Jiwan beas and Another vs Musammat Indra Kuar and Another

Wort, J.—This is the plaintiffs appeal arising out of an action in which as reversioner of one Musammat Indra Kuer, the adoption of Kishore Lal alias Ganesh Krishna by the Musammat who is the widow of one Kanhaya Lal deceased, is questioned. In short, it is stated that the adoption was without the consent of Indra Kuer''s late husband and therefore invalid.

The lady inherited village Askaripur Ganghauli in the District of Gaya as a Hindu widow and it is contended by the plaintiff that being governed by the Mitakshara School of Hindu Law consent of her husband to adopt was necessary. There were two plaintiffs in the action, admittedly, the next two reversioners of the lady, but only one of the plaintiffs, namely, Jewan Beas appeals against the decision of the Subordinate Judge who held that the family was governed by the Mayukha School, coming as they did from Gujrat and that therefore the adoption, although without the consent of the deceased husband of the lady, was valid. The family, of which the lady is a member, is admittedly Varnagar Brahmin which at some date migrated from Gujrat to Benares, the plaintiffs alleging that the migration was direct from Gujrat, the defendants on the other hand, contending that the migration took place via Ahmedabad, the contention that the migration was direct having a bearing on the question of the date of the migration.

The case of the plaintiffs in the Court below was that this migration took place between eight hundred and a thousand years ago, whereas the defendants allege that they come via Ahmedabad, a city founded not earlier than the 15th century, the migration being in modern times and fixed by the learned Judge in the Court below as not earlier than 1652 A. D. The Mayukha was written by a Maratha Pandit at about the beginning of the 17th century and it was the -case of the plaintiffs relying on the authority of Balwant Rao v. Baji Rao 57 Ind. Cas. 545 : A I R 1921 P C 59 : 47 I A 213 : 48 C 30 : 39 M L J 166 : (1920) M W N 483 : 22 Bom. L E 1070 : 28 M L T 157 : 18 A. L. J 1049 : 12 L W 679 : 16 N L B 187 : 25 C W N 243 (P C), that the family having left some 801 years ago at the time at which the law of Gujrat was the Mitakshara, the family was governed by the school prevailing at the time of their departure unaffected by subsequent developments. This contention'' hardly re-presents the view as expressed by Lord Dunedin but with that, if necessary, I shall deal later.

The facts leading up to the institution of the suit have been dealt with but they are immaterial for the purpose of deciding the question in issue. The case on the pleadings and issues as well as in the argument in the Court below was limited to the question whether the family was governed by Mitakshara or by the Mayukha but in this Court an additional question was raised, with which the defendants in the Court below had no opportunity to deal nor was the Subordinate Judge asked to determine. It is said that assuming that the family migrated in 1652 to Benares, even so the adoption is invalid. The Mayukha, it is agreed, dispensed with the consent of the husband but it is alleged made the consent of the kinsmen at least necessary; that the development of the law to the effect that the kinsmen''s consent was unnecessary was due to a later writer, namely, Sauskara Kaustubha. I have said that this question does not fairly arise in the case as presented to the Subordinate Judge but I propose to deal with it in a moment. The respondents contend and indeed even now can show on the evidence that had the consent of the kinsmen been necessary they had obtained it. The evidence in the Court below, in so far as it relates to the question which this Court is invited to consider (and no other questions of fact have been discussed before us) was directed to two questions: first, the date of the migration of the family and secondly, the question of transactions which were carried out in consonance with the Mayukha and contrary to the Mitakshara, e. g., cases of daughters inheriting absolutely, marriages within the degrees prohibited by the Mitakshara and adoption without the consent of the husband.

In connection with the date of the migration, there was some discussion of whether the family was of the Thani Varnagar Brahmins or Perdeshi Varnagar Brahmins, the first being those who migrated early and the latter those who migrated at a much later date.

