Chunku Manjhi and Others vs Bhabani Majhan and Others

Ray, J.—This appeal arises out of a suit instituted by Bhabani Mejhan, the plaintiff, for declaration of title and recovery of possession of the lands in suit. The lands admittedly belong to one Chota Manjhi, Chota. Manjhi''s only issue, a daughter by name; Darani Mejhan, predeceased him. He died leaving a widow by name Churamani Mejhan. The plaintiff is the daughter of Darani Mejhan. The plaintiff had a brother Chandra. Manjhi who is dead, Churamani Mejhan continued in possession of the property after the death of her husband till she died in the month of saban 1347. She executed a deed of gift in respect of a part of the property in favour of the present plaintiff who is her daughter''s daughter. On her death, the properties in disputes were taken possession of by the defendants who are separated agnate of the last male holder Chota Manjhi. They claim themselves to be his heirs to the exclusion of the plaintiff, who, according to them, is not an heir.

Out of the four agnates impleaded as defendants, defendants 3 and 4 filed a written statement supporting the plaintiff''s claim. Defendants 1 and 2 contest the suit and they are the appellants in this Court. The plaintiff bases her title as an heir of the last male holder of the property being his daughter''s daughter on the ground that the parties are Hindus and in matters of sue-cession and inheritance, they are governed by the Mitakshara school of Hindu law as amended by Act 2 [II] of 1929. She also says that by tribal customs too she is the heir. Her case is set out inpara. 5 of the plaint, which reads:

Churamani Mejhan died in the month of Srawan 1347 and the properties in Schedule ''ka'' were in her possession. After the death of Churamani the plaintiff being the daughter''s daughter of Chotu Manjhi is the sole heir, and has got absolute interest in the Schedule ''ka'' properties by inheritance. The Santhals of the country follow the Mitakshara school of Hindu law, and apart from this, the plaintiff is also the heir of Chotu Manjhi according to tribal custom as well.

In reply to this, defendants 1 and 2 in their written statement para. 4 pleaded:

These defendants submit that the parties are governed by the Dayabhag school of Hindu law, and. all their acts are done under the said system of Hindu law. According to neither school of Hindu law can the daughter be an heir of any means. The plaintiff''s statements are against the law and are liable to be rejected.

According to the pleadings of the parties, as they stood before the amendment of the written statement, which I am going to notice presently, they admit that in matters of succession and inheritance, they are governed by the Hindu law, the only difference between them being about the particular school which governs them. According to the plaintiff, it is Mitakshara school of Hindu law, while according to the defendants it is Dayabhag. Issues were framed on the pleadings set forth above; the parties then took various adjournments and summoned witnesses in support of their respective cases. The defendants were particularly ready on several dates of hearing to go on with the trial on that pleading. About ten months after their first written statement filed, the contesting defendants filed a petition for amending the same. The amendment, proposed a radical change in their case, but unfortunately the said amendment was allowed by the learned trial Court on the reasoning of low intellectual capacity of the defendants. The amended written statement, so far as it relates to this aspect of the parties case, reads as follows:

These defendants never gave any advice to file a written statement to the effect that these defendants are governed by the Dayabhag system and all their acts are done according to that school, nor is that fact true. Rather they are aboriginal and the parties have no concern with Mitakshara and any other school of Hindu law.

In fact the parties are governed by tribal custom. According to their custom females cannot inherit, only the wife gets the enjoyment of the properties left by the husband during her lifetime. And this is, the advice they gave. The former statement is not correct, this latter statement is true and correct.

After this amendment, the point at issue between the parties is Whether the parties are Hindus, and are governed by the Mitakshara school of Hindu law in matters of inheritance and succession, or whether they being non-Hindus, a customary rule of agnatic succession excluding the females obtains amongst them.

The learned trial Court gave the plaintiff a decree finding that according to tribal custom established before him daughter''s daughter, such as the plaintiff, is an heir and not the defendants as agnates. He, however, on consideration of evidence before him in that behalf came to the conclusion that the parties are not Hindus. In this connection he referred to the observations of Macpherson J. in Kritibash Mahoton v. Budhan Mahtani AIR 1925 Pat. 733 and to the observations of Manohar Lall J. in Harakhnath Ohdar v. Ganpat Rai AIR 1941 Pat. 625.

