1. The question before us is whether the Vyavahara Mayukha or the Mitakshara is, upon a point of disputed succession, the predominant authority in the town of Mahad in the Kolaba District. That question arises in this way. The property involved in the litigation belonged to one Narayan, and on his death was inherited by his sister Kashibai, who, under the law of this Presidency, took an absolute estate. Kashibai, dying, left a son and a daughter, and the controversy is as to which of these two is the preferential heir. Under the Mitakshara, the daughter, and under the Mayukha, the son. would be preferred. The present appellant, who was the plaintiff below, claims as a purchaser from the son of Kashibai and contends for the paramount authority of the Mayukha. The contention has been disallowed both in the lower appellate Court and in the trial Court, where the learned Subordinate Judge, Mr. Sabnis, has written a well-considered judgment. Geographically the town of Mahad is situate in the southernmost Talukaof the Kolaba District, and, though it stands on the Northern bank of the Savitri river, it is well within the Maratha or Maharashtra country, as that term is popularly understood. It is eight miles from Raigad, formerly a stronghold and capital of the Marathas. Prima facie it would seem, therefore, that the Vyavahara Mayukha would not be the prevailing authority.
2. It is, however, argued for the appellant that Mahad must be taken to fall within a somewhat ill-defined phrase ' the Northern Konkan,' where, it is said the Mayukha is predominant. Following the argument at the Bar, I will assume that the Mayukha is predominant in the Northern Konkan, leaving that phrase for further explanation. There are dicta to that effect of many Judges, and it is unnecessary for our present purposes to question the authority of these dicta.
3. The question, then, will be whether the town of Mahad falls within or without what was meant by the Judges when they said that the Mayukha is the prevailing authority as well in the North Konkan as in the island of Bombay and the province of Gujarat. In the first place, it is desirable to have a clear understanding as to what is meant by the ' Konkan. ' That phrase is explained in the first sentence in the introduction to the Bombay Gazetteer, Vol. I, Part II, where we read :- 'The Konkan is now held to include all the land which lies between the Western Ghats and the Indian Ocean, from the latitude of Daman on the North to that of Terekhol, on the Goa frontier, on the South.' In Vol. II, at p. 20 of Mr. Erskine's History of the Emperors Babar and Humayun, the learned author says :-
After the death of Munaffar Shah, several of his descendants increased the territory of Gujarat. His grandson, Ahmed Shah, a very distinguished prince and the founder of Ahmedabad, reduced under his power nearly the whole country that forms the present Gujarat, including the lowlands to the South below the Ghats, the Northern Konkan and the island of Bombay.
4. This passage is cited towards the end of Sir Michael Westropp's judgment in Sakkaram Sadashiv Adhikari v. Sitabai I.L.R. (1879) Bom. 353, and constitutes one of the earliest pronouncements of the Court in favour of the predominance of the Mayukha in the Northern Konkan, The boundary of the Northern Konkan is not described in this judgment, but at p, x of the Gazetteer Vol. I, Part II, we read:-
Whatever the old signification of the word may have been, the name Koukan w now used in the sense first mentioned, and the modern division of the District h into North and South Konkan, meaning the parts North and South of Bombay. The boundary between the North and Kouth Koukan is, however, sometimes considered to be the Savitri river, which divides the Habshi s territory from Katnagiri, as, for some years after the English conquest, the District of the North Konkan included the subdivisions as far South as the Savitri.
5. It is, in my opinion, reasonable to suppose that the ' North Konkan ' of Westropp C. J.'s judgment in Sakharam's case was the tract denoted by the modern usage of the phrase, and not the tract extending to the Savitri river. Indeed the line of division between the North and the South Konkan for our present purposes is not, I think, difficult to fix if we remember the reason up an which the difference is founded. That reason is historical and flows from the circumstance that the tract called the North Konkan was, while the South Konkan was not, under the immediate sway of the kingdom of Gujarat.
6. From a passage to be found at p. 763 of Elphinstone's History of India, it appears that Bassein and Bombay were detached possessions of the kingdom of Gujarat, and it seems to me clear, from the various passages to which Mr. Rao has drawn our attention, that that kingdom never extended South of the towns or villages Cheul and Nagothna, which are to be found in the Northern or Alibag taluka of the Kolaba District.
