Lindsay and Kanhaiya Lal, JJ.
1. This appeal arises out of a suit brought by the plaintiff appellant for the recovery of possession of certain property and for an account of the profits thereof on the allegations that the said property belonged to Balmukand; that he was succeeded by his two daughters, Musammat Godavari and Musammat Gopi, and that on the death of Musammat Gopi, the entire property devolved on Musammat Godavari, the mother of the plaintiff. On the death of Balmukand, mutation of names was effected in respect: of the property left by him, in favour of Musammat Godavari and Musammat Gopi. Musammat Gopi died in Sambat 1935', leaving a son, Moti Lal, who died three years later. The defendant Jarau Lal is the son of Moti Lal; and the other defendants, Panna Lal and Hira Lal, are his grandsons.
2. On the 31st of December, 1899, a partition is said to have been effected between Musammat Godavari and her sons, Jawahir Lal and Ganeshi Lal, on the one hand, and Jarau Lal, the grandson of Musammat Gopi, on the other, and a deed of partition was executed and registered at Aligarh in evidence of the same.
3. Ganeshi Lal died childless in Sambat 1961. The allegation of the plaintiff was that after the death of Musammat Gopi, Musammat Godavari became entitled, according to the Mitakshara law, to the entire estate left by her father; that her grandson Jarau Lal was brought up by Musammat Godavari, who treated him with great affection, and that the above deed of partition was obtained by Jarau Lal from Musammat Godavari by misrepresentation of facts and concealment from her of her real rights. It was also stated that the deed in question was not explained to her; that she had no independent advice, and that the plaintiff and his brother Ganeshi Lal were kept ignorant of their rights and of the arrangement then being made. It was further alleged that at the instigation of Jarau Lal, the plaintiff and his brother Ganeshi Lal were compelled by Musammat Godavari to sign the deed, and that the deed was without consideration and invalid and unenforceable.
4. The defence was that the parties were governed by the Mayukha law, which prevailed in Gujerat, their original home; that Miisammat Gopi got an absolute estate in the property inherited by her from her father and that the defendants were entitled to that property in succession to Musammat Gopi and her son Moti Lal. It was also urged that the deed of partition of the 31st of December, 1899, was executed by Musammat Godavari and the plaintiff and his brother by their free consent, without any misrepresentation or undue influence; that the said partition had been acted upon since 1899 and that the plaintiff was estopped from questioning its validity. It was further pleaded that the claim was barred by limitation. It is not necessary to go into the other pleas raised in the suit.
5. The court below found that, although no authentic history of the migration of this family from Gujerat was traceable, it was more than probable that it left Gujerat after the advent of Nil-Kanth in the 16th century; that the family came and settled in Aligarh about 150 years ago and continued to observe its original customs and practices, and that it was governed by Mayukha law, according to which a daughter was entitled to take an absolute estate in the property inherited by her from her father. It further found that Musammat Godavari and the plaintiff and his brother executed a deed of partition after fully understanding its terms, and, in doing so, acted after mature deliberation and in accordance with the advice of old men of their caste and their relations and friends, and that the deed operated as a family settlement and was valid and binding on the parties. It also held that the plaintiff was estopped by his conduct and acts, and that the claim was barred by limitation.
6. The main question for consideration is whether the family is governed by the Mitahshara law or by the law which prevailed in Gujerat before the family migrated to these provinces, or, in other words, whether, according to the law applicable to the family, a daughter is entitled to an absolute estate.
7. The parties are Nagar Brahmans, whose original home was in Vadnagar, a large town in the Baroda State. From Vadnagar a section of the Nagar Brahmans proceeded to Idar and settled there, and that section thereafter came to be called Idaria Nagars. From Idar they subsequently migrated to different places but at what period of time it is not possible to say. There is some evidence to show that the family to which the parties belong lived at one time in Banswara, Bundi and Kotah in Rajputana, and that Dina Nath, the earliest known ancestor of the family, moved from Muthra to Amroha and from Amroha to Aligarh, where a grove was planted by him, which is still in existence. The grove is said to be about 150 years old and goes by the name of Dina Nath's grove. The family can, therefore, be said to have settled in these provinces some time about or before that period, that; is, about 150 or 200 years ago.
