DAYA KHUSHAL Vs. BAI BHIKHI

JUDGEMENT

(1.) This is a case in which the point involved is as to the right of succession to certain Matadari property. The appeal arises in the following state of facts. The genealogy of the parties is as follows :-

(2.) The present contest is between Bhikhi, the original 2nd plaintiff, and Dahya the 1st defendant. Ratanji Kasanji, the representative Matadar died in 1908 or 1909 without issue. Disputes as to the succession to the Matadari property immediately arose, and the Collector of the District and the Commissioner of the Division decided against the claim of the 1st defendant. The Government of Bombay, however, in 1912 took the other view, and reversing the orders of the Collector and the Commissioner declared the 1st defendant to be the next heir of the deceased, and accordingly ordered the entry of his name in the Matadari register. Thereupon, Bhikhi and another brought the present suit for a declaration that one of the plaintiffs, and not the 1st defendant, was entitled to succeed to the Matadari property, and both the trial Court and the lower appellate Court have decided in favour of the plaintiff Bhikhi. My own view is that the appellant Dahya is entitled to succeed.

(3.) The question is regulated by Sections 9 and 10 of Bombay Act VI of 1887. Section 9 enacts, so far as it is relevant to our present purposes, that on the death of a representative or other Matadar, " the name of the heir next in succession, or if there are two or more heirs of equal degree, the name of the senior heir, shall, subject to the provisions of Section 2 of Bombay Act V of 1886 be registered in his stead." I apprehend as a matter of grammatical construction that the words "subject to the provisions of Section 2 of Bombay Act V of 1886" govern as well the case of a single heir as the case of two or more heirs of equal degree; but the point is not now material, as neither side contends that the decision of the present appeal is affected by the modification of the rule introduced by the incorporation of Section 2 of Bombay Act V of 1886. It is admitted, and, as the genealogy shows, rightly admitted, that if the ordinary Hindu law is to be enforced, Dahya, and not Bhikhi, is the preferential heir; for Dahya is a sagotra sapinda of the deceased Ratanji s, whereas Bhikhi is a bhinnagotra sapinda. The lower Courts have decided in favour of Bhikhi on the sole ground that, as they understand the scheme of the Act, it overrides the general law, and provides that, in order to ascertain the heir of a deceased Matadar, the Court is confined to the limits of the Matadar family and can never travel outside those limits. I am obliged to differ from the learned Judges below because I find nothing in the Act to justify this view, while if that had been the intention of the draftsman, it would have been easy to express it beyond the possibility of misconception. Not only is there no clear provision of that sort, but the section declares that the name of the heir next in succession in such a case as this shall be registered instead of the name of the deceased. Taking these words in their natural meaning they seem to me to denote that the heir is to be ascertained in the first instance by reference to the personal law which governs the parties, for instance, the Hindu law in the case of Hindus and the Mahomedan law in the case of Mahomedans. And by Section 10 it is enacted that if at any time any person shall by production of a certificate of heirship, satisfy the Collector that he is entitled to have his name registered in preference to the person whose name the Collector has ordered to be registered, the Collector shall cause the entry in the register to be amended accordingly. Again the section contains no words which indicate that the Court in its inquiry as to who is entitled to be considered the heir shall adopt any other principles than those which a Court would necessarily follow unless plainly directed otherwise.