1. This first appeal arises out of a suit which was instituted by the appellant Mst Anjubai and Mst. Gajjubai (plaintiff-respondent No. 31 in forma pauperis for possession of certain malik makbuza lands left by their brother Tatya Rao, who died in 1931.
2. After the death of Tatya Rao in 1931, his widow Mst. Manjubai continued in possession of the suit lands till her death on 2-8-1950. She adopted respondent No. 1 Hemchandra Rao alias Madhukarrao. Respondent No. 2 Narayanarao Ka-dam is the natural father of Hemchandra Rao and the brother of Mst. Manjubai deceased.
3. The plaintiffs' case is that the property passed to them by inheritance after Mst. Manjubai's death as the next roversioners of Tatya Rao. The claim of Hemchandra Rao as the adopted son of Mst. Manjubai is disputed on the ground that the ceremony of 'datta homam' was not performed at the time and that the consent of Mst. Manjubai was brought about by undue influence practised by Narayan Rao, who was acting as her Mukhtyar and who was managing her property. Further, it was pleaded that Mst. Manjubai did not obtain the permission of her husband to effect the adoption and as the parties are governed by the Mitakshara School of Hindu Law, the adoption is invalid. The adoption was also challenged on the ground that Hemchandra Rao being the brother's son of Mst. Manjubai could not be adopted by her.
4. The defendants pleaded that the adontiori took place after performing the 'datta homam' and the necessary ceremonies. It was admitted that the consent of Tatya Rao was not obtained to theadoption; but it was pleaded that such consent was not necessary, as the parties were governed by the Bombay School of Hindu Law. It was denied that the adoption was procured by undue influence or that it was invalid on account of the relationship of Mst. Manjubai with Narayan Rao.
5. The trial Court found that the adoption had taken place after performance of the 'datta homam'; that it was not invalid on account of the relationship between the parties to the adoption; and that as the parties were governed by the Bombay School, the consent of Mst. Manjubai's husband was not necessary. It also held that there was no undue influence practised by Narayan Rao in procuring the consent of Mst. Manjubai.
6. 'The most important point arising in this appeal is whether the parties are governed by the Mitakshara School or whether they are governed by the Bombay School of Hindu Law. They are Marathas and have settled in Chhatisgarh for a long time. The defendants' case was that they had migrated from Satara district in Bombay Presidency. The defendants have examined several witnesses to prove the following facts:--
(i) that they are known as Marathas;
(ii) that they are related to the Bhonslas of Nagpur;
(iii) that they have relationship amongst Marathas only and mostly in the Marathi districts of Madhya Pradesh and some places in Bombay;
(iv) that they speak Marathi language;
(v) that their women adopt the Maharashtrian style of dress; and
(vi) that they observe several festivals which are peculiar to the people residing in Maharashtra.
7. Naravan Rao (D.W. 1) and Lakhan Rao (D. W. 6) have stated that their ancestors came to Chhatisgarh about hundred years ago. Naturally, they have no personal knowledge about the fact of migration.
8. Shri R K. Pandey for the appellant strenuously contends that the evidence on record is not sufficient to prove the fact of migration or that the defendants are governed by the Bombay School of Hindu Law. It is settled law that there is a presumption that parties residing in a particular area are governed by the lex loci unless migration is proved. The burden of proving that the family came from some other tract and is therefore governed by some other branch of Hindu law is on the party which asserts it. Thus, in Balwant Rao v. Baii Rao, 1.0 Nag LR 187 : (AIR 1921 PC 59) it has been observed:
'Of course, if nothing is known about a man except that he lived in a certain place, it will bet 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.'
9. In our opinion, the fact that the parties are continuing to wear the Maharashtrian style of dress, that they have not given up Marathi language, that they have marriage relationships withthe people who are in the Maharashtra and that they observe the festivals and customs peculiar to Maharashtra furnish ample evidence of the tact that they migrated from Bombay Presidency and have not given up their original law in favour of ihe local law.
10. Shri Pandey has relied upon several cases which we shall refer to briefly.
(a) In Nathulal v. Rangoba, 1952 Nag LJ 190: (AIR 1952 Nag 133) it has been held that the Powars of Balaghat and Bhandara districts are-governed by the Mitakshara School of Hindu Law. In that case, their migration from Rajasthan region was proved and it was held that although they adopted the Marathi language, they continued to be governed by the Benaras School. This case is cited for the proposition that language is not the criterion to determine the original domicile-of the family.
