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Judgment
Jagadisan, J.—These three appeals arise out of the same suit O. S. No. 23 of 1955 on the file of the Subordinate Judge''s Court, Tanjore. The first plaintiff in that suit claimed to be the adopted son of one T.B. Doss Rao, the deceased husband of the first defendant and sought recovery of possession of the properties described in the plaint A, B, and C schedules as belonging to him as such adopted son. The first defendant denied the factum of the adoption itself, and contended that even if the adoption did in fact take place it was invalid in law. The second defendant was the alienee from the first defendant of items 1 and 2 of the plaint A schedule. The third defendant was another alienee from the first defendant of items 29 and 35 of the plaint B schedule. The fourth defendant was in occupation of the house described as item 3 of the plaint A schedule and the 5th defendant was in occupation of the house described in the plaint C schedule, as tenants under the first defendant. The 6th defendant was living in the house, item 49 of the plaint B schedule. The 6th defendant was impleaded as a party subsequent to the institution of the suit as per order In I. A. No. 489 of 1955 dated 2nd August 1955. She came to be added as a party by reason of the plea of the first defendant in her written statement that she is a necessary party and that the suit was bad without her joinder. The 6th defendant claimed to be the lawfully wedded second wife of the late T.B. Doss Rao. The first defendant supported the 6th defendant In her claim to be the widow of Doss Rao. All the defendants made common cause against the first defendant plaintiff and denied his status as the adopted son of T. B. Doss Rao. The second plaintiff in the suit claimed to be a purchaser from the first plaintiff of an undivided one-third share in all the suit properties. It seems to be plain that the second plaintiff who obtained the conveyance from the first plaintiff on 4th March 1955, six days before the suit was instituted belongs to the class of financiers and speculators who promote litigation to sub-serve their own ends and purposes.
The learned Subordinate Judge of Tanjore who tried the suit upheld the first plaintiff''s claim as the validly adopted son of the late T.B. Doss Rao. He found that the first plaintiff was not competent to challenge the validity of the alienation of item I of the plaint A schedule. He further found that the alienation of other items of properties made by the first defendant and impugned by the first plaintiff were not valid and binding upon him. The first plaintiff was granted a decree for recovery of possession of all the properties described in the plaint schedules A to C except item 1 of the A schedule. The first defendant was directed to render accounts in respect of the income from the plaint properties, for which the first plaintiff was granted a decree, from 8th June 1938 till date of alienation in respect of alienated properties and till recovery of possession regarding the other properties. An enquiry under O. 22, R. 12, C.P.C., was directed to be held in respect of the determination of the future mesne profits, payable by defendants 2 and 3.
The learned Subordinate Judge found that the 6th defendant was not the lawfully wedded wife of the late Doss Rao.
Appeal 61 of 1957 is the appeal preferred by the first defendant challenging the correctness of the finding of the Court below in regard to the status of the first plaintiff. The second defendant has preferred A. S. No. 168 of 1957 in so far as the judgment and decree of the Court below affects his rights over the second item of plaint A schedule. A. S. No. 278 of 1957 has been preferred by the 6th defendant contending that the finding of the Court below in regard to her alleged status as the wife of Doss Rao is not correct.
In A. S. No. 168 of 1957 a memorandum of compromise signed by the appellant and the second plaintiff has been filed into Court. These parties pray that the memorandum of compromise may be recorded and a decree in terms thereof be passed. The other two appeals were heard together.
T. B. Doss Rao, the late husband of the first defendant, was employed as a Sub Magistrate for a long number of years under the State Government. He was promoted as a Tahsildar which office he held in several places in Tanjore District, Sirkali, Mannargudi and other places. At the time of his death on 3rd September, 1934, he was holding office as Huzur Sheristadar in the Tanjore Collectorate. He died issueless. The 6th defendant in the suit was living with him and the evidence on record seems to suggest that she was living as his wife, though the question whether she was married to him or not is not free from controversy. Rathnabai, the mother of the first plaintiff, is the daughter of one Ramachandra Rao, the junior paternal uncle of the first defendant. The first plaintiff''s mother and the first defendant are therefore related as cousin-sisters. The natural father of the first plaintiff is one Narahari Rao, who was employed as a clerk in the postal department at Madras. The case of the first plaintiff is the first defendant was anxious to adopt one of the sons of her cousin Rathnabai that she pressed his parents to give him away in adoption to her and that he was given away in adoption at Tanjore by his natural parents to the first defendant on an auspicious day, namely, 8th June, 1938. As against this definite case of the first plaintiff of the first defendant having taken him in adoption on 8th June, 1938, in accordance with shastraic rights, the first defendant''s equally definite case was that no adoption took place on 8th June 1938 or at any time thereafter. The onus of proving the adoption is undoubtedly upon the first plaintiff. It must be mentioned even at the outset that the evidence in support of the factum of adoption of the first plaintiff, both documentary and oral, is overwhelming and it is indeed strange that the first defendant should have thought fit to deny such an incontrovertible fact. Of course her further plea was that the alleged adoption of the first plaintiff is invalid in law as she was not governed by the Mayukha Law of the Bombay School and as she had neither the authority of the husband nor the consent of sapindas to make the adoption to her deceased husband. This plea attacking the validity of the adoption was set out in the written statement filed by her. At the trial of the suit she adopted another line of defence as well, though not pleaded in her written statement. She suggested that the boy actually taken in adoption was not the first plaintiff but another son of the first plaintiff''s parents who is no longer alive.
We shall very briefly refer to the evidence relating to the factum of adoption of the first plaintiff to the late Doss Rao just to express our concurrence with the finding of the learned Subordinate Judge on this issue in the case.
