D.M. DHARMADHIKARI, J.

(1.) In the course of deciding the above second appeal on merits the learned single Judge (Dr. T. N. Singh, J. as he then was) thought that the law with regard to the applicability of Mitakshara School of Hindu Law to the newly formed State of Madhya Pradesh has not been specifically laid down with regard to different integrating units of the State of Madhya Pradesh in Full Bench decision in the case of Ramdayal v. Manaklal, AIR 1973 Madh Pra 222. The learned single Judge, therefore, in the instant appeal arising from a Civil suit concerning parties residing in Ashok Nagar in District Guna has referred the following questions for being answered by Full Bench:-1) Whether it is necessary to plead in specific terms by the party claiming benefit of any particular school or branch of Mitakshara System of Hindu Law that he is governed by that School of Law and the Court cannot take judicial notice of territorial application of any particular School of Law2) Whether in the erstwhile Madhya Bharat region of the present State of Madhya Pradesh Banaras School of Hindu Law is administered and applicable to parties residing in any part of the region and any sale by a coparcener without consent of other coparceners made in respect of his own share in the coparcenary property would be null and void in its entirety and will not be saved even to the extent of the share sold

(2) After hearing the learned counsel Shri Arun Kumar Mishra appearing for the appellant and after persuing the order of reference of the learned single Judge dated 25-8-1992, at the outset, this Full Bench (consisting of three of us) cannot resist from expressing doubt whether in fact there was any necessity for the learned single Judge to make a reference of the two questions referred expressing a desire that it be decided by the Bench consisting of five Judges. Before expressing our opinion on the two questions referred it would be necessary to examine the State of Law on the subject of applicability of a particular School of Hindu Law to a particular region in the newly formed State of Madhya Pradesh. It would also be necessary after examining the State of Law whether the Full Bench decision in the case of Ramdayal (AIR 1973 Madh Pra 222) (supra) of the three Judges of this Court has created any uncertain situation and it needed an exposition or clarification. The Law with regard to the right of alienation by coparcener in different Schools of Mitakshara Hindu Law is to be found in the commentaries of Mulla and N. R. Raghavachariar. In commentary of Raghavachariar, sixth edition in S. 272 the Law stated is as under:-

"The Mitakshara denies to a coparcener, except when he is the sole owner, the power of disposal in respect of his undivided share and such a power is inconsistent with the strict theory of a joint and undivided family. But the equity of the purchaser or alienee from him induced a recognition of such a right in a coparcener in some of the Courts, and it is now the settled law in the provinces of Madras, Bombay, Bihar and the Central Provinces that one of several coparceners in a Hindu undivided Mitakshara family may, without the assent of his coparceners, sell, mortgage or otherwise alienate his share in the undivided family estate, movable or immovable for valuable consideration. But under the Mitakshara law, as administered in Bengal and the North-Western Provinces, Gudh, the Punjab, the Bihar, Orissa and the United Provinces, a coparcener cannot, without the consent, of his other coparceners mortgage or sell his undivided share on his own account and not for the benefit of the family, and where he does make such an alienation, the other coparceners are entitled to get back the property sold and the purchaser has no equity against them for the repayment of the purchase money. But in these Provinces the alienation by a member of a joint family is voidable only at the option of the other members and cannot be impeached by the alienor himself and if the alienor becomes, subsequent to the alienation, solely entitled to the entire property by right of survivorship owing to the death of his coparceners who were alive at the date of his alienation, he cannot avail himself of the right of the deceased coparceners to challenge his own alienation."

(3) The above statement of law has not in any manner been unsettled or doubted by the Full Bench in the case of Ramdayal (AIR 1973 Madh Pra 222) (supra). Before the Full Bench the question that was raised for decision was entirely different. The question therein was with regard to the rights of the purchaser, in equity, if any, from a coparcener of his undivided share in the joint family property. While deciding that question in paragraph 3 the Full Bench had stated the law as under:-

"According to the Mitakshara law as administered in Bombay, Madras and Madhya Pradesh a coparcener may sell, mortgage or otherwise alienate for value his undivided interest in coparcenary property without the consent of the other coparceners. But he has no right to alienete as his interest any specific property belonging to the coparcenary, for no coparcener can before partition claim any such property as his own; and if he does alienate the alienation is valid to the extent only of his own interest in the alienated property. The question that arises for our consideration is as to what are the rights of the purchaser from a coparcener of a specific property when he has been put in possession thereof."

