1. Vikram and Lahanu were real brothers, residing separately. Lahanu died, leaving his daughter Mst. Radha, who came in possession of Khasra No. 13/1, area 1.94 acres of mouza Khedi Pandewar, Tahsil Sausar, District Chhindwara. On 2nd April 1948 Mst. Radha sold the said field to Udebhan (appellant) for a sum of Rs. 2,000/-.
The plaintiff Vikram, who is now dead and whose legal representatives are three respondents before me, challenged the alienation saying that the family was governed by the Benaras School of Hindu Law and Mst. Radha was the limited owner and could not effect the permanent alienation of the field in suit and that there was no legal necessity for effecting such a transfer.
He, therefore, filed the suit for possession of khasra No. 13/1. The defendant (appellant) contended that the family of Mst. Radha belonged to the Maharashtrian Teli community and that they migrated from Berar; hence they were governed by the Bombay School of Mitakshara Law. He also said that the field in question was sold by Mst. Radha for legal necessity.
2. The trial Court took the view that Mst. Radha and her father Lahanu were governed by the Bombay School of Mitakshara Law, and dismissed the suit. On the other hand, the first appellate Court has taken the view that the lex loci, that is, the Benaras School of Hindu Law will govern the parties; As there was no legal necessity, the first appeal has been allowed and the suit of the plaintiff has been decreed. The defendant Udebhan now comes in second appeal before this Court.
3. I need not go through the evidence, as it is well settled that Vikram and Lahanu and the family are Maharashtrian Telis, that they speak Marathi language and that the family follows the manners and customs prevalent amongst the Marathas and the Maharashtrian Brahmins, that whenever Lahanu went on pilgrimage and whenever any member of the community went on, pilgrimage, they went to Pandharpur, that their sir name was Madankar, that they have relations in Berar and that their women-folk wore saris which are on the lines of the Deccan Maharashtrian Brahmin ladies.
It is also evident that the family resides at Marud, a village only two miles away from the border of Morsi Tahsil of District Amravati in Berar. On the facts, alluded to above, the question will arise : Can it be held without anything more that the family should be governed by the Bombay School of Hindu Law? It may be noted that in the Bombay School, the daughter inherits an absolute estate from the father.
4. I may add here that Volume IV of the Tribes and Castes of the Central Provinces of India by Russell relating to Tellis does not help to solve the question. I, therefore, referred to the Chhindwara District Gazetteer, where at page 55 it is observed :
'... in Sausar (Tahsil) there is a strong Maratha element from the adjoining territories of Nagpur, Wardha and Berar.'
5.There are several decisions of this Court on the point. The first decision is reported in, Hiralal v. Mt. Tani Bai and Jagram Sav. 2 CPLR 18(A), which was a case from district Balaghat, where it was observed that the parties must be taken to be governed by the Benaras School of Law, as that School is followed here unless there is express evidence of a local usage modifying it.
6.The second case is Deorao Zamindar v. Mt. Sakhu Bai, 11 CPLR 49 (B). This rase also came from District Balaghat. It is round at page 53-54 that Hira Lal v. Tani Bai (A) (cited supra) has been followed in laying down that the Panaras school of law is to be the ordinary lex loci.
But it Is clearly observed that in other cases so far as the Districts of Wardba and Nagpur were concerned, it was laid down in those cases that the school of law prevailing was the Maharashtra school if persons were of Mahratta origin, and in a case Mr. Neill said that there was no reason why the same rule 'should not apply to other Mahrathas settled in these parts'.
In Ganno v. Beni, AIR 1917 Nag 7 (C), this view was reiterated that the Benaras School of Hindu Law is the lex loci of the Central Provinces that of the Bombay School being applied only to Maharatta Biahmins in Nagpur and other cases where it is specially found to be applicable. In Rambhabai v. Totaram, AIR 1923 Nag 188 (D), the principle laid down by the Privy Council in Balwant Rao v. Baji Rao, 47 Ind App 213: (AIR 1921 PC 59) (E), that if nothing is known about a man except that he lived in a certain place it will be assumed that his personal law is the law which prevails in that place was applied.