X X X
In our judgment the first plaintiff was in fact given away in adoption by his parents and taken by the first defendant as the adopted son of her late husband Doss Rao.
This first defendant pleaded in her written statement that she was coerced into signing the ante-adoption agreement and deed of adoption, Exs. A. 2 and A. 3 by threats and misrepresentations made by Narahari Rao, the first plaintiff''s father and that she was also the victim of fraud practised upon her by Narahari Rao and his partisans. The first defendant is not an illiterate lady. The letters written by her to Narahari Rao are signed by her in English though the body of the letters is in the Tamil language. She admitted in the witness box that the ante-adoption agreement was read out to her at the time of the registration of the document. The evidence shows that she was very keen in bringing about the adoption to her late husband and that one Bava Gopalaswami Mudaliar who was the friend of her late husband took a keen interest in the matter. He has attested both Exs. A-2 and A-3. It is impossible to believe that the first plaintiff''s father who was a clerk in the Postal department with a very moderate salary and who was burdened with a large family could have been in a position to dominate over the will of the first defendant or to practice deceit and imposition upon her especially when other respectable persons were helping her with advise and guidance. We have no hesitation in holding that the first defendant has failed to prove that she was not a free agent in executing Exs. A-2 and A-3.
The adoption of the first plaintiff though proved to have been effected and brought about in due conformity with all the ceremonies and rituals appertaining to the function under the Hindu Law cannot be valid in law unless the first plaintiff is able to establish that the first defendant had the authority of her deceased husband to make the adoption or that the parties are governed by the Bombay School of Hindu Law (Mayukha Law), under which a Hindu widow is enabled to adopt of her own volition even without the authority of her deceased husband.
We shall first examine whether in fact the first defendant was authorised by her husband Doss Rao to take a boy in adoption to him after his death. In the plaint the first plaintiff averred that Doss Rao authorised the first defendant before his death in the presence of some respectable persons to adopt a son to himself. The first defendant denied this in her written statement by making the averment that there was no wish expressed by Doss Rao that she should take any boy in adoption. The allegation in the plaint alleging the existence of oral authority given to the first defendant by her husband, has not been substantiated by adducing any oral evidence. The respectable persons referred to in the plaint remain anonymous till today. What is relied upon by the first plaintiff in support of this oral authority by Doss Rao is the recital in Exs. A-2 and A-3 stating that the first defendant had the permission of Doss Rao before his death for taking a boy in adoption on his behalf. Reference is also made to Ex. A-6 dated 24th November 1937 which is a letter written by Bava Gopalaswami Mudaliar to the first plaintiff''s father. Therein the following sentence occurs :
She (the first defendant) says that her husband Mr. Doss Rao has given her permission to adopt and he has suggested some children and your sister-in-law prefers your child because it is her sister''s child and you all will be helpful to her.
Bava Gopalaswami Mudaliar who was alive during the trial of the suit was not called as a witness by either side. This letter cannot be evidence of the fact of oral authority in favour of the first defendant to make an adoption. It cannot have a higher evidentiary value than the assertion made by the first defendant herself in the two solemn documents, Exs. A-2 and A-3. The first defendant giving evidence in the case as D. W. 4 has denied categorically that her husband authorised her to adopt a boy to him. It may be that her present denial cannot be safely acted upon as her credentials for speaking the truth are not high. She is certainly interested in this action to deny the oral authority of her husband, if any, to defeat the adoption pleaded by the first plaintiff. We are Unable to hold that the mere recital in Exs. A-2 and A-3 can be taken as evidence of establishing the truth of the oral permission alleged to have been given by Doss Rao to the first defendant. The Hindu Law does not require the husband''s authority in favour of his wife to make an adoption to be in any particular form. It need not be written; it may also be oral. But as a Hindu widow governed by the Southern School of Mitakshara Law cannot adopt without the husband''s permission or without the consent of his agnates or cognates any alleged oral permission has got to be strictly proved and convincingly established. Self-serving recitals in a document or self serving declarations in writing cannot be accepted as proof of oral authority, by themselves without proof aliened establishing that as a fact. In Raja Mahadaya Royal v. Raja Veerabasava Chikka Rayal AIR 1948 P.C. 114, the Judicial Committee held that mere assertion made by a widow that she had the authority of her husband to adopt without making any effective Endeavour to support it except by carrying out the adoption is not sufficient evidence to establish that the widow had the authority of her husband to adopt. We are of opinion that the first plaintiff upon whom the burden of proving his status undoubtedly rests, has failed to prove that the first defendant had the authority of her husband to make the adoption.
Mr. R. Gopalaswami Aiyangar, learned Counsel for the respondents-plaintiffs contended that the first defendant was estopped from denying any authority of her late husband in view of the representation made by her in Exs. A. 2 and A. 3 of the existence of such authority which has been acted upon by the first plaintiff and his parents so as to bring about an alteration of status. In support of this proposition of law learned Counsel referred us to the decision of the Judicial Committee in Dharam Kunwar v. Balwant Singh 34 All. 398 (P.C.). In that case a Hindu widow took a boy in adoption in pursuance of an alleged authority in her favour given by her late husband. The fact that the husband gave authority to the widow was not in dispute but what formed the subject matter of the controversy between the parties was the scope and extent of the authority so given. The widow after having taken the boy in adoption and having treated the adoptee as the adopted son for a long time denied his status and filed the suit for a declaration that he is not the adopted son. The adopted son Balwant Singh contested the suit raising various pleas one of which was that the plaintiff-widow was estopped from denying the authority of her husband. Lord Robson dealt with this question and observed as follows:
Of course, the estoppel pleaded against the Rani must be taken as purely personal. It does not bind any one who claims by an independent title, but, in view of the decision now given, that the respondent was, in fact, only adopted, further litigation on the point may be taken as happily out of the question. So far as the Rani herself is concerned it would indeed be difficult to have a stronger case of estoppel. She has asserted her authority in the most solemn manner under her hand and seal, and her conduct both before and after that assertion had been of a like unequivocal character. She could not now be allowed to change her story without grave injustice ensuing to those who have acted in reliance upon her deliberate and repeated representations. The respondent is now severed from his natural family; he has undergone a change of social status which may or may not be beneficial to him, but which has certainly so altered his mode of life as to make a relapse into his former condition a grievous hardship upon him.
