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1920 Supreme(SC) 45
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, LORD DUNEDIN, SIR JOHN EDGE, AND MR. AMEER ALI.
BALWANT RAO - Appellant
Versus
BAJI RAO - Respondents
On Appeal from the Court of the Judicial Commissioner, Central Provinces.
Decided On : June. 24, 1920.
Solicitor for appellants:Edward Dalgado. Solicitors for respondents: Downer & Johnson.
A Hindu family migrating to another province carries its personal law with it unless renounced. If the law of the place of origin grants a daughter an absolute estate upon inheriting from her father, that right prevails over the law of the place of migration.
Headnote:(A) Hindu Law - Succession - Inheritance of a daughter - Personal law of a migrant - Absolute vs. Limited estate.
(B) The law of succession is determined by the personal law of the individual. A Hindu family migrating to another province carries its own law with it, and this law continues to govern them unless it is shown that they have renounced their original law in favor of the law of the place to which they migrated.
(C) Where the personal law of the place of origin, guided by specific commentaries on the Mitakshara, provides that a daughter takes an absolute estate upon inheriting from her father, this rule applies regardless of the law prevailing in the province of migration.
(D) A judicial decision that is declaratory of the law as it had always existed binds those subject to that law, even if the decision was rendered after the family migrated.
Facts of the case:
A daughter inherited immovable property from her father. During her lifetime, she alienated portions of the property. After her death, her sons filed suits to recover the alienated portions, arguing that the daughter had only a limited interest. The central dispute was whether the father, who had migrated from one province to another, was governed by the personal law of his place of origin or the law of the province where he resided at the time of death.
Findings of Court:
The court found that the father was a member of a community whose personal law was that of his place of origin. As there was no evidence that he renounced this law, he remained governed by it. Under the law of his place of origin, a daughter succeeds to her father's estate with an absolute interest.
Issues: Whether the daughter of a migrant Hindu took an absolute estate or a limited interest, and whether the personal law of the father's place of origin or the law of the place of migration governed the succession.
Ratio Decidendi: The law of succession is governed by the personal law of the individual. A migrating family carries its personal law with it. In the region of origin, the prevailing interpretation of the Mitakshara, supported by the Mayukha commentary, established that daughters inherit absolutely. A judicial decision declaring this pre-existing law is binding, and the mere fact of migration does not subject the family to the laws of the new province unless the original law is renounced.
Result: Appeals allowed.
Legal Category Hierarchy
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family law
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hindu law
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succession
- female inheritance
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succession
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hindu law
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conflict of laws
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personal law
- migration and domicile
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personal law
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 m
