Mookerjee, J.

1. The subject-matter of each of the three litigations,which have culminated in these appeals, formed part of the estate of one TaraPrasanna Roy, brother of the appellant Sarada Prasanna Roy. Tara Prasanna madea testamentary disposition of his properties on the 3rd July, 1914, and died onthe 3rd October, 1914. He left a widow, Trilok Mohini Debi, who executed threeconveyances on the 13th September, 1915, 25th April, 1916, and 12th July, 1916,in favour of Manmohan Pande, and dealt with the estate left by her husband onthe footing that she was under the will absolutely entitled thereto. The threeconveyances constitute the foundation of the title set up by the plaintiffs.They alleged that the first defendant Sarada Prasanna had unlawfully kept themout of possession of the properties vested in them by virtue of theconveyances. The defendant resisted the claim on a variety of grounds whichneed not be enumerated in detail for our present purpose. It is sufficient tomention two of the defences which were unsuccessfully urged in the Court belowand have been reiterated in this Court, namely, first, that Tara Prasanna wasgoverned by the Mitakshara law and was not competent to make a testamentarydisposition of his estate which .was held jointly by him with his brother andupon his death passed to him by survivorship and, secondly, that in respect ofa property called Rautara, the brothers obtained it as a testamentary gift fromtheir paternal grandfather and held it as joint tenants with right ofsurvivorship. The Subordinate Judge has overruled these contentions and decreedthe suits. Upon the first point, he has found, first, that Tara Prasanna was governedby the Dayabhaga law and was competent to make a testamentary disposition infavour of his wife; and, secondly, that even if he were held to be governed bythe Mitakshara law, he could make such disposition, as he was not joint withhis brother. Upon the second point, the Subordinate Judge has found that, inrespect of Rautara, the brothers were not joint tenants with right ofsurvivorship. On the present appeal, the questions mentioned have been arguedwith great elaboration, and our attention has been drawn to all the relevantmaterials on the record. We have minutely considered the evidence, in spite ofthe obvious imperfections of the paper book, and we shall now state ourconclusions with the reasons therefor.

2. The first question we have to take up for consideration,is, whether Tara Prasanna was governed by the Dayabhaga or the Mitakshara law.He was resident in Bengal, and consequently we start with the initialpresumption that he was governed by the Dayabhaga law; for it is well settledthat a Hindu family, residing in a particular province of India, is presumed tobe governed by the law of the place where it resides : Ram Dass v. Chandra(1892) 20 Cal. 409. This presumption is rebutted, where the family is shown tohave migrated from one province to another; the presumption then arises thatthe family carried with it the laws and customs as to succession and familyrelation prevailing in the province from which it came : Soorendrenath v.Hearamonee (1868) 12 M.I.A. 81 = 10 W.R. (P.C.) 35; Parbati Kumari v. JagadisChandra (1902) 29 Cal. 433 = 29 I.A. 82. In the case before us, the existenceof a tradition has been established by evidence, that in the time ofPratapaditya, that is, towards the end of the sixteenth century, this family,together with several others, migrated to Bengal from a place in the North-WestProvinces where the Mitakshara law, as modified in the Mithila School,prevailed. Consequently, the initial presumption is displaced, and thepresumption arises that Tara Prasanna was governed by the Mitakshara law, usingthat expression, for the sake of brevity, as indicating for the purposes ofthis case, the Mitakshara law as modified in the Mithila School. The burdenthus shifts, and now lies upon the plaintiffs to prove that the family, aftermigration, has adopted the law and usages of the place to which it hasmigrated: Govind Chandra v. Radha Krishto (1909) 31 All. 477; Jagannath v.Narayan (1910) 34 Bom. 553 [LQ/BomHC/1910/37] ; Mailathi v. Subbaraya (1901) 24 Mad. 650; KitladaPrasad v. Haripada (1912) 40 Cal. 407 (416) = 16 C.L.J. 311.