The law of estoppel as embodied under S. 115 of the Indian Evidence Act is of general applicability and if the facts of a particular case satisfy the requirements of that provision the bar of estoppel cannot but be attracted. In a subsequent case reported in Dhanraj Joharmal v. Soni Bai 52 I.A. 231, the Judicial Committee had again to consider the plea of estoppel raised in connection with the status of an individual as an adopted son. At page 241, Justice Ameer Ali observed thus:
What are the declarations, acts or omissions of Ramdhan which are said to constitute the estoppel ? It is not necessary to decide in this case whether a status that rests on religious rules and religious sanctions and involves the performance of religious duties can be established by mere estoppel.
Referring to the case in Dharam Kunwar v. Balwant Singh 34 All. 398 (P.C.) and cases of like description the learned Judge observed thus at page 243 :
A number of rulings of this Board and decisions of the Madras High Court have been referred to in support of the contention that the plaintiff is estopped. Closely examined, it will be seen that those cases relate to adoptions acquiesced in and recognised for a number of years by the person making the adoption, and the Courts considered in substance that a long course of recognition and acquiescence on the part of the person who was the best acquainted with the circumstances, gave rise to the inference that the conditions relating to the adoption were duly fulfilled. In Dharam Kunwar v. Balwant Singh 34 All. 398 (P.C.), the estoppel was considered purely personal.
Mayne in his Hindu Law, 11th Edn. at page 274 sets out the legal position thus:
But estoppel does not convert an invalid adoption into a valid one. It is only a rule of evidence which under certain special circumstances can be invoked by a party to an action.
Again at page 276 it is observed:
Neither the law of estoppel nor the Statute of Limitation can make a person an adopted son if he is not one.
The first plaintiff cannot establish the validity of this adoption by relying upon the bar of estoppel against the first defendant. One of the essential ingredients of S. 115 of the Indian Evidence Act is that the person who pleads estoppel must have acted on the representation made to him. There is no evidence to show that the parents of the first plaintiff acted upon the representation made by the first defendant of the existence of an oral authority in her favour to adopt. Exs. A. 2 and A. 3 alone contain the averment of the first defendant that she is governed by the Mayukha Law of the Bombay School. It may be that the plaintiff''s parents acted upon this representation and were consenting parties to give the first plaintiff in adoption, The question of estoppel is a mixed question of fact and law and in the absence of clear unequivocal evidence proving that the parents of the first plaintiff acted only on the representation of the first defendant of the existence of the oral authority to adopt the plea of estoppel raised must fail.
We have next to consider the question whether the parties are governed by the Hindu Law prevailing in the Maharashtra country of the Bombay State part of which follows the Law of Vyavahara Mayukha of Nilakanta and part of which is governed by the Mitakshara. The case of the first plaintiff is that both himself and the first defendant are governed only by the Hindu Law as administered in the Maharashtra country of the Bombay State and not by the law prevailing in the Southern State of Madras which is sometimes described as the Dravidian School of Mitakshara. It is now settled law that a Hindu widow governed by the Mayukha Law or by the Mitakshara as obtaining in the Bombay State can make an adoption to her deceased husband without his authority or permission so long as there is no prohibition against the widow from taking a boy in adoption. In Yadeo v. Ramdeo 49 Cal. 1 = 15 L.W. 565 (P.C.), the Judicial Committee held that in the Mahratta country of the Bombay Presidency and in Gujarat a Hindu widow, whose husband has not expressly forbidden her to adopt a son to him, has power to do so, without authority from her husband and without the consent of her husband''s kinsman, whether or not her husband''s estate is vested in her, and whether or not he died separated. At page 13 the Judicial Committee observed thus:
It has been decided by the High Court of Bombay that in the Mahratta country of the Presidency of Bombay and in Gujarat a Hindu widow, who is sole or joint heir to her husband''s estate, may adopt a son to her deceased husband, without authority from her husband, and without the consent of his kindred, or of the caste or of the ruling authority, but that she cannot adopt where her husband has expressly forbidden an adoption. That is not now disputed; it is undoubtedly the law.
Their Lordships of the Judicial Committee expressed the view that a Hindu widow of a deceased coparcener of an undivided family also had the same privilege and right to make an adoption.
In Maharaja of Kolhapur v. Sundaram Aiyar 48 Mad 1 , a Division Bench of this Court expressed the same view, following the decision of the Judicial Committee. At page 65 Spencer Offg., C.J., observed thus :
The established law of Bombay as expounded by the Privy Council on the strength of all those authorities is that in that Presidency a widow can adopt even without being authorised by her husband or his kinsmen provided that he has not prohibited it. These law books only reproduce the pre-existing custom of the country. They do not enact a new law.
It is therefore clear that if the parties in this action are to be governed by the Hindu Law prevailing in the Mahratta country of the State of Bombay, the first plaintiff''s adoption to the late Doss Rao, the truth and factum of which we have upheld, is valid in law. But if the parties are to be governed only by the Hindu Law prevailing in the State of Madras wherein the parties are now domiciled the first plaintiff''s adoption though true cannot be valid in law as we have found that the alleged oral authority by Doss Rao in favour of the first defendant to make the adoption has not been established. The proper school of Hindu Law to be applied to the parties has therefore become a very material issue in the case.