In our opinion, a distinction has to be drawn-between two types of cases. The first is about families speaking one language settle in a tract where another language is spoken and adopt the latter language. In such cases, adapting of the new language on account of the environments) will prove nothing. However, in cases where a family migrating from one region to another carries its own language and continues to speak it, even though settled in a tract where a different language is prominently spoken, this fact should be a very important piece of evidence to prove migration. There is no reason for a family settling in Chhatisgarh to start using Marathi language, which is not spoken in that region, and the fact that they speak Marathi is a strong circumstance that they must have come from some tract in Maharashtra.
(b) In Sonabai v. Lakhmibai, 1956 Nag LJ 725: (AIR 1957 Nag 76) it was held that the Halbi Koshtis residing in Berar were governed by the Beneras School in spite of the fact that they spoke Marathi language. It was found in that case that these Koshtis were a mixed occupational caste being off-shoots of the Halbas which was an aboriginal tribe of the tract. The reason for adopting Marathi as their language was that they were living for generations in the Marathi speaking tract and this circumstance did not go contrary to the conclusion that they were not of Maharashtra origin.
(c) In Rajeshwar v. Kesheo, 1944 Nag LJ 291 it was held that Dhonojo Kunbis settled in Chanda district were not governed by the Bombay School, although they spoke Marathi. The reason was that they were held to be the old settlers of Gond origin.
(d) In Ramlu Naganna v. Vithal Naganna, 1947 Nag LJ 151: (AIR 1947 Nag 180) Komtis of Chanda district were held to be governed by the Mitakshara School which is tbe lex loci of the place. In that case, there was no evidence of migration and although the parties spoke some sort of Telgu language, it was held that it was a. mixed dialect which could be explained on the ground that Chanda once formed a portion of the Telgu tract.
(e) Sarada Prasanna Roy v. Umakanta Hazari, ILR 50 Cal 370: (AIR 1923 Cal 485) relates to the case of a family migrating from the North-West Provinces to Bengal. It was found proved in that casethat the family had adopted the Dayabhaga Law of Bengal for generations and on this finding ifi was held that they were governed by the Dayabhaga law. This is not a case in which the presumption about the application of lex loci was applied but it is a case in which a family which would otherwise have been governed by the Mita-kshara law was held to be governed by the Dayabhaga law on the ground; that they had abandoned the law of their origin and had adopted the law of the place. This case does not help the plaintiii-appellant.
(f) The decision of a Division Bench of this Court in Smt. Umabai v. Smt. Chandrabhagabai, First Appeal No. 39 of 1956 D/- 30-7-1959 (MP) related to the case of Marathas of Raipur. It was held in that case that they were governed by the lex loci, i.e., by Mitakshara law. We have gone through the judgment of the case and find that no pleadings were raised in that ease contesting the position that the parties were governed by the Mayakha law. The plea was sought to be raised at the stage of appeal and for want of pleadings the Court refused to consider it. Naturally, therefore, Jex loci was implied.
11. We do not find that any of these cases goes contrary to the view that where a language, which is not the language of the tract, is continued by a family, even though it has settled in that tract for a long time, there is no presumption that the family migrated from the tract where that language is spoken. We eonsider this a very strong circumstance to prove migration in such a case. We attach equal importance to the wearing of dress by the ladies of the family in the Maharash-trian style. Had the family been of Chhatisgarh origin, there was no reason for them to adopt this style. Shri Pandey points out that these days it is not unusual to find members of one community or caste wearing dress in the style of another community or caste. This position has come into existence only a few years ago. The retention of Maharashtrian style of dress by the ladies in Cha-tisgarh tract, however, stands on quite a different footing. It is not shown that the family used to wear another style of dress and had adopted the Maharashtrian style subsequently.
12. In Keshao Rao v. Sadasheo Rao, ILR 1938 Nag 469 : (AIR 1938 Nag 163) it was held that Maharashtra Brahmins residing in the Central Provinces are governed by the Bombay School, even though there is no direct evidence of migration. The ground for holding that the Maharashtra Brahmins of Chhatisgarh came from Bombay was that Chhatisgarh was never (sic) Maharashtra. On the same reasoning it appears to us that the Marathas living in Chhatisgarh whose mother-tongue is Marathi must have migrated from Maharashtra.
