Bhagwati, J.

1. These three appeals raise a common question of law whether the Hindu residents of the North Kanara District are governed by the Madras school of Hindu law or the Bombay school of Hindu law.



2. One Narayan, a haveek Brahmin of North Kanara district, died leaving him surviving two sons Narasinha and Putta. Narasinha and Putta effected a severance of joint status inter se. Putta had three grandsons, Timmanna, Shankar and Venkappa, and in 1915 there was a partition between Venkappa on the one hand and Timmanna and Shankar on the other. Timmanna and Shankar continued joint inter se and Shankar died leaving him surviving his widow Kamali. Timmanna thereafter became the sole surviving coparcener of the joint family and he died in 1936 leaving behind him no nearest heir but the widow Kamali of his brother Shankar. After the death of Timmanna as aforesaid the name of Kamali was entered in the record of rights as his heir and she took possession of all the properties. Kamali continued to enjoy the properties until her death in 193

9. After her death Venkanna, the deft, who belonged to Narasinhas branch of the joint family, got his name entered into the record of rights on 12-06-193

9. The pltf. who was the widow of the son of Venkappa, filed the suit, out of which the L. P. A. No. 6 of 1949 arises, against the deft, claiming to recover possession of the properties and the future mesne profits and costs, alleging that, as the widow of a gotraja sapinda nearer in propinquity than the deft. she was entitled to succeed to the estate of Timmanna ashis heir. This claim of the pltf. was denied by the deft, who contended that the law applicable to the parties was not the Mitakshara law as administered in the Bombay Presidency but that it was a different one as they belonged to the Baudhayana Sutra. It was also contended that the District of North Kanara was originally comprised in the Madras Presidency and the law applicable to the residents of the said district was the one as administered in the Madras Presidency, and that therefore the pltf. being the widow of Timmannas brothers son would not be the heir to the estate of Timmanna in preference to the deft. The suit was filed on 18-12-193

9. The learned Subordinate Judge at Sirsi who tried the suit held that the parties were not governed by the law applicable in the Madras Presidency in the matter of inheritance or succession and that the pltf. was the nearest heir to Timmannas estate after Kamalis death and passed a decree in favour of the pltf. This decree was passed on 20-01-1941. The deft, filed an appeal in the District Ct. of Kanara at Karwar and the learned Dist. J. on 07-06-1943, allowed the appeal, reversed the decree of the lower Ct. and dismissed the pltf.s suit with costs throughout, holding that the law prevailing in the Madras Presidency was applicable to the case. The pltf. preferred a second appeal, being S. A. No. 977 of 1943, from this decree of the appellate Ct. The second appeal came on for hearing and final disposal before Gajendragadkar J., and on 17-01-1946, he delivered an interlocutory judgment observing that it was desirable that the pltf. should be allowed to allege specifically that the community to which the parties belonged was governed by the Bombay school of Hindu law in matters of succession and the deft. should be allowed to make a denial of the said plea, and that after the pleadings were thus amended a proper issue should be framed as to whether in matters of succession the parties to the suit are governed by the Bombay school of Hindu law or by the law as administered in the Madras Presidency. The matter being thus remanded came before the learned Civil Judge, Junior Division, Sirsi, who, on 19-08-1946, recorded the finding that the parties were not governed by the Bombay school of Hindu law in matters of succession and that they were governed by the law as administered in the Province of Madras. This finding was considered by the learned Dist. J. Kanara, and on 22-10-1946, he found that the people of all communities in the Kanara District including the haveeks to which the parties belong were governed by the Bombay school of Hindu law at any rate till 1936 in the matter of succession, adoption and maintenance and that thereafter it would have to be deemed that they were governed by the Madras school of law in view of the two decisions discussed by him, viz., Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. L. R. 317 : (A. I. R. (23) 1936 P. C. 18) and Dattatraya Maruti v. Laxman Jattappa, 44 Bom. L. R. 527 : (A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] . After these findings were recorded, the S. A. No. 977 of 1943 came on for hearing before Bavdekar J. on 09-07-1947. Bavdekar J. discussed the whole position in law and came to the conclusion that the parties in the case were governed by the Bombay school of Hindu law. In regard however, to the claim of the pltf. which was on the basis of her being the widow of a gotraja sapinda entitled to inherit to a propositus in preference to a more remote male gotraja sapinda, he considered that his opinion that the parties were governed by the Bombay School of Hindu law was not sufficient to dispose of the case. He was of the opinion that the decision of their Lordships of the P. C. in Lulloobhoy Bappoobhoy v. Cassibai, 7 I. A. 212 : (5 Bom. 110 P. C.) was based on the ground of positive acceptance and usage and not on any interpretation of either the Mitakshara or the Mayukha. He, therefore, made a further order of remand to frame a further issue and record the finding upon it, viz., whether in the North Kanara District a widow of a gotraja sapinda has by positive acceptance and usage a right to inherit to a propositus. The matter on this further remand was heard by the learned Civil Judge, Sirsi, and on 26-11-1947, he recorded a finding in the affirmative. This finding was considered by the learned Dist. J. at Karwar on 12-01-1948, who confirmed the same certifying his finding in the affirmative on the issue stated above. The S. A. No. 977 of 1943 came on ultimately for hearing and final disposal before Bavdekar J. on 03-01-1949, and he held, accepting the findings as had been recorded by the Cts. below, that just as in the rest of the Presidency the view of the expounders and lawyers of the Bombay school that the widow of a gotraja sapinda was entitled to inherit was accepted in Karwar also. He, therefore, set aside the decree of the first appellate Ct. and restored the decree of the trial Ct. In so far, however, as the point of law involved was an important one affecting the Hindu residents of the North Kanara District, he granted leave to appeal under the Letters Patent. The L. P. A. No. 6 of 1949 was thus filed against this decision of Bavdekar J. and it came on for hearing before us on 19-10-1950.