There is no lex loci in India governing succession to and devolution of properties. The Hindu Law with all its ramifications and classifications into various schools of law and as shaped and altered by frequent enactments of the legislature of the country is still a personal law. This personal law is a part of the status of every Hindu family. A Hindu family may migrate from one place to another but the members of the family carry the personal law along with them. It may be open to the members of the family after such migration to give up and renounce the law which they carried with them and adopt the law prevailing in the place to which they have emigrated. But until such an act of renunciation is positively established the presumption is that the members of the migrating family are still governed by the law of the place of their origin. Mayne in his Hindu Law, 11th Edn., at page 89 sets out the position relating to migrating Hindu families as follows:
Prima facie, any Hindu residing in a particular province of India is held to be subject to the particular doctrines of Hindu Law recognised in that province. In Bengal and Assam, be is governed by the Dayabhaga School of Hindu Law; in the Mithila country in Bihar, by the Mithila law; in the rest of Bihar, in the district of Benares and in the Central North Western and Northern India, by the law of the Benares School; in Guzerat, in the Island of Bombay and in North Konkan, by the Mayukha Law; in the rest of the Bombay province by the Mitakshara and the Mayukha and in Southern India, by the law of the Dravida School. But this law is not merely a local law. It becomes the personal law. and a part of the status of every family which is governed by it. Consequently where any such family migrates to another province, governed by another law, it carries its own law with it, including any custom having the force of law. That law is the law existing at the time of migration. Of course, it is open to the family to adopt the law of its new domicile which will have to be affirmatively proved. Where however the emigration is to a different country, the presumption that the family has adopted the law of the people among whom it has settled will be more readily made, if it shows that the members of the family have so acted as to raise the inference that they definitely cut themselves off from their old environment.
The question as to what is the proper School of Hindu Law applicable to a Hindu family can arise only in respect of families which have migrated from one part of the country to another. Proof of migration therefore seems to be an essential factor the absence of which will lead to the inference that any particular Hindu family will only be governed by the school of Hindu Law prevailing in the State where the family is found residing. In Surendranath Roy v. Mussamut Heeramonee Burmoneah 12 M.I.A. 81, the question for consideration was whether the parties were governed by the Dayabhaga Law or by the Mitakshara Law. The family came into Bengal from a distant part of India where the Mitakshara prevailed. On the question of migration the Judicial Committee observed thus at page 96:
From the admissions in the pleading, referred to by the High Court in their judgment, and from the evidence, it may be safely concluded that this family came from a part of India where the Mitakshara was and is the prevailing authority; that it came not unattended by Ministers of religion, and that it originally continued in Bengal its ancient law.
Their Lordships observed that an adherence to family usages is a strong Oriental habit, and held that the presumption is that the members of a family migrating from one part of the country to another continues their old family customs, and that the onus will be upon a party who alleges cessation of such custom to prove that fact.
In Srimati Rani Parbati Kumari Debi v. Jagadis Chander Dhalal 29 I.A. 82 it was held by the Judicial Committee that a Hindu family migrating from one part of India to another is presumed to continue to observe the Shastras by which it had been governed; and that on the evidence of that particular case that presumption has not been displaced. At page 96 the Judicial Committee observed thus:
The tenacity of such customs, even under the strain of migration, has been repeatedly recognised by the law in questions such as the present. Accordingly, the question being primarily one of personal as distinguished from geographical custom, it is of the first importance to inquire of the origin of the family. Now, amid a mass of contradiction on almost everything else, it is undisputed that these people came from north-west. Tradition names Dharanuggor as their original home; but the precise place is of no moment, for it is not suggested that in any place in the Northwest does the Dayabhaga prevail. The presumption, therefore, is that the family continued to observe the Mitakshara, and it remains to see whether the contrary has been proved.
In Balwant Rao v. Baji Rao 47 I.A. 213 = 12 L.W. 679 (P.C.), a Brahmin whose ancestors lived in Maharashtra in the Bombay Presidency died while in a pilgrimage leaving immovable property in the Central Province to which his daughter succeeded. In suits in which the daughter''s sons sought to set aside alienations made by her the Court of the Judicial Commissioner found that the deceased Brahmin had not an exclusive domicile either in Berar (where succession is governed by the law prevailing in the Bombay Presidency) or in the Central Province and held that the succession must therefore be governed by the law prevailing in the Central Provinces where the property was situated. There was no evidence of renunciation of the law prevailing in the Bombay Presidency. The Judicial Committee held that the question was not one of domicile and that the daughter took an absolute estate in accordance with the law applied in the Bombay Presidency. Lord Dunedin delivering the Judgment of the Board set out the legal position thus at page 219:
Now it is absolutely settled that the law of succession is in any given case to be determined according to the personal law of the individual whose succession is in question. It is well put by Mr. Mayne in para 48 of his Hindu Law. Now it is certain that Bapuji did not originally live at Chikni, the place where he was actually living when he started on the pilgrimage in the course of which death overtook him. He was an immigrant. What law did he bring with him ? Of course, if nothing is known about a man except that he lived in a certain place, it will be 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. What are the facts here? Of renunciation there is no trace whatever. Nor it is found clearly by both learned Judges that Bapuji was a Maharashtra Brahmin. The District Judge says so in the first sentence of his Judgment. The Judicial Commissioner says : ''It is common ground that Bapuji''s ancestors had at one time lived in Maharashtra, in the Bombay Presidency. It is not known whether Bapuji had himself emigrated or whether his ancestors had done so.'' In the opinion of their Lordships that in this case settles the matter, His family was according to this admission subject to the law as expounded in Bombay.
