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Janardan Govind Gore Vs. the Advocate General of Bombay - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 510 of 1938 (O.S.)
Judge
Reported inAIR1939Bom202; (1939)41BOMLR341
AppellantJanardan Govind Gore
RespondentThe Advocate General of Bombay
Excerpt:
.....'a question arose whether by the expression' my community' the testator meant the chitpavan brahmin community, a sub-sect of the dakshini brahmin community, or the community of the dakshini brahmins as a whole :-;that the words 'my community' referred only to the chitpavan brahmin community and not to the dakshini brahmin community as a whole. - - 5,000 (rupees five thousand only) be spent for some useful public purpose (sinking of a public well or construction of sarai dharma-shala or such other purpose as my executors may think fit) and be named after my parents (govind saraswati). (e) a sum of rs. justice kania held that where the intention of the testator is expressed in the will it is open to a party to lead oral evidence to show circumstances, habits and the state of the..........whether the provision contained in that clause was intended to be for the benefit of the dakshini brahmin community as a whole or only for the chitpavan sub-sect thereof.2. by an order dated july 27, 1938, defendants nos. 2 and 3 were added as parties to the suit on behalf of themselves and all other chitpavan brahmins who contend that the words 'my community' in the will mean the chitpavan brahmin community, and defendant no. 4 was added as a defendant on behalf of himself and other chitpavan brahmins who contend; that the words 'my community' mean the dakshini brahmin community.3. the material portions of the will are as follows:i, dhundiraj govind gore of mahim, bombay, chitpavan brahmin (hindu) inhabitant do hereby revoke all previous wills and codicils and make and declare this to.....
Judgment:

Blackwell, J.

1. This is an originating summons which was brought by the plaintiffs, the proving executors of the will of one Dhundiraj Govind Gore, originally against the Advocate General of Bombay, to determine the meaning of the words 'my community' used by the testator in Clause 3(e) of his will, and whether the provision contained in that clause was intended to be for the benefit of the Dakshini Brahmin community as a whole or only for the Chitpavan sub-sect thereof.

2. By an order dated July 27, 1938, defendants Nos. 2 and 3 were added as parties to the suit on behalf of themselves and all other Chitpavan Brahmins who contend that the words 'my community' in the will mean the Chitpavan Brahmin community, and defendant No. 4 was added as a defendant on behalf of himself and other Chitpavan Brahmins who contend; that the words 'my community' mean the Dakshini Brahmin community.

3. The material portions of the will are as follows:

I, Dhundiraj Govind Gore of Mahim, Bombay, Chitpavan Brahmin (Hindu) inhabitant do hereby revoke all previous wills and codicils and make and declare this to be my last will and testament.

* * * * *(3) After payment of funeral expenses etc., and testamentary charges, my executors are directed to pay the following legacies and bequests.

* * * * *(d) A sum of not less than Rs. 5,000 (Rupees five thousand only) be spent for some useful public purpose (sinking of a public well or construction of sarai Dharma-shala or such other purpose as my executors may think fit) and be named after my parents (Govind Saraswati).

(e) A sum of Rs. 50,000 (fifty thousand only) towards medical relief of persons of my community or any other charitable purpose of utility to my community such object to be named after me.

4. Mr. Tendulkar for the executors contended that the words 'my community' although unambiguous in themselves are capable of a number of different meanings, and he submitted that he was entitled by Section 80 of the Indian Succession Act to adduce extrinsic evidence to show that these words admit of only one application which was intended by the testator.

5. Mr. Somjee for defendant No. 4 supported Mr. Tendulkar in his contention as to the admissibility of evidence and argued upon the will itself apart from extrinsic evidence that the words 'my community' mean the Maharashtra or the Dakshini community.

6. On the other hand, Dr. Ambedkar for defendants Nos. 2 and 3 submitted that there is no room for extrinsic evidence with a view to showing that the words 'my community' admit of applications, one only of which can have been intended by the testator, inasmuch as the testator has described himself in the will as a Chitpavan Brahmin (Hindu) inhabitant, and that it is therefore plain from the will itself that by the words 'my community' he meant the Chitpavan community.