The defendants preferred an appeal against this decision of the learned Munsif, and the learned lower appellate Court upheld the decree of the learned Munsif but on different findings. The learned lower appellate Court held that the parties are Hindus, and, as such, they are governed by the Mitakshara school of Hindu law except in so far as any special custom at variance with it is proved, He also held, independently of the question of onus, that the plaintiff has succeeded in proving that the females do inherit in accordance with the local tribal custom to the exclusion of the agnates and the defendants have failed to prove the contrary.

The defendants have preferred this second appeal, and the learned Counsel, appearing for them urges, in the main, that the parties belong to an aboriginal tribe called Santhals and are outside the pale of Hinduism. The evidence on record does not establish that the Santhals, to which class the parties belong, have been converted to Hinduism. The circumstance that the parties worship ghosts is inconsistent with their being Hindus. The onus of proof lay heavily upon the plaintiff to prove either that they were governed in matters of succession and inheritance by the rule of the Mitakshara school of Hindu law, or that the plaintiff, as the daughter''s daughter of the last male owner, could succeed in preference to the agnates by custom obtaining in the tribe; that the plaintiff has failed to discharge the same. His other contentions will be noticed presently. The learned Counsel in support of his contention of agnatic rule of succession and female exclusion relies upon Risley on Tribes and the judgment of Macpherson J., in Kritibash Mahoton v. Budhan Mahtani AIR 1925 Pat. 7333.

The learned Counsel on behalf of the respondents urges, in reply, that the Santhals are sufficiently Hinduised even though they retain, some of the relics of their ante Hinduism period, and are, therefore, governed by the Mitakshara school of Hindu law which is lex loci of the area in which the parties live. In his view what Risley wrote is merely of historical importance and the Santhals have subsequently been absorbed into the Hindu community, and, therefore, the presumption is that they are governed by the Hindu law. He further urges that the issue raised by the defendants that, amongst the Santhals, the females are excluded from inheritance has not been substantiated by them. He also contended that the matter is concluded by the concurrent findings of fact by both the Courts below.

The material question, therefore, is whether the parties are Hindus and as such governed by the Mitakshara school of Hindu law, in matters of inheritance and succession, or, whether the plaintiff is an heir to her maternal grandfather in preference to the latter''s agnates who are the defendants in the suit in accordance with any well established tribal customs.

Risley in his historical work on tribes says that the Santhals are aborigines and are not governed by the Hindu law in matters of inheritance and succession. In such matters agnatic succession js the rule. Macpherson J. in Kritibash Mahoton v. Budhan Mahtani AIR 1925 Pat. 7333, cited above, says the same thing though his observations were not necessary for the decision of the case. It was conceded by the parties in.that case that the Hindu law of succession was applicable. Manohar Lall J. in Harakhnath Ohdar v. Ganpat Rai AIR 1941 Pat. 625 holds the observations of Macpherson J. to be obiter dicta. He leaves the question open to be decided, in each case, on its own facts. It is, therefore, to be examined on the evidence adduced by the parties viewed in the light of the authoritative pronouncements bearing upon the subject, whether the Santhals of Chota Nagpur, to which tribe the parties belong, are Hindus, and, as such, governed by the Hindu law relating to inheritance and succession. Mr. B.C. De for the appellants contends that nothing short of conversion to Hinduism by a ceremony of expiation would prove them to be Hindus. This contention, in my view, cannot be upheld.

The term "Hindu" is not an anthropological one but is used in a theological sense as distinguished from national or racial sense. Stokes in his Anglo-Indian Codes states his conclusion that the term is theological denoting any person professing any form of the Brahmanical religion or religion of the Puranas. In Tara Chand v. Reeb Ram (66) 3 M.H.C.R. 50 it was held that the term ''Hindu'' being a theological expression, it is legally permissible to a. non-Hindu to become a Hindu. In Fanindra Deb v. Rajeshwar Das (85) 11 Cal. 463 dealing with the case of a family which was of non-Hindu origin, their Lordships held that if its members had become Hindus out and out, they would be governed by the Hindu law unless a special custom was proved. In Sahdeo Narain v. Kusum Kumari AIR 1923 P.C. 21 the Court had to deal with a clan who became converted to Hinduism about 100 years previously and the Judicial Committee held that the clan "had become sufficiently Hinduised," to be prima facie governed by the Hindu law. The expressions (1) "Hindus out and out" and (2) "become sufficiently Hinduised" are the expressions used by the Privy Council. In the last-mentioned case, their Lordships, referring to Palaniappa Chetty v. Alagan Chetty AIR 1922 P.C. 228 allude to a mass of tribes in Southern India who became Hinduised and therefore subject to the law of the Smritis in most respects. In none of these cases is there any indication that any ceremony of purification is a prerequisite of Hinduisation.

