A Hindu family, residing in a particular part of India, is prima facie governed by the lex loci or the law of the place in which it resides. But, where a Hindu family is shown to have migrated from one part of India to another, the presumption is that it carried with it the law and custom as to succession and family relations, prevailing in the territory, from which it came, at the time of migration.

S.Anwar Ahmad, J.

1. The appellants before this Court are defendants Nos. 2 and 3 to a suit for partition. The plaintiff-respondent claimed one-third share in the lands situate in village Nagatumang, P. S. Rajnagar, district Singhbhum, appertaining to old Khata No. 23, and now Khata No. 33, fully described in Schedule A to the plaintiff.

2. The case of the plaintiff-respondent was that Rajendra, Mahendra and Madhu were three brothers and they held the suit lands, jointly as their raiyati lands. On the death of Rajendra, his share devolved upon his two sons, the appellants. On the death of Mahendra, his one-third share came in possession of his widow Ghasu Gowalin, mother of the Plaintiff-respondent. Ghasu Gowalin died about six years after the death of her husband, leaving the plaintiff-respondent as her only heir. Since then, the plaintiff-respondent has been coming in possession of the one-third share of her father Mahendra. The third brother Madhu (original defendant No. 1) died during the pendency of the suit and his heirs have been substituted as defendants Nos. 1 (a) to 1 (d). The suit was mainly contested by defendants Nos. 2 and 3, appellants before this Court. According to them, in the matter of inheritance and succession, the parties were governed by the Mitakshara School of Hindu Law and not by the Dayabhaga School of Hindu Law as was the case of the plaintiff-respondent. According to the contesting defendants, Mahendra died more than forty years ago and, on his death, his interest devolved upon the other coparceners by survivorship and the share held by him came into the possession of his brothers. Rajendra and Madhu. Ghasu Gowalin did not get any share in the property left by her husband Mahendra, nor did she claim any possession over any portion of the suit lands. Some other pleas were also raised but they are not material for the purposes of this appeal.

3. The learned Subordinate Judge, who tried the suit, came to the conclusion that the parties were governed by the Dayabhag School; that there was unity of title and possession between the parties and that there had been no previous partition in so far as the suit lands were concerned. Having come to these conclusions, he decreed the suit for partition to the extent of one-third share in favour of the plaintiff.

4. Defendants Nos. 2 and 3 went up in appeal. The lower appellate Court also, in agreement with the learned Subordinate Judge, came to the conclusion that the parties were governed by the Dayabhag School of Hindu Law. It also found that the plaintiff was entitled to bring the suit for partition. Accordingly, it affirmed the judgment and decree passed by the Subordinate Judge.

5. The only point urged by Mr. Sudhir Chandra Ghose, learned Counsel for the appellants, is that the finding of the Court of appeal below that the parties were governed by the Dayabhaga School is not sustainable, on account of the fact that there is no finding in any of the two judgments that the ancestors of the parties migrated from Burdwan and not from Mathura as was the case of the appellants. Alternatively, it was argued that the fact that the parties speak Bengali language or even follow some of the customs prevalent in Bengal cannot be a deciding factor as has been thought by the Courts below in coming to the conclusion that the parties were governed by the Dayabhag School of Hindu Law. So far as the argument of learned Counsel regarding migration of the ancestors of the parties is concerned, it has to be accepted that there is no finding in any of the two judgments that the ancestors of the parties came from Bengal as was the case of the plaintiff-respondent. Mr. Nripendra Narayan Roy, for the respondent, had to admit this position but his submission was that although there is no specific finding on that score, both the Courts below have relied upon the evidence adduced on behalf of the plaintiff-respondent and negatived those on behalf of the defendants-appellants.