3. The genealogical table, marked "A" and annexedherewith, shows the ancestry of Tara Prasanna Roy and his brother SaradaPrasanna Roy. They are descended from Raghunath Roy, who had two sons KartickChandra and Radha Mohan. Chandrasekhar, one of the sons of Radha Mohan, was thepaternal grandfather of the appellant and his brother. On the 13th October,1863, Chandrasekhar instituted a suit for establishment of title to the estateof his maternal uncle, Totaram, who had died in 1825, leaving a widow Subhadrawho succeeded to her husbands estate and died in 1851. The genealogical tableof the family of the mother of Chandrasekhar is marked B (1), and is annexedherewith. In the litigation commenced by Chandrasekhar, the question arose,whether the deceased and his nephew were governed by the Dayabhaga law or bythe Mitakshara law. Chandrasekhar asserted that the Dayabhaga law had beenadopted by the families, and his contention was upheld. The judgment deliveredby Bayley and Sambhunath Pundit, JJ., in that suit on the 20th February, 1865,has found its way into the reports and is regarded as a leading authority onthe subject of change of personal law by migration: Chundro Sheekhur v. NobinSoondur (1865) 2 W.R. 197, Reference is made in that decision to an earlierjudgment in a litigation commenced by Obhoychurn, the son of the daughter ofBaidyanath, brother of the very Totaram who was the maternal uncle ofChandrasekhar. The decision in the suit by Obhoychurn was pronounced on the30th December, 1862, by Raikes, Seton Karr, and Jackson, JJ. and has also foundits way into the reports: Ootum v. Obhoychurn (1862) W.R.F.B. Rul. 67 = 2 Hay.534. In the suit by Obhoychurn, an opinion had been expressed that the evidencedid not establish that the family of Totaram had abandoned the Mithila law infavour of the Dayabhaga law. Bayley and Pandit JJ., considered the grounds forthis view, and held, on the fuller materials produced before them, that theDayabhaga law governed the parties. There is one passage in the judgment whichmay usefully be recalled here :

The plaintiff has clearly shown by the evidence of kins andrelatives, that in the family of the parties before the Court, in several caseswhere succession, according to the Bengal Law, was to go to one, and accordingto the school of Mitakshara to another, the succession was according to theformer or Bengal School. It is proved that the ancestors of these partiesmigrated into this country about twelve or thirteen generations ago, with a fewof their own priests. It is quite natural that some among them may still havefor their priests descendants of the original family priests; as thedescendants of these priests cannot find it convenient to attend upon andaccompany all the numerous descendants of the original emigrants scattered bydegrees in different places from time to time, to many of the latergenerations, it is only left to accept the Bengalee priests available, Thus,too, the descendants of the family priests by degrees, after a few generations,acquiesce in performing the external ceremonies (or kria) according to theBengal School. In such cases the Nagree character is abandoned for Sanskritwriting after 5 or 6 generations; old habits and customs fall one by one; andthe priests and their jujmans both gradually become Bengalees in every sense.In this state and change for a long time, even after a complete conversion, thepriests and their jujmans remain in theory a separate class, though for allother practical purposes, either of ceremonies, or of succession, they havelong adopted the Bengalee School of the Hindu Law.

Such emigrants may become Bengaleesu in their ceremonies,but cannot and would not be allowed to intermarry with Bengalees of their ownclass. The fact, therefore, of want of proof of intermarriage with Bengalees,or the fact of some families of the descendants of these original emigrantshaving still for their priests some of the descendants of the priests that hadaccompanied their ancestors, does not afford proof in support of the fact ofthe original laws and customs being still observed by these people as a classand tribe. The witnesses for the plaintiff distinctly state that the necessaryrites in the families of both the parties are now performed according to theBengalee school; and, what is more important, they distinctly swear to the factthat within their knowledge, succession is guided by the same school. Theevidence given by the defendant to counteract this case of the plaintiff is thedeposition of two witnesses who are not of the family or of the tribe to whichboth the parties belong, and who distinctly admit that they are ignorant of theschool of the Hindu Law under which succession is guided in the family. It isto be borne in mind that the fact of some members of the family having Bengaleepriests is by itself a strong proof of all having adopted Bengalee ceremoniesfor all essential ceremonies, though it is admitted that these persons ofdifferent branches of the original family intermarry only among themselves. Itis clear that generally there can be no intermarriage between two classes ofpeople who perform their essential rites, such as marriages, funerals, tonsure,&c. under two different schools of Hindu Law. When these people are foundto have lived here so long as to have by degrees adopted the language, thedress (particularly for women), and the ordinary food for the people ofBengal-the two last of which are materially different in the two countriesamong such people, when all intercourse and intermarriage with theparent-country has long ceased-it is nothing surprising that they should beproved, as deposed to by competent witnesses, to have by degrees been compelledto abandon their old forms of ceremonies now impracticable, and what is of moreimportance of having, whenever such a contingency arose that one more nearlyallied was not the heir by their old Law, allowed him or her to succeedaccording to the Laws of Bengal.