In this connection it would be profitable to note that Sir Charles Eliot, in his valuable work "Hinduism and Buddhism," says:

It is not quite correct to say that one must be born a Hindu, since Hinduism has grown by gradually hinduising the wilder tribes of India and the process still continues.

The chief feature of Hinduism is its tendency to absorb beliefs and to combine and amalgamate deities. There was a great fusion of ideas and even Persian and Greek religions made their contribution. The amplification of Hinduism and the absorption of non-Hindu tribes into the Hindu fold were not necessarily two distinct and separate processes. Whenever a popular cult grew important or whenever Brahmanic influence spread to a new district possessing such a cult, the popular cult was recognised and brahmanised. This policy can be abundantly illustrated for the last four or five centuries. If non-Hindu Gods were thus accorded recognition, non-Hindu tribes were similarly absorbed. The treatment by Hinduism of men and Gods is curiously parallel.

The learned author also points out chat according to Census of India, 1911, in Assam about 80,000 animists were converted to Hinduism between 1901 and 1911. In Morarji v. Administrator-General, Madras AIR 1928 Mad. 1279, it is said:

according to the law of British India in the case of Hindus (as in the case of Muhammadans) questions of personal law are determined not by the test of domicile, but by reference to the religious community to which those persons belong. In other words, the law of Hindus and Muhammadans is the law of their religion.

The learned Judge, who decided the last mentioned case referring to the judgment of the Judicial Committee in Charlotte Abraham v. Francis Abraham (1861) 9 M.I.A. 195 says

that the intimate connection between law and religion in the case of Hindus and Muhammadans exists because of the written law of India has prescribed broadly that in questions of inheritance and succession, the Hindu law is to be applied to Hindus and the Muhammadan law to Muhammadans.

The question, therefore, has to be decided by coming to a conclusion as to how far the parties have become either Hinduised out and out, or sufficiently Hinduised in order to attract the principles of Hindu law in matters of inheritance and succession. It is quite certain that for the purpose of Hinduisation any ceremony of conversion is not at all necessary. In the above-mentioned single Judge case in Morarji v. Administrator-General, Madras AIR 1928 Mad. 1279 there appears a passage lending support to the contention that such a ceremony is necessary before a non-Hindu could become a Hindu. This passage, however, came for consideration before a Division Bench of the Madras High Court in Ramayya v. Mrs. Josephine Elizabeth AIR 1937 Mad. 172. Their Lordships in the last mentioned case, after referring to the passage, said:

This passage is clearly no authority for the position that a formal conversion is a pre-requisite to a person becoming a Hindu.

Again in Gurusami Nadar v. Irulappa Konar AIR 1934 Mad. 630, Varadachariar J., (as he then was) points out referring to the self-same passage, that the passage does not lay down that every one of the tests mentioned there should be fulfilled, where conversion to Hinduism is alleged. In Sm. Anundmohey Dossee v. John Doe (1859) 8 M.I.A. 43, an Englishman had five children by two native Hindu women, one of whom, was of Brahmin caste, a married woman though living apart from her husband. The five children were brought up as Hindus and lived together as a joint family.

It was held by their Lordships of the Privy Council that the illegitimate children were to be considered as Hindus and their rights were governed by that law. This case illustrates that the question of Hinduisation will be approached from a liberal angle of vision depending on how the family or community treat themselves and their Hindu mode of living. In Sahdeo Narain v. Kusum Kumari AIR 1923 P.C. 21 two questions came up for decision, namely, (1) whether in every case in which applicability of Hindu law is based upon the ground of conversion of the family or the tribe of non-Hindu origin into Hinduism, the burden of proof should be put strongly upon the party invoking the doctrines of Hindu law, and (2) whether, if it would be proved, in such a case, that there was a customary law of succession before these people became Hinduised, that custom could be abrogated by conversion.