(4) It is for answering the question referred to it that the Full Bench made the above statement that according to Mitakshara law as administered in State of Madhya Pradesh a coparcener can without consent of other coparceners mortgage or alienate for value his interest in the coparcenary property. The Full Bench in Ramdayals case (AIR 1973 Madh Pra 222) (supra) on the right in equity of the purchaser in Mitakshara School of Law as administered in Bombay, Madras and Madhya Pradesh to claim the partition and retain possession of the property alienated until then laid down the State of law by answering the question raised as under (para 5):

"Under the circumstances, we are of the opinion that the direction of staying the execution proceedings for a certain period enabling the purchaser from a coparcener to file a partition suit and if the suit is filed within that period, to stay the execution till the decree in the partition suit, can be legally given where the property in possession of the purchaser from a coparcener is not in excess of the share of the coparcener. In other cases such a direction may be said to be inequitable."

(5) The question of applicability of particular branch of Hindu Law to different parts of the newly formed State of Madhya Pradesh was neither the question directly referred nor was it under consideration before the Full Bench in Ramdayals case (AIR 1973 Madh Pra 222) (supra). Learned counsel Shri Arun Kumar Mishra, appearing for the appellant states that at two places in Arts. 259 and 261 of the commentary by Mulla on Hindu Law, sixteenth edition at pages 295 and 296 the Full Bench decision of this Court in the case of Ramdayal (supra) has been referred assuming it to have laid down a settled position that according to Mitakshara law as administered in the State of Madhya Pradesh the coparcener may sell, mortgage or otherwise alienate for value his undivided interest in coparcenary property without the consent of the other coparceners. It is submitted that because of the statement of law thus in the Full Bench case of Ramdayal (supra) and its reference in the authoritative book of Mulla on Hindu Law, the State of Law with regard to the applicability of the law to the different integrating units forming the new State of Madhya Pradesh has become uncertain and confusing.

(6) On behalf of the appellant it is pointed out that Ashok Nagar in District Guna was a part of erstwhile State of Madhya Bharat and there are series of decisions of that region to show that there Banaras School of Hindu Mitakshara Law was held applicable. Therefore, a coparcener governed by that School of Hindu Law could not alienate his undivided interest in the coparcenary property without the consent of the other coparceners and if he does so the sale is voidable at the instance of non-alienating coparceners. Reference is made to two decisions by Shri Shinde, C.J. (as he then was) Hukumchand v. Champalal, MBLJ 1955 HCR 288 : (AIR 1955 Madh Bha 223) and Badri v. Rama. MBLJ 1955 HCR 859.

(7) It is argued on behalf of the appellant that Bombay School of Mitakshara Hindu Law can be said to have been held applicable only to a section of a population or Hindus in erstwhile Central Provinces and Berar but the said Bombay School was not applicable to other integrating units of Madhya Pradesh such as Vindya Pradesh and Madhya Bharat including regions of Gwalior and Indore. To the regions other than Central Provinces, Banaras School of Hindu Law was applicable and that has been settled by a long series of decisions in cases emanating from those regions.

(8) The Full Bench decision of this Court in Ramadayals case (supra) came up for consideration before two Division Benches of this Court. In F.A. No. 31/68 decided on 14-12-76 (at Gwalior Bench of this Court) Honble Shri Justice J. S. Verma (as he then was) was a party so was he to the Full Bench case of Ramdayal (AIR 1973 Madh Pra 222) (supra). In F.A. No. 31/68 decided on 14-12-76 the Full Bench decision in the case of Ramdayal (supra) was explained as under :-

"Shri Gupta relied on some observations in the Full Bench decision in Ramdayals case (supra) to contend that according to the Mitakshata Law, as administered in whole of the State of Madhya Pradesh, a coparcener may alienate for value his undivided interest in the coparcenary so that the sale is not void and the purchaser gets the share of his vendor. This is not a point decided by the Full Bench and observations to that effect in para 3 of the judgment are merely a general statement of the law applicable to formation of the new State on Reorganisation of States. There can be no doubt that to some part of the new State of Madhya Pradesh the Baneras School of Mitakshara Law applies and the general statement made in the Full Bench decision does not refer to those parts. In the present case itself, in the earlier suit there was no dispute between the parties that the Banaras School of Mitakshara Law applied to them and it was on that basis that the suit was decided and the alienation by an undivided coparcener was held to be void. Those observations in the Full Bench decision have, therefore, to be read confined only to that part of Madhya Pradesh where the Bombay School of Mitakshara Law is applicable and not to those portions of the new State of Madhya Pradesh where the Banaras School applies."

