Judgement

Consolidated Appeals, six being from a judgment and decrees of the Court of the Judicial Commissioner, Central Provinces (July 28, 1914), reversing decrees of the District Judge, Wardha, and the residue being from judgments and decrees of the Court of the Judicial Commissioner affirming decrees of the Court of the Divisional Judge, Nagpur Division, which reversed decrees of the District Judge.

The sole question for determination in the consolidated appeals was whether one Saraswati Bai had been the absolute owner of two mauzas, Bidhi and Chikni, situate in the Wardha district of the Central Provinces, and entitled to alienate them. The facts appear from the judgement of their Lordships.

The twenty-two suits giving rise to the present consolidated appeals were instituted in 1910 and 1911 in the Court of the District Judge, Wardha. The plaintiffs in eleven of the suits were the two surviving sons and the minor grandson of Saraswati; in the remaining suits purchasers from them were the plaintiffs. The defendants were persons who, as alienees from Saraswati, were in possession of different portions of the villages.

The plaintiffs alleged by their plaints that Bapuji, the deceased father of Saraswati, was a resident at Chikni, in the Wardha district, Central Provinces, and contended that after his death his daughter Saraswati took only a Hindu womans estate in the villages, and consequently that the alienations made by her were not binding; they prayed severally for possession of portions of the villages.

The defendants in each suit filed separate written statements, but their common defence was that Bapuji "was a resident of Mangrul Dastgir, district Amraoti " in Berar, and that after his death his daughter Saraswati "took an absolute estate under the Bombay law which governs the Mahratta Brahmans residing in Berar. Bapuji was a Maharashtra Brahman, whose domicil was in Berar, and who had brought with him from the country of his ancestors (Maharashtra) his personal law by which he remained to be governed. He had not accepted any other law of domicil."

By consent issues common to all the suits had alone been tried; among these issues one only was material to the appeals and was in the following terms " Was Bapuji a permanent resident of Berar and governed by the Bombay School of Hindu law and did he migrate to the Wardha district and bring with him his personal law and did he continue to be governed by that school of law ? "

The District Judge found that Bapuji was a Maharashtra Deshastha Brahman; and he said that the Central Provinces High Court recognized the Benares school of law as prevailing in the Central Provinces, but that as regards Maharashtra Brahmans residing in Nagpur and other neighbouring Mahratta districts the Maharashtra school of Hindu law prevailing in Western India was held to govern them. A family migrating to another province governed by another law carried its own law as it existed at the time of emigration. He thought that the question was whether Bapuji migrated to the Central Provinces, intending to give up his original Berar domicil, at a period when his family could not have been influenced by the Bombay decisions of 1859. He found on the evidence that Bapuji at his death had not given up his original domicil, and that even if he did so it could not have been before 1860 to 1862. He therefore held that in accordance with the Bombay decisions Saraswati took an absolute interest, and he dismissed the suits.

The plaintiffs in six of the suits appealed to the Court of the Judicial Commissioner which allowed the appeals.

The Additional Judicial Commissioner referred to the Nagpur decisions mentioned in the judgment of their Lordships, and said that he was not prepared to dissent from them. He said " the defendants were called upon to prove that at some time or other it could be said of Bapuji this man is a permanent resident in Berar and cannot be called a resident in the Central Provinces. In my op