1. The suit oat of which this second appeal arises was brought by the plaintiff-respondent to recover possession of seven bights ten kitas of land upon a title by inheritance. The defence was, amongst other things not necessary to consider now, a denial of the plaintiff's title. The first Court held that the property in dispute belonged to one Hasiram and that the plaintiff was Hasiram's father's maternal grandfather's great-great-grandson, and it held that the plaintiff was entitled to the land as heir of Hasiram, and, overruling the other objections urged on behalf of the defendant, it gave the plaintiff a decree. The defendant in his appeal to the District Judge repeated the objection urged in the first Court that the plaintiff was not entitled to succeed by inheritance, but the lower Appellate Court without giving any definite reason for its decision held that as the relationship of Chundi Koch, the plaintiff, with Hasiram was established, the plaintiff was entitled to a decree. Against that decision the defendant has preferrded this second appeal, and it is contended on his behalf that the Courts below are wrong in holding that the plaintiff was heir to Hasiram, the last proprietor, under the Hindu Law. The appellant contends that the parties are Hindus and that they are governed by the Hindu Law of Inheritance of the Bengal School and under that Law, the father's maternal grandfather's great-great-grandson is no heir, and that, therefore, the plaintiff was not entitled to succeed. I think this contention is well founded. It has been urged by the learned Vakil for the respondent, in the first place, that as all that appears upon the record is that the parties belong to the Koch tribe, that would not be sufficient to show that they are Hindus; in the second place, that even if it be held sufficient to prove that they are Hindus, it would be wrong to apply the Hindu Law of the Bengal School, which is a highly artificial system founded upon the doctrine of spiritual benefit to people of the class to which the parties belong; and, lastly, that even if the Hindu Law of the Bengal School be held to govern this case, the plaintiff was heir to Hasiram according to that Law. I shall consider the three points in the order in which I have enumerated them.
2. As regards the first point, all that appears from the plaint is that the parties belong to the Koch tribe and the case comes from Nowgong in Assam. Now, referring to Hunter's Statistical Account of Assam, Vol. I, p. 186, I find that the Koches of Nowgong are there described as being an aboriginal race who have given up their rude habits and customs and embraced Hinduism. This work has been cited as an authority by the Privy Council in the jalpaiguri case Fanindra Deb Baikat v. Rajeswar Das 11 C. 463 : 12 I.A. 72; and in the absence of any allegation to the contrary contained in the pleadings and of any contrary indication in the evidence, I think I must hold for the purposes of this case that the parties here are Hindus. That being so, the next question that arises is whether they are governed by the Hindu Law of the Bengal School. Upon this point, my attenion has been drawn to the remarks of Mr. Mayne in his work on Hindu Daw at pages 10, 11 and 12 of the fourth edition and to the observation of the Judicial Committe in the case of Fanindra Deb Raikat v. Rajeswar Das 11 C. 463 : 12 I.A. 72 and it has been contended that it would be wrong to apply to people like the Koches, notwithstanding the fact of their having become Hinduised, the peculiar doctrines of the Hindu Law in all their entirety. No doubt, there might have been some force in this argument if there had been in this case any allegation by the plaintiff that he was governed not by the strict rules of Hindu Law but by some other law or custom applicable to people of his class. In the absence of any such allegation, I think, I must hold that the case is governed by the ordinary Hindu Law of the Bengal School. That Law has been held to be generally applicable in Assam: see the case of Deepo Debia v. Gobindo Deb 16 W.R. 42 : 11 3 B.L.R. 131 note.; see also the case of Kery Kolitanee v. Monee Ram Kolitot 19 W.R. 367 : 13 B.L.R. (F.B.) 1 in which the Hindu Law of the Bengal School was considered applicable to another aboriginal Hinduised race, the Kolitas. And I may in this connection also refer to the observations of Sir Barnes Peacock in the case of Lalla Mohabeer Pershad v. Musammat Kundun Koowar 8 W.R. 166 which seems to have some application to the present case. There his Lardship observes: 'In the absence of evidence to prove that the rules of inheritance of the Jains are not the