With regard to the first proposition, reliance was placed, in course of argument, on the case in Fanindra Deb v. Rajeshwar Das (85) 11 Cal. 463. Their Lordships in deciding the first question said that the effect of the decision in Fanindra Deb v. Rajeshwar Das (85) 11 Cal. 463 was correctly stated by their Lordships in Muhammad Ibrahim Rowther v. Sheikh Ibrahim Rowther AIR 1922 P.C. 59 where their Lordships expressed themselves as follows:

The question at issue was whether in the family then under discussion there was a legal power to adopt. Had its members been Hindus, they would have been governed by Hindu law and there would have been this power. But though they affected to be Hindu, that in fact was not their status; the utmost that could be said was that, though the family had introduced many Hindu customs, they in fact were governed by family custom. Of such a family it was manifestly appropriate to remark that the question is not whether the general law is modified by a family custom forbidding adoption, but whether in respect to inheritance the family is governed by Hindu law, or by customs which do not allow an adopted son to inherit.

After quoting the aforesaid passage their Lordship said:

Upon the principle thus laid down, the proper inquiry is whether this family can be said to have become so far Hindu as to throw the burden of proof upon the plaintiff, "[in the case the plaintiffs claimed to be governed by family custom and not by Hindu law alleging themselves to be of non-Hindu origin] "or whether the opposite conclusion should be come to, which would throw the burden upon the defendant," [who was claiming the right of an adopted son under the Hindu law on the ground that the family had been Hinduised.]

The question, therefore, in every case whenever it arises, is whether the family or clan has been sufficiently Hinduised. If this question is decided in affirmative, the presumption will be that the parties were governed by Hindu law. Any custom at variance with Hindu law has to proved by the party invoking the same. With regard to the second contention their Lordships said:

The High Court, therefore, was right in treating it as a thing possible in law that this clan on the assumption that it was originally non-Hindu, had become sufficiently Hindu to make succession, by adoption, even if non-existent in non-Hindu times, come in with the rest Hindu law, though the custom of non-adoption might be a survival as in Palaniappa Chetty v. Alagan Chetty AIR 1922 P.C. 228.

In Rani Bhagwan Koer v. J.C. Bose (3) 31 Cal. 11 it was observed that there are various sects of importance, such as Buddhists, the Jains, the Brahmos and the Sikhs, who have evtirely repudiated Brahmanism and to them the Hindu law applies as much as to those who accept that authority of the Vadas. It is clear, therefore, that in order to be completely Hinduised so as to attract the applicability of Hindu law, it is not necessary that a clan should embrace the strictly orthodox cult of Brahmanism. In Rampergash Singh v. Mt. Dahan Bibi AIR 1924 Pat. 420 Jwala Prasad, J. observed as follows:

The law of succession and inheritance found in Ch. IX of Manu and in Ch. II of Yajnawlakya, the different commentaries of which have given rise to the different schools of the Hindu law in the country, as observed above, apply to persons who follow the religious rules as well as to those who do not follow the religious rules of the Sruits and the Smritis.

This authoritative pronouncement completely meets the argument of Mr. B.C. De that in order to hold that a particular class of people of non-Hindu origin are governed by the Hindu law of inheritance and succession, it will have to be established that those people have submitted themselves completely to the Brahmanical and Shastric injunction, have become believers in the Vadas and have been following the religious rules of the Srutis and Smritis. For becoming sufficiently Hinduised, it will be quite sufficient, as I have shown above and as I shall show presently be reference to some more authorities, it they acknowledge themselves to be Hindus and adopt Hindu social usages, retention of some relics of their non-Hindu period notwithstanding. In another part of his judgment Jwala Prasad J., at p. 177 of the report has said:

In my opinion it has not been shown by the plaintiff that the parties in this case were governed by any law other than the Hindu law, and unless the plaintiff show that, the Hindu law must apply to them.

The circumstances under which the aborigines of non-Hindu origin can be governed by Hindu law in matters of inheritance or succession have been dealt with in two recent cases of this Court; one is that of Doman sahu v. Buka AIR 1931 Pat. 198. In this case Noor J. observes:

The question whether a Mundari woman is or is not a Hindu is not very easy to decide. But the authorities are to the effect that the tem ''Hindu'' can safely be applied to all those who claim to be Hindus and are regarded by the society surrounding them to be Hindus.

Reference may be made to Gour�s Hindu Code, 2nd Edn., Article 322 where the learned author observes as follows:

Besides the Hindus properly so called, and those who are commonly so called, there remains a number of people belonging to the aboriginal tribes such as Gonds, Bhils, Kurds, Santals, Kochees of Assam, Aroras of the Punjab, Khatika, Kumbars and the like, who have become absorbed into the Hindu society and who consequently consider themselves Hindus, and as such bound by Hindu law. The test of their case is the same. How do they regard themselves and how are they regarded by the rest of the Hindu community.