3. One Shankar, a haveek Brahmin of North Kanara District, died in 1937 leaving behind him his young widow Mahadevi and two daughters by his pre-deceased wife Bhagirathi, the elder daughter being named Laxmi. When Shankar died his wife Mahadevi was a minor of about 17 years and her brother Mahadev became her guardian and began to manage her properties inherited from her husband. Certain properties which were mulgeni holdings were sold in execution of a decree obtained against Mahadevi for arrears of rent and were purchased by Mahadevis mother who was also named Bhagirathi. Mahadevi thereafter adopted her brother Satyanarayan as a son to her deceased husband. Laxmi thereupon filed a suit on 15-03-1943, against Mahadevi, Satyanarayan and Bhagirathi for a declaration and injunction contending inter alia that the adoption of Satyanarayan was made without the permission of the deceased husband in that behalf and that the adopted boys upanayanum had already taken place prior to the adoption. She alleged that these defects were fatal according to the law of the Madras Presidency which is the law supposed to be prevalent amongst the haveek Brahmins in the North Kanara District. These allegations were denied by the defts. Mahadevi and Satyanarayan. They contended that the adoption was valid according to all the canons of Hindu law prevalent in the Bombay Presidency which is the law adopted by the haveek Brahmins of the North-Kanara District. The learned Subordinate Judge at Kumta who heard the suit came to the conclusion that the parties were governed by the Hindu law as prevalent in the Madras Presidency and that therefore the adoption of Satyanarayan by Mahadevi was invalid. He, therefore, decreed the pltfs. claim except in regard to the purchase by Bhagirathi of the mulegni holdings. The defts. filed an appeal against this decision in the District Ct. of Kanara at Karwar. The learned Dist. J. held on 01-04-1948, that the Bombay school of Hindu law applied to the parties to this case and allowed the appeal, set aside the lower Cts. decree and dismissed the pltfs. suit with costs throughout. It was from this decision of the learned Dist. J. that S. A. No. 551 of 1948 was filed by Laxmi the original pltf. This second appeal was also placed on board for hearing and final disposal before us in so far as it involved the question whether the Hindu residents of the North Kanara District were governed by the Madras school of Hindu law or the Bombay school of Hindu law.

4. One Krishna Salunke, a Konkan Maratha of the North Kanara District died leaving him surviving his two sons by name Appa and Govind and a widow by name Rukmini who was their step-mother. Govind died on 06-03-1938, leaving him surviving his widow by name Radhabai. Radhabai filed a suit against Appa, impleading Rukmini as a party deft, to the suit claiming to recover possession of her half share in the suit properties after partition by metes and bounds and for future mesne profits and costs from Appa. According to her Rukmini was only entitled to maintenance and residence out of the joint family properties. Rukmini, however, contended that as the mother she was entitled to an equal share with her sons Appa and Govind and claimed a one-third share in the joint family properties. The suit was filed on 12-08-1941, and the learned First Class Subordinate Judge at Karwar passed a decree on 31-03-1944, in favour of the pltf. decreeing a half share in the suit properties in her favour. He held that in the matter of succession and inheritance the parties were governed by the law of the Madras Presidency and according to that law the mother was not entitled to a share. He came to this conclusion on the basis that North Kanara District formed part of the Madras Presidency formerly and therefore the parties were governed by the law prevailing in the Madras Presidency so far as inheritance and succession was concerned. The defts. filed an appeal in the District Ct. at Karwar against this decision of the learned Subordinate Judge. The learned Dist. J. who heard the appeal on 17-10-1946, thought it desirable that Rukmini should be allowed to allege specifically that the community to which the parties belong is governed by the Bombay school of Hindu aw in matters of succession and inheritance. He, therefore, allowed the pltf. to put in a counter-written statement and directed that after the pleadings were thus amended a proper issue should he framed as to whether in the matters of succession and partition the parties to the suit are governed by the Bombay School of Hindu Jaw or by the law as administered in Madras Presidency. The matter came on remand before the learned Civil Judge, Senior Division, at Karwar and on 15-11-1947, he recorded his finding in the negative on the issue, viz.

"Does deft. 2 (Rukmini) prove that in the matter of succession and partition the parties to the suit (who are Konkan Marathas) are governed by the Bombay School of Hindu law"

On this finding being recorded, the appeal case came on for hearing before the learned Dist. J. at Karwar on 31-01-1948, and he held that the only legitimate inference was that the Bombay school of Hindu law governed the residents of the North Kanara District because it was the law that prevailed in that country despite the various political changes. He held that the parties before him even if they were original residents of North Kanara, should be held as having been governed by the Bombay school of Hindu law and, that being so, Rukmini was entitled to a one-third share in the property. He, therefore, allowed the appeal partly and modified the lower Cts. decree by awarding to Rukmini her one-third share in the suit properties. Radhabai, the original pltf. filed the S. a. No. 377 of 1948 from this decree of the appellate Ct.

