Macklin, J. -
(1.)IN these two appeals the question at issue is the validity of the adoption in each case; and the answer to the question depends upon whether or no the parties to the suits are governed by the Bombay school of Hindu law or by the Madras school. The cases come from the North Kanara District, which up to the year 1861 used to form part of the Madras Presidency but was then transferred to the Bombay Presidency for administrative purposes; and it has been held by the Privy Council in Somasekhara Royal v. Sugutur Mahadeva Royal (1935) 38 Bom. L. R. 317, P. C. , that the Hindu law prevailing in the District of North Kanara is the Madras school of Hindu law. When these matters first came on appeal to the High Court, the High Court was not satisfied that the parties might not have brought their own personal law to the District of North Kanara, since it had been suggested that these were migrants to the District from Goa, and a presumption arises that migrants bring their own law with them until the contrary is proved. The appropriate issues were therefore sent down; and the result has been concurrent findings of both the Courts below that in the one case the Goud Saraswat Brahmins and in the other case the Daivadnya Brahmins are in origin migrants from Goa where they were governed by the Bombay school of Hindu law, and that they brought their personal law with them to North Kanara. If those findings are accepted it means that the adoptions in both these appeals must be upheld.
(2.)THE case of the Goud Saraswats was considered by a bench of this Court in Dattatraya Maruti Shanbhag v. Laxman Jattappa Shanbhag (1941) 44 Bom. L. R. 527, and so far as that case was concerned it was held that the Goud Saraswats must be taken to be governed by the law of the Madras Presidency, being governed in matters of personal law by the lex loci, which (as held by the Privy Council in the case which I have cited) must be held to be the law of the Madras Presidency. But it is to be noted that, although the argument was raised that the parties had migrated to North Kanara from Goa and that Goa linguistically and geographically could be taken to be part of the Maratha country, where the Bombay school would apply, there was in the opinion of the learned Judges insufficient evidence to justify accepting the argument. THE result was that the position with which we have to deal in these cases was not adequately put before the Court, and we are free to determine on the evidence in these two cases what the true position of the Goud Saraswats is as regards the law by which they are governed in the North Kanara District. In our judgment there can be only one answer to this question in view of the voluminous evidence that has been produced in these cases. As the learned Judge of the lower appellate Court says in dealing with the Goud Saraswats' case (though his remarks would apply equally to the other case also): THE witnesses consist of pleaders, landlords, contractors and Government servants. Thus, they occupy a high position and are men of substance. THEy are disinterested and their testimony is corroborated by the documentary evidence in the case; and he goes on to say: In this case there is a consciousness of a community as a whole that their ancestors migrated from Goa in the 16th century and that they brought their personal law with them. Further, the mass of oral evidence establishing the migration coupled with the pedigrees remained unchallenged by the defendants. Under these circumstances, I do not see any reason to disbelieve the oral evidence in the case and I think that the lower Court was justified in relying on it. As the learned Judge says, the evidence is of a high quality; and the utmost that can be said against it is that it is largely evidence of opinion or tradition. THEre are however four pedigrees put in to support the theory that the families referred to in these four pedigrees did come from Goa originally, and it is impossible to suppose that those pedigrees are not as accurate as such documents, carefully maintained by the family interested in them, usually are. We see no reason why they should not be relied upon to the full; and though there are only four of them, they are of great value as illustrations of the general body of evidence in these cases.
As to the contention that the evidence is largely of tradition or opinion, it is nevertheless evidence of a high quality so far as it goes, and it includes the evidence of a senior pleader of Karwar, who says that in his experience it is only the Bombay school of Hindu law which has been applied to the Goud Saraswats; and in the absence of one single word of evidence to the contrary it is impossible not to accept the evidence as it stands, traditional or opinionatory though it may be. In our view it completely establishes the contention that these two castes came from Goa in order to escape religious persecution, and, quite apart from the presumption applying to all cases of migrants that the migrants take their personal law with them, it also shows in these cases that the migrants did in fact take their personal law with them.