13. Shri Pandey suggested that the views taken in that case regarding Maharashtra Brahmins have no application to Marathas, as, according to him 'Maharashtra' denotes a territory and 'Marathas' denotes a caste. He relied upon Tribes and Castes of the Central Provinces, volume IV, by Russell, where it has been observed on page 198 that 'Maratha is a caste.' Reading the chapter ss a whole, it appears to us that the word'caste' has been loosely used and that Marathas do not really form a caste. It has been explained in that chapter that 'Marathas are divided into 98 exogamous clans'. Under these circumstances, the word 'Maratha' would denote not one but several castes.
14. On page 8 of Tribes and Castes of Bombay, Vol. 3 by Mr. Enthoven which has been cited in Subrao Hambirrao v. Radha Hambirrao, AIR 1928 Bom 295 the word 'Maratha' covers three classes :
'(1) Maratha proper, the chiefs, landowners, and fighting Marathas of the Deecan and Konkan, claiming Kshatriya rank, eschewing widow remarriage and socially superior to the cultivating classes, from whom, however, in places, they will take girls in marriage;
(2) Maratha Kunbis or cultivators, also known as Kulvadi;
(3) Maratha occupational castes such as the following: Bhandari, Lohar, Mali, Teli........'
It will appear from this extract that different castes like Lohar, Mali, Teli are included in the term. 'Maratha'. Accordingly, it appears to us that the term has reference to the occupational castes who come from the Marathi tract. Ganpatrao (D. W. 5) is related to the parties and is also related to the Mahadik family of Rajim, which is closely related to the Bhonsle rulers of Nagpur. It appears from the Raipur Gazetteer (page 57) that towards the end of the 18th century Bhonslas defeated the local ruler in Bilaspur and several Marathas settled along with him in Chhatisgarh. Mahadik family of Rajim came along with the Bhonslas at that time. The relationship of the parties to that family shows that they must be of the same origin as the Bhonslas. In Udebhan v. Vikram, 1957 MPLJ 572: (AIR 1957 Madh Pra 175) the case of Telis living in Sausar tahsil of Chhindwara district was considered. After discussing the several decisions on the question of migration, the learned Judge came to the conclusion 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 hailed from the race or group of people known as Maharashtrians and carried the law of Maharashtra with them.'' We respectfully agree with these observations of Chaturvedi J. in that case and hold that the parties migrated to Chhatisgarh from the territory known as Maharashtra.
15. Shri Pandey relied upon certain observations in AIR 1928 'Bom 295 (cited supra) to the effect that the Marathas have descended from Kshatriya Rajputs. It was contended that even assuming that the family migrated from Bombay, they must be governed by the Mitakshara law, as they were originally Rajputs. In that case, their Lordships had discussed the matter while deriding the question whether the Marathas were Kshatriyas or Sudras. Relying on the views of some historians, they observed that Marathas originally came from Rajasthan.
The issue was, however, decided on a variety of circumstances relating to Marathas and thehistorical view of their origin was mentioned bythe way. If this view is accepted, the result would be that none of the Marathas even those residing in Bombay Presidency would be governed by the Bombay School of Law. In view of the fact thatthere is not a single case arising from Bombay taking that view shows that such a conclusion is not justified.
16. Shri Fandey then contended that even if it is held that the family of the parties came from Bombay Presidency, there is nothing on record to show that they did so after Vyavahara Mayukha was written. Reliance is placed on certain observations in paragraph 10 of the decision in Bhaskar v. Laxmibai, AIR 1953 Nag 326 to the effect that the Kunbi families which migrated to the Central Provinces before this work (Vyavahara Mayukha) was written were not governed by it. This view was based on the observations in the decision in 16 Nag LR 187: (AIR 1921 PC 59 (supra) which are as follows:
'It was argued by Sir E. Richards that this would entail the consequence that the law of the migrated family would be subject to every change brought about by the decisions of the Courts of the Province where they no longer were. Thisis not so. The law must be the family law is it was when they left. A judgment declaratoryof law a.s. having always been would bind; it would be a different thing if subsequent customs became incorporated in the law.'