Is there any proof of migration on the part of the ancestors of Doss Rao or the ancestors of the first defendant or the ancestors of the first plaintiff from the Maharashtra country to the Madras State ? P. W. 4 the first plaintiff''s father deposed thus in examination in chief:
I belong to Kshatriya Non-brahmin Mahratta caste. My grandfather and great grandfather had come and settled down in Madras from Poona. My wife and first defendant are daughters of brothers.
In cross-examination he deposed as follows:
I was born in Madras. My father''s ancestors belonged to Poona. There is no record to show that my ancestors were in military service. My father died about 25 years age. My father used to say often that he came from Poona side, whenever topics arose. There is no witness now to say that we came from Poona side. There is no correspondence between me and Poona side.
P. W. 3 Baji Rao is a Maharashtra. He deposed that his father used to say that his family has migrated from Poona, though he himself was born in Madras. He stated that the surname of his family is Seller and it was in that family that the wife of Shivaji the great was born. He is related to the first plaintiff''s father and the relationship is that the first plaintiff''s father is the maternal uncle''s son of the brother''s wife of the witness. In cross-examination he deposed as follows:
I do not know when the ancestors of Narahari Rao and Doss Rao came from Mahratta country. I cannot say whether they came from Mahratta. Narahari told me so. I do not know personally anything.
The first defendant as D. W. 4 deposed as follows :
I am not a pure Mahrarta and I am Mahratta and Tamilian. In the documents executed by me and taken by me I have been described as one belonging to the Mahratta community. In the a affidavits filed in this Court I have described myself as belonging to that community; Doss Rao has also described himself as of that community in the documents. In the affidavits and written statements I have instructions to describe me as a Mahratta, as my husband had described himself like that. I cannot say whether I am Tamilian or not. My people would not many in the Mudaliar, Pillamar or Naidu community. I talk Mahratti language at home. I do not know whether there (are) my relations at Poona. I had not gone there... Most of my relations are at Tanjore. I do not know where from their ancestors came and settled at Tanjore.
In all the documents to which Doss Rao was a party he was invariably described as a Mahratta. The first defendant as admitted by herself also consistently described herself only as a Mahratta on every occasion. The first plaintiff and his father have also been describing themselves as Mahrattas throughout. Amidst the strong currents and cross-currents of unabashed falsehood resorted to by the parties in this action maneuvering for favorable position in the conduct of this litigation, this feature of the description of the parties as Mahrattas clearly emerges and remains unburned. In Ex. A. 38, the suit notice given on behalf of the first plaintiff to the first defendant, it was averred as follows:
Doss Rao had no issue, he gave you authority to take a boy in adoption, that you being Maharashtra Kshatriyas of the Bombay Presidency, the Mayukha law is applicable to you under which widows can take a boy in adoption without the authority of the husband or the consent of his sapindas......
Even in the belated reply notice sent on behalf of the first defendant, Ex. A. 39, there is no denial of the fact alleged namely that she was a Mahratta Kshatriya of the Bombay Presidency. Paragraph 6 of Ex. A-38 reads as follows :
That my client and her caste people are not governed by the Mayukha Law in this part of the country and therefore could not have taken any boy in adoption without the content of the sapindas and did not so take as already stated supra.
It is implicit in this averment that the first defendant was a Maharashtra, Kshatriya of the Bombay Presidency though she took the liberty of saying that she was not governed by the Mayukha Law. In the written statement filed in this suit, the first defendant for the first time denied that she was a Mahratta Kshatriya. This denial seems to be clearly by way of an afterthought being faced with a litigation which endangered her possession of valuable items of properties.
The first defendant wanted to make out by her oral testimony that the ancestry of her deceased husband, Doss Rao, was not of pure Mahratta origin and that the stock from which he descended was not of cent per cent Mahratta blood. The first defendant''s husband was no other than her own maternal uncle. Doss Rao''s father and the first defendant''s maternal grandfather was one Babu Rao. The first defendant deposed that Babu Rao''s mother was a kulla lady called Ponni attached to the Tanjore Palace with whom Babu Rao''s father developed illicit intimacy and that Babu Rao was the offspring of such intimacy. She also deposed that her maternal grandfather Babu Rao had married two wives one of whom Moi Boi was alleged to have belonged to the Mahratta group of people called "Akka kuttam." The members of this Akka Kuttam group are stated to be attendants on the queen of the royal household who were drawn from different communities. She further deposed that her mother''s mother Komu Bai was not of good Mahratta stock but was of a mixed parentage. We are not prepared to accept the interested oral testimony of the first defendant in respect of ancestry of herself and her deceased husband as it is obvious that veracity is not her strong point. There is no independent evidence corroborating this evidence of the first defendant and we therefore hold that the lineage of the first defendant and her husband is in no way sullied so as to disentitle them to the claim of being Mahrattas.
The short point for decision is whether on the above facts it can be held that the parties arc governed by the Bombay School of Hindu Law or not. Actual proof of migration especially in relation to families which had migrated centuries ago will very often be impossible. But an inference of migration may be possible depending upon the facts and circumstances of each case. In Babu Motising v. Durgabai 53 Bom. 242 the question was whether a particular sect of people who migrated from the Province of Oudh and settled in Khandesh were governed by the Benares School of Hindu Law. Dealing with the question of migration at page 245, Marten, C.J. observed as follows :
On the main point, I think, it is clear that to borrow the language used in Soorendranath Roy v. Mussamut Heeranmonee Bharmoneea 12 M.I.A. 81 this community of Raghuvamshis migrated to Khandesh at some distance period of which no record is preserved. It must be at least five or six generations ago. It may very well be at a much earlier date. On the evidence before us it is impossible to give an approximate date, except that it is long before living memory. The place from which they migrated was in all probability Oudh. Before us, it was not disputed that the law of the place from which they migrated was the Benares School of law.