7. Mr. Tendulkar referred to a number of English authorities upon the admissibility of extrinsic evidence for the purpose of ascertaining what a testator meant when he used unambiguous words which on the particular facts might admit of more than one application, viz., Attorney General v. Hudson (1720) 1 P. Wms. 674, Gibson v. Coleman (1868) 18 L.T. 236, and Rees, In re : Jones v. Evans [1920] 39 Bom. L.R. 1151. All counsel before me are agreed that these cases exemplify difficulties such as are contemplated by the illustrations to Section 80 of the Indian Succession Act. Mr. Tendulkar referred me also to Janardm V. Nrayan (1936) 39 Bom. L.R. 1151, where Mr. Justice Kania held that where the intention of the testator is expressed in the will it is open to a party to lead oral evidence to show circumstances, habits and the state of the testator's family, which would' include the names of the testator's friends, on the principle of justice, equity and good conscience, and apart from Sections 80 and 81 of the Indian Succession Act, 1925. That however in my opinion is not a case which has any bearing upon the matter before me.

8. The testator having described himself as a Chitpavan Brahmin (Hindu) inhabitant Mr. Tendulkar pushed his argument logically to this length, that oral evidence would be admissible to show whether the testator intended by the words 'my community' to mean the Hindu community as a whole, or a sub-division of it, viz. the Brahmin community, or one of various subdivisions of the Brahmin community.

9. I have been referred to various works upon the question of caste and customs which I will briefly refer to. In Steele's Law and Custom of Hindu Castes published) in 1868 the following appears at p. 79:

The Brahmun caste ranks higher than the others in general estimation. It contains, however, a variety of subdivisions, among the individuals of which restrictions exist as to marriage and eating in company, chiefly arising from their relative strictness in diet or other religious observances.

10. Mr. Somjee argued that the word 'community' must be governed by religious doctrine alone. He cited Wilson on Indian Caste, Vol. II, at p. 17, where it is pointed out that the Brahmans of India are generally divided into two great classes of five orders each, the five Dravidas, south of the Vindhya range, and the five Gaudas, north of the Vindhya range. The five classes of each of those two main divisions are set out, and the first of the five Dravida classes is stated to be the Maharashtras, of the country of the Marathi language. It is common ground that the word Dakshini has the same significance as Maharashtra, Mr. Somjee argued that the words 'my community', quite apart from the question whether oral evidence is admissible, or not, can only mean the Maharashtra community of which the Chitpavan is a sub-sect or sub-division.

11. Returning to Steele's Law and Custom of Hindoo Castes, the author at p. 79 proceeds to enumerate the various varieties of Brahmuns, and among them he mentions the Maharashtra, and in a foot-note states as follows:

The varieties of the Maharashtr Brahmuns are Desust, Kokunust, or Chitpawun, Deorookhee, Madyandin, Kunaw, or Prutumsakhee, Kurare, Ubheer, Mytrayunee, Senwee, Tirgcol. The Desust consider themselves superior to others. The Kurare are accused of human sacrifices, but are invited by the other sects.

12. After enumerating a number of sects of Brahmuns the author goes on to say that the Senwee Brahmuns, being confined to three Kurum, or religious duties, and being less strict as, to diet, are not invited to the houses of the ten mentioned sub-divisions.

13. In Enthoven's Tribes and Castes of Bombay, Vol. I, at p. 241, it is stated that the Maharashtra Brahmans consist of twelve divisions, among which the Chitpavans are mentioned. The author then says that all of these twelve divisions except the Golaks, Javals, Kasts, Palshikars, Savashes and Tirguls eat together, but do not intermarry. He points out, however, that the latter statement must be qualified in the case of the Palshikar or local Bombay group of Deshasth Brahmans who have recently established marriage relations with Deshasth Brahmans of the Central Provinces and are successfully establishing their claim to be considered Shukla Yajurvedi Deshasth Brahmans of the Madhyandin Shakha. Poona Deshasthas, the author says, still refuse recognition, and the Golaks, Kirvants and Tirguls are commonly held to be degraded. Among the latter the Kirvants, the author says, are rising to the position of equality with strict Brahmans, and marriage connections are occasionally formed between them and Chitpavans.