This appeal was also placed oh board along with the two previous appeals in view of the common question of law which was involved therein, viz. whether the residents of the North Kanara District were governed by the Madras school of Hindu law or the Bombay school of Hindu law.

5. All these three appeals are capable of being disposed of by one judgment on the common question of law which we have stated above, and this judgment will accordingly govern the decision of all these three appeals.

6. It is necessary at the outset to give a historical survey of the North Kanara District. The history of this District can be traced as far back as 240 B. C. (Vide Gazetteer Bombay Presidency, Vol. XV [15] Kanara, Part II) when this district seems to have had association with the North rather than with the South. In the 5th century A. D. this District formed a part of the kingdom of Kadambas who had their capital Banavasi in Sirsi taluka. During the subsequent period, the District had been successively under the Rashtrakutas, Chalukyas, Hoysalas, Yadavas of Devagiri and under the Vijayanagar Empire. The District was under the rule of Vijayanagar kings from 1330 to 1580. Thereafter it was under Bijapur kingdom from 1600 to 1670. Subsequently from 1672 to 1763 it was ruled by the Sonda kings and during this period the Marathas held the coast of Kanara for some time. Later on from 1763 to 1799 the District became subject to the rule of Haidar Ali and his son Tippu Sultan. After the defeat to Tippu Sultan in 1799 it became a part of the Companys possessions and, was annexed to the Madras Presidency. After the third Mysore War, the present North Kanara District as well as South Kanara District were formed into one collectorate and Sir Thomas Munro was appointed as Collector of Kanara by the British Company Govt. in 179

9. Thus for the first time the District formed part of the Madras Presidency in 179

9. It formed part of the Madras Presidency from 1799 to 1861 when it was transferred to the Bombay Presidency for the purposes of administration. The District was thus a part of the Madras Presidency for 62 years, i. e., from 1799 to 1861, while it is a part of the Bombay Presidency since 1861, i. e., for more than 80 years. It is also borne out from the Kanara Gazetteer that the District formed part of the Karnatag along with Dharwar, Belgaum and Bijapur.

7. This historical survey cannot necessarily lead to the inference that the North Kanara District was necessarily governed by the Bombay school of Hindu law like the Districts of Dharwar, Belgaum and Bijapur, but it certainly shows that prior to the annexation of the District to the Madras Presidency, it had associations with the North rather than with the South. This circumstance will be of great significance when we come to consider the observations of West and Buhler in connection with the law applicable to the North Kanara District.

8. There are no reported cases which would go to show what was the law applicable to the Hindu residents of North Kanara District prior to 1861 when it was transferred to the Bombay Presidency for the purposes of administration. Even though the District formed part of the Madras Presidency between 1799 and 1861 there is no record anywhere to show that the Hindu residents of the North Kanara District were during that period governed by the Madras school of Hindu law. On the contrary within only 17 years of the District being transferred to the Bombay Presidency we have in the second edition of West and Buhlers Digest of Hindu Law of Inheritance and Partition (1878) a statement to the effect following (p. 13):

"The relative position of these works to each other may be described as follows:-

In the Maratha country and in Northern Kanara the doctrines of the Mitakshara are paramount; the Vyavaharamayukha, the Viramitrodaya and the rest are to be used as secondary authorities only. They serve to illustrate the Mitakshara and to supplement it. But they may be followed so far only as their doctrines do not stand in opposition to the express precepts or to the general principles of the Mitakshara. Among the secondary authorities, the Vyavaharamayukha takes precedence of the Virmitrodaya."

This second edition of the Digest is not available in the Library but the learned Dis. J. at Karwar himself had seen it and quoted the above passage which occured at p. 2 of that edition as appears from his judgment at print p. 9 in S. A. No. 377 of 1948. The first edition of this Digest was published in about the year 1868 and it presumably contained the very same statement as quoted above. But even if it were not so, it stands to reason that the statement having been made only about 17 years after the North Kanara District became a part of the Bombay Presidency, the law applicable to the residents of the North Kanara District cannot have changed within that short interval and a different law from that which they were governed by before 1861 adopted by them without any visible signs of protest. The compilers of the Digest were persons of very great repute and authority as is evident from the observations of their Lordships of the P. C, in Lulloobhoy Bappoobhoy v. Cassibai, 7 I. A. 212 at p. 239 : (5 Bom. 110 P. C.) :

"Great weight is undoubtedly due to this decision not only from the learning and research displayed in the judgments separately delivered by Westropp C. J. and West J., but also from the circumstance that both these learned Judges have had great and peculiar opportunities of becoming acquainted with the law of inheritance prevailing in Western India. The Chief Justice has passed a long judicial career in the Cts. of Bombay and West J. is one of the compilers of the digest of the Law of Inheritance to which reference has already been made."