The case was of Gujars and after tracing the history it was observed that they arrived from Hindusthan and so the Benaras School would be applicable.
7. The case of Mst. Rukhmabai v. Jaipal, AIR 1927 Nag 122 (F), related to the Powers of the Central Provinces. It was found that they did not come from the Bombay Presidency bringing with them Bombay customs, that after their migration they came into close contact with the Bhonsla and the Maharattas and had inevitably been tinged thereby in matters of language, dress, marriage ceremonies and the like. It was, therefore, held that they were not governed by the Bombay School of Law.
8. The case reported in Kesheo Rao v. Sadasheo Rao, ILR 1938 Nag 469: (AIR 1938 Nag 163) (G), is important, as it is a decision of a Division Bench and relates to the Maharashtra Brahmins in District Raipur. The principle laid down is this that wherever a family is found clinging to its individuality and retaining its identity as Maharashtrian, it must be presumed until the contrary is shown that it has led from the race or group of people known as Maharashtrians and carried the law of Maharashtra with them.
Therefore, a Maharashtrian Brahmin, resident in the Central Provinces, should be taken to be governed by the Bombay interpretation of Mitakshara when migration is not proved in the sense that exact origin of the family cannot be traced.
9. In Bhaskar v. Laxmibai, AIR 1953 Nag 326 (H), a Division Bench (Mangalmurti and Deo JJ.) held that there was no justification for saying that all the 'Kunbis' migrated from the Maharashtra. Therefore, there could be no presumption of migration from the Maharashtra to the Central Provinces in respect of each and every kunbi family.
As the lex loci of the Central Provinces was the Banaras School of Hindu Law, it was held that law governed the Kunbis. The case reported in Sonabai v. Lakhmibai, 1956 Nag LJ 725: (AIR 1957 Nag 76) (I), deals with the Halbi Koshtis of the Central Provinces. This is a decision of a Division Bench (Kaushalendra Rao and Deo JJ.).
It was held that the mere fact that parties who are Halbi Koshtis speak the Marathi language or have Maharashtrian Brahmins as priests does not suffice to prove that they had given up their law of origin i.e. the Benaras School.
10. Another case reported in Rajeshwar v. Kesheo Tukaram, 1944 Nag LJ 291 (J), a decision of Grille J. (as he then was) relates to Dhanoje Kunbis settled in Chanda. It was found that they had settled before the Maratha influx at the beginning of the 18th Century, but it could not be said that they were Marathas, although by two centuries and more of intimate association they had adopted the Marathi language. They were, therefore, held to be governed by the lex loci of the Central Provinces i.e., Benaras School.
11. These cases were all from the Districts of Central Provinces, and the principles deducible may be summarized thus:
(1) If nothing is known about their origin Hindus residing in the District of the Central Provinces will be governed by the Benaras School.
(2) If the origin is known to be from north or east, and not from Maharashtra or Gujrat, then also the Benaras School will be applicable to them.
(3) The mere fact that the parties speak Marathi language and have adopted the Maharashtrian mode of living or the Maharashtrian dress will not be factor for being taken into consideration.
(4) But if it is found that a Hindu family is clinging to its individuality and retaining it identity as Maharashtrian, it must be presumed that it hailed from the race or group of people known as Maharashtrians and carried the laws of Maharashtra with them.
12. So far as the Districts of Berar are concerned the Privy Council had clearly laid down in Syed Kasam v. Jorawar Singh, 18 Nag LR 127: (AIR 1922 PC 353) (K), that the law of the Mitakshara is to be interpreted in Berar in the same manner as in Bombay In Sadasheo v. Jaikrishna, 14 Nag LR 6: (AIR 1917 Nag 83) (L), the same view had been propounded that the Bombay School of Hindu Law is also the Hindu lex loci in Berar.
