is possible that Wadegaon being a village of a comparatively recent origin the family was resident of Paoni and then acquired the village Wadegaon. But beyondthat one cannot go. The lower Court has acted on this possibility and we do not wish to differ from it as the appellants (Defendants Nos, 1 and 3 to 6) have not shown that the view taken by it is wholly untenable. We, therefore, affirm its finding that the family originated from the village Paoni. Now, if the family was resident of Paoni, there is no dispute that it is governed by the Bombay School of Hindu Law and not the Benanis School of Hindu Law.
32. This disposes of the main point in the case. The next question to be considered is that of limitation. Now, according to Mr. Bobde, the learned Judge was wrong in holding that the provisions of Section 28 of the Limitation Act extinguished the Plaintiff's right only with respect to two fields and not the remaining. It seems to us that the learned Judge of the Court below was wrong even in respect of those two fields also and that the Plaintiff's claim with regard to them should have been decreed, that is to say, both these fields should have been included in the list of property available for partition. In so far as the nine fields are concerned, it is not disputed that prior to the commencement of the proceedings under Section 145 of the Code of Criminal Procedure, they were being cultivated by Parasram who was a lessee from Gopalrao. When Gopalrao gave the lease, he was the sole surviving member in the family and as such he was in a position to grant the lease. In section 145 proceedings, the learned Magistrate confirmed the possession of Parasram with respect to these fields. Now, Parasram is not a party to the suit and the Plaintiff is not claiming any possession from him. The possession of Parasram would enure to the benefit of the members of the family who had interest in that properly. There was no order by the Sub-Divisional Magistrate that only the Defendants Nos. 1 to 4 would be deemed to be in possession of the property or that Punjabrao Was in possession of the property on their behalf. In these circumstances, the learned Judge of the Court below was right in holding that the Plaintiff's suit in respect of those fields was not barred.
33. As regards the two fields Nos. 34/1 and 79, the lower Court has excluded them from the decree on the ground that the Plaintiff's suit with respect to them is barred, on the basis of the election of the Nagpur High Court in Jagatram v. Pitai . That decision, however, is opposed to the decision taken by this Court in Bhimappa v. Irappa ILR 26 Bom 146. At pa 149, Chandavarkar, J. who delivered the judgment of the Court has observed:
'The mere fact that the property comprised in the Mamlatdar's decree is included in the subsequent suit for partition does not make the properties in both identical. In the eye of the law, the property of which exclusive possession was sought in the Mamlatdar's Court is different from the property of which a share is claimed on the ground of joint title, and it is only an accident that the Plaintiff in the partition suit may get the former property allotted to his share.'
These observations would clearly show that a suit for partition is not affected by the provisions of Section 28 of the Limitation Act. It is not necessaryfor us to discuss this matter further because unless we refer this case to a larger Bench, we must follow the decision in that case and we see no ground to doubt the correctness of the view taken in it. Mr. Najbile who also appears for the contesting Defendants referred to the decision of the Supreme Court in Braja Sundar Deb v. Moni Behara : 2SCR431 , and in particular to the observations in paragraph 14 at page 252. In that case the question which we have to consider in this case was never before the Court. The only question before their Lordships was as to the effect of Section 28 of the Limitation Act: whether it only barred a remedy or extinguished it, The decision of this Court does not proceed upon the view that Section 28 does not extinguish a right but only bars a remedy. In the circumstances, therefore, that decision is of little assistance in this case. Accordingly, disagreeing with the Court below we hold that fields Nos. 34/1 and 79 are also liable to be partitioned.