14. As regards the question of marriage, at p. 502 in the 8th edition of the late Sir Dinshah Mulla's work on the Principles of Hindu Law, it is pointed out that while a marriage between persons who do not belong to the same caste is invalid, unless sanctioned by custom, a marriage between persons belonging to different sub-divisions of the same caste is not invalid, and authorities for that proposition are cited. Though such marriages may not be invalid, nevertheless Enthoven's work is an authority for the proposition that certain of the Maharashtra Brahmins do not inter-marry as a matter of practice. Mr. Tendulkar frankly admitted that there were differences in custom and habits among the various sub-sects of Maharashtras, but he submitted that that made no difference to the question as to what the words ' my community' mean and that evidence ought to be admitted for the purpose of enabling the Court to determine what the testator meant by the worda 'my community', those words being capable of different inteqretation.

15. Dr. Ambedkar cited Amandrav Bhikaji Phadke V. Shankar Daji Charya I.L.R. (1883) 7 Bom. 323 for the purpose of showing that the Chitpavan caste had been recognised in the Courts of Bombay as a community. That was a case in which four persons of the Chitpavan caste brought a suit alleging that they and the members of their caste, in common with certain other castes, possessed the exclusive right of entry and worship in the sanctuary of a temple, and that the defendants, members of the Palshe caste, not being of the privileged castes, infringed that right by entering the sanctuary and performing worship therein, and the plaintiffs prayed for a declaration of their right and an injunction restraining the defendants from interfering with it. It was conceded by counsel that the defendants, members of the Palshe caste, belonged to the Maharashtra branch of Brahmins equally with the Chitpavan Brahmins. The case was cited by Dr. Ambedkar simply for the purpose of showing that the Chitpavans there regarded themselves as a community distinct from the Palshe community, both of them being members of the Maharashtra branch of the Brahmins.

16. In India there are a very large number of communities, and it is very common for persons to describe themselves as belonging to such and such a community. The word 'community' is no doubt capable of being used in a number of different senses. There may be a large community, and within that large community a number of smaller communities, and within those smaller communities still smaller communities. For instance, the Mahomedans in India may no doubt be described as the Mahomedan community, but it is well known that there are a considerable number of sub-divisions in the Mahomedan community the members of each of which consider themselves a community among themselves, as for instance, the Bohras, the Khojas, the Cutchi Memons and Halai Memons, and if a man described himself as a Bohra, I have not the slightest doubt that he would intend to convey that he belonged to the Bohra community. Similarly, Christians may be described; as a community, subject to the religious test of Christianity. But there are in India a number of Christian communities differing from one another in particular characteristics, racial and otherwise, such as East Indian Christians, Native Christians, Goan Christians and: so on, and, though they are all Christians, they may I think properly be regarded as distinct communities. Similarly, there is the great Hindu community. It is well known that Hindus were originally divided into the four castes of Brahmins, Kshatriyas, Vaishyas and Sudras. Many other castes and sub-castes have however come into existence. In a sense all Hindus are members of the same community. But I think that an orthodox Brahmin would be a little startled if he were told that he belonged to the same community as, say, an untouchable. Such a test appears to me to be useful in considering whether it is right in India to restrict the word community to the larger sense of which it is capable or whether the true view of the matter is that there are a large number of sub-divisions which are themselves regarded as distinct communities. I think that the latter is the true view. As appears from Wilson's work, the Brahmins are divided into two great classes, to each of which there are five main sub-divisions. All those sub-divisions from one point of view no doubt may be considered separate communities, but then the question arises whether within those sub-divisions there are not also further sub-divisions which are in themselves separate communities. It is common ground in this case that in the various sub-divisions there may exist differences in customs and habits as to eating, drinking, clothing and so forth. The very existence of such differences appears to me to afford strong ground for thinking that the persons who group themselves in the various sub-divisions regard themselves by reason of these differences as distinct communities, as the members of the Chitpavan caste undoubtedly did when they brought against the members of the Palshe caste, who were Maharashtras like themselves, the case above mentioned (Anandrav Bhikaji Phadke v. Shankar Daji Charya).