The learned Subordinate Judge, relying upon both the oral and documentary evidence, in the former of which there is an admission of the plaintiff, has come to the conclusion that the family migrated via Ahmedabad. This is not now contested in this Court but it is still maintained that the migration was before the date of the Mayukha (about 1610) and certainly before the Kaustubha (about 1775 so it is alleged). On the point of the migration, as far back as, eight hundred to a thousand years ago the plaintiff relied upon a number of witnesses who stated the fact and the evidence of the existence of the temple known as Hatkeshwar in Benares said to be a thousand years old and erected by the Thani Varnagar Brahmins. Bare statements as to the date of the migration such as made by Labh Shankar Pathak, Govind Ram Pandaya and other witnesses for the plaintiff can hardly be accepted as establishing with any precision the date on which these people migrated, especially as there is nothing to support the statements. It is not denied that Varnagar Brahmins have been established in Benares for many hundreds of years, but on the other hand, as the division by name of the family and its different sects go to show there has been more than one migration of which some certainly took place at a late date. Baldeo Das, one of the plaintiffs'' witnesses, who as the Subordinate Judge stated, professed to be a scholar, was discredited in the opinion on the Subordinate Judge as he professed ignorance of the fact, which is not now seriously disputed by the parties, that there was a section of the family known as Ahmedabadi Nagar Brahmins. The criticism that nothing documentary has been adduced in evidence in support the witnesses''s statement, equally applies to him. But there are, however, on the side of the plaintiffs certain documents which to some extent assist the defendants'' case. The earliest of these is Ex. 9, a deed of gift dated 1709 Sambat, being 1652 A. D. Whether this is of the branch of the family of which the parties are members is not certain although the documents of 1700 A. D. (Ex. 4) and 1710 A. D. Ex. 8, are evidence of transactions entered into by persons who were admittedly ancestors of the family. If the evidence adduced could be said to fix the date of the migration, which I am of opinion it does not, there would seem to be no valid reason for concluding that the decision of the Judge in the Court below was wrong. However, there was no serious argument before us that the evidence established the migration as having taken place as far back as eight hundred to a thousand years ago. In this uncertain state of the evidence it is necessary to repeat that it was the admitted case of the parties that the Varnagar Brahmins, which the parties are, migrated from Gujrat, and, as I have stated already, it was seriously disputed that the migration was via Ahmedabad. The historical fact that Ahmedabad was founded not earlier than the 15th century would fix the migration at a much later date than the plaintiffs allege. That the Mayukha and Kaustubha are authorities in Gujrat and the Bombay Presidency is well established and in this school of law consent of both the husband and the kinsmen is dispensed with: Rakhma Bai v. Radha Bai 5 B H C R 181: 5 B H C R 191 ---[Ed.].

There has been no suggestion before us that the evidence in any way establishes an abandonment of the law of the country from which the parties came. These facts, on broad lines, would appear to dispose of the case in favour of the respondents. But it was at this stage that the development in the case, as presented in the Court below, was introduced. The new point which is raised depended upon the ascertainment with some precision of the exact date of the migration. It was supported by the following contentions:

First, that the parties, even taking the date of their migration as 1652 left before the Mayukha was introduced into Gujarat, the latter fact resulting from the Maratha invasion of the 18th century; and secondly, that even if the Mayukha governed the parties when they were living in Gujarat under the Mayukha, although the consent of the husband was unnecessary, the consent of the kinsmen was a condition of validity but the Kaustubha dispensing as it did with the consent of the kinsmen was a later development not earlier than the 18th century.

The case, as I have already stated, as developed in the Court raises two points based on the assumption that the migration took place about 1652 A. D. It was first said that the Mayukha was not an authority in Gujrat at the time that the family left the place, and they, therefore, were governed by the Mitakshara uninfluenced by the Mayukha. The second was that assuming they were, as found by the Subordinate Judge, governed by the Mayukha, consent of the kinsmen was necessary as it was the Kaustubha written at a much later date, first dispensed with the consent of the kinsmen. It is impossible to give effect to this argument without deciding with some particularity as far as the evidence will allow, of the date of migration, and certainly not without taking into consideration the case of the parties in the Court below. No suggestion was made before the Subordinate Judge by the plaintiffs who were the members of the defendants'' family, and who must have been well aware of the actual facts relating to the rules by which the family was governed, that the Kaustubha in any way affected the authority of the Mayukha or this family if they were in fact governed by the Mayukha. In other words it was not suggested that this family was any way different in this respect from any other family governed by the Mayukha and which made no distinction between; the Mayukha and the Kastubha, both being authorities of the school which governs the people of Bombay and Gujrat at the present day. The plaintiffs were content with the clearcut issue whether the family migrated at the time that the Mitakshara uninfluenced by the Mayukha was the rule of the family to which they belonged.

It is now too late to suggest that the law of Gujrat is not the same as that of Bombay and that the consent of the husband or of the kinsmen is necessary: See Yadao v. Namdeo 64 Ind. Cas. 536 : A I R 1922 P C 216 : 48 1 A 513 : 17 N L R 145 : 49 C 1 : 30 M L T 53 : 26 C W N 1393 : 42 M L J 219 : 15 L W 565 : 20 A L J 481 : 21 Bom. L. R. 609 (P C). A further fact must be taken into consideration and that is that which is found by the Subordinate Judge and not disputed in this Court, that the ceremonies attending births, marriages and deaths are not those practised in Benares but those in the country from which the parties migrated. Its in itself raises a presumption, and indeed is strong evidence, that they are now governed, as they alleged they are, by the Mayukha school prevailing in the land from which they migrated, Jawahir Lal Vs. Jarau Lal and Others, It is only by the plaintiffs successfully contending that they have adopted the customs in the school of law prevailing in Benares, and have abandoned the law of the country from which they came that they can succeed. On the evidence, that they are now governed impossible to decide with any certainty or precision the date of the migration. That the family are Varnagar Ahmedabad Brahmins is, in my judgment, not open to doubt. Tradition which on this point is not unreliable and of which the defendants gave evidence points to a migration about 200 years ago but whether the parties are Thanis (those who migrated at an early date) or Pardeshis (of a later migration) was not decided by the learned Subordinate Judge. The deeds, Exs. 4 and 8, which I have already mentioned being executed by the admitted ancestors of the parties which show that they were in Benares about 1700 A. D. This appears to be the only reliable evidence which would in any way fix the date of their arrival, and that only vaguely.