8. It is practically admitted by the witnesses of both the parties that after the family migrated from Gujerat and settled in these provinces, it continued to observe its original customs and practices in the matters of births, marriages and deaths. At home the Gujerati language is used; and marriages are celebrated outside the gotra even within 4 or 5 degrees. The ceremonies and ritual observed on occasions of births, marriages and deaths are those which used to be observed in their original home in Gujerat. There is nothing to show that they departed in any way from their old practices or customs or adopted the law which prevails in these provinces after they settled here. It is well-settled that the law of succession is, in any given case, to be determined according to the personal law of the individual whose succession is in question. Prima facie, any person governed by the Hindu law is held to be subject to the particular doctrines of the Hindu law recognized in the provinces in which he is residing. That law becomes the personal law and part of the status of every family residing in it. Consequently where any such family migrates to another province governed by another law, it carries its own law with it. (Mayne's Hindu Law, paragraph 48).
9. In Parbati Kumari Debi v. Jagadis Chunder (1902) I.L.R. 29 Calc. 433 and Balwant Rao v. Baji Rao (1920) L.R. 47 I.A. 213, their Lordships of the Privy Council held that where a family migrated from one territory to another and preserved its ancient ceremonies and practices, the presumption was that 'it also preserved its personal law of succession, unless there was a proof of the renunciation of the original law for that of the place migrated to. The reason for the rule is that the Hindus being notoriously conservative in the matter of religious observances and rites, it is extremely improbable that the family which migrates would change its personal law, with which its religion is intimately connected. It is important, therefore, to inquire what the law governing the Nagar Brahmans was in their original home in Gujerat and whether the same has been followed after they migrated to and settled in these provinces.
10. The Vyavahar Mayukha is considered to be a work of paramount authority in Gujerat. It was written by Nil-Kanth, a Mahratta Brahman, residing in Benares, sometime in the 17th century, and forms a part of a la.rger treatise called Bhagwant Bhaslmra, which was written under the direction of King Bhagwant Varman of the Sangar dynasty, who flourished in Bundelkhand and whose capital was situated in Bhareha at the confluence of the Ghambal and the Jamna. The Bhagwant Bhashara is divided into 12 books, one of which deals with Vyavahar or recognized law and usage. A branch of the family of Nil-Kanth was settled in Poona. The work soon obtained considerable celebrity in Mahratta country and some of the adjoining territories, and was early recognized as a standard work of authority on the subjects with which it dealt. (Sarvadhicari's Hindu Law of Inheritance, second edition, page 311). The quotations frequently made by the Shastris attached to the courts in Bombay and Gujerat in their vyavasthas or opinions show that it was considered by them as an authentic source of the written law on the matter. (West and Buhler's Hindu Law, 4th edition, page 12). Indeed, as observed by their Lordships of the Privy Council in Bai Kesserbai v. Hunsraj (1906) I.L.R. 30 Bom. 431, where the Mitakshara and the Mayukha do not harmonize, the latter takes precedence of the former.
11. The Mayukha does riot specifically discuss whether a daughter takes a mere life-estate or an absolute estate in the-property inherited by her from her father. All that it says is:
In default of her (the wife), the daughter succeeds; for says Manu (ch. 9, v. 130): 'The son of a man is even as himself and the daughter equal to the son. How then can one inherit (his wealth) but she, who stands as it were himself?' If there are more daughters than one, they should divide the wealth and take Bhares (Mandlik's Vyavahar Mayukha, page 79).
12. Nil-Kanth allows a similar division in the case of co-widows, so that the right to divide carries by itself no particular significance. The citation from Manu that, 'the son of a man is even as himself and the daughter is equal to the son' has been taken to mean that like a son, a daughter takes an absolute estate. But the citation is not followed by any comments by the author himself as to the nature of the estate inherited by a daughter, and while it is remarkable that what Manu said was, judging by the context, said with reference to a putrika or appointed daughter (Buhler's Laws of Manu, page 352), both the authors of the Daya Bhaga and the Vyavahar Mayukha utilize it for the purpose of strengthening their contention that a daughter was entitled to inherit, in the absence of sons, in preference to the more distant relations. Probably the practice of killing daughters at the time of their birth or of excluding them from inheritance was at that time coming into fashion and attracting attention.
