Posted On by &filed under High Court, Madras High Court.

Madras High Court
Murle Dos vs Manicka Chetti And Anr. on 13 August, 1897
Equivalent citations: 4 Ind Cas 1110
Author: Shephard
Bench: Shephard


Shephard, J.

1. This is a suit to recover certain property which the plaintiff claims as the next heir of one Brijlaldos who died in 1871. Brijilaldos left no issue. He left a widow, a daughter and a step-mother surviving. Devaki, the widow, died in 1875, having first made her Will, (Ex. D) in the case. Jamnabai, the daughter, died in 1888, having also made her Will. Finally the step-mother, Subhadrabai died more recently having also made her Will Previously to the death of Jamnabai, she and Subhadrabai sold the property in question to the 1st defendant. The plaintiff claims as the next heir, as the sagotra sapinda as he calls himself, of the late Brijilaldos and as the nearest reversioner after the death of Brijilaldos’s daughter Jumnabai. The first question is whether the plaintiff is related to Brijilaldos in the way stated. This forms the subject of the 2nd issue. I may say with regard to the first issue that there is no dispute practically as to whether the property belonged to Brijilaldos. The plaintiff’s case is supported by a pedigree which he produces connecting him with an ancestor of the deceased Brijilaldos. He also relies on certain letters, and finally on evidence of repute showing that he and his father were regarded as members of Brijilaldos’s family. With regard to the pedigree I must at once say that I do not believe the story of the plaintiff. He is the only witness who speaks to it. He says it was written by his grandfather and added to by his father and himself a long time ago. His evidence might possibly be credible if he had shown that when there was an occasion for producing the pedigree he did produce it. An occasion did arise when one would expect it to have been produced, that is to say at the time when a caveat was put in against the proof of Jamnabai’s Will. On that occasion he admits that he did not even show the pedigree to the Vakil, and that he did not bring it into Court although he was required to do so within eight days. It is not necessary to enter into any details with regard to this matter. On the whole, I must say that the plaintiff’s evidence is eminently unsatisfactory with regard to this pedigree. There is, however, other evidence on which, I think, the plaintiff is entitled to succeed as far as this issue is concerned. He produces three letters one from Subhadrabai and two more important letters from Gokuldos, the husband of Jamnabai. These two letters, Exhibits B and C, are dated some day in February 1875. That was about the time of Devakibai’s death. Devakibai in her Will suggests that an adoption should be made. These letters refer to adoption. There is evidence that it was desired by the members of Brijilaldos’s family that a child should be taken in adoption from the plaintiff’s family. These letters distinctly refer to the plaintiff’s family as being nearly related to Brijilaldos. It is impossible to dispute that fact, and, therefore, these letters offer clear evidence that a member of the family of Brijilaldos, that is to say, the son-in-law, regarded these people of the plaintiff’s family as being related to his father-in-law’s family. This evidence taken with the oral evidence, which, I must say, if it stood alone, I should place no reliance upon, I think, supports the plaintiff’s case. Some of the witnesses are superior to others. The last witness who was called is the son-in-law of the plaintiff and a respectable man. His evidence certainly points to the fact that the plaintiff’s family was connected with the family of Brijilaldos. The only thing that can be said against this witness is that he is a comparatively young man and that he may have some interest in the case. There are other witnesses who speak to the observance of pollution as between the members of the two families and there is the witness Goverdhandos and other witnesses who speak to the presence of the plaintiff and his father at the marriage of Devaki. All this evidence taken together leads to the conclusion that the plaintiff is a dayadi, not a sagotra sapinda but a dayadi of Brijilaldos.

2. The remaining question is whether there are any nearer dayadis than the plaintiff. There is only one male person who is admittedly dayadi of the family. All the evidence there is goes to show that he is not such a near dayadi as the plaintiff. It is admitted that I am left in the dark as to the degree of relationship, but taking the evidence as a whole, I think the only conclusion I Can arrive at is that the plaintiff has proved that he is the nearer dayadi of the deceased Brijilaldos. In doing so, I have not overlooked the fact that the plaintiff came into Court with a case which was much prejudiced by his previous conduct. There was some delay, and there is the fact that in the matter of the caveat which I have already mentioned, he (plaintiff) deliberately gave up the contest and admitted he could not prove the relationship to Brijilaldos. Notwithstanding that, I come to the conclusion that the plaintiff has so far succeeded in proving his case.

