JUDGMENT
G.N. Prasad, J.
1. This second appeal has been preferred by the sole defendant in a suit for partition. The suit property is 2.65 acres (wrongly stated by the learned Munsif, Shri R. J. Pandey, as 2.25 acres) of culturable land in village Dugni, P. S. Saraikella, District Singbhum. This land admittedly belonged to two brothers, Jagar-nath Kumhar and Madhai Kumhar. The plaintiff is the widow and the defendant the brother of Jagarnath.
2. According to the plaintiff:
(i) The parties are Bengali Kumhars and governed by the Dayabhaga School of Hindu Law;
(ii) Her husband died some 20 years before the institution of the suit (the suit Was filed on the 15th May, 1967);
(iii) For nearly two years after her husband’s death, the parties lived jointly in mess and property, but quarrels and differences arose and so the plaintiff separated in mess but the property continued to remain joint;
(iv) Being a female, the plaintiff was unable to take part in cultivation of the land. So there was a panchaiti whereby it Was arranged that the defendant would cultivate the entire land and give to the plaintiff 12 maunds of paddy every year as representing her share of the produce of the suit land;
(v) This arrangement continued until a year before the present suit, when trouble again arose and the defendant stopped giving her share of the produce to her;
(vi) The plaintiff, therefore, asked for an amicable partition but the same having been refused, she has instituted the present suit.
Upon these averments, the plaintiff prayed for a partition decree in respect of a moiety share in the suit land.
3. According to the defendant:
(i) The ancestors of the parties had never any concern with Bengal. They were permanent resident of Seraikella in Bihar. They are governed by the Mitakshara School of Hindu Law and by the law of Seraikella under which a widow did not inherit her husband’s property but was only entitled to maintenance from the agnates of her husband who alone inherited his property;
(ii) Jagarnath Kumhar died more than 20 years before the suit;
(iii) Jagarnath’s interest in the property devolved upon the defendant by the rule of survivorship and the plaintiff and her daughters were entitled to maintenance only. The defendant was all along maintaining them;
(iv) Being misled by some designing persons, the plaintiff in 1948-49 had applied for mutation of her name in respect of the suit land. In that proceeding there was a compromise between the parties that the defendant would give 12 maunds of paddy annually for her maintenance and the land would stand mutated in the name of the defendant alone; and,
(v) Since then the plaintiff was receiving 12 maunds of paddy every year and never laid any claim to the suit land. Tn 1965, through the intervention of the grampanch the amount of paddy payable to the plaintiff was raised to 13 maunds per year and the plaintiff agreed that she would never make any claim to the land and the family house.
Substantially upon these averments, the defendant claimed that the plaintiff had not subsisting interest in the suit land, and so she was not entitled to sue for its partition.
4. The trial Court dismissed the suit holding that the parties are not governed by the Dayabhaga School of Hindu Law, and that the plaintiff is entitled to get only 13 maunds of paddy by way of maintenance and not entitled to get half share in the suit land as claimed.
5. But on appeal to the lower appellate Court, the suit has been decreed. The lower appellate Court has held that the ancestors of the parties were original residents of Bengal and that the parties are governed by the Dayabhaga School of Hindu Law. It has further held that the husband of the plaintiff died in January 1938 and as his heir the plaintiff came to hold his half share in the suit land, and although she had allowed the defendant’s name alone to be recorded in respect of the suit land in the mutation proceeding of 1948-49 and agreed to receive 12 maunds of paddy (later raised to 13 maunds) from the defendant each year, she never abandoned her interest in the suit land over which she remained in constructive possession through her co-sharer, namely the defendant. The partition suit having thus been decreed, the defendant has come up to this Court in second appeal.
6. The first question which I propose to consider is, whether the lower appellate Court is right in holding that the parties arc governed by the Dayabhaga School of Hindu Law. Relying in particular upon the evidence of the first witness of the defendant himself, the lower appellate Court has held that the ancestors of the parties had migrated to Dungi in Seraikclla from Bengal. It has further observed that the parties speak Bengali language and that the defendant has verified the written statement in the Bengali script. While the language of the parties cannot be decisive of the fact that they are Bengali Kumhars, this is undoubtedly a circumstance which the lower appellate Court as the final Court of fact was entitled to take into consideration for lending assurance to the evidence of D.W. 1 that the ancestors of the parties had migrated from Bengal and settled down in Scraikella which is in Bihar. The finding to this effect being a finding of fact cannot be assailed in second appeal. Once it has been established that the parties were original residents of Bengal where the Dayabhaga is the prevailing law, a heavy onus falls upon the defendant to show that after having migrated to Seraikclla the family of the parties had forsaken their personal law and adopted the local law. That this is the true legal position is apparent from at least three decisions of the Privy Council to which I will now refer.