This passage from West and Buhlers Digest, therefore, shows that as early as 1878, if not earlier, the result of the investigations made by the compilers of that Digest was that in the Maratha country and in Northern Kanara the doctrines of the Mitakshara were paramount, the Vyavaharamayukha and the Viramitrodaya were to be used as secondary authorities only. Similar statement is to be found in Mullas Hindu Law, 10th Edn., p. 12, S. 12 (2): "As regards authorities in Western India the Mitakshara ranks first and paramount in the Maharashtra, Northern Kanara and the Ratnagiri District." If one glances at the sub-divisions of the Mitakshara school as have been described in S. 12, one finds that the Vyavahara Mayukha is considered as an authority only in the Maharashtra or the Bombay school, though it ranks next to the Mistakshara and is to be followed so far only as the doctrine does not stand in opposition to the express precepts or to the general principles of the Mitakshara. The Madras school does not recognise Vyavaharamayukha as any authority. It only considers Smriti Chandrika, Parasara Madhaviya, Viramitrodaya Saraswati Vilasa as secondary authorities and next after Mitakshara. The authority of Vyavahara Mayukha in the North Kanara District, therefore, would clearly mark it out as a place which was governed by the Maharashtra or the Bombay school of Hindu law.



9. There are no reported decisions before or after 1878 in regard to this position until we come to Manjappa Hegade v. Lakshmi, 15 Bom. 234. That is the first reported decision of our H. C. which relates to the Hindu residents of the North Kanara District. In that case the contest was between the widow of an undivided brother and the alienee of an undivided moity of the family property from another brother. Sargent C. J. observed that the widow of the undivided brother did not take a life estate but the entire property passed on her husbands death to the surviving coparcener, subject only to the right of the widow to maintenance, and the purchaser who had purchased the moiety of the estate from the other coparcener became entitled on his succession to the property to have a half share in it and was equally entitled against the widow who may perhaps be entitled to succeed to the surviving coparcener as a gotraja sapinda. Even though the point was not directly in issue, it was assumed by the learned Chief Justice that the widow might be entitled to succeed to the surviving coparcener as a gotraja sapinda in the absence of any alienation made by him during his lifetime. This was a recognition of her right as a female gotraja sapinda to succeed as an heir to the estate of the sole surviving coparcener. This recognition was made as early as 1890 and was incorporated in this judgment by the learned Chief Justice while delivering judgment in this case. This is the first judicial recognition though indirectly of the Hindu residents of North Kanara District being governed by the Bombay School of Hindu law after the statement to be found in 1878 in West and Buhlers Digest on Hindu law of Inheritance and Succession, 2nd Edn., quoted above. It was within 12 years of the recognition thereof by West and Buhler as above.



10. The next reported case from the North Kanara District is that of Mahableshvar v. Durgabai, 22 Bom. 19

9. It was a second appeal from the decision of the learned Dist. J. of Kanara reversing the decree of the First Class Subordinate Judge of Karwar. The question that arose was in regard to the inquiry into the motives of the adoptive widow where her motives were called in question. In the course of that discussion, Farran C. J. who delivered the judgment of the Ct. referred to the position as it obtained according to the Madras school of Hindu law in regard to the widow requiring the assent of the sapindas of the deceased husband. Even so in regard to the position as it obtained in accordance with the Bombay school of Hindu law the learned Chief Justice stated that here the consent of the husbands kinsmen was not required. That was the position which was considered as applicable to the parties before the Ct. and the whole discussion thus centered round the motive which actuated the adoptive widow in making the adoption. If the Madras school of Hindu law had been considered to apply, the fact that the adoption was made without the consent of the husbands kinsmen would have been enough to dispose of the case. The learned Judges of the appellate Ct., however, proceeded to consider the matter on the basis that the Bombay school of Hindu law applied, that the consent of the husbands kinsmen was not required, and that it was necessary to inquire into the motives of the adoptive widow where her motives were called in question. It appears from the facts of this case that the deceased had died on 18-09-1878, and his widow Parvatibai had subsequently adopted Mahableshwar as a son to him, which adoption had been challenged by the pltfs. who were the sisters of the deceased in their capacity as his reversionary heirs. This decision also, therefore, shows that the Bombay school of Hindu law was all along considered to be applicable to the Hindu residents of North Kanara District.



11. The next reported case after this is that of Vithappa v. Savitri, 34 Bom. 510 [LQ/BomHC/1910/42] : (7 I.C. 445) it was a second appeal from the decision of the Dist. J. of Kanara reversing the decree of the Subordinate Judge of Honavar. One Vishnu had died leaving him surviving two daughters Kuppi and Savitri. Kuppi was married to Rama Hedgde and she died in 1899, leaving her surviving her husband Rama. In 1907 Rama Hedgde brought the present suit against Kappabhatta Vishunbhatta, the tenant of the land, as deft. 1 and against Savitri as deft. 2 to recover a share in the rent which devolved upon him as heir of his wife Kuppi, deceased. The Subordinate Judge found that both Kuppi and Savitri were heirs to their father and therefore he allowed the claim. On appeal by deft. 2 the Dist. J. reversed the decree and dismissed the suit on the ground that Kuppis right of heirship passed to her sister Savitri by survivorship. The contest was thus between the Bombay School of Hindu law and the Madras school of Hindu law. It was contended on behalf of the resp. that the case had come from Kanara which at the beginning of the last century formed part of the Madras Presidency and that therefore the Cts. should follow the rulings applicable to the Madras Presidency which laid down that according to the Mitakshara, as interpreted by the Madras H. C. daughters inheriting from their father take jointly and do not take absolute interests in separate shares. It was contended, on the other hand, that in the Bombay Presidency it had long been held that a daughter taking property from her father inherited it as stridhan and it therefore followed that two daughters taking from their father took their shares separately and absolutely, with the result that they held the property as tenants-in-common and not as joint tenants and between them there could be no survivorship. The appellate Ct. however, observed that the rule which had been always followed in cases affecting inheritance of property under Hindu law was to adhere to the decisions of the Ct. to which the district from which the case arose was subject, and it had not been contended that in the District of North Kanara any different rule had been laid down by the Bombay H. C. from that which applied to the rest of the Presidency in the case of property inherited by daughters from their father. They, therefore, reversed the decree of the District Ct. and restored that of the Subordinate Judge. This decision was a clear pronouncement in regard to the position as it obtained in North Kanara District. The law which had been applied by the Bombay H. Ct. was the same in North Kanara District as in the other districts of the Presidency and the Bombay school of Hindu law was taken to apply to the Hindu residents of the North Kanara District. Here also the right of the parties had accrued in any event by 1899 though the decision in that behalf was reached in the year 1910.

