The presumption in favour of the Mitakshara law, which arises from the fact that the parties migrated from a Mitakshara territory to Dayabhaga Bengal, is not rebutted by the mere fact that the migration took place before the foundation of the Dayabhaga School.

P. N. MOOKERJEE J.

( 1 ) IN this partition appeal the principal question is whether the parties, who are Hindus, are governed by the Dayabhaga or by the Mitakshara law. The learned Subordinate Judge has accepted the defence contention and applied the Mitakshara law, reducing the plaintiff's claim of share from 6 annas to 4 annas and the plaintiff's present appeal which is from the preliminary decree for partition, made on that footing, is mainly directed against that finding.

( 2 ) THE genealogy is admitted except on one vital particular which we shall presently state. According to the common case of both the parties they are descended from a common ancestor Jadablal Goswami. Jadablal had two sons Anandalal and Brojolal. The plaintiff claims through Brojolal, he being the latter's grandson by his elder son Sunday. The defendants represented the branch of Anandalal and also that of the other son Bonwari of Sundar. So far as genealogy is concerned, the only difference between the parties lies in the fact that, according to the plaintiff, Brojolal had two sons Sundar and Uday, the former being the father of Bonwari and the plaintiff Chandra Kanta, as stated above, and the latter (Uday) being his (Sundar's) younger brother who died leaving a widow Rajabala, while, according to the defence, this Uday and, necessarily Rajabala also, had no existence, Brojolal having an only son Sundar who was the father of Bonwari and the plaintiff.

( 3 ) FOR convenience of reference and appreciation of the true position, we set out below the plaint genealogy, which runs as follows :

with only this remark that the defence accepts the same, barring Uday and Rajabala whose existence is denied by the main contesting defendant (defendant 2), and barring also the plaintiff's allegation that Bonwari predeceased Rajabala.

( 4 ) ADMITTEDLY also, Baikuntha predeceased his father and did not obtain any interest in the disputed properties.

( 5 ) IT will be at once clear from what we have stated above that, if the plaintiff's case about the genealogy (including, of course, his further allegation that Bonwari predeceased Rajabala) be accepted and also his claim of Dayabhaga succession, he will admittedly be entitled to 6 annas of the disputed properties as claimed by him -- 2, annas by inheritance from his father Sundar and Uday's 4 annas as the sole actual reversioner to his (Uday's) estate. If, however, his (plaintiff's) case on either point fails and the defence genealogy which excludes Uday and Rajabala or the defence contention of Mitakshara devolution be accepted, the plaintiff's claim to 6 annas of the suit properties must fail and the decree of the learned Subordinate Judge, awarding him 4 annas," must be affirmed. This follows from the admitted case of the parties that 8 annas of the suit properties belonged to Anandalal's branch and the remaining 8 annas to Brojolal's by inheritance from Jadablal, so that, if Uday and Rajabala be ignored, Brojolal's 8 annas must be held to have devolved on Sundar from whom 4 annas would pass to the plaintiff and, even if Uday's and Rajabala's existence be admitted but the parties be held to be governed by the Mitakshara school, on Uday's death, Brojolal's 8 annas in its entirety (including Uday's ' interest) would go over to his (Uday's) joint nephews Bonwari and the plaintiff.

( 6 ) THE trial Court accepted the plaintiff's case that Sundar had a brother named Uday who died leaving his widow Rajabala, but, as it agreed with the defence contention that the parties were governed by the Mitakshara law, it ultimately rejected the plaintiff's claim of 6 annas interest and gave him only 4 annas in the disputed properties. The propriety of these findings has to be examined in the present appeal.

( 7 ) THE first finding, namely, on the question of genealogy, is entirely in the plaintiff's favour and he has, therefore, challenged only the other finding, namely, about the application of the Mitakshara law to this case. The

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