13. Anyhow, whatever the intention of the author of the Vyavahar Mayukha in citing that passage from Manu was, from as far back as 1859, if not earlier, the view attributed to the Vyavahar Mayukha, namely, that a daughter is entitled to an absolute estate has been accepted and enforced in Gujerat.
14. In one of the earliest cases the old Supreme Court of Bombay, after decribing Manu, the Mitakshara and the Vyavahar Mayukha as the books of chief authority in that part of India, observed:
Now according to all the authorities the daughters take next after the widow; what then is the nature of the estate they take? Hero again there Tire differences of opinion; but dealing with the question according to the three books I have mentioned, it appears to me that the daughters take an absolute estate. We find quoted in the Mayukha a passage from Maim--'The son of a man is even as himself and the daughter is equal to the son; how then can any other inherit property, but a daughter, who is, a3 it were, himself?' With reference to this point also I consulted the Shastris both here and in Puna and enquired whether daughters could alienate any, and what, portion of the property inherited from a father who died separate. The answer was that, daughters, who so obtained, could alienate it at their will and pleasure; and in this the Shastris of both places agree, both also referring to the above text in the Mayukha as their authority for that position. Pranjivan Das v. Devkuvar Bai (1859) 1 Bom. H.C. Rep. 130 (133).
15. In Hari Bhat v. Damodar Bhat (1878) I.L.R. 3 Bom. 171 and other cases, the same view was adopted, and it has recently been affirmed by their Lordships of the Privy Council in Balwant Rao v. Baji Rao (1920) L.R. 47 I.A. 213 (223).
16. An attempt has been made on behalf of the plaintiff to establish that the family migrated from Gujerat long before the Vyavahar Mayukha was written, that is about 800 years ago; but the oral evidence produced on the point--and that is the -only evidence here produced on the point--is not worth serious consideration. Even if adequate materials had existed, it may be well to remember, what Lord Dunedin pointed out, that the commentaries are only commentaries; they do not enact; they explain and are evidence of the congeries of customs which form the law: Balwant Rao v. Baji Rao (1920) L.R. I.A. 213 (227).
17. In a case relating to a family of Ahban Thakurs, who had originally come from Gujerat and settled in Oudh many centuries ago, their Lordships of the Privy Council similarly said:
Although the migration may have taken place before the Mayukha was written, it may well be that the rule was in force in earlier times and that on this point the Mayukha only embodied and defined a pre-existing custom. Chandika v. Munna (1901) I.L.R. 24 All. 273.
18. In any event it is important for the purposes of this case to inquire what the practice among the Nagar Brahmans in Gujerat was and has been during the last century in regard to the right of survivorship between the daughters of the last male holder in the case of the death of any of them, with or without issue. A large number of instances have been cited on behalf of the defendants, extending from the time of Pana Nath, the common ancestor of the parties.
198 tif missing.
devolved on her sons, Shiam Lal and Labh Shankar, although the elder, who is married to the witness, is still living. He also states that Gomti Lalji had a son, Anand Lalji, whose estate devolved on his death on his sister, who is married to the witness; but it is not clear whether Anand Lalji had died in the life-time of his father or not, for the estate of Gomti Lalji could not have otherwise devolved on his daughters.
25. Sundarlalji, a Nagar Brahman of the Banswara State, deposes that his father-in-law Jikaji had 3 daughters who got his property. One of the daughters was dead. Her share devolved on her daughter's daughter, who is alive, although the other two daughters of Jikaji are still living. He also states that Nukoji Madho Lal died leaving two daughters named Musammat Monghi and Musammat Lurki, and that, on the death of the latter, her share devolved upon her son Kanhaiya Lal.
26. Nathu Lalji of the Banswara State deposes that Khara Lal had two daughters, Musammat Rasili and Musammat Parbati, who got his estate; and that on the death of Musammat Par-bati, her four daughters got her estate, and Musammat Rasili, who was alive, laid no claim to her sister's property. He also mentions that when his father-in-law, Ganga Lal, died, his four daughters inherited his property, and that on the-.death of one of those daughters, her daughters, named Musamma'ts Pashyawati and Gulawati, became the owners of the share which she had inherited from her father, although the other daughters of Ganga Lal were alive.