The cases of succession quoted by the witnesses of plaintiffdo not, as to the rights of the daughters son, show sufficiently clear proofof the statement of the plaintiff with regard to the application of the Law ofBengal as these witnesses were not made to state that, when such succession tookplace to the deceased, he was a member of a joint family. There cannot,however, be any mistake regarding the succession of a sisters son. He has noright to succeed except under the Law of the Bengal School. This was understoodto be the law, before the decision of the Judicial Committee in Gridhari v.Bengal Government (1868) 12 M.I.A. 448 and of the Full Bench in Amrita v. Lakhi(1868) 2 B.L.R. 28 (F.B.), which explained away the contrary decision of theJudicial Committee in Thakoorain v. Mohan (1867) 11 M.I.A. 386 = 7 W.R. (P.C.)25. It is important that more than two instances of such succession werepointed out by the witnesses. The defendant has not contradicted the fact, orproved that, in any other similar cases of succession, any other rule of successionwas adopted. The instances given by the witnesses took place in the class towhich both the parties belong, and the statement of the plaintiff iscorroborated by the Fact of Soobhadras undisputed succession in that verybranch of the family of which Tota and his brother were the members, Someattempt was made to raise doubts regarding the correctness of the claim of theplaintiff, on the ground that he asserted wrong facts in the case, and did notventure to bring his claim for more than 10 years after the death of Soobhadra,and that he had pleaded otherwise in the other case brought against Nobeen. Butin the face of such clear proof of the law of succession applicable to thefamily as now found by evidence, we cannot attach any importance to thisobjection. It is not at all surprising to find that plaintiff at firstentertained doubts regarding his ultimate success, and so delayed to sue forthat or other reasons.

4. These observations may be taken along with the aptcomment of Babu Kishen Kishor Ghose, who argued on behalf of the respondent inthe case of Ootum v. Obhoy (1862) W.R.F.B. Rul. 67 (69), that families situatedlike that of the defendant commonly use the customs of Bengal for everydaypurposes and produce the law of Muhila for their law suits. The weight of thedecision in Chundro Sheekhur v. Nobin (1865) 2 W.R. 197, was fully realised bythe legal advisers of the defendant, and an endeavour was accordingly made tominimise its effect by the contention that it is at best a decision merely thatthe family of the maternal uncle of. Chandrasekhar was governed by theDayabhaga law. In support of this position, reference has been made to apassage in the judgment of OKinealy and Hill, JJ., in the case of ParbatiKumari v. Jagadis (1902) 29 Cal. 433 = 29 I.A. 82, which was ultimatelyaffirmed by the Judicial Committee, and, which, it was suggested, indicated thepossibility of marriages between the members of two families, one governed bythe Dayabhaga, the other governed by the Mitakshara. We need not consider,whether, even if permissible, this is probable; the fact remains that in thesuit of Chandrasekhar, no such distinction was made between the families of hispaternal and maternal ancestors. The judgment of the High Court makes it abundantlyclear that evidence was adduced to prove that both the families had abandonedthe Mitakshara in favour of the Dayabhaga, and this evidence was accepted bythis Court as reliable. It may be observed parenthetically that the contraryview might lead to unforeseen complications. The principle of mutuality appliesin the determination of the question of heirship between a maternal uncle andhis nephew, and if one of them were governed by the Mitakshara and the other bythe Dayabhaga, the result would be very different from what would be the caseif both were governed by the Dayabhaga. The appellant has contended that therecitals and findings in the judgment of this Court in the suit ofChandrasekhar do not conclude him; the answer is that the respondents do notrely upon the judgment for such purpose. Assume for the moment that theprinciple recognised in Kashi Nath v. Jagat Kishore (1915) 23 C.L.J. 583 = 20C.W.N. 643, and Tripurana v. Rokkam (1922) Mad, 71 = 45 Mad. 332 [LQ/MadHC/1922/1] = 42 M.L.J.324 applies, and the recitals in the judgment cannot be used as evidence;still, the judgment is evidence as a relevant fact in issue or as atransaction. The judgment so used shows that the question was raised anddecided, whether the families of the paternal and maternal ancestors ofChandrasekhar were or were not governed by the Dayabhaga law. The evidence thenaccessible to the Court is no longer available, partly, by reason of lapse oftime, partly from destruction of portions of the record in accordance withstatutory rules. There can, in our opinion, be no room for doubt as to thepropriety of the course adopted by the Subordinate Judge, when he attachedgreat weight to the circumstance that, in 1865, this Court found that theDayabhaga law had been adopted in the families of the paternal and maternalancestors of Chandrasekhar.