17. In support of the contention put forward on behalf of defendants Nos. 2 and 3 that the Chitpavan sect of the Maharashtra Brahmin community is itself a separate community, and regarded as such, there is am affidavit of Mr. Balaji Vasudeo Athavale. In that affidavit he says that the Chitpavan Brahmins form a community in themselves, that that community has its own organisation, and that it has its own special characteristics which are distinguished from the characteristics of the Deshasthas, the Karhadas etc., which are the sub-divisions of the Dakshini Brahmin community, and various characteristics of different sub-sects of the Dakshini or Maharashtra community are set out in that affidavit. Further it is alleged that the Chitpavans have some peculiar customs of their own such as Bodan which is performed on celebrative occasions, and that the Chitpavans are a denominational community which is as large and as distinct a community as other sub-sects of the larger Maharashtra community.

18. In paragraph 3 of the plaint the alleged conversations which plaintiffs Nos. 1 and 3 had with the testator himself personally regarding the provision in Clause 3(e) of the will are relied on, and they say that from the general knowledge which they all had about the testator's views and opinions they believe that the provision in question was really intended by the testator to be for the benefit of the Dakshini Brahmin community as a whole and not only for the benefit of the Chitpavan sub-sect thereof; and in paragraph 6 of the joint affidavit made by plaintiffs Nos. 1 and 3 they state that after making his will the testator had discussed the same with each of them and told them that he had made provision in his will for the benefit of the Dakshini Brahmin community, and that on such occasions he did not refer in particular to the Chitpavan Brahmins ; then in paragraph 9 they say that from the talks which the deceased had with them and from their general knowledge of his views and opinions they believe that the testator intended to benefit the Dakshini Brahmin community as a whole and not only that section of it known as the Chitpavan Brahmins. In addition to seeking to rely upon that part of the joint affidavit Mr. Tendulkar informed me that he desired to call oral evidence with a view to establishing what the testator intended by the words ' my community', those words being capable as he contended of more than one interpretation. Mr. Somjee supported him in this contention. Dr. Ambedkar for defendants Nos. 2 and 3 submitted that oral evidence in this case was inadmissible inasmuch as upon the face of the will itself the testator had made it plain what he himself regarded to be his community. I am satisfied from the affidavit of Mr. Balaji Vasudeo Athavale that the Chitpavan sub-section of the Maharashtra community is a community by itself having peculiar characteristics which distinguish it from other communities forming part of the larger Maharashtra community. That being so, I am also of opinion that the testator having described himself as a Chitpavan Brahmin (Hindu) meant by the words 'my community', not the Hindu community, nor the Brahman sub-section of the Hindu community, which may itself be regarded as a community, but the Chitpavan sub-section of the Maharashtra community which in itself, as I find, comprises a number of smaller communities differing in certain material characteristics from one another. Accordingly being of opinion that oral evidence was inadmissible, I rejected the same.

19. Thereupon Mr. Tendulkar said that he did not wish to adduce any further argument on. the terms of the will as it stood. Mr. Somjee, however, submitted further that the real test as to the meaning of the word 'community' in the will was a religious test, andi a religious test only. He argued that the true meaning of the words 'my community' in the will is the Maharashtra community, and that the sub-divisions thereof ought not to be treated as communities. I cannot accede to this argument. In my opinion the true view of the matter is that the Hindu community forms, if I may say so, the outer circle and within that outer circle there are various inner circles which narrow and narrow constituting sub-communities of the all-embracing Hindu community, the sub-divisions themselves constituting separate communities with different characteristics.

20. I answer the questions submitted as follows:

The words 'my community' used by the testator in Clause 3(e) of this will refer to the Chitpavan Brahmin (Hindu) community, and not to the Dakshini Brahmin community as a whole.

21. As regards costs, I make no order as to the costs of defendants Nos. 2, 3 and 4 inasmuch as by the terms of the order of July 27, 1938, these defendants undertook not to claim any costs from the plaintiffs, or from the estate of the deceased in any event. As regards the costs of the plaintiffs the order which I make is that they should get their costs as between attorney and client out of the trust fund of Rs. 50,000.


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