(9) In applying the Banaras School of Hindu Law to the parties residing in erstwhile Madhya Pradesh region, in another Division Bench decision rendered by this Court at Gwalior Bench in F.A. No. 19/74 decided on 15-9-81 the Full Bench decision in Ramdayals case (AIR 1973 Madh Pra 222) (supra) was distinguished on the same ground by quoting the above observations made in the earlier Division Benchs case of Gwalior Bench.

(10) The above mentioned two Division Bench decisions, followed by the Full Bench decision of this Court ought to have been regarded as constituting sufficient ground for the learned single Judge for proceeding to decide the case on merits instead of making a reference to a larger Bench of this Court.

(11) In our considered opinion the above quoted observations made by the Division Bench at Gwalior in F.A. No. 31/68 decided on 14-12-76 clear all doubts, if any, created by the decision of Full Bench with regard to the applicability of a particular School of Hindu law to different integrating States or regions of the newly formed State of Madhya Pradesh. In our opinion the question of applicability of a particular School of Hindu Law to particular parties before the Court would depend upon the pleadings and the facts and circumstances found in each case. There cannot be any general statement of law on that subject with regard to the particular region of State of Madhya Pradesh. In answer to the two questions referred to us, it would suffice for us to answer them relying on the decision of the Division Bench rendered in F.A. No. 31/68 decided on 1412-76 and reiterate the observations made therein that the Full Bench case of Ramdayal (AIR 1973 Madh Pra 222) (supra) does not hold as applicable Bombay School of Mitakshara Hindu Law to all the erstwhile integrating States and regions forming part of the new State of Madhya Pradesh. The question of applicability of a particular school or branch of Hindu Law would have to be decided on the basis of pleadings and evidence led by the parties in each individual case.

(12) So far as question No. 1 with regard to the requirement of pleadings on the question of applicability of a particular School or branch of Mitakshara Hindu Law is concerned, it would suffice to restate the Law settled from a long series of decisions noted in the commentaries of the learned Authors like Mulla and N. R. Raghavachariar in the commentaries on Hindu Law. In Hindu Law by Mulla in sixteenth edition at page 75 the Law stated is as under and which according to us should govern the facts in each individual case :-

"13A. Personal Law : Rule of presumption.- A Hindu family residing in a particular State of India is presumed to be governed by the law of the place in which it resides. The mere transfer, however, of a district to another presidency or State for administrative purposes is not sufficient to affect the personal law of the residents in that district, unless and until it is shown in the case of any resident there that he had intended to change and has in fact changed his personal law,The Rule that a Hindu family residing in a particular State is prima facie governed by the law of that place is not founded on any doctrine affecting lex loci. The rule rests on personal law and status. In general it may be said that in matters of status there is not lex loci in India and every person is governed by the law of his personal status. l4. Migration and school of law - (1) Where a Hindu family migrates from one State to another, the presumption is that it carries with it its personal law, that is, the laws and customs as to succession and family relations prevailing in the State from which it came. But this presumption may be rebutted by showing that the family has adopted the law and usage of the province to which it has migrated.(2) It is the law existing at the time of migration which continues to govern the migrated members until it is renounced. It is the law in force in the State at the time of their leaving it which continues to govern persons who have migrated to another State. Thus they are affected by decisions of the Courts of their State of origin which declare the correct law of the State up to the time of their leaving it, but not by customs incorporated in its law after they have left it."

(13) In Hindu Law by N. R. Raghavachariar based on the decided cases the commentator has stated the law as under :-

"32. Migrating Families. - In India every person is governed by the law of his personal status and carries that law with him wherever he goes. But the law of the Province wherein he resides prima facie governs him and in this sense and to this extent only is the law of domicile of relevance or importance; but if it is shown that he came from another province, the presumption will be that he is governed by the law or the special custom by which he would have been governed in his original home at the time of migration. In other words, the law which, subject to renunciation, governs a migrated family, is the law of the original abode as it was when the family left it. A Subsequent judgment declaratory of the law of the original abode as having always been as declared would be binding on the family but not subsequent customs introduced into that law. Mere transfer of territory from one province to another governed by a different school of law does not effect a change in the original personal law of the person resident in that territory."

(14) In our opinion the two questions referred, therefore, are answered as above. The papers of this case may now be placed before the appropriate bench for decision of the Second Appeal on merits.Order accordingly.