5. It is not a matter for surprise that Chandrasekhar, whohad successfully asserted that the families of his paternal and maternalancestors had adopted the Dayabhaga law, should have consistently adhered tothat position, which had secured for him the estate of his maternal uncle afterthe death of his maternal aunt. On the 29th January, 1864, while his suitagainst Nabinsundar was still pending in the Court of the Principal Sadar Aminof Jessore, he made a testamentary disposition of his properties. The terms ofthe will, which has been produced before us, leave no room for doubt that thetestator made the disposition on the footing that he was subject to theDayabhaga law and had absolute dominion over his properties, ancestral as wellas self-acquired. Chandrasekhar died in 1868, and his estate was disposed of asdirected by him. Many years after his death, on the 23rd February, 1876, anekrarnama was executed between his sons Hari Prasanna and Mahendra Nath on theone hand, and the descendants of his brother Gobinda Chandra and cousin KaliKishore on the other. The document was in essence a deed of partition amongstmembers of the family, and proceeded on the assumption that the testamentary dispositionby Chandrasekhar was valid and operative. Along with this, we must rememberthat the brick-built house of Chandrasekhar at Krishnagar was sold by HariPrasanna and Mahendra Nath, long after Sarada Prasanna had grown into manhood;this is consistent only with the theory that Hari Prasanna and Mahendra Nathconsidered that they were competent to deal in this manner with ancestralproperty, as in reality they would be under the Dayabhaga law. We find, again,that on the 8th July, 1886, Hari Prasanna and Mahendra Nath executed a deed ofgift in favour of Panchanan, the son of their sister Joytara; thesubject-matter of the gift was the property obtained by their fatherChandrasekhar as the result of his suit against Nabinsundar already mentioned.This cannot be reconciled with the theory that the family was governed by theMitakshara law. We find next that, on the 7th September, 1895, Hari Prasannamade a testamentary disposition of his estate. The will recognises the validityof the disposition by Chandrasekhar and proceeds to give directions consistentwith the Dayabhaga and inconsistent with the Mitakshara. There is really noroom for doubt that Hari Prasanna, like his father Chandrasekhar, actedthroughout on the assumption that the family was governed by the Dayabhaga law.Hari Prasanna died on the 1st December, 1895, and, then, for the first time,Sarada Prasanna made an attempt to set up the theory that the family was stillgoverned by the Mitakshara law. Hari Prasanna had left by his second wife, twosons, namely, Sarada Prasanna and Tara Prasanna and, by his fourth wife, sixsons, namely, Guru Prasanna, Jyoti Prasanna, Jagat Prasanna, Lal Gopal, JayGopal and Bijay Gopal, the last four of whom were minors. There can be littledoubt that Sarada Prasanna took full advantage of the situation, createddisputes, and, on the 22nd December, 1895, just three weeks after his fathers,death, secured a reference to arbitration. Here, for the first time, we find anassertion that the members of the family were "up country Brahmins andgoverned by the Mitakshara law," coupled with an allegation that HariPrasanna, the father of the executants, "out of misapprehension used toconsider the paternal properties and the other properties acquired by theproceeds thereof as his self-acquired properties." We need not discusswhat weight should be attached to a statement of this character by a person whohad passed the prime of life and had never ventured to set up such a case solong as his father was alive. But we note that the arbitration was carried outwith uncommon rapidity; in the course of three days, on the 25th December,1895, the arbitrators made their award which was made a rule of Court on the10th February, 1896. The Subordinate Judge has held that this was engineered bythe appellant, with a view to nullify the testamentary disposition made by hisfather. That would be an obvious and immediate advantage; but foundation wouldalso be laid for a remote benefit; as Tara Prasanna was childless, SaradaPrasanna would be entitled to claim his interest by survivorship, if the familywere held to be governed by the Mitakshara. In this connection, it cannot beignored that he was an experienced member of the legal profession, while hisbrother and his step brothers four of whom were minors, were not familiar withthe devious paths of law and lawyers. It is desirable to add that we are notnow concerned with the validity of the settlement; the transaction is relevant,only upon the question, whether the family was governed by the Dayabhaga or theMitakshara. Upon that point, as the Subordinate Judge has held, it isrelatively of little consequence, when contrasted with the lifelong andself-consistent conduct of Chandra Sekhar and Hari Prasanna. We pass on now tothe conduct of Tara Prasanna himself. On the 3rd July, 1914, he made atestamentary disposition of his properties, and gave directions consistent withthe Dayabhaga and inconsistent with the Mitakshara. We need not, however,attach much weight to this fact, as this is the very disposition which has ltdup to the present litigations. There is no room for dispute that the conduct ofthe immediate ancestors of the appellant cannot be reconciled with the theorythat the family was governed by the Mitakshara law. But our attention has beendrawn to three instances of succession in the family, which, it is alleged, donot support the position that the Dayabhaga law is applicable. On examination,however, each of these turns out to be of an inconclusive character, Kalikanandsurvived his father Gobinda Chandra for less than a month (A). After his death,his widow Katyaint contented herself with an allowance and resided, as is notuncommon, in her paternal residence. The income of her husbands share was verysmall and the amount paid as maintenance might have been regarded as anadequate substitute. Instances of exclusion are of value, only if there isproof of demand and refusal. The widow of Girijanand, another son of GobindaChandra, was excluded from inheritance by the will of her husband, which issaid to have contained a provision for her maintenance, and she committedsuicide within two or three years after she had become a widow (A). Nanibala,the widow of Saileswar, was a minor at the date of the present suit, and shehad time yet to enforce her right of succession (A). On the other hand, thereare instances of the grant of succession certificate and guardianshipcertificate, such as is inconsistent with the theory of the existence of ajoint family governed by the Mitakshara law: Beejraj v. Bhyropersaud (1896) 23Cal. 912; Bissen v. Chatrapat (1895) 1 C.W.N. 32; Gharibulla v. Khalak Singh(1903) 30 I.A. 165 = 25 All. 407; this happened in fact, with regard to theestates of Mahendra Nath and Hari Prasanna after their demise (A).