3. The next question is whether, if he is a dayadi, he is entitled to the property as the heir of the deceased Brijilaldos. It is not disputed that if the Mayukha applies to this family, then the plaintiff would not be so entitled, because Brijilaldos left a widow who would enjoy as long as she lived and a daughter who would take an absolute estate. I do not think that it is disputed here that a daughter under the Mayukha, as it is at present understood, takes an absolute estate. The defendant’s case in that in as much as the family of the deceased originally came from Guzerat, where Mayukha prevails, it must be assumed that law still applies to the family, unless it is shown that the family have abandoned it and adopted the law of the country where they have settled. That the family of the deceased did come from Guzerat there really can be no sort of doubt. At the last moment a bold suggestion was made that there was no evidence that they even migrated from Guzerat at all. The whole examination of the plaintiff and his witnesses was conducted on the contrary assumption, and it would be impossible to understand how those people even came to adopt the language and other peculiarities of Guzerat unless it be true that they came originally from that country.

4. Moreover I find from the judgment in the claim case brought by this plaintiff against the Mysore Government that it was practically admitted not only that they came from Guzerat, but that they came from that country less than a century ago. The Mahazarnama put in connection with the mutter of the caveat points to the same conclusion. It is clear to my mind that the families of both the plaintiff and the defendants must originally have come from Guzerat. That being so, has the plaintiff succeeded in showing that the family of Brijilaldos abandoned their personal law and took instead the law of their country of adoption. There can be no doubt that the burden of proof in this matter is on the plaintiff. He can discharge that burden by showing that in the matter of devolution of property the rules obtaining in this country have been accepted as the rules governing the family. Very little attempt was made to adduce evidence of this sort. There was the piece of evidence given by the plaintiff as to the succession on the death of one Gokul Doss. It is not shown that the deceased and the person who took the property were divided from each other. Therefore, whether Mayukha, or the law of this country applies, the result is the same. The only other evidence of this character relates to the question of adoption. As to this, the plaintiff adduces a few instances in which widows have adopted after obtaining the consent of their husbands. No instances were adduced in which an adoption had been made by a widow without the consent of her husband and the validity of the adoption was questioned. The rest of the plaintiff’s evidence is confined to showing that the family of the deceased adopted certain customs and which are peculiar to this part of the country. The chief points taken in that connection relate to the sacred thread worn by males and the bottu worn by married women. On the other hand, the defendants were able to show, and the plaintiff admits, that these families have adhered to a number of customs which are peculiar to Guzerat.

5. There was evidence to the same effect in the Mysore claim case to which I have already referred. I shall adopt what that is said in the judgment: “The members of these families speak Guzerathi. They obey the Vallabhacharya. They employ Guzerathi gores or purohits (one of whom has been called). They regulate their feasts in the main by the almanack published by Vallabhacharya. They dress in the main as Vysyas in Guzerat do. They use the Vikramaditya era. They begin their year with the Depavalli. They use the Sathya mark in their account books and their religious, ceremonies, both in respect of marriages and funerals are the same as in Guzerat. This, we think (it goes on to say) pretty clear from the evidence that Ekadhanya is worn by the married Guzerathi Vysya women in Madras, and that it and the ivory are with them emblems of the married state.” Evidence of this kind is before me. With regard to the sacred thread, there is some contradictory evidence; but I think the suggestion which Mr. Ananda Charlu makes with regard to that and with regard to the bottu is a very reasonable one, viz., that these insignia are adopted by men and women in order to make it clear to people with whom they consort that in the one case they belong to the Vysya class, and that in the other they are married women. It comes to this that if it be true that the men have adopted the sacred thread or that the married women have adopted the bottu, they have done this not in substitution for the emblems which are worn in the place of their origin, vig., Guzerat, but in addition. It is impossible to hold that the adoption of customs or rites of the country in which people settle when that adoption is not made in substitution for but in addition to customs prevailing in the country from which they originate, evidences any intention to abandon their personal law. On the whole, I am clearly of opinion that the plaintiff has failed to prove that the family to which the parties belong have abandoned the law of Guzerat. The conclusion, therefore, at which I must arrive is that Mayukha applies and that the plaintiff, therefore, is not the heir of Brijilaldos. That being so, and seeing that Jamnabai was a party to the conveyance in favour of the defendants, it is clear that the plaintiff’s case must fail. Even if there had not been that conveyance, there could still remain the fact that Jamnabai being full owner made a Will in favour of Subhadrabai, and as long as that Will remains unimpeached the plaintiff could not succeed even although he might have been able to prove that he is the nearest dayadi of Subhadrabai.

6. The result is the suit must be dismissed with costs (two sets).

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