13. The village from which the parties in the instant case come is just on the border between the Central Provinces and Berar and ia hardly two miles from Berar. The question in such cases is: What should be the initial presumption as regards the lex loci? It has been well observed in Sarada Prasanna Roy v. Umakanta Hazari, ILR 50 Cal 370 at p. 389: (AIR 1923 Cal 485 at pp. 491-82) (M), that the Hindu Law is not merely a local law, but is essentially personal law, an integral factor of the status of every family which is governed by it. Strictly speaking there is no such thing as lex loci, since the existence of a lex loci is inconsistent with the existence of personal communal law.
A Hindu is primarily governed by the law of his origin. Persons, who have long lived rooted to the soil of any State and speak the language and follow the customs there prevalent, are governed by the lex loci. If, however, they speak another language and follow different customs, then, in my opinion, a presumption should arise that they migrated from a different territory where the language is different and the prevalent law is different and that their own personal law followed them on their migration. At page 231 of the 'Hindu Code', 3rd Edition, Gour points out:
''The preservation of personal law is the necessary corollary to the preservation of the religious rites and worship with which the Hindu Law is inextricably blended. The question was considered by the Privy Council as far back as 1839 when affirming the finding of the Sadar Diwani Adalat, their Lordships said that in a case where a family migrates from one territory to another, if it preserves its ancient religions ceremonies, it also preserves the law of succession.'
14. In Parbati Kumari Debi v. Jagdis Chunder Dhabal, ILR 29 Cal 433 at p. 452 (PC) (N), their Lordships of the Judicial Committee observed :
'The question of succession now in dispute depends upon the custom of the family; and in families observing the Mitakshara Shastra the brother and not the widow of a childless man takes an ancestral estate. The tenacity of such customs, even under the strain of migration, has been repeatedly recognised by the law in question such as the present. Accordingly the question being primarily one of personal as distinguished from geographical custom, it is of the first importance to inquire into the origin of the family.'
15. In this connection, the following paragraph, as a whole, from a decision of the Privy Council in 47 Ind App 213 at p. 219 : (AIR 1921 PC 59 at p. 60) (E), is both apposite and weighty :
'Of course, if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In that sense only is domicile of importance. But if more is known, then in accordance with that knowledge his personal law must be determined; unless it can be shown that he has renounced his original law in favour of the law of the place to which he migrated.'
16. In Ramlu Naganna v. Vithal, ILR (1947) Nag 267 at p. 273 : (AIR 1947 Nag 180 at p. 182) (O), dealing with the question whether Komtis in Chanda District were governed by the Madras School of Hindu Law it was observed by a Division Bench of this Court :
'A change of territory or boundary adjustments may equally have great significance. An instance of territorial adjustments is furnished by the North Kanara District. When the North Kanara District was transferred to the Bombay Presidency for administrative purposes the Privy Council held in Somasekhara v. Mahadeva, AIR 1936 PC 18 at p. 19 (P), that that was not sufficient to affect the personal law of the residents in North Kanara, 'unless and until it was shown in the case of any resident there that he had intended to change and had in fact changed his personal law.'
The application of law on a provincial basis creates an artificial barrier and in the case of persons living along the border remarkable consequences may follow from the fact that they live on one side of the boundary rather than the other.'
17. In the instant case the family resides just near the border of Berar, If it had been residing just on that side of the border, surely the Vyavahara Mayukh, would have been made applicable to it. Considering that the Maratha or Maharashtrian element in Sausar Tahsil came from Wardha, Nagpur and Berar, though the family's exact origin cannot be traced, still the family's mode of living, its clinging to its individuality and retaining the Marathi language, the Maharashtrian mode of living including dress and religious observances -- all lead to the presumption that the family hailed from the territory known as Maharashtra.
The personal law of the family must, therefore, be determined on the basis of this knowledge. In my opinion, there can be no escape from the conclusion that the Vyavahara Mayukh (and not the Benares School of Mitakshara) must govern the family. In this view of the matter, this appeal would succeed and the trial Court's judgment will have to be restored.