7. In Soorendronath Roy v. Mussamut Heeramonee Burmoneah, (1884-1885) 12 Moore’s Ind App 81, the parties were members of a Hindu family who several generations ago had emigrated from Mithila (where the Mitakshara prevails) and settled in Bengal (where the Dayabhaga prevails). A question arose whether the succession in the family was governed by the Mitakshara or the Dayabhaga. It was held that amongst the Hindus, the law was in the nature of a personal usage or custom; that an adherence to family usages was a strong Oriental habit and in most places not a weak one; and that as the presumption is, that the members of a family so emigrated continue their family customs, the onus is upon a party who alleges cessation of such customs to prove that fact Upon the facts of that case their Lordships held that the right of succession was governed by the Mitakshara and not by the lex loci, namely, the Dayabhaga.
8. Srimati Rani Parbati Kumari Devi v. Jagadis Chunder Dhabal, (1902) 29 Ind App 82, was also a case of a family which had emigrated from one part of the country (namely, Ghatsila) where the Mitakshara prevails to another (namely, Jamboni in Bengal) where the Dayabhaga prevails, and the question was, by which law Was the succession in the family regulated. It was observed at page 96 of the report:
“The question of succession now in dispute depends upon the custom of the family; and in families observing the Mitakshare Shastra the brother, and not the widow of a childless man, takes an ancestral estate. The tenacity of such customs, even under the strain of migration, has been repeatedly recognised by the law in question such as the present. Accordingly, the question being primarily one of personal as distinguished from geographical custom, it is of the first importance to inquire of the origin of the family. Now, amid a mass of contradiction on almost everything else, it is undisputed that these people came from the North-West. Tradition names Dhara-nuggur as their original home; but the precise place is of no moment, for it is not suggested that in any place in the North-West does the Dayabhaga prevail. The presumption, therefore, is that the family continued to observe the Mitakshara, and it remains to see whether the contrary has been proved.”
9. Thus, the ratio of these two Privy Council decisions is that a Hindu family, migrating from one part of India to another, is presumed to continue to observe the Shastras by which it was governed, and the presumption can only be displaced by showing that the immigrant has renounced the law of his place of origin and adopted the law of the place to which he had migrated.
10. The third decision of the Privy Council to which I wish to refer on this aspect of the case is Balwant Rao v. Baji Rao, 47 Ind App 213 = (AIR 1921 PC 59). The dispute there was with regard to the character of the interest in the suit property held by a Hindu lady named Saras-wati. The property was situated at Chikni and Bidhi in the Warda district of Madhya Pradesh, and she had succeeded to it upon the death of her father Bapuji. Bapuji was a Maharashtrian Brahman, and, therefore, if the succession to his property was governed by the Mayuka Law which is prevalent in Maharashtra, then Saraswati held an absolute interest in her father’s property. On the other hand, if the succession was governed by the local law prevailing in Madhya Pradesh, then she held only a life-interest therein. In dealing with this problem, Lord Dunedin made the following observation at page 219 of the report:
“Now it is certain that Bapuji did not originally live at Chikni, the place where he was actually living when he started on the pilgrimage in the course of which death overtook him. He was an immigrant What law did he bring with him? Of course, if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. Tn that sense only is domicil of importance. But if more is known, then in accordance with that knowledge his personal law must be determined; unless it can be shown that he has renounced his original law in favour of the law of the place to which he migrated.”
And finding that there was “no trace of evidence” that he had ever renounced the Mayuka law, the Privy Council held that Saraswati had succeeded to her father in an absolute inheritance.
11. In the present case also, there is no trace of evidence that the parties or their ancestors had after migrating to Seraikella from their original abode in Bengal renounced the Dayabhaga and adopted the Mitakshara or the local law of Seraikella. Indeed, upon the case set up by the defendant to the effect that the parties had never any concern with Bengal — which has failed–it is idle to expect that the defendant would have led any evidence of “renunciation”. I am, ‘therefore, of the opinion that the lower appellate Court has rightly held that the succession to Jagarnath Kumhar’s estate was governed by the Dayabhaga School of Hindu Law. It must follow that the plaintiff had succeeded to the half interest in the suit land which belonged to her husband.
12. I will next refer to two documents which form the basis of the main argument which Mr. H. K. Banerji has advanced before me in this appeal. One of them is the petition of compromise dated the 7th June, 1949, which the parties had filed before the Revenue Officer in the mutation case of 1948-49. A certified copy of this document, which is in the Oriya language, is Ext. D and its English rendering which has been supplied to me by Mr. Banerji reads thus :
“Petition of compromise by both sides. Your honour,
The above mentioned objector Madhai Kumhar will pay 12 mds. of paddy every year to petitioner Sabi Bewa for her maintenance and livelihood and receipt to be granted after deposit of the paddy. The said Sabi Bewa will stay in the house. The name of Madhai Kumhar may be mutated with respect to the lands after striking off her name. We both file this compromise petition with respect to the above and they Will not pursue the litigation.
Yours
Agreed that Madhai Kumhar also to pay 12 mds. of paddy within seven days to Sabi Bewa for last year’s due and receipt to be granted by Sabi Bewa with respect to the same.”
