J.B.MEHTA, M.C.TRIVEDI - (1.) This matter has now come to us on a remand by their Lordships of the Supreme Court for determination of one question which had remained to be considered b) us for disposing of this appeal as to whether 1/3rd share of Bai Kashi the appellants-heirs of the original defendants are entitled to succeed. The suit was for partition and separate possession of this ancestral house which belonged to the three sons of one Fakirchand the eldest being Nathubhai second Nanabhai and the third Lallubhai. Nathubhai died in 1940 Nanabhai the defendant has expired in appeal while in 1942 Lallubhai had expired leaving plaintiff No. 1 son Manilal and the widow Bai Mani plaintiff No. 2 who had also expired during the appeal and whose heirs have also been brought on the record. The deceased defendants heirs are also brought on the record. Their Lordships confirmed the original findings that the defendant and his two brothers had separated in status but only this ancestral house was not divided in metes and bounds. The other finding of this Court as to the sale deed executed by Bai Kashi widow of Nathubhai who expired on January 24 1956 in favour of defendant No. 2 being not for legal necessity had also been confirmed. As the separation in status was there but the suit house was not divided by metes and bounds their Lordships held that the plaintiff and the defendant would be entitled to division and separate possession of 1/3rd share in the house and to this extent decree of the Courts below had been modified. However so far as 1/3rd share of Bai Kashi was concerned the question had arisen before their Lordships because in the memo of appeal of this Court a ground had been raised that the trial Judge was in error in saying that Mayukh School of Hindu law would override Mitakshara in Gujarat. It was therefore observed by their Lordships as under : We find that the question that arose mainly whether the appellants are entitled to succeed to Bai Kashis 1/3rd share on her death has not been satisfactorily dealt with either by the High Court especially when the point was specifically raised on behalf of the appellants. While we agree with the Concurrent finding of the trial Court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allotment of 1/3rd share by metes and bounds cannot be resisted. Though the brothers became separate admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to 1/3rd share in the house. Therefore though they became separated in status the suit house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3rd share in the house. To this extent the decree of the courts below will be modified. But so far as the 1/3rd share of Bai Kashi is concerned as the courts below have not considered the appellants plea that the respondents are not entitled to succeed to Bai Kashis 1/3rd share the question is reMitted to the High Court for consideration. The High Court will consider as to whether the respondents are entitled to succeed to 1/2 or the 113rd share of Bai Kashi and pass a decree accordingly. To this extent the appeal is allowed and the decree of the trial Court and the High Court modified The parties will bear their own costs in this appeal.
(2.) Mr. Oza has raised three contentions :- (1) That a childless widow was entitled to inherit absolutely as per the settled principles of Hindu law and therefore no question arose of any reversion to the husbands heirs; (2) That the father of Fakirchand had migrated from Jalgaon and he took his personal law with him and in any event the question of custom in this Rana community should be judicially determined for considering this question as to whether Mayukh law prevailed over Mitakshara so as to depart from the settled principle that the nearest Sapinda should exclude the remote one and for that purpose he pressed in aid the C.A. for taking additional evidence. (3) That there was no such settled principle of Mayukh law which should be held to prevail over the normal principle of Mitakshara succession and in such cases the Court must not allow such an inconsistent rule to prevail in absence of any evidence of custom on principles of harmonious construction even if Mayukh principle of succession was to be applied. As regards the first question the position is well settled after the Full Bench decision in Bhagirthibai v. Kahnujirav 1886 21 I.L.R. Bombay 285 It was only the daughter who was entitled to inherit absolutely from the mother or the father under the Hindu law as prevailing in the Presidency of Bombay and in the case of a daughter that estate passed to her own heirs in the event of her death and did not revert to the heirs of the preceding owner. The position of a widow however was different. At pages 297 to 299 the legal position has been considered in the light of the ancient texts of Hindu law which leaned in favour of womans proprietary capacity under the Bombay law. It was however pointed out that the restriction of a widows full ownership on what was inherited from her husband could not now be questioned and the opinions of the native lawyers which had been referred to must of course be regarded as overruled so far as the estate of the widow was concerned to assign to a female taking by inheritance as full and complete an estate as to a male. The stride from Mynabais case (11 M.I.A. 487) to the inferences deduced from it was no longer and more difficult when that case itself rested on a construction of the law hardly admitted in the Bombay Presidency and opposed to the sense in which the Mitakshara had been understood by the chief rival commentaries. Therefore the widows estate under the settled principles of law as per the judicial interpretation was always a restricted estate and not an absolute estate as contended by Mr. Oza. Therefore on the widows death the property would revert to the heirs of her husband original owner Nathubhai who died in 1940. Nathubhai was issueless and the only controversy is that Lallubhai having expired in 1942 whether the brother Nanabhai alone took the estate or along with the deceased brothers son Manilal plaintiff No. 1.
(3.) The second question raised by Mr. Oza is based on an assumption of certain facts that the father of Fakirchand had migrated from Jalgaon and that there was different customary law prevailing among these Ranas for which there is no foundation any where. Mr. Oza plainly conceded that even in the C.A. No. 1748/77 where additional evidence prayer is made no such facts are alleged for laying down the foundation for this contention. The matter is hanging fire since 1960 even before this Court and in this matter we can never allow a contention of mixed question of law and facts for the first time when it is never stated as a fact till the hearing before us today. Therefore no question could arise of the defendant being permitted to lead any additional evidence to bring in these new facts and therefore the second question raised by Mr. Oza must also be decided against him as he cannot be permitted to lead any additional evidence by setting up totally a new case for the first time whose foundation is not made out on anything in the record of this case. Except the bare statement of Mr. Oza there was no foundation for these facts in the record.;