NALINAKSHA MAJHI Vs. RAJANI KANTO DAS MOHANTA

JUDGEMENT

(1.) The parties to this litigation belong to a, low caste of Hindus known as Sadgope Suri, whose occupation is supposed to be dealing in intoxicating liquors and agriculture. The properties in suit belonged to one Nayan Majhi who died in 1280 B S., corresponding to 1873- 71 leaving a widow Garabini and a daughter Bhikarini. Bhikarini died in 1328 (1921) and Garabini in 1330 (1923). The plaintiffs are Nayan's brother's grandsons and defendants 2 to 4 are the sons and grandsons of Bhikarini. It is not disputed that defendants 2 to 4 are preferential heirs according to Hindu law and are entitled to succeed to the properties left by Nayan. But it has bean found that after the death of Bhikarini's first husband she became a Vaishnava and contracted a marriage in the Vaishnava form with defendant 1 who was originally a Brahmin and had become a Vaishnava. The other defendants are their children, The plaintiffs accordingly maintain that the defendants are excluded from inheritance due to change of religion and that they, the plaintiffs, are the heirs of Nayan and entitled to recover possession of the lands in suit. The defendants in answer assert that in spite of their being Vaishnavas they are Hindus and heirs of Nayan under the Hindu law; further they allege that Nayan executed a will in favour of Garabini conveying an absolute interest in the properties in suit, and that Garabini executed a deed of gift of these properties in 1891 in favour of defendant 1. Upon these pleadings two main issues were framed: (1) Whether the plaintiffs were entitled to succeed in preference to the defendants, to the estate of Nayan Majhi. (2) Whether the will and the deed of gift propounded by the defendants were genuine and should he given effect to.

(2.) The learned Subordinate Judge in the trial Court decided issue 1 against the defendants, his opinion being that Bhikarini having become a Vaishnava, her children were not entitled to succeed to Nayan Majhi. On the second point he held that the will and the deed of gift were genuine and in that view dismissed the plaintiffs suit.

(3.) On appeal the learned District Judge has come to opposite conclusions on the two issues raised, On issue 1 he has held that defendants 2 to 4 are not excluded from heirship under the Hindu law and are thus entitled to succeed to the properties left by Nayan Majhi and are rightly in possession of the same. On issue 2 he has hold that the will was not genuine and therefore the defendants cannot succeed on the strength of the gift by Garabini. The plaintiffs have appealed to this Court and two points have been raised on their behalf.