same as those of the orthodox Hindus, we cannot say that the Jains are not governed by the Hindu Law of Inheritance applicable in that part of the country in which the property is situate, viz., the Dayabhaga in Lower Bengal generally, the Mitakshara in the Mitakshara Districts, and the Mithila in the Mithila country.' I come next to the third question raised by the learned Vakil for the respondent. It has been contended that the respondent would be heir to Hasiram under the Hindu Law of the Bengal School inasmuch as the enumeration of heirs in the Dayabhaga stops after a certain point, and we must after that point follow the Mitakshara which is of universal application all over India save and except in Bengal in matterrs expressly provided for in the Dayabhaga, and if we follow the Mitakshara, plaintiff will be clearly entitled to inherit as a Bandhoo according to the interpretation of the word Bandhoo in the Mitakshara as given in the case of Undid Bahadur v. Udoi Chand 6 C. 119 : 6 C.L.R. 500. Bat the argument apparently overlooks the fact that the scheme of the Bayabhaga is radically distinct from and to some extent incompatible with the scheme of the Mitakshara, and the one cannot well be made to supplement the other so far as the Law of Inheritance is concerned. Nor can it be said that the Bayabhaga is silent upon this point, seeing that although the Bayabhaga may be silent so far as express enumeration goes, it is not silent so far as the indication of the general principle according to which heirship is to be determined is concerned, that general principle being clearly the principle of spiritual benefit. An attempt was made on the part of the respondent to meet this objection by showing that the assumption that the doctrine of spiritual benefit is the foundation of the Inheritance Law of the Bayabhaga is an erroneous assumption. Certain anomalies were pointed out as being the inevitable consequences of that assumption, and have been asked to reopen the question whether the doctrine of spiritual benefit is really the principle adopted in the Bayabhaga scheme of Inheritance. The arguments upon this point have been summed up in a recent work on Hindu Law: See Jogendra Nath Shiromony's Commentary on the Hindu Law, pp. 314 to 325. Whatever may have been the effect; of this argument if the matter had been res integra, I think I must take the question as settled by authority. I do not think that the error that has been pointed out is at all so clear as would justify me in allowing the question to be re-opened. The doctrine that the principle of spiritual benefit is the basis of the Bayabhaga Law has ample foundation in the Bayabhaga. See Bayabhaga, Chapter XI, Section VI paras, 18 and 31. In the former of these passages, the author clearly points out that when Manu ordains that the nearest sapinda shall take the inheritance, he does not mean the nearest by birth but he means the most efficient in the presentation of oblations to confer spiritual benefit, and the point has been settled by repeated decisions; see the case of Guru Gobind Shaha v. Anund Lal Chose 13 W.R. (F.B.) 49 : 5 B.L.R. (F.B.) 15 and the case of Digumber Roy Chowdhry v. Moti Lal Bundopudhya 9 C. 563 : 12 C.L.R. 204. And if the doctrine of spiritual benefit is adopted, as the basis of the Hindu Law of Inheritance, in the Bayabhaga School, it is clear, and it is in fact admitted, that the plaintiff would be No heir to Hasiram. Therefore, I do not think that the plaintiff's heirship is made out. There is another view that may be taken: of the case. Plaintiff seeks to recover possession of immoveable property from the defendant who is the party in possession; he can only do so upon the strength of his own title. He alleges a title by inheritance in his plaint but he does not say by what law that title has to be determined; he simply says in his plaint that he and the other parties to the suit belong to the Koch tribe. That means ordinarily that the parties are Hindus and if they are Hindus, the ordinary Hindu Law of the Bengal School would apply to them, they being inhabitants of Assam and under chat law the plaintiff is no heir. But if the plaintiff contends that his case is governed not by that law but by some other law or custom, it was for him to have shown by what law or custom his case was governed, and how under that law or custom he was entitled to succeed. His title has been denied and he has shown nothing to make out his title. In that state of things, the suit must be dismissed.
3. The result is that the decrees of the Courts below must be set aside, and the plaintiff's suit dismissed with costs in all the Courts.