Decided on August 09,1961



- (1.) THIS appeal arises out of a suit for the recovery of khas possession and declaration of the plaintiffs' title to the properties mentioned in the schedules ka and kha to the plaint. One Dulal Mondal owned these properties at the time of his death which took place sometime in 1330 B. S. corresponding to the year 1923-24. He had two wives named Jaladbarani and Taramoni. By his will dated the 26th July 1921 he provided that after his death Jaladbarani would get and enjoy for her life the properties mentioned in schedule ka to the plaint. The will was duly probated. He died childless leaving behind him surviving his two widows Jaladbarani and Taramoni as his heirs. His two sisters Nirodebarani and Kulamandalini were then alive. His other sister Pushpa had predeceased him. Immediately after his death Taramoni married for the second time. By section 2 of the Hindu Widow's Remarriage Act, 1856 on her re-marriage all rights and interests which she had in Dulal's properties ceased and determined as if she had then died. Between the years 1924 and 1943 Jaladbarani executed several deeds of absolute sale in respect of the properties mentioned in the schedules ka and kha to the plaint. The defendants contend that Jaladbarani alienated all these properties for legal necessity. Jaladbarani died on the 20th Agrahayan 1353 B. S. corresponding to December 6, 1946. Both Nirodebarani and Kula-mondalini were then alive. Kulamondalini died some time thereafter. P. W. 11 cannot say when she died. Her son Giri Mondal P. W. 12 said on November 15, 1950 that she died about 2 or 21/2 years ago in the month of Kartick. Akhil, D. W. 1 said on November 15, 1950 that she died in Chaitra before last. Kulamandalini therefore died some time during the period november, December 1948 and March April, 1949. I am satisfied that she died sometime before April 5, 1949. On April 5, 1949 Nirodebarani executed a deed of sale of all the suit properties in favour of the plaintiffs. The plaintiffs instituted this suit on May 31, 1949. Nirodebarani was then alive. The plaintiffs have impleaded as defendants to the suit all the persons claiming to be transferees of the suit properties from Jaladbarani. Tanamoni is also impleaded as a proforma defendant. The plaintiffs claim that Dulal was governed by the Mitakshara School of Hindu Law, that on the death of Jaladbarani his sisters Nirodebarani and Kulomandalini succeeded to the suit properties as his heirs under the Hindu Law of Inheritance (Amendment) Act 1929 (Act II of 1929) that on Kulomandalini's death Nirodebarani became the sole owner of those properties and that by virtue of their purchase from Nirodebarani they have acquired title to the properties. The defendants dispute those contentions. The trial Court dismissed the suit. On appeal a Bench of this Court framed the following two additional issues:- (1)Did Dulal Mondal or his ancestor migrate from any place in Bihar? (2)Was Dulal Mondal of Umrapur, district Murshidabad governed by the Mitakshara School of Hindu Law? by its order dated the 11th March 1959 the Bench directed the Trial Court to try those issues after taking additional evidence and to return the evidence and its findings to this Court. The Trial Court has duly made the return with the finding that the two additional issues should be answered in the negative. The appeal stands assigned to this Bench.
(2.) THE first question that arises for decision is whether Dulal was governed by the Law of Mitakshara. If he was governed by the Dayabhaga Law his sisters could not be his heirs and the plaintiffs cannot succeed. Now Dulal lived in Umrapur, P. S. Suti, a border village in the District of Murshidabad in the then Province of Bengal. Since he lived in Bengal proper presumably he was subject to the Dayabhaga Law which prevails there. But this presumption may be rebutted and it may be shown that he was subject to the Law of the Mitakshara. In matters such as succession, inheritance and marriage the civil rights of a Hindu are determined by the Hindu Law. But the Hindu Law has several Schools, each School having a territory where it is recognized as the paramount authority. Presumably a Hindu owes obedience to the school of Hindu Law which prevails in the territory where he dwells. The School of Hindu Law to which a Hindu owes obedience becomes his personal law. If he migrates to another territory he carries with him his personal law and it is presumed that he continues to be governed by the law to which he originally owed obedience, see (1) Balwant Rao v. Baji Rao, 47 I. A. 213: A. I. R 1921 P. C. 59; Parbati Kumar v. Jagadish Chunder, (2) 29 I. A. 82; Ratcheputty Dutt Jha v. Rajunder Narain Rao (3) 2 M. I. A. 132. The latter presumption may again be rebutted and it may be shown that the migrating Hindu has adopted the system of Hindu Law which prevails in the new territory. Thus it may happen that in the same territory different Hindus are subject to different schools of Hindu Law. Now there is no direct evidence that Dulal or his ancestors migrated to Bengal from Bihar where the Law of the Mitakshara prevails. Dulal was a Dhanuk by caste. The evidence shows that a close community of Dhanuk families is settled in 20 border villages in the District of Murshidabad. Some Dhanuks are settled in Maldah and other Districts of Bengal also. There is no direct evidence that the Dhanuk community settled in Bengal came from Bihar. There is however a considerable body of indirect evidence showing that the ancestors of the Dhanuk community of Murshidabad migrated from Bihar and settled in Murshidabad and also that the community is governed by the Mitakshara School of Hindu Law.
(3.) DHANUK is primarily a Bihari caste. The members of this caste are found chiefly in Bihar. In this connection our attention was drawn to the following standard works of reference, viz. , the Tribes and Castes of Bengal by H. H Risley, 1891, Vol. I pages 220-1 and Vol. II, appendix 1, page 39; The Census of India Report, 1901 by E. A. Gait, Vol. VI, part 1, article 258 at page 139, articles 570 and 571 at pages 361-63, articles 587-596 at pages 369-374, article 634 at page 390, appendix VI at page XXXIV and appendix VII at page XLVIII ; Hunter's Statistical Account of Murshidabad, pages 42, 44, 51 and 53 and the Bengal District Gazetteer for Bhagalpur (1911) by J. Byrne, page 52. In the Census of India Report, 1901, Vol. VI, part 1, article 634 at page 390, the learned author gives a map showing the distribution of Dhanuks in Bihar and the adjoining areas and observes:- "the Dhanuks are a Bihar caste with nearly 600,000 representatives. They are most numerous in Darbhanga, Monghyr and Bhagalpur, and very few are found outside these three districts and the tracts immediately adjoining them. In Bhagalpur and Monghyr, Dhanuks are said to be also known as Jaiswar Kurmis and this may have sometimes led to confusion. ";

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