In Ganesh Mahto v. Shib Charan AIR 1931 pat. 305, Jwala Prasad J., observed:

The question then is what is the law of succession governing the parties. Reference has been made to a number of authorities to the effect that once it is shown that a party is a Hindu is will be presumed that he is governed by the Hindu law of succession and party who alleges a special custom has to prove the same. In this particular case we have the admission on the apart of the plaintiffs that the parties have now become Hindus and have adopted the Hindu religion. The presumption, therefore, would follow that ordinarily they would be governed by the Hindu law of succession. In Mooka Kone v. Ammakutti Ammal AIR 1928 Mad. 299 the question was considered by a Full Bench of the Madras Court in srelation to a community who were originally non-Hindus but had subsequently adopted the Hindu religion. It was held in that case that in the case of persons professing the Hindu religion, the Hindu law as expounded in the Smritis and commentaries prevalent in the Province in which the dispute arises should prima facie govern the parties though it is open to show that the Hindu law has been either modified by custom or that particular rules have not been adopted by the community who retain in that respect their original customs; and it must be presumed that the parties are governed by the Hindu law except in so far as they prove any custom which is at, variance with it.

To sum up, the position is that it is possible in law that aborigines of non-Hindu origin can become sufficiently Hinduised so that in matters of inheritance and succession they are prima facie governed by the Hindu law except so far as any custom at variance with such law is proved''; that for the purpose of Hinduisation any formal ceremony of conversion is not necessary, that the test as to whether people of non-Hindu origin have become Hindus out and out consists not in their following the religious rules of the Srutis and Smritis or their completely giving themselves up to Brahma, nical rules and rituals but in their acknowledging themselves to be Hindus and, in adopting Hindu social usages, the retention of a few relics of their ante-Hinduism period notwithstanding. In cases where complete Hinduisation is proved, the parties are to be prima facie governed by the rules of the Hindu law, and the burden of proving that any special custom obtained in the community either as a relic of their non-Hindu period or otherwise is upon the party who sets it up. The case in Narendra Narain Choudhuri Vs. Nagendra Narain Choudhuri and Others, affords some illustration of the tests to be applied for the purpose of determining Hinduisation of non-Hindu tribes. In that case, adoption of Hindu names, employment of priests, performance of Pujas, such as Durga Puja, Mansa Puja, Kali Puja, etc., offering of pindas, observance of mourning, performance of funeral ceremonies, were held sufficient proof of a family aboriginal in origin having adopted Hinduism in its entirety, and the nature of the oral evidence was, a3 in the present case, several witnesses saying the family is a Hindu family, or the members of the family are Hindus by creed.

I will now proceed to examine the evidence in this case in the light of the law laid down in the judicial pronouncements referred to above. I have thought it proper to go into evidence keeping in view that the question whether a family or tribe of non-Hindu origin has been so far Hinduised as to attract the provisions of Hindu law in matters'' of inheritance and succession is a mixed question of law and fact. On reading the evidence, I find defendant 1 admitting that he belongs to the caste of Santhal. The learned Judge, who decided the case in Narendra Narain Choudhuri Vs. Nagendra Narain Choudhuri and Others, , observes that it is only the Hindus who speak of caste. The same witness, defendant 1 says that he along with other agnates performed the sradh and fed people on the occasion of the death of the plaintiff''s mother''s mother. He speaks of jointness in mess and property and separation as prevalent in Hindu Mitakshara family. He says "defendants 3 and i are not joint with us in mess and property." P.W. 3 deposes that if out of two brothers one dies, the other brother gets the property, but if they are separate and the deceased leaves a daughter, the daughter succeeds. P.W. 1 in cross-examination says "we perform Durga Puja, Kali Puja and Badna Puja." D.W. 1 says:

There are Bengalis in those neighbouring villages. We have to go to these villages. In these villages Durga Puja and Kali Puja are performed. We go to witness these festivals and dance there. We bow in front of the idols. Bhakta festival is done.

He further says "we perform bhoj (pinda) at the time of death of anybody." It is admitted by the plaintiffs as well as the defendants'' witnesses that they engage priests, though of their own caste, for the performance of marriage ceremonies. It is further deposed that at the time of marriage the bridegroom puts vermilion on the forehead of the bride. This custom is observed in Hindu societies, vermilion being the sign of a married woman whose husband is alive. As to the applicability of the law of survivorship, P.W. 2 says:

If two brothers live jointly and if one dies, his property devolves upon the other brother. If they are separate, the property devolves on the widow in the absence of a son.