I may also refer to two books which we consider to be of authority, Mr. Justice Ranade's "the Rise of the Maratha Power", page 19, and Grant Duff's "history of the Mahrattas", Vol. I, pages 4 and 46, which in our view conclusively establish the fact that geographically Goa must be deemed to be part of the Maratha country. Grant Duff, for example, says Concan is that part of Maharashtra which lies between the Ghauts and the sea, and extends along the coast, from Sewdasheogurh to the Taptee. That includes the whole of Goa and some miles of territory to the South. It is to be noted that neither of these books were cited before Mr. Justice Broomfield when Dattatraya Maruti Shanbhag v. Laxman Jattappa Shanbhag was under consideration. I may also refer to West and Bulher's "digest of the Hindu Law," Vol. I, p.10.This book was published in 1884, and it states that the Vyavahara Mayukha is also followed as. an authority in the North Kanara District; and the learned Judge of the trial Court treats this as showing that even after the transfer of the District to the Bombay Presidency the Goud Saraswat Brahmins and the Daivadnya Brahmins have been following the Vyavahara Mayukha in preference to the Madras school of Hindu law. It is true that the Vyavahara Mayukha is no more than a commentary; but, as was pointed out by the Privy Council in Balwant Rao v. Baji Rao (1920) L. R. 47 I. A. 213 s. c. 22 Bom. L. R. 1070 (p. 221): . . . the commentaries are only commentaries. They do not enact: they explain and are evidence of the congeries of customs which form the law. And later on they implied that commentaries, just like judicial decisions, do no more than declare the law as it had existed at the time.
(3.)WITH reference to these particular cases it was argued on the other side that the plaintiffs ought to prove that their family was amongst the families which migrated from Goa, and that they migrated in about the year 1510 before the introduction by the Portuguese of new law into the Goa country. The argument is that if the Portuguese had applied the Portuguese law to the Hindus living in Goa, the Hindus would have no personal law to take with them and they would be governed by the lex loci of the place to which they migrated, namely, the law of Madras, We are told that even today the Goa Hindus are governed as regards succession by the Portuguese law. But for all we know (assuming it to be true), that may be by reason of comparatively recent legislation. In any case no argument on these lines was addressed to the Courts below, and for ourselves we should be inclined to say that on the evidence in these cases the families that migrated could be presumed to have migrated because of religious persecution, and that would involve an alien law being imposed upon them, so that it can be said that their migration was largely due to a desire to preserve their own law. It is also suggested that the statement in the Gazetteer (Vol. XV, page 139) relating to the North Kanara District that the Goud Saraswats came originally from Bengal according to tradition before they went to Goa implies a presumption that they took their personal law with them from Bengal to Goa. But we are not prepared to go as far back into the past as that, even assuming that the tradition mentioned in the Gazetteer is necessarily correct, I may say that in Dattatraya, Maruti Shanbhag v. Laxman Jattappa Shanbhag this passage was cited from the Gazetteer, and Mr. Justice Broomfield suggested that the Gazetteer was no great authority in this respect.
The evidence in these cases establishes a caste consciousness in favour of the application of the Bombay school of Hindu law. It is contended that the reason for this caste consciousness is probably that North Kanara definitely became part of the Bombay Presidency in the year 1861, and we have therefore no right to presume the same caste consciousness before the year 1861. It is true that no instances of custom one way or the other are cited as having occurred before 1861, but we do not think that there was any need to cite such instances. It is enough to say that no instances have been cited to the contrary, and caste consciousness is caste consciousness however and whenever it arose. So that, even if there were no presumption of the migrants having taken with them their personal law, the Court would still be justified in treating the existing caste consciousness as evidence of the parties being governed by the Bombay school of Hindu law, whether they brought that school of law with them or whether they somehow adopted it after they arrived. So far as the early decisions of this Court are concerned, they are all after the year 1861 and only one of them (so far as we have been able to discover) relates to the Goud Saraswats, namely Mahableshvar v. Durgabai (1806) I. L. R. 22 Bom. 199. So far as it goes that is a decision that for the purposes of the particular case the Bombay law applied to the Goud Saraswat family in question, and to that extent it is in line with the view which we are adopting in these cases. But although the early decisions are not of any particular assistance to us, it is to be noted that, so far as we are aware, there is not a single decision of this Court either before or after 1861 to suggest that what applies to the castes in question is not the Bombay school of law but the Madras school of law.