Judgment

K. RAMASWAMY, J.-This appeal by special leave by the legal representatives of the plaintiff, Bhikubai, arises from decision in First Appeal No. 90 of 1962 of the High Court of Madhya Pradesh, Indore Bench, dated July 18, 1982 reversing the decree of the trial court in O.S. No. 29 of 1951 filed for possession and mesne profits of two houses, Nos. 88 and 89 situated at Nandlalpura, Indore City, mentioned in the plaint schedule. In this appeal, we are only concerned with house No. 88 as the parties have settled their dispute regarding the other house. The admitted facts are that one Hariba Bhagwat of Mouza Pisore village had a son by name Appaji and a daughter Bajabai. Appaji in turn had a son by name Rakhmaji and a daughter Bhikubai (the plaintiff). Bajabai was married to Ganpatrao Page of Madhavagoan village. As they were issue-less they adopted Rakhmaji. Both the villages are situated in Ahmednagar District of Bombay Province. They are Dhangars (shepherd) by caste. All of them migrated to Indore. Rakhmaji died in 1918 and Sonubai his childless widow succeeded to the two houses and other properties as limited owner. She gifted house No. 88 to Shankar Lanke, a brahmin, first defendant by a registered gift deed dated October 31, 1944 under Ex. D1-5. Shankar Lanke in turn hypothecated house No. 88 to Hiralal, fifth defendant/first respondent on September 21, 1948 under Ex. 5-D3. Sonubai died on March 11, 1949. Rakhmaji was the natural brother of Bhikubai, but by operation of law namely adoption, he became her fathers sisters son, i.e. a bandhu. The case of the plaintiff was that the family is governed by the Bombay School of Hindu Law wherein female bandhu is an heir and thereby she was entitled to succeed to the estate of Rakhmaji. Sonubai, as limited owner, had no power to dispose of the properties by way of gift and so the gift deed and the mortgage are void and do not bind her. The respondents are in unlawful possession as trespassers. The suit was resisted by the first defendant, the donee, on diverse grounds. The material defence relevant for the disposal of this appeal is that the persons concerned are governed by the Banaras School of Hindu Law under which a female bandhu is not an heir. Hiralals case was that the mortgage was for consideration and that he had no objection to hand over the possession of the property provided the consideration of Rs 12,000 borrowed by Shankar Lanke was paid to him.

2. The trial court framed as many as 14 issues with sub-issues on each count. It found on issue No. 6-a, which is material for the purpose of this case, that the parties are governed by the Bombay School, and not the Banaras School, of Hindu Law; the plaintiff is the heir of Rakhmaji as his mothers brothers daughter, and though the consideration was paid under the mortgage obtained by Hiralal, it was not taken after due inquiry about existence of legal necessity and in good faith. The gift deed was declared void and does not bind the plaintiff. The plaintiff was held entitled to possession and mesne profits. The claim for refund of the mortgaged money was rejected. Accordingly, the suit was decreed. Hiralal and another filed the appeal. Shankar Lanke did not file any appeal. It was contended before the High Court that the plaintiffs family belonging to Dhangar caste were migrants from U.P. (Mathura) to Aurangabad from where they had further migrated to Central Province (now Madhya Pradesh). They are governed by the Banaras School of Hindu Law. There is no proof that they abandoned the personal law, namely, Banaras School of Hindu Law, and adopted Bombay School of Hindu Law. This contention found favour with the High Court, which relied upon the statement made in Indore State Gazette of 1931 at page 20, wherein it was claimed to have been recorded that Holkars belonged to the Dhangar caste and it would appear that they were originally residents of the countryside around Mathura and they migrated to Aurangabad District and