The first point arising as to the authority of the Mayukha is met by the plaintiffs-appellants contending that the Mayukha was forced on the people of Bombay and Gujrat by the Marathas invading the country in the 18th century. The case of Bhagirathibai v. Kahnujirav (5) which is relied upon does not give real support to this argument. The judgment of the learned Judges of the High Court of Bombay was to the effect that the country being under Muhammadan rule the customary law of the Hindus had dwindled into mere caste usages, and the influence of the Brahmins had perished. That the invasion of the Marathas bringing with them as they did their law books and amongst them the Vyayahara Mayukha had the effect of a revival of Hindu polity, the Mayukha taking a place analogous that of the Roman Law in mediaeval Europe. It must also be remembered that the J Mayukha was a commentary to the Mitakshara and nothing more. It did not declare new law but merely explained the law prevailing before it was written: Maharaja of Kolhapur v. S. Sundram Ayyar 93 Ind. Cas. 705 : A I R 1925 Mid. 497 : 48 M 1. and Balwant Rao v. Baji Rao 57 Ind. Cas. 545 : A I R 1921 P C 59 : 47 I A 213 : 48 C 30 : 39 M L J 166 : (1920) M W N 483 : 22 Bom. L E 1070 : 28 M L T 157 : 18 A. L. J 1049 : 12 L W 679 : 16 N L B 187 : 25 C W N 243 (P C). Again as Lord McNaughten said in Chandrika Bakhsh v. Muna Kunwar 24 A. 273 : 29 I A 70 : 8 Sar. 233 (P. C.) 281 Page of 24 A.---[Ed.], that although migration took place before the Mayukha was written it may well be that the rule was in force in earlier times and that on this point the Mayukha embodied and defined a pre-existing custom. If may say so with respect, Lord McNaughten was only stating in different words the principle upon which the commentators must be construed. Further, the family continuing the customs which are in accordance with those of the country from which they came and with the Mayuka, and in the complete absence of evidence of abandonment of that school of law it seems to me impossible to hold that the law governing the parties was any different from that which admittedly prevails in Bombay and Gujrat. The argument that there is any difference between the Mayukha and the Kaustubha based as it is on fixing with accuracy the date of the migration at some point of time prior to the Maratha invasion is one that cannot be supported in this case. There then arises, according to the argument, the distinction between the Mayukha and the development which it is said is evidenced by the later writer Kaustubha.

In the first place it must be noted that the Kaustubha dealt with ceremonies. Even if any distinction can be drawn between the Mayukha and Kaustubha this again depends upon fixing the date of the migration with even greater accuracy. This part of the plaintiff-appellant''s present case can, in my judgment, receive no support either from the facts or the law, 3rd edition, page 386, mentions ready considered. The Kaustubha was written at a date which cannot be fixed with certainty. Gour in his Hindu Law, 3rd edition, page 386, mentions it as written by 1750 A. D. It is said in the case of the Maharaja of Kolhapur v. S. Sundaram Ayyar 93 Ind. Cas. 705 : A I R 1925 Mid. 497, 48 M 1. at page 65 Page of 48 M---[Ed.] that Sauskara Kaustubha came into use about 1611. This great divergence leaves the matter open to very considerable doubt but this much we have and that is that the Mayukha and Kaustubha are paramount authorities in Bombay and Gujrat. The Collector'' of Madura v. Mootoo Ramalinga Sathupatty 12 M I A 397 : 1 B L R 1 : 10 W R 17 : 2 Sar. 361, at page 436. That no distinction is drawn between the two in the Bombay school is also not open to doubt, the one being considered complimentary to the other. It has never been suggested in any authority that there was any change of the law brought about by the Kaustubha and on the principle of interpretation which is applicable to this branch of the law, there could not be such a suggestion. Had it been possible to hold that view it would *� have depended, as I have already stated, upon the evidence as to the migration and this case we have seen the Subordinate Judge was not invited to consider, that is to say, whether the migration took place between the date of the Mayukha and the Kaustubha nor was there any evidence of the fact. In my view no support can be had for this argument.

The defendants, in order to emphasise their case, have adduced evidence to show that the family had followed this school of law during their residence in Benares. The evidence consisted of instances of daughters taking an absolute estate, adoption without consent and marriages within the degrees prohibited by the Mitakshara. (After examining the evidence, his Lordship concluded). In my judgment, for the reasons which I have given there is nothing to show that the decision of the learned Subordinate Judge was wrong and so far as the new case which was raised in this Court, I am clearly of the opinion that it has failed. In these circumstances the appeal must be dismissed with costs.

Fazl Ali, J.

I agree.