1. The main question for consideration in this appeal is whether the parties are governed by the Lex Loci or by the personal law of the parties.
2. The question arises in this manner. It is no longer disputed, though it was in contest in the Courts below, that one Jagan Mahar owned the house in dispute which is situate at Rajnandgaon. He had by his wife Gujji a son, Mangya, and three daughters, Kamalji, Bhagi and Kisni. It transpired that Mangya, Bhagi and Kisni predeceased Jagan, who died in 1929 leaving behind him surviving his widow Gujji, a daughter Kamalji and two sons of his daughter Kisni, namely, Atmaram and Rajaram. On Jagan's death, the widow Gujji inherited the house. Upon her death in 1936, her daughter Kamalji took the house. Kamalji died on 4 October 1952 leaving a daughter, Bhagirathibai, as her only issue. The suit, out of which this appeal arises, was filed by Bhagirathibai, Jagans daughter's daughter against Rajaram, Jagan's daughter's son, for possession of the disputed house. It was dismissed by the Court of first instance. The lower appeal Court, however, allowed her claim. Rajaram filed this second appeal. He died during the pendency of the appeal survived by his daughter Hirabai who was thereupon brought on record as his legal representative.
3. Initially Bhagirathibai filed a suit for ejectment, but she was allowed to withdraw it with liberty to bring a fresh suit because she had not duly served on the defendant a notice to quit. After doing the needful, she filed the present suit. Subsequently, she was allowed to convert it into a suit for possession grounded on her title to the house. The second suit for ejectment was filed in accordance with the liberty reserved to her under Order 23, Rule 1 (2) of the Code of Civil Procedure. Therefore, the question here is not whether a suit based on title grounded on a different cause of action could be filed. Order 23, Rule 1 of the Code does not interfere with the liberty of filing such a suit. The precise question is whether the suit for ejectment, as subsequently laid, could be allowed under Order 6. Rule 17of the Code to be converted into a suitfounded on title. The powers of allowing an amendment under Order 6, Rule 17 of the Code are very wide because the proviso in the old section, which inhibited an amendment that changed the character of the suit, is no longer there. No question of limitation was involved and the defendant was not prejudiced in any way. In this situation, the amendment which the Court allowed was within its jurisdiction. Since the point was not argued before me, I do not consider it necessary to dwell further on this aspect of the matter.
4. On the main question, the plaintiff pleaded:
'..... Jagan died in or about the year1929 and his property was inherited by his widow Mst. Gujji as the parties are Maharashtrian Mahars and they are governed by the Bombay School of Hindu Law. Mst Gujji thus became the actual owner of the property inherited by her from her husband.' In answer, the defendant stated:
'The parties are Mahars. They have been living in Rajnandpaon for last more than a century. It is denied that they are governed bv Bombay School of Hindu Law. It is denied that the rule regarding the taking of absolute property by daughters in Bombay is applicable to the community to which the parries belong. That rule was not adopted by the Mahars of the Bombay Presidency even in Bombay. It is denied that, among the community to which the parties belong, the daughter takes an absolute estate either by adoption of the Bombay School of law of inheritance or by any custom or even otherwise'.
5. There was, it will be seen no specific plea that the plaintiff's predecessors had, at some time in the past, migrated from any State or region where the Bombay School of Hindu Law was in force or that they had carried with them their personal law. No issue was, therefore, framed on this particular aspect of the matter. Even so, it may well be regarded as covered by the general issue whether the parties are governed by the Bombay School of Hindu Law. The point is that both parties fully knew and understood what the real issue was and also led evidence in support of their contentions. That being so, none of them could be regarded as having been taken by surprise or prejudiced in any manner. In this situation, there was, even in the absence of a specific issue on the point no mis-trial such as might vitiate the decision: Nagubhai v. B. Shama Rao, AIR 1956 SC 593, Kame-sharamma v. Subba Rao, AIR 1963 SC 884 and Kunju Kesavan v. M. M. Philip, AIR 1964 SC 164. Indeed even when there is no specific plea but the matter is covered by an issue by implication and the parties go to trial with full knowledge that the plea is involved in the trial and adduce evidencethereon, the absence of the plea is a mere irregularity which did not cause any prejudice to the parties, AIR 1956 S C 593 and Bhagwati Prasad v. Chandramaul, (1967) 1 SCJ 666: (AIR 1966 SC .735). In the last mentioned case, the Supreme Court observed :
'If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case'. (Page 670 of SCJ) = (at p. 738 of AIR).
6. Upon a consideration of the evidence, the lower appeal Court found the following facts well established:
(i) The parties are, by caste, Mahars,
(ii) They had settled at Rajnandgaon after migrating from Nagpur and Bhandara districts.
(iii) It was not proved that they had migrated from any place where the Bombay School of Hindu Law is the Lex Loci.
(iv) The parties speak Marathi language,
(v) They dress in Maharashtrian style.
(vi) they follow Maharashtrian social customs and manners.
