1. After hearing Mr. Jogesh Chandra Roy, the learned advocate for the appellants, we did not think it necessary to call upon the respondents for a reply, for we think that the findings of fact arrived at by the Courts below are sufficient to conclude this second appeal. The plaintiffs now respondents brought a suit out of which this appeal arises as reversionary heirs of one Hati Jana. They were admittedly sister's sons of Hati Jana. Their case is that the disputed land was sold without legal necessity by the widow of Hati Jana who died sometime in the year 1330 B. S. The defendants now appellants resisted the claim on several grounds. They say, that in view of the relationship of parties which is shown in the genealogical table printed at p. 9 of the paper-book, the plaintiffs are not the reversioners of Hati Jana after the death of his widow. This contention has been negatived by both the Courts below. In order to consider the soundness or otherwise of the conclusion arrived at by the Courts below it is necessary to consider the case set up by the defendants that the reversioners are not the plaintiffs but that the reversioner is Rakhal, son of Mayuri, daughter of Hatijan, and Mani Bewa, defendant 16, in the present suit. The question depends on the proof of the fact alleged by the defendants that Mayuri was chaste during the lifetime of her husband, if the case is governed by the Bengal School of Hindu law. If Mayuri had become unchaste during the lifetime of her husband she would not succeed to the property of her father. In order to establish that she had not become unchaste during the lifetime of her husband evidence was led by the defendants; the plaintiffs on the other hand put forward evidence to show that she had become unchaste from before her husband's death. After consideration of the evidence on both sides the lower appellate Court has come to the conclusion in concurrence with the Court of first instance that Mayuri defendant 16 had become unchaste during the lifetime of her husband. This is sufficient to dispose of the first ground raised, namely, that the conclusion arrived at by the Courts below on this point is not right.
2. The next point taken is that in any event Rakhal defendant 15 should have been held by the Courts below to be the preferential heir for Rakhal is said to be a legitimate son of Mayuri by her marriage with one Khetro Das subsequent to the death of her first husband. On this point the question which requires consideration is as to whether the marriage between defendant 16 and Khetro has been established. This is a question of fact on which the lower Courts have come to a concurrent finding. The lower appellate Court states that the evidence on this part of the case is mainly hearsay and that none of the people who are said to have been present at the time of the subsequent marriage which is said to have been celebrated in the Bhaisnaba form came to depose and that consequently the defendants have failed to establish the factum of marriage. It has been argued by Mr. Roy that in a marriage of this kind which is celebrated merely by exchange of kanthi it was sufficient if the evidence established that the parties lived as husband and. wife and if they had such repute in the village in which they lived. We do not think that such a contention should be accepted. The marriage in the Bhaisnaba form has to be established by legal evidence. But in this case none of the persons who are alleged to have been present at the time came to prove the marriage. In the circumstances, we think that the District Judge was right in holding that the marriage was not established.
3. The next point taken is that the parties are governed by the Mitakshara School of Hindu law and as such the plaintiffs could not be reversioners after the death of Moni Bewa as Mayuri even if she be taken to have been unchaste during the lifetime of her husband would still succeed to the estate of her father under the Mitakshara School of Hindu law and several authorities have been referred to in support of this contention. This may be conceded. The question however is whether the defendants have established that the parties are really governed by the Mitakshara School of Hindu law. Their residence is in Midnapur, a district in Bengal and prima facie the law which governs them is the law which is prevalent in Bengal, namely Dayabhaga School of Hindu law. In order to rebut this prima facie case the defendants relied on the written statement which is said to have been filed by the plaintiffs' father which is marked as Ex. C in the case in a suit which was brought by him in the year 1922. It is to be noticed that the admission made by the plaintiffs' father that he was governed by the Mitakshara School of Hindu law does not bind the plaintiffs as the plaintiffs did not claim the disputed property through their father.
4. Consequently, it cannot be said to be an admission made in respect of the law by which the rights, subject matter now in dispute, are to be governed. It is also to be noticed as the learned Judge points out that although in the written statement the plaintiff's father claimed title by survivorship under the Mitakshara law, but subsequently resiled as the matter was compromised. It is not necessary to consider what effect this admission might have been if the plaintiffs had claimed through his father.
5. It might have been a very good evidence against him. But it is not evidence against him as he does not claim the property through his father. Both the Courts have considered the evidence with regard to the adoption by the parties of the Mitakshara custom and usage and they have concurrently held that that has not been established. In the circumstances, we think that the learned District Judge was right in rejecting the contention that the parties are governed by the Mitakshara School of Hindu law.
6. The next ground taken before us is one which was not taken in the Courts below and it is said that even if Rakhal be taken to be an illegitimate son of defendant 16 still he would be entitled to succeed in preference to the sister's son and reliance has been placed on two Full Bench decisions of this Court where it has been held that an illegitimate son of a Sudra is entitled to certain share in the inheritance from his father. No authority has been shown however to show that that principle can be extended to the case of other illegitimate persons claiming succession to the property of their relations other than their father.
7. The next and the last ground taken is that in any event the plaintiffs should fail with regard to the Kha schedule properties as the said properties were sold by Moni Bewa after she had obtained them from Janti Bewa her mother after the latter's death. The answer to this contention is that Janti obtained the properties in dispute from Moni Bewa by a conveyance. That conveyance is attacked on the ground that there was no legal necessity for the sale. Consequently, it is open to the plaintiffs to challenge, as they have challenged the deed of sale in favour of Janti Bewa and if that transaction is held not to be valid it is difficult to see how . the defendants can support the conveyance executed by Moni Bewa after Janti's death for the conveyance in favour of Janti is attacked on the ground of its being bad for want of legal necessity. With regard to the question as to whether there was legal necessity for the sale or not it has been argued that as the deed of sale was executed some time in the year 1887 the lower appellate Court had wrongly placed the burden of proof on the defendants to establish the existence of legal necessity and reliance has been placed on the decision of the Judicial Committee of the Privy Council in the case of Banga Chandra Dhur Biswas v. Jagat Kishore Chowdhury A.I.R. 1916 P.C. 110.
8. It would appear on an examination of that case that their Lordships of the Judicial Committee laid it down that the recitals in an instrument of sale to which the reversioner is not a party should not ordinarily be admitted as evidence and their Lordships pointed out the exceptional circumstances under which recitals can be admitted as evidence. In this case the learned Judge has found that evidence has not been given by people who might have deposed with regard to legal necessity and it has not been shown that they had passed away or that their evidence was not available. In a later case in Bawa Magniram Sita-ram v. Kasturbhai Mani Bhai A.I.R. 1922 P.C. 163 where the document was 100 years old their Lordships held that the presumption should be in favour of the existence of legal necessity after the lapse of such a long time when the persons who are said to have been present at the transaction-were all dead. All the grounds taken in this appeal fail and the appeal is dismissed with costs.
9. I agree.