6. The conclusion, thus drawn by the Subordinate Judge frominstances of succession in the family, has been fortified by him by referenceto evidence of the observance of rites and ceremonies at marriages, births anddeaths which indicate the relinquishment of Mitakshara law and the adoption ofthe Dayabhaga law in the family. The value of such evidence was emphasised bythe Sudder Court in Raychunder v. Gocool (1801) 1 Mac. Sel. Rep. 43 (56) and bythe Judicial Committee in Parbati Kumari v. Jagadis Chandra (1902) 29 Cal. 433= 29 I.A. 82, but it was perhaps not fully appreciated in Huro Pershad v. ShiboShwkuree (1870) 13 W.R. 47. The evidence on this part of the case isconflicting, but the Subordinate Judge has come to the conclusion that thebalance of testimony is in favour of the plaintiffs. There is some indicationthat Sarada Prasad, since the death of his father in 1895, has endeavoured toconform to the Mitakshara rather than to the Dayabhaga; the evidence shows hisscholarly attainments in Sanskrit and his acquaintance with authoritative worksof both the schools. The evidence at the same time shows, however, that theofficiating priests have not much of learning, and one of them, in the stressof cross-examination, made the astonishing statement that his knowledge ofSmriti of Mithila was derived from Raghunandan (the authoritative exponent ofthe Bengal School of Hindu Law). The evidence further shows that the Maithilipriests employed perform the puja in the same manner as Bengali priests. The inferenceis legitimate that the priests, like the members of the family, have adoptedthe Bengal system of rights and ceremonies, even though they were themselvesMaithili in origin. The sradh ceremony is performed according to the systemprevalent in Bengal; while the attempt to prove that the sapindakaran ceremony,in an exceptional case, was performed according to the Mithila school on thetwelfth day and not according to the Bengal school on the thirteenth day,completely broke down, when the fact was brought out in, evidence that it wasin fact performed on the anniversary of the day of death. Much stress was laidon the performance of the Tilak ceremony prior to marriage; but it cannot beoverlooked that it has a singular resemblance to what is known as the asirbadceremony in Bengal. In our opinion, the Subordinate Judge has correctly heldthat as regards language, dress, food and rites and ceremonies, the members ofthe family have adopted the style prevalent in Bengal. This, indeed, was fullyestablished more than half-a-century ago in the suit brought by Chandrasekharfor recovery of the estate of his maternal uncle; this is manifested in thepassage from the judgment of Bayley and Pandit, JJ., set out above.