7. In Vol. I, Part II, of the Gazetteer we read at p. 34:-' The kingdom of Gujarat extended as far South as Nagothna' and at p. 45 ' The Northern Konkan as far South as-Nagothna had always belonged to Gujarat, but the Southern Konkan had only just been divided between the dynasties of Bijapur and Ahmednagar.' In the Kolaba Gazetteer, Vol. XI, p. 142, it is stated:-
Towards the close of the 15th century (1489) the inland parts of Kolaba passed from the Brahmini to the Ahmednagar Kings. The sea coast, including at least Nagothna and Gneul, remained in the hands ot: the I Gujarat Kings, till, in 1809, the overlordship of Cheul passed from Gujarat to the Portuguese. After this, though the coast boundary of Gujarat shrank from Gheul to Bombay, the Gujarat Kings continued to hold the fort of Sangizi or Sinkshi in Pen till 1540 when it was made over to Ahmednagar.
8. In the Thana Gazetteer, Vol. XIII, Part II, there are two passages bearing upon the same point. One of them runs:-
Some years later (1508) Mahmad Begada still further increased his power. He effected his designs against Bassein and Bombay, established a garrison at Nagothna, and sent an army to Chaul. At this time when Gujarat power was at its highest, according to the Mirat-i-Ahmadi, Daman, Bassein and Bombay were included within the Gujarat limits (p. 443).
9. The other passage, at p, 448, referring to a later period says:
A few years liter (1514) the Southern boundary of Gujarat had shrunk from Chaul to Bombay.
10. In accordance with the history thus narrated, we find that, after the establishment of British authority, Mahad was by the earliest authorities included in the Southern Konkan. At p. 159 of the Kolaba Gazetteer, Vol. XI, the change is described in these words :-' After they came into the hands of the British in 1818, the three sub-divisions of Sankshi (Pen), Rajpuri (Roha), and Rayagad, formed the Northern part of the, South Konkan or Ratnagiri Collectorate; ' and in a foot-note in which the details of these acquisitions are set forth, we read that ' the British Government took possession of the sub-divisions of Sankshi, Rajpuri, and Rayagad, then forming the Northern part of the South Konkan.' This tradition is continued in the Government Selections, New Series, No. 278, pp. 12 and 13 where the term ' South Konkan ' as distinguished from ' North Konkan' is explained as the' tract including all the present Kolaba District, except the Talukas Karjat and Panvel, which are to the North of the Alibag Taluka of Kolaba, being separated from it by the Dharamtar creek.
11. These historical references satisfy me that when the learned Judges of this Court spoke of the tract of country known as the North Konkan being under the predominance of the Mayukha, that tract was understood to extend no further South than the Alibag Taluka, and therefore cannot be held to have comprised the town of Mahad,
12. The only decided case from which the appellant seeks support for his argument is Sir Michael Westropp's decision in Sakharam Sadashiv Adhikari v. Sitabai I.L.R. (1879) Bom. 353. There, as I have stated, the passage from Mr. Erskine's history is cited, and the undefined term ' Northern Konkan ' is brought within the ambit of the paramountcy of the Mayukha. That case, however, is, in my opinion, of no assistance to the present appellant, for the learned Judges there did not define what they meant to include in the term ' North Konkan,' and the case before them came from Karanja, which is just across the harbour from the island of Bombay. The historical references in the judgment are no more than the basis for the conclusion which is expressed on pp. 367-368, that it would be incongruous to declare that the Hindus on the one side of the harbour were subject to another law of succession from that which governed those on the other side. At the most the case would be an authority for the view that the phrase ' North Konkan ' must be held to include Karanja, but as Karanja is very much to the North of Mahad, that decision would not serve the appellant's turn. It is also to be observed that the observations now under notice were made obiter as the decision of the case was based on other grounds which will be found explained at pp. 363 and 368 of the report. This being so, it is not possible to follow Mr. Jayakar's argument when he would fasten supreme importance on a passing phrase in which the learned Chief Justice notices the historical fact that ' formerly, the boundary between the Northern and Southern Konkan was deemed to be the Savitri river, which divides the Habshi's territory from the Ratnagiri Collectorate and enters the sea at Bankot.' The Court by no means decides, as would be necessary for the plaintiff's case, that the Savitri river was the a the boundary between the North and South Konkan. It is merely stated that at some previous time the river was deemed or supposed to be the boundary. In my opinion, the authorities, to which I have alluded, establish that the town of Mahad is not within the Northern Konkan, which the Judges have referred to as subject to the predominance of the Mayukha, and the predominance of the Mayukha cannot either on principle or on authority be taken further South than Cheul and Nagothna or than the point where it appears to have been carried by the decision in Sakharam Sadashiv Adhihari v. Sitabai. For these reasons, I think that the lower appellate Court's decree is right, and tint this appeal should be dismissed with costs.
13. I am of the same opinion, generally for the reasons given by my learned brother.
14. It is quite clear that Mahad forms part of the Southern Konkan, where the Mitakshara and not the Vyavahara Mayukha is the governing authority on points of Hindu law, when there is a conflict between them.