1

2. The last reported case in this behalf is that of Hosbanna Devanna v. Devanna Sannappa, 48 Bom. 468 [LQ/BomHC/1924/56] : (A. I. R. (11) 1924 Bom. 444) [LQ/BomHC/1924/56] . It was a second appeal from the decision of the Dist. J. of Kanara amending the decree passed by the Subordinate Judge of Karwar. It was a case of partition between father and sons and the question which arose was whether the step-mother was entitled to a share on partition. One of the sons had filed a suit for partition against his father and his step-brothers. The step-mother was afterwards added as a party resp. in the appeal. The lower Ct. had passed a partitions decree directing that the pltf. should be declared the owner of one-seventh share in the property of the joint family. The question, however, arose in appeal whether the stepmother was also entitled to a share on partition. The Dist. J. held that the step-mother was entitled to a share. The learned Judges of the appellate Ct. confirmed the decision of the Dist. J. and Shah J. in the course of his judgment observed that the case came from the District of Kanara and the parties would be governed by the Mitakshara. He further observed that even though the case of Jairam v. Nathu, 31 Bom. 54 [LQ/BomHC/1906/82] : (8 Bom. L. R. 632) was governed by the Vyavahara Mayukha, it was sufficient to state that on this point there was no difference between the Vyavahara Mayukha and the Mitakshara, and that that conclusion was based upon the express text of Yajnavalkya. It may be observed that in this decision also the Hindu residents of the North Kanara District were taken to be governed by the Bombay school of Hindu law and no other. This decision was reached in the year 1924.

13. The position as it emerges from the above discussion is that since in any event the year 1878, if not earlier, right up to 1924 the Hindu residents of North Kanara District were treated as being governed by the Bombay school of Hindu law. There was an authoritative statement in that behalf contained in West and Buhlers Digest on Hindu Law of Inheritance and Succession. There were also authoritative judicial pronouncements made by our appellate Court in that behalf ranging from 1890 up to 1924. This was the opinion of the legal experts.

This was also the understanding of the Hindu residents of the North Kanara District. We do not find anything in the reported decisions of our H. Ct. which goes counter to this accepted notion until we come to Dattatraya Maruti v. Laxman Jattappa, 44 Bom. l. R. 527: (a. i. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] a decision which was reached by our appellate Ct. in the year 1941, under the circumstances hereinafter set out.

14. In the year 1929, a decision was reached by the Madras H. Ct. which is reported in Somasekhara v. Mahadeva, 53 Mad. 297 [LQ/MadHC/1929/407] : (a.i.R. (17) 1930 Mad. 496) [LQ/MadHC/1929/407] which for the first time in the annals of the Madras H. Ct. and also in the records available in the Madras Presidency laid down that the Lingayats of the North Kanara District were not governed by the Mayukha law of adoption but were governed by the Madras school of Hindu law; and that therefore the adoption of a married man of that community was invalid. In that case the pltf. was admittedly a married man at the time of the adoption. The parties were Lingayats and the question that arose for the consideration of the Ct. was whether the adoption of a married man by a Lingayat was valid. The learned Judges of the Madras H. C. observed that the North Kanara originally formed part of the dominions of Hyder Ali and his son Tippu who were the Rulers of Mysore, and in 1799 on the fall of Tippu Sultan, North Kanara and other territories were ceded to the East India Company and formed part of the Madras Presidency till 1861, when for administrative purposes the administration of that district was transferred to the Bombay Presidency. They further observed that (p. 302):

"When the North Kanara District formed part of the Madras Presidency, the law as administered by the Madras H. Ct. was that the adoption of married men was invalid and it would have been necessary for a person there who sets up a custom to the contrary to prove it. The transfer of North Kanara to the Bombay Presidency for administrative purposes would not by itself change the personal law of persons residing in the North Kanara District. Whether it is a case of an individual migrating from one province to another or a case of territory where he resides being transferred from one province to another, the presumption until the contrary is shown is that he carries his personal law with him, and it is difficult to see how the Mayukha can be said to apply to the North Kanara District, simply because it was transferred to the Bombay Presidency."