27. Gurwant Rai, a Nagar Brahman practising as a vakil in the Baroda State, says that the Vyavahar Mayukha is followed in the Baroda State, including Vadnagar, the original home of the parties, and he cites several instances in which daughters got an absolute estate.
28. Desai Dullabji of Patan had three daughters who got the-estate of their father. There was litigation in this matter but the absolute right of the daughters to the estate inherited from their father was upheld by the Baroda State.
29. Daulat Rao of Patan had two daughters, Musammat Champa Kuar and Musammat Birmati, who similarly got an absolute estate in the property inherited from their father.
30. Madho Rai had two daughters, Musammat Ishwari and Ifesammat Shambhu, who got the estate oi their father. On the death of Musammat Shambhu, her share devolved upon her son Babu and not on her sister who was alive.
31. Jado Lal of Patan had three daughters, Musammat Tara, Musammat Jai and Musammat Tribeni, who got his estate. Of these Musammat Tara died first and her share devolved on her four sons, though her sisters were alive. Dhaya Bhai of Ahmedabad deposes that if a Nagar Brahman dies, leaving two daughters behind him, they become the owners of his estate; and if one of the daughters subsequently dies, then her descendants will be the owners of her share in the estate and not her sister though she may be alive. He cites several instances.
32. Magut Ram had three daughters, Musammat Baba, Musammat Nani and Musammat Parbhaya, who inherited the estate. Of them the last-named died first and her husband entered into possession of her share in the estate. Then Musammat Baba died and her son Manjubhai got possession of her share. When Musammat Nani died, her three sons got her estate. Hari Lal left two daughters, Musammat Dhanba and Musammat Atanba, who inherited his estate. On the death of Musammat Dhanba, her son Magan Lal inherited her share. When Musammat Atanba died, her share devolved on her sons, Pirthi Bai and Nannu Bhai. Again Kesho Lal left two daughters, Musammat Bhomi Ben and Musammat Ohannu Ben, who inherited his estate. On the death of the former, 2 or 3 years ago, her sons Anand Lal and Himmat Lal got her share, though Musammat Channu Ben was alive.
33. Vireshwar had two daughters, Musammat Sada Lakshmi and Musammat Dawali Ben, who inherited his estate. The former died first and her son Uttam Lal inherited her share. 'The latter died two or three years later and her share devolved on her daughter, Musammat Munni Ben. Hardeo Bam had two daughters, Musammat Ganga Lakshmi and Musammat Jasba Ben. Of these the former died first and her husband got her share in the estate. Four or five years later Musammat Jasba Ben died, and her sons Basik Lal and Basant Lal became the owners of her share.
34. Bhaskar Lal, a pleader of Ahmedabad belonging to the Vadnagar community, corroborates the previous witness with regard to two of the instances cited by him and adds that Moti Lal of Ahmedabad died, leaving two daughters Musammat Majanba and Musammat Anandba, who inherited his property, which included among other things certain plots of land situated at Godhrahi in the Panchmahal district, and that both of them sold certain property out of what they had inherited, without the validity of the sale having been contested by any of the agnates of Moti Lal, who were alive.
35. Jayendra Rai, another pleader of Ahmedabad belonging to the same community, deposes that his maternal grandfather Trikam Lal died, leaving two daughters named Musammat Jai Lakshmi and Musammat Umia Lakshmi, who inherited his property, that his mother Musammat Jai Lakshmi died first, and that he and his brother inherited her property as her sons, although Musammat Umia Lakshmi was then and is still living. He confirms the statement of Dhayabbai in regard to the manner in which the property of Vireshwarji of Ahmedabad devolved on his two daughters and on the death of one of them her share devolved on her son Uttam Lal in the life time of her sister.
35. Dr. Mukand Rai of Ahmedabad states that Hari Lalji died, leaving two daughters, Musammat Mani Ganga and Musammat Hari Ganga, and on the death of the former in 1906, he and his brother inherited her share as her sons, though Musammat Hari Ganga was alive. He further states that the share of Musammat Hari Ganga devolved on her death in 1917 on her two daughters Musammat Ganwant Bai and Sanwal Bai.