'With great respect, we do not think that these observations mean that the law as modified by Vyavahara Mayukha does not apply to those families which migrated from Bombay after that commentary was written. In our opinion, by their Lordships' observations that 'The law must be the family law as it was when they left' was meant only to exclude customs which came into existence subsequent to the migration. The position of commentaries was directly considered in Kesheo Rao's case. ILR 1938 Nag 469: (AIR 1938 Nag 163; (supra), and it was held that commentaries were only declaratory of the law as it had existed always. Reliance was placed on the following observations from the decision in 16 Nag LR 187:(AIR 1921 PC 59) itself.
'Further, it must always be remembered that the commentaries are only commentaries. They do not enact: they explain and are evidence of the congeries of customs which form the law.' Accordingly, we must hold that commentaries do not lay down new law but only interoret the old and the interpretations apply to all families who had their origin in the region where the commentary is accepted as authoritative interpretation of the original law.
17. We agree with the trial Court that the parties are governed by the Bombay School of Hindu law. Authority from Tatya Rao was not, therefore, necessary for the adoption and it cannot be challenged as invalid for want of such authority.
18. The fact that the adoption did take place was not seriously disputed in arguments. The defendants have adduced evidence to prove the adoption and have also filed the adoption-deed, dated 16-7-1950 which was executed by Mst. Manjubai. A photograph taken on the occasionhas also been filed. We hold that the adoption had taken place.
19. It was urged that the 'datta homam' was not performed. Shridhar (D. W. 2) and Sukh-nandan (D. W. 3) stated that the 'datta homam' was performed. There is no reason to doubt their testimony. We hold accordingly.
20. The appellant has adduced no evidence to prove that the consent of Mst. Manjubai was obtained by undue influence. It is true that Narayan Rao (respondent No. 2) was the brother of Mst. Manjubai, was acting as her Mukhtyar and was partly managing her properties. Flow ever, he resided at Raipur whereas the property was situate in a distant village in the interior. His acting as an agent for cases in Raipur Courts and taking a mukhtyarnama for that reason docs not prove that Mst. Manjubai was under his thumb. Similarly, the actual management of the village was carried on by Krishnarao, and not by him. It is not, therefore, right to say that Mst. Manjubai was under his influence.
Shridhar (P. W. 2) and Sukhnandan (D. W. 3) who were acting as pfeuders for the family in several cases, have both stated that Mst. Manjubai wanted to make an adoption and expressed her desire to them for adopting Hemchandra Rao (respondent N. 1) as her son fifteen days before the ceremony. It is in evidence that she had adopted the son of her another brother Laxman Rao three or four years before the adoption of respondent No. 1, but that boy had expired after the adoption. Laxman Rao then refused to give his second son in adoption. Mst. Manjubai then decided to take the son of her another brother Narayan Rao in adoption. Her choice on her brother's son is natural, as no other person towards whom she could have more affection has been shown to exist. We agree with the trial Court that the adoption in this case was made by Mst. Manjubai out of her own free will,
21. The adoption is also challenged on the ground that Mst. Manjubai could not adopt her brother's son. Reliance is placed on paragraph 33 on page 369 of Setlur's translation of Dattaka-Mimansa which is as follows:
'The expression 'sister's son' is inclusive of the son of a brother also. Hence, this meaning is deduced that a brother's son must not be adopted by a sister.'
It does not appear that this view has been accepted by any Court.
22. On the contrary, it has been held in Sri Ramulu v. Ramayya, ILR 3 Mad 15 that 'there is nothing to prevent a Hindu from adopting a son of his wife's brother if the boy's natural mother was a person whom, as a virgin, the adopter might lawfully have married'. The power of the widow to adopt a son to her husband is co-extensive with the power of her husband. The converse of the rule that no one can be adopted as a son whose mother the adopter could not legally have married is not correct. (See Principles of Hindu Law by Mulla, 12th Edition, page 652). Accordingly, we hold that the adoption cannot be challenged on the ground of relationship between Mst. Manjubai and respondent No. 1.
23. The adoption being valid, the property passed to respondent No. 1 after bis adoption andMst. Aujubai can claim no interest therein. Thesuit has, therefore, rightly been dismissed.
24. The appeal is dismissed with costs.