The learned Judges of the Madras H. Ct. thus took it as an established fact that when the North Kanara District formed part of the Madras Presidency the law as administered by the Madras H. Ct. was that the adoption of a married man was invalid and it would have been necessary for a person there who sets up a custom to the contrary to prove it. Merely because the law as administered by the Madras H. Ct. was that the adoption of a married man was invalid they took it that all the Hindu residents of the North Kanara District were governed by that law. They did not consider what was the law by which they were governed prior to 1799 when the North Kanara District became a part of the Madras Presidency. They simply took it that because North Kanara District formed part of the Madras Presidency between 1799 and 1861 the Madras School of Hindu law applied to the parties and the parties must be deemed to continue to be governed by the same even after the District was transferred to the Bombay Presidency for administrative purposes unless it was proved that they adopted some other school of Hindu law as their own. This decision was reached by the learned Judges of the Madras H. Ct. in the year 1929, and without anything more by way of probing into the actual position in law as it obtained during the period 1799 to 1861, they took it for granted that the Hindu residents of the North Kanara District were governed by the Madras school of Hindu law. A statement as to what was the position in law between 1799 and 1861 was thus made in the year 1929 merely on an assumption that the North Kanara District having formed part of the Madras Presidency must have had administered to it the law as recognized by the Madras H. Ct. for all persons resident within its jurisdiction, viz. the Madras school of Hindu law. This assumption was, however, as we have already pointed out above, not warranted by the true position as it has been disclosed in the passage from West and Buhlers Digest of Hindu Law of Inheritance and Succession, which first published in the year 1868 and in any event contained the statement of the law above referred to in the second edition which was published in the year 1878.

15. This decision of the Madras H. Ct. went in appeal before the P. C. and the judgment of their Lordships of the P. C. is reported in Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. L. R. 377: (a. I. R. (23) 1936 P. C. 18). It was conceded by counsel at their Lordships bar that according to the law of the Madras Presidency which applied to the residents there the adoption of a married man would be invalid and that this law applied to North Kanara while it remained part of the Madras Presidency. There was no judicial pronouncement made by their Lordships of the P. C. in behalf of this question.It is well-known that obiter dicta of their Lordships of the P. C. are entitled to the greatest respect, but this was not even an obiter. This statement was made by their Lordships merely on a concession made by counsel at their Lordships bar and would not have the sancity of an endorsement of a particular legal position by their Lordships of the P. C.The only thing which was pronounced by their Lordships was that such transfer of North Kanara District from the Madras Presidency to the Bombay Presidency for administrative purposes was not sufficient to affect the present law of the residents therein unless and until it was shown in the case of any resident that he intended to change and had in fact changed his personal law. This decision of their Lordships of the P. C., therefore, could not be urged to have set its seal of approval on the position contended for by the protagonists of the Madras school of Hindu law.



16. The above judgment of their Lordships of the P. C. was pronounced in the year 1935 and was considered and followed by a Division Bench of our H. C. in the year 1941 in a decision reported in Dattatraya Maruti v. Laxman Jattappa, 44 Bom. L. R. 527 : (A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] . The parties belonged to the community of Goud Saraswat Brahmins of Karwar and the question that arose for decision was whether the Goud Saraswat Brahmins residing in the Karwar District were governed in matters of personal law by the lex loci, i.e. by the Mitakshara law as prevailing in the Madras Presidency, or by the Bombay school of Hindu law. In that case the adoption had been made without the authority of the deceased husband or the consent of the coparceners. Such an adoption would be valid according to the Bombay school of Hindu law but not valid elsewhere in India. The learned Judges of the appellate Ct., Broomfield and Sen JJ., considered themselves bound by the decision of their Lordships of the P. C. in Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. L. R. 317 : (A. i. R. (23) 1936 P. C. 18) following upon Somasekhara v. Mahadeva, 53 Mad. 297 [LQ/MadHC/1929/407] : (A. I. R. (17) 1930 Mad. 496) [LQ/MadHC/1929/407] and they observed that North Kanara where the parties resided was part of the Madras Presidency until it was transferred to Bombay for administrative reasons in 1861, but that that transfer did not affect the lex loci, that Hindus in North Kanara were presumed to be governed by the Hindu law as prevailing in the Madras Presidency unless the contrary was shown and that that was clear from Somasekhara v. Mahadeva, 53 Mad. 297 [LQ/MadHC/1929/407] : (A. i. R. (17) 1930 Mad. 496) [LQ/MadHC/1929/407] which was affirmed by the P. C. in Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. L. R. 317 : (A. i. R. (23) 1936 P. C. 18). The learned Judges took the view that according to what their Lordships of the P. C. stated all the Hindus residing in the Madras Presidency including those residing in the North Kanara District were governed by the Madras school of Hindu law, and applying that ratio to the parties before them came to the conclusion that they also were governed by the Madras school of Hindu law and that therefore the adoption in question was invalid.



17. This decision of our H. C. was the first decision reached in the year 1941 following Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. L. R. 317 : (a. i. R. (23) 1936 P. C. 18) which struck a discordant note in regard to what was till then accepted as the true position in law applicable to the Hindu residents of the North Kanara District. It is significant to note that the whole position as has been discussed by us above including the authorities of our H. C. commencing with Manjappa Hegade v. Lakshmi, 15 Bom. 234 and ending with Hosbanna Devanna v. Devanna Sannappa, 48 Bom. 468 [LQ/BomHC/1924/56] : (a. I. R. (11) 1924 Bom. 444) [LQ/BomHC/1924/56] , was not brought to the attention of the learned Judges who constituted the Bench in Dattatraya Maruti v. Laxman Jattappa, 44 Bom. 527 [LQ/BomHC/1919/176] : (a. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] . The decision was reached by the learned Judges merely on a consideration of Somasekhera v. Mahadeva, 53 Mad 297 [LQ/MadHC/1929/407] : (a. I. R. (17) 1930 Mad. 496) [LQ/MadHC/1929/407] as affirmed by the P. C. in Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. L. R. 317 : (a. I. R. (23) 1936 P. C. 18).