Now that being so, the ordinary presumption that the law to apply is the law of the Province in which the parties reside, is rebutted. The presumption next applicable is that this community on migration to Khandesh carried with them the law which had governed them upto migration, namely, the Benares School of law.
It must be noted that in this case there are was no actual proof of migration.
However scanty the evidence of migration on the part of the ancestors of the parties may be it cannot be said that there is no evidence of much migration at all. The evidence of P. W. 4 on this question remained uncontradicted. His family name is Jadhav and he swears that his ancestors hailed from Poona. We see no reason to reject his testimony. We are of opinion that the evidence on record on this aspect of migration from the Bombay State of the ancestors of the parties is sufficient to establish that their ancestral home was the Bombay State, though it must be mentioned that that evidence is the irreducible minimum that is necessary to establish that fact.
It is also possible to draw an inference of migration from the fact that the parties have been persistently and invariably describing themselves as of the Maharatta stock. The first defendant made a bold attempt in the witness box to say that she is neither a Maharatta nor a Tamilian. But it is very clear that she had not the courage to disown that she was a Maharatta. She admitted having described herself as a Maharashtra on every occasion and that her mother tongue was also the Mahratti language. Her venturesome attempt to show that she got herself assimilated with the local inhabitants of South India has proved a dismal failure.
In Kesho Rao v. Sadasheorao ILR 1938 Nag. 469, the question raised was whether Maharashtra Brahmins resident in the Central Province were governed by the Bombay School of Hindu Law even when migration was not proved in the sense that the exact origin of the family could not be traced. A Division Bench of the Nagpur High Court, consisting of Sir Gilbert Stone, C.J., and Vivian Bose, J., as he then was, held that the personal law must be applied in every case where it is known and it is only when it is not possible to ascertain that, that the law of the domicile should be applied and then only in the last resort and even then only because it is assumed that it is the personal law. In that case the learned Judges considered the question as to the implication of the description of an individual as a Maharashtra brahmin. The place where the family in question was resident was Chantiagarh which was not part of the Maharashtra country. At page 472 Vivian Bose, J., observed as follows:
It is clear that Chhattiagarh was never known as Maharashtra, and if it is equally beyond doubt that a race or tribe of people known as Maharashtrians never inhabited this area as a race or tribe, then it follows that any Mahrashtrian who was found in these parts must have come as an immigrant, either he himself or his ancestors, and the fact that his family has retained its individuality intact as Maharashtrians must mean that they have not been absorbed into the particular strata of Hindu society prevalent and predominant in the locality. It must mean that they have carried with them their own law and their own usages from wherever it is that they came and preserved them as carefully as they have their own identity.
Again at page 476 the learned Judge observed as follows:
Bearing this in mind, what is the significance of a family continuing to call itself Maharashtrian even though settled in a land which is not Maharashtra and among, what for these purposes may be termed, an alien people? What do we mean we refer to a man in this connection as a Chinaman, or an Englishman or a Maharashtra or a Bengali? Surely this: that it indicates his racial origin, using the word racial in a loose and popular sense; that it shows either that his ancestors originated in the geographical area from which his racial or tribal name is derived, or that he belongs to a particular racial group or at any rate to a particular community. This is especially so among Maharashtrians who are not one whit behind the rest of India in their homogeneity and pride of race, in their love of their own great traditions and in what one might almost term their clannishness, using that term in its finer sense.
When therefore we find the great bulk of Maharashtrians governed by the view of the Mitakshara prevailing in Bombay, what does it indicate? Surely this: that these people wherever they came from, whatever their origin, carried with them from place to place this particular law and that it has now become predominant in certain parts of Bombay only because they are the predominant people there.
Then again at page 477:
.........wherever we find a family clinging to its individuality and retaining its identity as Mahrashtrian it must be presumed until the contrary is shown that it hailed from the race or group of people known as Mahrashtrians and carried the law of Maharashtra with them.........
We respectfully agree with this observation of the learned Judge and we wish to add that the observations quoted above precisely govern the decision of the issue of the proper law applicable to the parties here.
Mahrashtrian rulers of the Tanjore Raj have been held to be governed by the Bombay School of law. In Mahraja of Kolahpur v. Sundaram Iyer 48 Mad. 1, it was held that the Rajahs of Tanjore and their ancestors who had migrated from a place called Verole in the Bombay Presidency did not give up their personal law, that accordingly the adoption by Kamakshi Bayi Saiba even supposing that there was no express authority from her husband for adoption was valid in law. Several Maharashtra families from Poona, Bombay and other parts of the Mahratta territory should have migrated to Tanjore either because of employment under the ruling Mahrashtrian Princes or in the hope and expectations of favours from the ruler. That accounts for a sizable Mahrashtrian population in and around the district of Tanjore.
In the light of the decisions referred to above and on the facts established we are clearly of opinion that the parties are governed by the Mayukha Law of the Bombay State and that therefore the first defendant was competent to make a valid adoption without the consent of her deceased husband or without the assent of the kinsman of her deceased husband.