7. We cannot leave this part of the case without somereference to the evidence which has been adduced to elucidate the history andstatus of what has been called connected families. Such evidence, where afamily is one of a group, may be admitted under section 11 of the IndianEvidence Act, which lays down that facts not otherwise relevant are relevant,if, by themselves or in connection with other facts, they make the existence ornon-existence of any fact in issue or relevant fact highly probable orimprobable; see Makes Chandra v. Satrughan (1902) 29 I.A. 62 (67) = 29 Cal.343, where Lord Macnaghten pointed out that the rule of the custom of linealprimogeniture obtained in all the Dalbhoom families, though some of them weregoverned by the Mitakshara, others by the Dayabhaga, notwithstanding that therewere intermarriages between them; see also Shimbhu Nath v. Gaya Chand (1894) 16All. 379; Harnabh v. Mandil (1899) 27 Cal. 379 (386, 399). In the case beforeus, it is not necessary for the plaintiffs to establish that every one of thefamilies which belong to the group that migrated towards the end of thesixteenth century, has abandoned the Mitakshara in favour of the Dayabhaga; thefact that some of them have done so may lend additional support to theallegations of the plaintiff, and can be used only to supplement directevidence, for we cannot prove the unknown by doubtful or hypotheticalanalogies. One of the families mentioned is that of the Missirs of Samta (B.2); a daughter of Mahendra married into that family, while two daughters of thatfamily married Durgananda and Girijananda, the nephews of Chandrasekhar. In alitigation relating to that family, the question arose, whether the Dayabhagaor the Mitakshara was the governing law: Sonatun v. Ruttun (1864) W.R. Gap. No.95, Pandit J., in remanding the case, referred to the decision in Ootum v.Obhoy (1862) W.R.F.B. Rul. 67 = 2 Hay. 534 and after remand, it was held by theDistrict Judge, Mr. Rivers Thomson, on the 28th July, 1864, that the family wasgoverned by the Dayabhaga law. Again, in the case of the family of theChaudhuris of Panchopta (B. 7) it was held, on the 27th June, 1901, that themembers were subject to the Dayabhaga and not the Mitakshara. The SubordinateJudge, Mr. Srigopal Chatterjee, pronounced an elaborate judgment and reviewedthe result of litigations in connected families, including the suit ofChandrasekhar previously mentioned. This judgment was affirmed by this Court onthe 8th July, 1904, by Rampini and Mitra, JJ. Patitpaban Chaudhuri, theplaintiff in that case, who unsuccessfully urged that the family was governedby the Mitakshara, is a son-in-law of the appellant. In two subsequent suits,however, in 1905 and 1907, Patitpaban succeeded in securing a contrary verdict;but it is noticeable that the judgment of the High Court in the earlier suitwas not produced in the first of these cases, while it was erroneously excludedfrom evidence in the second case. In the family of the Rays of Gangadharpore,it was found in 1915 that the members had adopted the Dayabhaga system; two ofthe daughters of the appellant have married into this family. Similar remarksapply to the Pradhan family of Samta (B. 3). In that family, a successioncertificate was taken out on the death of Pramatha, by his mother Nistarini,such as is permissible only if the Dayabhaga applies. These Pradhans were theagnates of the maternal uncle of Chandrasekhar; and a daughter of the appellanthas married into that family, while a daughter of that family has married a sonof Mahendra, the paternal uncle of the appellant. We do not overlook, however,that the Pradhans of Piplee (B. 5), the Rays of Beria (B. 6) and the Rays ofJahanabad appear to have adhered to the Mitakshara. It also appears that theMisras of Chatra belong to the same category (B. 4); the mother of theappellant was a daughter of this family. We need not deal in detail with otherfamilies, which are very remotely connected, such as the family of the Rays ofLalgola. In a litigation concerning the members of that family, the Mitaksharawas assumed to be applicable in 1870 : Mooktakeshee v. Oomabutty (1870) 14 W.R.31; but the real question in issue there, was, whether the family was joint orseparate. On a review of the entire evidence on this part of the case, we agreewith the Subordinate Judge that the preponderance is distinctly in favour ofthe view maintained by the respondents. It is not necessary to decide, withregard to each of the individual families, whose cases are not really before usfor adjudication, whether they are governed by the Dayabhaga or the Mitakshara;it is sufficient to state that the impression left on our minds is that in theallied or connected families, the Dayabhaga has been very widely adopted, andthe Bengal system of rites and ceremonies has been generally recognised. Thisrenders it highly probable, within the meaning of section 11 of the IndianEvidence Act, that Tara Prasanna Ray, the grandson of Chandra Sekhar Ray, wasgoverned by the Dayabhaga like his two immediate ancestors.