18. After the year 1941, when Dattatraya Maruti v. Laxman Jattappa, 44 Bom. 527 [LQ/BomHC/1919/176] : (a. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] was decided another occasion arose in the year 1946 when the same question came to be discussed by our appellate Ct. in a decision reported in Shantaram Sadashiv v. Mahabaleshwar, 49 Bom. L. R. 764 : (a. I. R

. (35) 1948 Bom. 129) [LQ/BomHC/1946/145] . The question which arose before the appellate Ct. there was whether the Goud Saraswat and Daivadnya Brahmins in the North Kanara District were governed by the Bombay School of Hindu law or by the Madras school of Hindu law. The Division Bench there was constituted by Macklin and Gajendragadkar JJ. The learned Judges took into account the two recent decisions, viz. Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. l. R. 317 : (a. I. R. (23) 1936 P. C. 18) and Dattatraya Maruti v. Laxman Jattappa, 44 Bom. 527 [LQ/BomHC/1919/176] : (a. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] and appear to have felt themselves bound by the first of the two decisions which was a pronouncement of their Lordships of the P. C. In the case before them, however, a remand had been made on an earlier occasion and an issue had been framed whether the parties had not brought their own personal law to the District of North Kanara when they had migrated thereto from Goa. In the result there had been concurrent findings of both the Cts. below that the Goud Saraswat Brahmins were in origin migrants from Goa where they were governed by the Bombay school of Hindu law and that they brought their personal law with them to North Kanara. The learned Judges of the appellate Ct., therefore, persuaded themselves to accept the pronouncement of their Lordships of the P. C. in Somasekhara Royal v. Suguthur Mahadeva Royal, 38 Bom. L. R. 317 : (A. I. R. (23) 1936 P. C. 18) and proceeded to consider the findings which had been recorded by both the Cts. below. They distinguished the decision in Dattatraya Maruti v. Laxman Jattappa, 44 Bom. L. R. 527 : (A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] on the ground that even though that decision also proceeded on the basis of the P. C. decision in Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. L. R. 317: (A. I. R. (23) 1936 P. C. 18) the parties there had failed to prove that in matters of personal law they were governed by any other law than that of the Madras Presidency, the evidence in that behalf being insufficient to justify the acceptance of the contrary arguments. The learned Judges on the discussion of the evidence which had been recorded on remand came to the conclusion that the Goud Saraswat Brahmins and Daivadnya Brahmins had descended from families which migrated from Goa taking their personal law with them and that that personal law was the Hindu law according to the Bombay school. It may be noted that here also the decisions of our appellate Ct. beginning with Manjappa Hegade v. Lakshmi, 15 Bom. 234 and ending with Hosbanna Devanna v. Devanna Sannappa, 48 Bom. 468 [LQ/BomHC/1924/56] : (A. I. R. (11) 1924 Bom. 444) [LQ/BomHC/1924/56] , which we have discussed above, were not brought to the attention of the learned Judges of the appellate Ct. and their decision in behalf of the binding nature of Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. l. R. 317 : (A. I. R. (23) 1936 P. C. 18) was reached without considering what was the true position that had obtained all throughout in the North Kanara District, in any event after 1861.

1

9. These decisions, viz., Somasekhara Royal v. Sugutur Mahadeva Royal, 38 Bom. L. R. 317 : (A. I. R. (23) 1936 P. C. 18); Dattatraya Maruti v. Laxman Jattappa, 44 Bom. L. R. 527 : (A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] ; Shantaram Sadashiv v. Mahabaleshwar Vinayak, 49 Bom. L. R. 764 : (A. I. R

. (35) 1948 Bom. 129) [LQ/BomHC/1946/145] were the decisions which were relied upon by the Cts. below in the appeals before us where they held that the Hindu residents of the North Kanara District were governed by the Madras school of Hindu law. They were, however, reached without carefully considering the position as it obtained by virtue of the decisions of our appellate Ct. in Manjappa Hegade v. Lakshmi, 15 Bom. 234; Mahableshwar v. Durgabai, 22 Bom. 199; Vithappa v. Savitri, 34 Bom. 610 : (7 I. C. 445) and Hosbanna Devanna v. Devanna Sannappa, 48 Bom. 468 [LQ/BomHC/1924/56] : (a. i. R. (11) 1924 Bom. 444) [LQ/BomHC/1924/56] . We are sure that if these decisions had been brought to their notice, they would have paused to consider before they definitely came to the conclusion that the Hindu residents of the North Kanara District were governed by the Madras school of Hindu law. This position was thrashed out by Bavdekar J. when he delivered his interlocutory judgment in S. A. No. 977 of 1943 on 09-07-1947, and he also came to the conclusion that the parties in the case before him were governed by the Bombay school of Hindu law. We are in perfect accord with his opinion, but desire to record as a definite conclusion reached by us on a review of the authorities above mentioned that not only the parties before him, viz. the haveek Brahmins of the North Kanara District, but all Hindu residents of the North Kanara District are governed by the Bombay school of Hindu law and not by the Madras school of Hindu law.