The first defendant claimed exclusive title in respect of items 1 and 2 of the plaint A schedule properties, items 27 to 29 and 35 and 49 of the plaint B schedule properties and to the plaint C schedule property. The items of properties in plaint A schedule are houses situated in the municipal town of Tanjore. The B schedule items of properties are nanja and punja lands in the village of Ponayar attached to Koilkannapur vattam. The plaint C schedule properties is a house at Kivalur. The first defendant conveyed items 1 and 2 of the plaint A schedule in favour of the second defendant for a sum of Rs. 6000 under the registered sale deed Ex. B. 20 dated 1st June 1952. Item 1 of the plaint A schedule was purchased by the first defendant from a third party under the sale deed Ex. B. 22 dated 15th December 1936. Under the terms of the ante-adoption agreement and the adoption deed, Exs. A. 2 and A. 3, the first defendant became absolutely entitled to this property. Item 2 of the plaint A schedule belonged to Doss Rao, he having purchased the same from a third party under Ex. B. 23 dated 24th February 1923. The learned Subordinate Judge has rightly held that the first plaintiff had no right, in view of the terms of Exs. A. 2 and A. 3, to challenge the alienation by the first defendant of item 1. The first plaintiff has not challenged that finding by preferring any appeal or cross-objection. The learned Subordinate Judge no doubt found that the first plaintiff will not be bound by the alienation of item 2 of the plaint A schedule by the first defendant in favour of the second defendant. App. No. 168 of 1957 has been preferred by the alienee the second defendant. The plaintiffs and the second defendant have filed a memorandum of compromise in regard to this item of property. That memorandum of compromise is recorded and there will be a decree in terms of the said compromise in A. S. No. 168 of 1957.
The first defendant acquired title in respect of items 27, 27-A, 29 and 35 under Ex. B. 31 dated 12th September 1942 from one Gnanasiva Kandiar and the members of his family. She purchased these items of properties for a total consideration of Rs. 4500. The Court below has proceeded upon the footing that items 28 and 49 of the plaint B schedule are also comprised in this sale deed. We have compared the schedule of properties attached to the plaint with the schedule of properties in Exs. B. 31 Ex. B. 31 does not comprise the two items, 28 and 49 of the plaint B schedule. The first defendant has not produced any sale deed in regard to these items. The first defendant has alienated items 29 and 35 of the plaint B schedule in favour of the third defendant under Ex. B. 21 dated 12th December 1933. The learned Subordinate Judge has held that these items of properties in the plaint B schedule really constitute accretions to the estate of the late Doss Rao and that therefore the first defendant was not competent to alienate them.
The question for consideration is whether the properties purchased by the first defendant under Ex. B. 31 really belonged to her or to the estate of her deceased husband. Under the terms of Exs. A. 2 and A. 3, the first defendant was entitled to all the properties purchased by her after the death of her husband on 3rd September 1934 and before the date of the adoption, 8th June 1938, Her evidence is that in 1935 she purchased a house at Ganapathinagar, Tanjore. She deposed that she had jewels weighing 100 sovereigns worth about Rs. 2500 and that she had diamond ear-ring, diamond nose screw, addigai with rubies and mangamalai with red stones and diamond rings. According to her she purchased the house at Ganapathinagar for Rs. 3000 in 1935 and purchased another house in New Street in 1936 for Rs. 2000. She claimed to have purchased these properties by selling jewels weighing 100 sovereigns for Rs. 2500 and by selling the other jewels (stone jewels) for Rs. 3000. The purchase of the house in New Street in 1936 is evidenced by Ex B. 22. dated 15th December 1936 and the property comprised therein is item 1 of the plaint A schedule. There is no sale deed in regard to the property set out in the plaint C schedule, the Kivalur house. The sale deed in her favour for the purchase of the Ganapathinagar house also is not made available. The purchases made by her of the lands in Punayur village under Ex. B. 31 was for a sum of Rs. 4500. There is no reason to disbelieve the evidence of the first defendant that she had some costly jewels which she disposed of after the death OF her husband. She was the wife of a Tahsildar, and it is very likely that her husband made for her jewels of the value mentioned by her. The onus OF establishing that the purchase standing in the name of the first defendant was made by her not out of her own separate funds but from the income OF her husband''s property is undoubtedly upon the first plaintiff. The first defendant purchased a house at Ganapathinagar for Rs. 3000 in 1935 soon after the death of her husband and sold it in 1942 and purchased the properties under Ex. B. 31. She could not have got Rs. 3000 from the income of her husband''s, properties within a year after his death. The plaintiffs have failed to prove that the properties comprised in Ex. B. 31 form accretions to the estate of Doss Rao.
We are of opinion that the first defendant got the properties under Ex. B. 31 and the Kivalur house only from and out of her own separate funds. The suit in respect of items 27, 27-A of the plaint B schedule and the plaint C schedule must therefore fail. We are unable to give any relief to the first defendant regarding items 29 and 35 of the plaint B schedule as those two items are excluded from the subject matter of the appeal by endorsement in the memorandum of appeal. There is also no appeal by the third defendant, the alienee in respect of these two items.
The learned Subordinate Judge has granted a decree in favour of the plaintiff directing the first defendant to render accounts from 8th June 1938, the date of adoption, till delivery of possession of the immovable properties decreed in his favour. The basis of the liability of the first defendant to render accounts to the first plaintiff is stated to be her fiduciary position as guardian of the first plaintiff during his minority which she specially under took under the terms of Exs. A. 2 and A. 3. The first defendant of course did not purport to act as the guardian of the minor first plaintiff but dealt with the properties as if they belonged to her absolutely and exclusively. The first defendant has failed to challenge the correctness of this portion of the decree of the Court below in the memorandum of grounds of appeal. It is stated in the endorsement on the memorandum of appeal that Cl. 2 of the decree of the Court below relating to rendition of accounts is not disputed by the appellants. Learned Counsel appearing for the first defendant also did not adduce any arguments to show that the first defendant should not be made liable to render accounts from 1938 onwards. We have necessarily therefore to confirm this part of the decree of the Court below though we are by no means sure that the legal position is such as to enable the first plaintiff to obtain this relief.