It also appears from the plaint and the memorandum of appeal that the parties have adopted Hindu names such as Bhabani (plaintiff) Pandu and Kesar (defendants 8 and 4), Ganesh, Mahesh, Jugal and Kali sons of appellant 2 substituted on his. death in his place. Besides the adoption of the above Hindu social and religious usages as spoken to by the witnesses examined in the case, we have strongest evidence afforded as to the complete Hinduisation of the parties by the fact that at the stage of framing of issues and till almost the very last stage of the suit both parties asserted that they were Hindus, the only difference being as to whether Mitakshara or Dayabhag school of law would govern the question of inheritance at issue. The amendment was an afterthought and not bona fide. With regard to the correctness of the first statement, defendant 1 deposes:

I got the written statement by Ramesh Babu. I told him that we are governed by the Santal custom. I cannot say what he wrote. I am illiterate.

No reliance can be placed upon this evidence which by necessary implication denotes that the pleader concerned in drafting the written statement went against the positive instructions of his client. It is also asserted by the defendant that on the death of a male holder of a property, his widow succeeds and her right is a limited one as it is in Hindu law. This evidences a departure from the rule of agnatic succession in their non-Hindu period. The plaintiff has exhibited a judgment in which the right of a female to succeed in preference to the agnates was upheld, while the defendants have adduced no evidence whatsoever to show that in a case of disputed succession, agnatic rule has been recognised by Court. Both the Courts have concurrently found that succession by females such as widow, daughter and daughter''s daughter is a well established rule amongst them. This militates against the defence case of agnatic rule of succession. This rather proves complete Hinduisation of the clan. I cannot view this rule of succession as a survival of their old custom. Either it is a customary rule of succession or a rule of Hindu law. It is more probably the latter when judged with other Hindu social customs and usages adopted by their community. Their pleadings denote their consciousness of their Hindu status. It has been brought to our notice that according to Manbhum settlement report by far in majority of Santals have been recorded as Hindus. In this state of pleadings of the parties and the evidence, I agree with the finding of the learned lower appellate Court that the parties are Hindus and in matters of inheritance and succession they are governed by Hindu law.

The defendants having abandoned their defence as to their being governed by the Dayabhag school of Hindu law as against the Mitakshara school, and there being absolutely no evidence in support of such a plea, and the evidence as to Mitakshara school prevailing amongst the community being completely one sided, make it perfectly clear that the Mitakshara school of law governs the parties in matters of inheritance and succession. That being so, the plaintiff is an heir according to Section 2 of Act 2 [II] of 1929. Mr. B.C. De has contended that even though it be held that the parties had been converted into Hinduism, the Hindu Law of Inheritance (Amendment) Act, 1929 (Act 2 [II] of 1929), will not apply to the case as the Act applies only to Hindus and not to those who are only converts. But Sub-section (2) of Section 1 of the Act is a complete answer to this contention. The Sub-section reads:

It extends to the whole of British India, including British Baluchistan and the Santhal Parganas, but it applies only to persons who but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions herein, enacted and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will.

In view of the finding that the parties are: governed by the Mitakshara school of Hindu law in matters of inheritance and succession, they come clearly within the meaning of "person who but for the passing of this Act, would have been subject to the law of Mitakshara." I have, therefore, absolutely no: doubt that the Mitakshara school of Hindu la(w as modified by the provisions of Act 2 [II] of 1929 (Hindu Law of Inheritance (Amendment) Act, 1929) governs the present case and the plaintiff, therefore, has a preferential claim as heir of Chota Manjhi to the property in dispute, and is, therefore, entitled to declaration of title to and recovery of possession of the property in dispute; In this view of the matter, the question of the validity or otherwise of the deed of gift Ex. A executed by the plaintiff''s vendor in her favour in respect of a part of the property does not arise for consideration. It may be noted as well that I entirely agree with the Courts below that the defendants have failed to establish that agnatic rule of succession still survives among the parties.

I would, therefore, uphold the decision of the learned Subordinate Judge and dismiss the defendant''s appeal with costs.

Fazl Ali, C.J.

In view of the pleadings of the parties as they originally stood and the findings arrived at by the Courts below which are based on the evidence adduced in this case, I agree that the view taken by the Courts below is correct and the appeal should be dismissed with costs.