36. Mr. Anand Shankar, the Principal of the Hindu University, Benares, deposes that the parties belong to his caste, and that in Gujerat the Mayukha is followed in preference to the Mitakshara where the two conflict, and that the daughters inherit an absolute estate from their father.
37. Sheo Lal, another pleader of Ahmedabad belonging to the same community, corroborates some of the previous witnesses with regard to four of the instances cited by them. Makund Rai, another pleader of Ahmedabad belonging to the same community, states that his maternal grandfather, Hari Shankar, died, leaving a widow and three daughters, and on the death of the widow, his three daughters inherited his property, and that when one of the daughters died, he and his nephews inherited her share as her heirs. He further states that when another daughter died, her interest was inherited by her two daughters.
38. Ishwar Rai of Patan cites three instances from his city wherein daughters inherited an absolute estate. Lie states that Dasai Dullabji had three daughters, Musammat Dhan Lakshmi, Musammat Sri Lakshmi and Musammat Hira Lakshmi, who inherited his estate. Musammat Hira Lakshmi died first another share devolved upon her sons, Moti Nath and Rang Nath. Then Musammat Dhan Lakshmi died and her share devolved on her sons Shambhu Chand, Nanda Chand and Moti Chand. The third daughter Musammat Shri Lakshmi is still alive. He also states that Desai Amidhar had 3 daughters, Musammat Swagata, Musammat Alankrita and Musammat Panaika, who inherited his estate, and on the death of Musammat Swagata, the eldest of them, her share devolved upon her son, Nawal Shankar, though the other daughters of Desai Amidhar were alive.
39. The remaining instance cited by him is that of Madho Rai which has already been mentioned by some of the other witnesses.
40. Naunidh Lal of Jhalrapatan states that his maternal grandfather had a brother, Amba Shankar, who had a daughter, Musammat llasturi Bai, and that on the death of that daughter, her daughter got her estate.
41. There are thus in all about 30 instances showing that among Vadnagar Nagar Brahmans, the daughters inherit an absolute estate and that on the death of one of the daughters, her share does not go by survivorship but devolves on her own issue. There is no proof of any cogent instance to the contrary. Most of the witnesses adduced by the plaintiff are persons belonging to other castes, who could not have possessed any accurate knowledge as to the customs and practices prevailing in the Nagar Brahman community. Most of those, who belong to that community, merely make vague and general statements without citing any specific instances in proof of what they assert. The only witness who has made an attempt to cite some instances is Jani Itcha Shankar of Aligarh. He states that the Nagar Brahmans of the United Provinces and Rajputana do not write the names of their fathers after their names, and that, unlike what they do in Gujerat, the ladies of their families observe purdah; but he forgets that the difference of surroundings is often responsible for a change of habits of that kind. There are, for instance, many people, who, following the English method, describe themselves by their surnames and their full or real names are often unknown to the outside world. He states that the daughters of Kameshwarji of Kotah were Musammat Dhan Knar and Musammat Phul Kuar, and that on the death of the former the other got the whole of his estate; but he is refuted on that point by Naunidh Lal, a descendant of Kameshwarji, and many other witnesses.
42. Naunidh Lal explains that Kameshwarji was a jagirdar of Kotah; and he adopted Nathu Lal, the son of his daughter, in order that the jagir might continue in the family, inasmuch as no ladies were allowed by the State to get the jagir. The, adoption, if made, did not, however, affect the devolution of the other property, which as stated by Naunidh Lal devolved on the daughters of Rameshwarji and on their descendants in succession. He admits that Jhamman Lal Jha of Benares had three daughters, Musammat Jamna Kuar, Musammat Jugli Kuar arid Musammat Manni Kuar, and that on the death of the first-named, her sons got her property. He suggests that Jhamman Lal Jha left no money or ornaments and lived in a house on rent; but he goes on to say that when Musammat Manni Kuar and her daughter died, he wanted that her mother, Musammat Jugli Kuar should get all the property, but he took no steps to enforce his claim. He also mentions that Jagari Nath Jha of Benares left three daughters, Musammat Chameli, Musammat Manki and Musammat Jamna Kuar, and that when the last-named died childless, her sisters got her property. He, however, admits that she had no other relative alive and that on the death of Musammat Chameli, her sons got her property, and on the death of Musammat Manki, her son got her share.