Learned Counsel for the first defendant contended that even if the first plaintiff were to succeed in establishing his status as the adopted son of Doss Rao he will not be entitled to recover possession of the plaint properties as she succeeded to the properties absolutely under the Mayukha law as the widow of Doss Rao after his death. It was further contended that the terms of Exs. A. 2 and A-3 cannot divest the first defendant of the estate which she came to inherit, as the adopted son under the Hindu Law can only get the estate of his deceased adoptive father divesting any limited estate which his adoptive mother might have inherited, as the widow of the deceased adoptive father. This contention is obviously erroneous and unsustainable. Even according to the Bombay School the female heirs inheriting from a male fall into two classes, namely, (a) those who are introduced into the gotra or family of the deceased owner by marriage such as the deceased''s wife, mother, father''s mother etc., and (b) other female heirs being females born in the family such as the daughter, sister, brother''s daughter, sister''s daughter etc. Property inherited by a female belonging to class (a) does not become her stridhanam. She takes only a limited interest in such property and on her death it passes to the next heir of the male from whom she inherited it; (Mulla on Hindu Law, 12th Edn., page 209-210). The first defendant therefore got only the limited interests of a Hindu widow by succeeding to the properties of her late husband Doss Rao. But it was contended on behalf of the first defendant that she was only the sister''s daughter of Doss Rao and therefore she must be deemed to belong to class (b) referred to above and that she therefore took an absolute estate. This argument is wholly fallacious. The first defendant did not succeed to the properties of Doss Rao as the properties of her maternal uncle but only as his widow. We are of opinion that the first plaintiff is not in any way disentitled to recover possession of the plaint properties except in regard to such of those items in respect of which he cannot lay claim by reason of the terms of Exs. A-2 and A-3.
It was next contended on behalf of the first defendant that she will be entitled to a share in the suit properties under the provisions of the Hindu Women''s Right to Property Act. This enactment is not retrospective in operation and does not apply to the property of any Hindu who died intestate before the commencement of the Act. The Act came into force on and from 14th April 1937. The husband of the first defendant died on 3rd September 1934. The first defendant cannot therefore put forward any rights under the Act. But it is said that the first defendant''s husband did not die intestate as he left behind his last Will and testament dated 31st August 1934. Neither the original of the Will nor an authenticated copy of the original has been made available to the Court. The first defendant charges the first plaintiff''s father with having taken away the Will and suppressed it. D. W. 6, one Rajagopala Pillai, has been examined as a witness on the side of the first defendant to prove that Doss Rao left a Will. According to this witness he met Doss Rao at his residence at Tanjore two or three days before his death, that when he went there a Will was being written by one T.A. Krishnaswami Rao to the dictation of Doss Rao that Doss Rao signed the Will that the witness attested, and that the scribe Krishnaswami Rao also attested it. The witness added that both the wives of Doss Rao, namely, defendants 1 and 6 were present at the time of the alleged execution of the Will. This witness further deposed that under the said Will all the properties of Doss Rao were bequeathed to the first defendant, and that the testator also gave some properties for some charitable purpose. The sixth defendant was to have half the properties if she could not live amicably with the first defendant. The first defendant also spoke to the execution of the Will in the manner deposed to by D.W. 6. The 6th defendant deposed in chief examination as follows:
4 days before death he wanted to write a Will. 2 days before death they were writing something. I was present. Rajagopal and Srinivasa Rao were present. The document then was written and handed over by Doss Rao to D.J. He said that he had bequeathed properties to me.
In cross-examination she deposed as follows :
I did not see whether the document written two days before Doss Rao''s death was in English or Tamil. I had confidence in D. 1 when my husband gave her his Will.
Another witness who spoke to the execution of the Willis D. W. 1, the 5th defendant, in the suit, who was alleged to have been brought up by Doss Rao as his foster son. Doss Rao admittedly survived for three days after the execution of the alleged Will. If he had written any Will he would certainly have had it registered. There is no explanation on the part of the defendants why Doss Rao refrained from registering the Will if at all he executed any such instrument. The evidence in support of the alleged Will is meagre and unsatisfactory and is wholly insufficient to establish the alleged Will, set up by the first defendant. As there is no proof before Court of Doss Rao having left behind a valid testament he must be deemed to have died intestate. The first defendant is clearly not entitled to claim any right under the Hindu Women''s Right to Property Act.
The 6th defendant has preferred appeal, A. S. No. 278 of 1957 challenging the correctness of the finding of the learned Subordinate Judge holding that she was not the lawfully wedded wife of Doss Rao. It is really unnecessary to decide the status of the 6th defendant in this litigation. The first plaintiff having established his status as the validly adopted son of Doss Rao he is entitled to the relief''s prayed for by him in the plaint to the extent to which his claim is upheld by this Court. This relief he will be entitled to even if it were to be held that the 6th defendant was the junior wife of Doss Rao. Learned Counsel appearing for the 6th defendant submitted that he did not wish to press the appeal if the status of his client is left open and the finding of the learned Subordinate Judge holding her not to be the wife is vacated. Learned Counsel appearing for the plaintiffs had no objection to this question being left open as the plaintiffs are in no way affected in this suit by the real status of the 6th defendant. The finding of the learned Subordinate Judge holding that the 6th defendant was not the lawfully wedded wife of Doss Rao is set aside and the question of her status is left open.
In the result, there will be a decree in terms of the memorandum of compromise in A. S. No. 168 of 1957 and the appeals A. S. Nos. 61 and 278 of 1957 are dismissed, subject to the modification of the decree of the Court below in regard to few items of the plaint mentioned properties. The parties will bear their respective costs in this Court in all the appeals. C. R. P. No. 1675 of 1957: Dismissed with costs.