34. What remains now is the Plaintiff's claim with respect to khasra Nos. 43/2 and 43/3 of Wadegaon. According to the purchaser, Defendant No. 8, he had furnished adequate consideration for the creation of occupancy rights in his favour in those fields and further that the then lambardar created those occupancy rights in the ordinary course of village management. We arc not prepared to accept the evidence that Rs. 600 were actually due to the Defendant No. 8 from Gopalrao or that Rs. 900 were due to him from Annapurnahai as arrears of his salary. The family was a wealthy family and it is difficult to believe that the munim who was in fact looking after the affairs of the family could not be paid his salary as and when it became due. As regards the other contentions; we must point out that there is not an iota of evidence on the record that it was necessary for Annapurnabai to create occupancy rights in favour of any one in the two khasra numbers. Even the Defendant No. 8 has not stated that Annapurnabai acted in the way she did because it was not possible to cultivate the land. For these reasons, disagreeing with the Court below we hold that the alienations in favour of the Defendant No. 8 do not bind the Plaintiff. The result of this would be that these two fields would also be included in the divisible property.
35. As a result of these findings, the appeal of the Plaintiff is allowed in full with costs, white that of the Defendants Nos. 1, 3, 4, 5 and 6 is dismissed with costs.
36. What remains is now the appeal of the Defendant No. 7. It has to be borne in mind that the Defendant No. 7 has not chosen to go into the witness-box. He is said to have been given in adoption by his mother and she was alive when the evidence was recorded and, may he, she is alive now; but she was not examined as a witness in the case. The priest who is alleged to have been calledto perform the dy'kiwtu
37. That is not all. Even though proceedings under Section 145 of the Code of Criminal Procedure were commenced within two or three months of the death of Gopalrao, no attempt was made to put forward this document in support of his claim. Mr. Ghate who appears for him said that in those proceedings the question of title was not involved and, therefore, it was not necessary for Waman to file the document. It is undoubtedly true that those proceedings were concerned with the fact or possession and not title, but where a person, who is apparently a stranger, is trying to maintain his possession, he would naturally want to show the ground on which he claims a right to possession. Mr. Ghate admitted that the Defendant No. 7 was not put in possession by Gopalrao. That was not the stand taken by the Defendant No. 7 either in Section 145 proceedings. Indeed, he stated there that he claimed to be the adopted son of Gopalrao. If that is so, then to substantiate his claim or to make his story acceptable, he would have put forward this document had it been in existence then.
38. The document appears to us to be a suspicious one. It would seem that because of his illness Gopalrao had signed some blank papers and actually two such papers were produced by the Defendant No. 4 during the course of the trial, It, therefore, appears that Waman or someone interested in Waman or someone who had an eye on this property, managed to get hold of one such paper ana have the memorandum scribed thereon. In fact, Gopalrao lived for 15 days after this alleged document was prepared. We, therefore, do not see any reason why he should not have executed a regular adoption-deed. It is said that at the time of the actual adoption, Gopalrao was feeling too unwell and was not sure of himself and. therefore, he got only a memorandum written. If Gopalrao was well enough to go through the adoption ceremony and also to execute a document of the kind which is produced before us in this case, we fail to see why it should not have been possible for him to execute a properly stamped document in the usual way. It may be that he may not have been in a position togo to the office of the Sub-Registrar for registering it, but surely the Sub-Registrar could have been brought to his house for registering the document. The evidence of the two witnesses examined on behalf of the alienees from Waman, Defendant No. 7, is not such as inspires any confidence. Its these circumstances, we agree with the Court below that the Defendant No. 7 has failed to establish the adoption in his favour. Accordingly to dismiss his appeal with costs.
39. As a result of our decision, the following four fields will be added to the items of divisible property, namely, khasra Nos. 43/2 and 43/3 of mouza Wadcgaon and khasra Nos. 79 and 34/1 of mouza Paoni.
40. I entirely agree with my learned Brother that the family to which Raoji, Chintainan, Sita-ram, Jagoba and Gopalrao belong is governed by the Bombay School of Hindu Law. I would, however, rest my decision on this question on ouf finding that the family originated from mouza Paoni in Berar. In view of this finding I do not consider it necessary to express whether Tirol Kimbis residing in Arvi and Ashti Parganas are governed by the Bombay School of Hindu Law or not.
41. Order accordingly.