8. We have indicated above that the appellant, since thedeath of his father, has made an attempt to revert to the Mitakshara which hadbeen abrogated in the family for generations. This may raise the interestingquestion, whether an individual member of a family, which has migrated andadopted the law of what may be called its new domicile, may, of his choice,revert any day to the law which governed the family in its original home.Neither authority nor principle has been invoked in favour of the possibilityof such reverter, except by the growth of a new family usage. Where a Hindufamily migrates from one province to another, the (presumption is that itcarries with it the laws and customs as to succession and family relationsprevailing in the province from which it came: but this presumption may berebutted by proof that the family has adopted the law and usages of the placeto which it has migrated. The reason is that the Hindu law is not a merelylocal law, but is essentially personal law, an integral factor of the status ofevery family which is governed by it. In its new domicil, the family may, bythe reflex action of manners and customs prevalent in resident families,consciously or unconsciously, modify its own governing rules; there may thus bean acceptance of a new law, not due to sudden change by choice or agreement,but by the gradual evolution of a family usage; see Tara Chand v. Reeb Ram(1870) 14 W.R. 31, Abraham v. Abraham (1863) 9 M.I.A. 195 (199, 244, 246) = 1W.R.P.C. 1. When a new family usage has thus grown up in the course ofgenerations, possibly with die concurrence or acquiescence of families of thesame group, it furnishes the governing law of the family; see Rutcheputty v.Rajunder (1839) 2 M.I.A. 132, Pudmavati v. Doolar Singh (1817) 4 M.I.A. 259 = 7W.R.P.C. 41; Soorendronath v. Heeramome (29); Mohis v. Satrughan (1902) 29 I.A.62 (67) = 29 Cal. 343; Parbati v. Jagadis (1902) 29 Cal. 433 = 29 I.A. 82;Abdurrahim v. Halimabai (1915) 43 I.A. 35 = 30 M.L.J. 227; Balwant v. Baji Rao(1920) 47 I.A. 213 = : 25 C.W.N. 243; Rana Mahatab v. BadanSingh (1922) P.C. 146 = 48 Cal. 997 = : 26 C.W.N. 226 (P.C.);Kulada v. Haripada (1919) 24 C.W.N. 215 = 31 C.L.J. 52; Pitambar v. Nisikanta(1919) 24 C.W.N. 215 = 31 C.L.J. 52. When a family usage has thus developedinto a binding law let it be conceded that it may be superseded, by the growthof a contrary usage or by legislative enactment: Hammerton v. Honey (1876) 24W.R. 603. But it would obviously lead to much confusion and abundantlitigation, if the law permitted arbitrary attempts to revive and give effectto the original usages, after they had been clearly abandoned, and theabandonment had been acted upon so long as to result in the adoption of newusages. The view cannot consequently be maintained that it is open to a memberat any time to disclaim his personal law and adopt another at his choice; ifthis were permissible, chaos would be the only result; it is not necessary todiscuss here whether a family custom can be put an end to by the consensus ofopinion of all the members, or of the majority of the family: Mohomed v. HajiAhmed (1885) 10 Bom. 1 (13); Raj Kishen v. Ramjoy (1872) 1 Cal. 186 = 19 W.R.8; Sarabjit v. Indarjit (1904) 27 All. 203; Ayyakutti v. Krishna (1922) Mad.274 = 45 Mad. 394 [LQ/MadHC/1922/31] = 43 M.L.J. 1. In the case before us, there is no evidence ofdiscontinuity of the personal law adopted by the family in the course ofgenerations and the growth of a new family usage, constituting its suppressionand a reverter to the personal law of the family in its original domicil.