(vii) They worship Maharashtrian Gods, visit Maharashtrian religious places and observe Maharashtrian festivals.
(viii) They have adopted some local social customs and manners also.
7. Russel, in his Tribes and Castes of Central Provinces, stated that the customs of Mahars showed that they were the earliest immigrants from Bombay into the Berar and Nagpur plain. (Volume IV, page 132). The same view was expressed in the 'Central Province Ethnographic Survey, Part IX, Draft Articles of Maratha Castes, 1911'. In the Chapter on Mahars, the following observations were made:
'These customs tend to show that the Mahars were the earliest immigrants from Bombay into the Berar and Nagpur plain. excluding of course the Gonds and other tribes, who have practically been ousted from this tract'.
It would, therefore, appear that Mahars had originally migrated from the Bombay region, After they settled in Berar and Nagpur plain, they migrated into other tracts including Chhattisgarh.
8. The leading case on the point is Kesheo Rao v. Sadasheo Rao, ILR 1938 Nag 469 - (AIR 1938 Nag 163). Bose, J. (as he then was) referred to the decision of the Privy Council in Balwant Rao v. Baji Rao, 16 Nag LR 187 = (AIR 1921 PG 59) and observed:
'It must follow from this that the Mayukha did not create the Bombay view and that even though it was written by Nilkanth in the seventeenth century, he merely recited the customs and usages which he found in vogue around him, and knowing 'the tenacity with which oriental races cling to their age-long tradition it can only mean that this was always the law of the Maharashtri-ang, whoever they were, wherever they came from.
If that is so, then wherever we find a family clinging to its individuality and retaining its identity as Maharashtrian, it must be presumed until the contrary is shown that it nailed from the race or group of people known as Maharashtrians and carried the law of Maharashtra with them -- the law which according to the reasoning of their Lordships has always been their law and which has been as characteristic of them as their racial or communal identity, as distinct as their name.' (Page 477-8 of ILR) = (at p. 1967 of AIR).
9. The learned counsel for the appealing defendant distinguished ILR 1938 Nag 469 = (AIR 1938 Nag 163) (supra) on the ground that it related to Maharashtra Brahmins and referred to a number of contrary decisions about lower castes. In Rajeshwar v. Kesheo, 1944 Nag LJ 291, Dhanoje Kunbis of Chanda who had merely adopted the Marathi language, were not regarded as of Maharashtrian origin. In Ramlu v. Vithal, ILR 1947 Nag 267 = (AIR 1947 Nag 180) migration of Komtis from the region where the Madras School of Hindu Law applies was not proved. As held in Bhaskar v. Laxmi-bai, ILR 1953 Nag 187 = (AIR 1953 Nag 326) there was no presumption that Khaire Kunbis of Nagpur, who spoke Marathi language, had migrated from Maharashtra. It was held in Sonabai v. Lakshmibai, ILR 1956 Nag 980 = (AIR 1957 Nag 76) that Halbi Koshtis were of eastern rather than western origin and the mere fact that they had adopted Marathi language would not bring them under the Bombay School of Hindu Law. In Ramaji v. Manohar, AIR 1961 Bom 169 all that was said was that the parties were Marathi Telis and there were other circumstances contra-indicating that the Bombay School of Hindu Law applied to them. It was, therefore, held that they were governed by the Benaras School. It will be readily seen that all these cases are distinguishable mainly because it was not found in these cases that the parties could be identified as characteristically or peculiarly Maharashtrian by their language, dress,customs, ' manners, festivals, observances, Gods they worshipped, the places to which they pilgrimaged and the like.
10. In the present case, the parties claim to be Maharashtrian Mahars. As already stated, there are indications that their ancestors had immigrated from the Bombay region into Nagpur and Berar plain, though migration of the family, in the sense of its exact origin, is not proved. Even so, as found by the lower appeal Court, the family is retaining its identity as Maharashtrian by clinging to its language, dress, socia] customs and manners, mode of worship and the like. That being so, it must be presumed, until the contrary is shown, that the family had migrated from the Bombay region. I have already referred to the case of ILR 1938 Nag 469 = (AIR 1938 Nag 163) (supra) as the leading authority on this point. The same view was taken in Udebhan v. Vikram. AIR 1957 Madh Pra 175 and Anjubai v. Ramchandrarao, AIR 1960 Madh Pra 382 also. The last mentioned case related to a Maratha family of Chhattisgarh and the Bombay School of Hindu Law was applied to that family in circumstances mostly similar to those present in this case. It only remains to be mentioned that here the defendant made no endeavour to rebut the presumption mentioned in Kesheo Rao's case, ILR 1938 Nag 469 = (AIR 1938 Nag 163) (supra). I therefore, agree with the conclusion of the lower appeal Court that the parties are governed by the Bombay School of Hindu Law.
11. Since it is not disputed that, under the Bombay School of Hindu Law, the claim of Bhagirathibai must succeed, this appeal fails and is dismissed with all costs throughout on the appellant. Hearing fee according to schedule.