43. There can be no stronger instance the other way than that of the daughters of Dina Nath, already referred to; for, on the death of one of the daughters of Dina Nath, the ancestor of the parties, the grove left by Dina Nath was divided between her son Lajja Shankar and his surviving daughter. There are 19 instances of similar succession from Ahmedabad, six from the Banswara State, one from. Aterbhind, and the rest from Eajputana and the United Provinces.
44. On behalf of the plaintiff some stress has been laid on the decision in Lakshmi Ram Jani v. Hari Ram Dube (1919) 52 Indian Cases 25, but in that case the question related to the right of succession to a stridhan; and though the family was found to have migrated from Gujerat to Jaipur and from Jaipur to Benares, about 100 or 150 years ago, no instance of succession under the Mayukha law had been deposed to by any of the witnesses examined in the case; and that was treated as a fact of some significance, for the family was a big one and instances might have been expected to be forthcoming, if the Mayukha law had applied. Here an instance from the very family to which the parties belong has been proved and established beyond the possibility of doubt by the oral and documentary evidence adduced; and, corroborated as it is by a large volume of evidence coming from Gujerat and Rajputana, the presumption that the family brought its personal law when it migrated from Gujerat to these provinces, stands affirmed; and the claim of the plaintiff to the property, which Musammat Gopi had inherited from her father, must, therefore, fail.
45. The subsequent conduct of Musammat Godavari and her sons, Jawahir Lal and Ganeshi Lal, in agreeing to a partition of the property left by Balmukand and Jarau Lal, the son of Musammat Gopi, further supports the same conclusion. There is evidence to show that Musammat Godavari thoroughly understood what she was doing when she executed the deed of partition of the 31st of December, 1899. The deed was written after the plaintiff had an opportunity of consulting a pleader, who is dead and could not be produced. After the death of Onkar Lal, the husband of Musammat Gopi, the plaintiff claimed the entire property belonging to Balmukand, relying on the Mitakshara law in support of his claim. A dispute arose and the parties sought the intervention of some members of the caste at Aligarh. They settled that Musammat Godavari and the present defendant should divide the property half and half, and got the latter to pay Rs. 7,000 to the plaintiff in order that all possibility of litigation might be obviated and the matter finally closed. In accordance with that settlement a deed of partition was drawn up with the full consent of the plaintiff and his brother Ganeshi Lal. The Sub-Registrar went over to the house of Musammat Godavari; and there he read and explained the deed to her, and there can be no doubt that neither the plaintiff nor Musammat Godavari was under any misapprehension as to the effect of the transaction into which they were entering. The learned Subordinate Judge rightly characterized the evidence produced by the plaintiff as unreliable. The demeanour of the plaintiff in the witness-box. was found to be unsatisfactory; and, as the learned Subordinate Judge points out, he went on saying anything on the spur of the moment to fit in with his case. There was clearly a bond fide dispute between the parties as to the nature of their rights. That dispute was amicably settled and a large amount was paid by the defendant Jarau Lal to the plaintiff and his mother to set the matter at rest.
46. Section 6 of the Transfer of Property Act has no application because, as pointed out by their Lordships of the Privy Council in Kanhai Lal v. Brij Lal (1918) I.L.R. 40 All. 487 (495), there is no question here of any conveyance of, or of an agreement to convey, any future right or expectancy or of an agreement to relinquish any such right or expectancy. Musammat Gopi had an absolute interest in the share which she had inherited from her father. The claim laid by Musammat Godavari and the plaintiff to that share was set at rest in the manner settled by the parties and entered in deed of partition aforesaid. That partition has since been acted upon, mutation of names was effected in accordance therewith and the parties have enjoyed their respective shares in accordance with the allotment then made. The claim is now barred by limitation. The other pleas have not been pressed.
47. This appeal, therefore, fails and is dismissed with costs.