9. The second question we have to take up for considerationis whether the appellant and his brother were joint or separate in estate. TheSubordinate Judge has answered the question against the appellant. We are ofopinion that this conclusion cannot be successfully assailed. The award of the25th December, 1895, clearly effected a severance of interest amongst the eightsons left by Hari Prasanna Ray. The award was made pursuant to the ekrarnama ofthe 22nd December, 1895, and was transformed into a decree of Court on the 10thFebruary, 1896. The contention that the arbitrators acted in excess of theirauthority is futile. The division they effected was within the scope of theirauthority; but if they really exceeded their powers, the appellant should haveobjected when his step brothers enforced the award under sections 525 and 526of the Code of Civil Procedure, 1882. There was then not only no opposition onthe part of the appellant, the decree was in fact made with his consent; and itcannot now be impeached as irregularly or improperly obtained. The SubordinateJudge has further held, on the oral and documentary evidence, that the decreebased on the award has been carried into effect. The appellant did notthereafter live with his brother or step-brothers as members of a joint family.The income has been separately enjoyed, in defined shares, though theproperties may not all have been partitioned by metes and bounds. The evidencehas been placed before us, and has been minutely commented upon. We see noreason to doubt that the Subordinate Judge has correctly estimated the effectof the evidence on this part of the case. There is no room for controversy thataccording to the principle enunciated by the Judicial Committee in a longseries of decisions, a severance was effected in this case and there is neitherallegation nor proof of a subsequent reunion. As stated by Lord Westbury inAppovier v. Rama Subba (1866) 11 M.I.A. 75 = 8 W.R.P.C. 1, the true test ofpartition of property is the intention of the members of the family to becomeseparate owners. Consequently, there may be partition, even though there be noactual division by metes and bounds. This has been repeatedly reaffirmed; seeBalabaksh v. Rukhnabai (1903) 30 I.A. 130 = 30 Cal. 725; Balkisen v. Ramnarayan(1903) 30 I.A. 139 = 30 Cal. 738; distinguished in Durga v. Balmakund (1906) 29All. 93; Parbati v. Nanuihal (1909) 36 I.A. 71 = 31 All. 412; Suraj Narain v.Ekbal Narain (1912) 40 I.A. 40 = 35 All. 80; Girija Bai v. Sadasib (1916) 43I.A. 151 = 43 Cal. 103 [LQ/CalHC/1915/156] ; Kewal v. Parbhu (1917) 44 I.A. 159 = 39 All. 496;Nageshar v. Ganesha (1919) 47 I.A. 57 = 42 All. 368, Surajbansi v. Seokumar(1879) 6 I.A. 88 = 5 Cal. 148 [LQ/PC/1879/2] ; Lakshman v. Ramchandra (1880) 7 I.A. 18 = 5 Bom.48; Mudit v. Ranglal (1902) 29 Cal. 797; Ajodhya v. Mahadeo (1909) 14 C.W.N.221; Anand Kisore v. Daiji (1914) 21 C.L.J. 296; Rajaratna v. Anji (1911) 10M.L.T. 529; Palaniammal v. Muthu Venkota : (1917) 33 M.L.J. 759.

10. The third question, which requires examination is,whether the appellant and his brother were, in respect of the property known asRautara, joint tenants, with right of survivorship. The Subordinate Judge hasanswered this question against the appellant. He is clearly right as to thetrue construction of the will of Chandrasekhar. The property was given byChandrasekhar to his grandsons, Sarada Prasanna and Tara Prasanna, as Yatuk oraffectionate gift. This could not make the donees joint tenants with right ofsurvivorship. We need refer only to the decision of the Judicial Committee inJogeswar v. Ramchand (1896) 23 I.A. 37 = 23 Cal. 670, where Lord Watsonexpressed his disapproval of the importation of an extremely technical rule ofEnglish convincing, because, first, the principle of joint tenancy is unknownto Hindu Law apart from the Mitakshara doctrine of survivorship, and, secondly,even according to the law of England, a conveyance, or an agreement to conveyhis or her personal interest by one of the joint tenants operates as aseverance. Reference may also be made to the text * * * * and also to thedecisions in Rewun Persad v. Radha Beeby (1846) 4 M.I.A. 137; Navroji v.Perozbai (1898) 23 Bom. 80; Bai Diwali v. Patel (1902) 26 Bom. 445; Kishori v.Mundra (1911) 33 All. 665; Har Prasad v. Sukhdevi (1915) 37 All. 241; Karuppaiv. Sankara (1903) 27 Mad. 300, Chakkara v. Kunhi (1913) 39 Mad. 317; Bhoba v.Peary (1897) 24 Cal. 646 = 1 C.W.N. 578. We hold accordingly that the interestof Tara Prasanna in Rautara did not pass by survivorship to the appellant,independently of the question, whether the parties are governed by theDayabhaga or the Mitakshara.

11. After the most careful consideration of all thematerials on the record, we see no escape from the conclusion that theSubordinate Judge has rightly decreed the suits and that the appeals must bedismissed with costs.

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Sarada Prasanna Roy vs. Uma Kanta and Ors. (29.08.1922 -CALHC)