18. In this view of the matter I need not take up the question of legal necessity; but after reading the two judgments of the Courts below, I have come to the conclusion that both of them have gone wrong on this point. Therefore, I think it necessary to say a few words on this point. Issue No. (3) was framed by the trial Court in the following words :
'Was there any legal necessity for the sale in suit and was the sale also for the benefit of the estate?'
The finding is in the negative, but the reasons are peculiar. The relevant portion from paragraph 9 of the judgment of the trial Court may be reproduced here :
'The defendant has contended that the sale was for the benefit of the estate. There is no doubt that soon after the sale in favour of the defendant, Mt. Radha purchased another field quite close to the field of her husband Krishna. The field newly purchased by Mt. Radha being quite close to her husband's field, there was naturally an advantage of more supervision and use of her husband's livestock for the operation of her own fields, but these advantages are not of such important nature as to justify that alienation by Mt. Radha. I doubt very much whether that alienation could have been upheld in case she found to be a limited owner of the field sold by her.'
19. On this point the lower appellate Court has pointed out that a perusal of the sale-deed Ex. D-1 would show that it recites only this much that the field in suit was being sold for purchasing another land. Then the judgment proceeds (paragraph 72) ;
'Mt. Radha sold the entire field that she had inherited from her father Lahanu. It cannot, therefore, be said that the sale was effected fur the benefit of the estate. Evidently the sale was not effected to save the property from litigation or for repairs of other property; but is was effected only for the purpose so that it might be convenient to Mt. Radha for management. The convenience of the owner and the benefit of the estate are two distinct things and it cannot be said that the alienation was for the benefit of the estate only because the land subsequently purchased by Mt. Radha, was convenient for her management.'
It appears from the above extracts that both the Courts have ignored the principles of law in coming to the conclusion that the sale was not for the benefit of the estate.
20. It was observed in Jagat Narain v. Mathura Das, ILR 50 All 969: (AIR 1928 All 454) (FB) (Q), that in order to sustain an alienation of joint family property made by the managing member of the family the transaction must be one which is for the benefit of the estate and such as a prudent owner would have carried out with the knowledge available to him at the time. Transactions justifiable on the principle of 'benefit to the estate' are not limited to those transactions which are of a 'defensive nature.' The transaction must be judged, not by its actual results, but by what might have been expected to be its results, at the time it was entered into.
The degree of prudence which might fairly be required from a person who was not the sole owner of the property might naturally be somewhat greater than that which might be expected tn the case of a sole owner and might well be held to be that which would be demanded in ordinary cases from a trustee. In Jado Singh v. Natthu Singh, ILR 48 All 592 : (ILR 1926 All 511) (R), it was stated that though it is impossible to give precise definition of what is such 'benefit to the estate' as will support a sale of joint ancestral property, the term may be held to apply to such a transaction as the sale of inconveniently situated, incumbered and unprofitable property and the purchase in its stead of other property which was undeniably a sound investment.
These decisions of the Allahabad High Court have been followed in this Court by Choudhuri J. In Narayan v. Satwarao, S. A. No. 124 of 1947, D/- 2-1-1953 (Nag) (SJ, and in Rajdarkrum v. Annapurnabai, S.A. No. 714 of 1946, D/-27-1-1953 (Nag) (T). In the first case it was stated that where the sale-deed stated that the field was sold for convenience of cultivation as the vendor wanted to purchase another field close tc his field and there was evidence to show that the vendor was negotiating to purchase the other field, the sale must be held to be for the benefit of the estate and that it was not necessary for the purchaser to prove actual purchase of the other field. In my opinion, it is a correct statement of law; and even in the case of a limited owner, the principle, stated above, will be applicable.
21. For reasons stated above, I allow thisappeal with costs, set aside the judgment anddecree of the lower appellate Court and restorethose of the trial Court.