The other document is the Ekrarnama dated the 24th November 1965 executed by both the parties before the Dughni Gram Panchayat. This document, which is in the Bengali language, is on the record as Ext. C, and an English rendering of it which has been supplied to me by Mr. Banerji reads thus:
“Today on 24-11-65 in Dughni Gram Panchayat and before other gentlemen who have signed below it is agreed that one more maund of paddy to be added to the quantity of 12 mds. of paddy which was being given as maintenance yearly from Madhai Kumhar with respect to our Dughni Mouza lands. To this I have gladly agreed. To this I shall never object to our recorded lands or in our houses. If I do then such objection will not be entertainablc either before the Panchayat or the Court. For this in sound health I am executing the agreement so that it may be of help in future. Receipt of the yearly paddy will be acknowledged before Panchayat people.”
The argument of Mr. Banerji is that these two documents should be read as operating as a surrender of the plaintiff’s interest in the property of her husband so that it is no longer open to the plaintiff to sue for partition of the Dughni property. The answer to this contention depends upon what law governs the family. If the family is governed by the Dayabhaga School of Hindu Law, as I have found above, then it is impossible to accede to this contention of Mr. Banerji that Exts. D and C operate as deeds of surrender. The reason is that a surrender can validly be made in favour of the next presumptive heir, which capacity the defendant never possessed, because admittedly Jagarnath Kumhar had also left behind two daughters, Ratan and Pema, who had certainly a preferential right of inheritance to his estate as against the defendant. Mr. Banerji also suggested that these two documents operated as an intention of the plaintiff to abandon her interest in the suit land. But the wordings of neither of these two documents lend support to this argument of Mr. Banerji. In Ext. D, the plaintiff said nothing about her title in the suit land. She merely said that she would not proceed with the mutation case. In other words, she abandoned the litigation, and not her interest in the land. In Ext. C, the lady spoke about the suit land as “Amader Dughni Mouza lands”. Therefore, even in November 1965, she had not manifested any intention to part with her interest in the suit land. I am, therefore, unable to accept the contention of Mr. Banerji that by executing these two documents (Exts. D and C) the plaintiff had parted with her interest in the suit land.
13. Mr. Banerji has next argued that these two documents (Exts. D and C) should be read as constituting a family settlement between the parties so that the parties are precluded from resiling from their terms. Tn support of this contention Mr. Banerji has relied upon Ram Charan Das v. Girja Nandini Devi, AIR 1966 SC 323 where it has been held that Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family and that the word “family” in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. Reference was also made to Maturi Pullaiah v. Maturi Narasimham, AIR 1966 SC 1836 where the point decided was that although a conflict of legal claims in praesenti or in futuro is generally a condition for the validity of a family arrangement, yet it is not necessarily so, and that even bona fide disputes, present or possible, which may not involve legal claims would be sufficient. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it. Unfortunately for the defendant, no case of family arrangement was put at the trial; rather the definite case set up by the defendant was that the plaintiff had no share in the suit land, but was only entitled to maintenance and the dispute which was settled by Exts. D and C related to quantum of maintenance, to which, according to the defendant, the plaintiff was entitled under the law. It was never suggested at the trial that Exts. D and C were entered into by the plaintiff in respect of her share in the suit land. In my opinion, therefore, it is not possible to entertain the argument of Mr. Banerji on the basis of a family arrangement for the first time in this Court. Besides, as I have already pointed out, the terms of Exts. D and C do not lend support to the theory that the plaintiff had parted with her interest in the suit land. The arrangement was really for the purpose of management and cultivation of the suit land. It was never the intention of the parties that even though the defendant did not deliver the agreed amount of paddy to the plaintiff, as stated in paragraph 6 of the plaint, she was debarred from claiming her half share in the suit land. I have, therefore, no hesitation in rejecting this contention of Mr. Banerji.
14. Lastly, it has been argued that the suit which is one for partition must fail on the ground that the two daughters of the plaintiff have not been impleaded although they are necessary parties to the suit. In support of this contention Mr. Banerji has relied upon the second rule contained in Section 10 read with Class I of the Schedule of the Hindu Succession Act, 1956. The argument is that the two daughters of the plaintiff had interest in the suit property which formerly belonged to their father and, therefore, they were necessary parties to the suit for partition. This argument pre-supposes that the Hindu Succession Act is retrospective in its operation and that it governs even such succession amongst the Hindus, which took place prior to the 17th June, 1956, which is the date when the Act came into force. But it is quite clear that the Hindu Succession Act has no such retrospective operation. Jagar-nath Kumhar had died in 1938, that is to say long before the Hindu Succession Act came into force and under the law, to which the parties were then governed, the plaintiff alone had become entitled to her husband’s estate. It is impossible to hold that after the 17th June, 1956, her daughter also acquired an interest in the suit land. This contention also must, therefore, fail.
15. In the result, this appeal fails and is, accordingly, dismissed; but in the circumstances, there will be no order as to costs.