20. We are conscious that the above conclusion which has been reached by us runs counter to the conclusion which has been reached by a Division Bench of our own H. C. in Dattatraya Maruti v. Laxman Jattappa, 44 Bom. L. R. 527 : (a. i. r. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] . We do not take Shantaram Sadashiv v. Mahabaleshwar, 49 Bom. l. R. 764 : (a. i. R

. (35) 1948 Bom. 129) [LQ/BomHC/1946/145] as laying down any such proposition though indirectly it may be construed as lending support to the same. The learned Judges in Shantaram Sadashiv v. Mahabaleshwar, 49 Bom. L. R. 764 : (a. i. R

. (35) 1948 Bom. 129) [LQ/BomHC/1946/145] based the decision mainly on the establishment of the taking of their personal law along with them by the migrants from Goa to the North Kanara District, and in view of the overwhelming evidence in that behalf their decision was amply justified. We do not, however, take that decision in Shantaram Sadashiv v. Mahabaleshwar, 49 Bom. L. R. 764 : (a. i. R

. (35) 1948 Bom. 129) [LQ/BomHC/1946/145] as directly laying down any such proposition as is contained in Dattaraya Maruti v. Laxman Jattappa, (44 Bom. L. R. 527 : (a.i.r. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] . It remains, therefore, to be considered how far we would be justified in holding that the Hindu residents of the North Kanara District are governed by the Bombay school of Hindu law and not by the Madras School of Hindu law in spite of a decision of a Ct. of co-ordinate jurisdiction to the contrary.



21. We have already stated that the decisions of our appellate Ct. in Manjappa Hegade v. Lakshmi, (15 Bom. 234); Mahabaleshwar v. Durgabai, (22 Bom. 199); Vithappa v. Savitri, (34 Bom. 510 [LQ/BomHC/1910/42] : 7 I. C. 445) and Hosbanna Devanna v. Devanna Sannappa, (48 Bom. 468 [LQ/BomHC/1924/56] : A. I. R. (11) 1924 Bom. 444) [LQ/BomHC/1924/56] , were not at all brought to the notice of the learned Judges who decided Dattatraya Maruti v. Laxman Jattappa, (44 Bom. L. R. 527: A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] , with the result that there are these two sets of decisions, if they may he so called, which lay down contrary positions. The decisions commencing from Manjappa Hegade v. Laksmi, (15 Bom. 234) and ending with Hosbanna Devanna v Devanna Sannappa, (48 Bom. 468 [LQ/BomHC/1924/56] : A. I. R. (11) 1924 Bom. 444) [LQ/BomHC/1924/56] , definitely accept the position that the Hindu residents of the North Kanara District are governed by the Bombay school of Hindu Law. The decision in Dattatraya Maruti v. Laxman Jattappa, (44 Bom. L. R. 527 : A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] , which is based on the P. C. decision in Somasekhara Royal v. Sugutur Mahadeva Royal, (38 Bom. L. R. 317: A. I. R. (23) 1936 P. C. 18), lays down a contrary position, but that decision itself was reached on a concession made by counsel at their Lordships bar. There being these two contrary sets of decisions before us, and if necessary we will also put the decision in Shantaram Sadashiv v. Mahabaleshwar, (49 Bom. L. R. 764 : A. I. R

. (35) 1948 Bom. 129) [LQ/BomHC/1946/145] in the same category as the decision in Dattatraya Maruti v. Laxman Jattappa, (44 Bom. L. R. 527: A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] , we feel free to follow the one or the other sets of decisions in accordance with what we consider to be the true position in law. Under the circumstances we prefer to follow the decisions of our appellate Ct. beginning with Manjappa Hegade v. Lakshmi, (15 Bom. 234) and ending with Hosbanna Devanna v. Devanna Sannappa, (48 Bom. 468 [LQ/BomHC/1924/56] : A. I. R. (11) 1924 Bom. 444) [LQ/BomHC/1924/56] , above referred to, dissenting with the utmost respect from the decisions reached in Dattatraya Maruti v. Laxman Jattappa, (44 Bom. L. R. 527: A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] and Shantaram Sadashiv v. Mahabaleshar, (49 Bom. L. R. 764: A. I. R

. (35) 1948 Bom. 129) [LQ/BomHC/1946/145] .

2

2. There is also one further argument which fortifies us in the conclusion which we have come to and that is the application of the principle of stare decisis.This question of adoption, succession, inheritance, etc. does affect the devolution of property and titles to land, certainty (as well as justice) is the object of the law, and it is more so when questions of title to property are involved. Law which has been laid down by the Cts. and which has been followed by subjects within jurisdiction should not be lightly unsettled.The principle of stare decisis has been recognized by our Ct. in Kashiram v. Pandu, 4 Bom. L. R. 688 at p. 698: (27 Bom. 1 [LQ/BomHC/1902/2] ):

"It might be said that we should observe the maxim stare decisis, but outside the realm of property law that rule loses so much of its importance, that it ought not to weigh with us in the present case."

And in Manilal v. Vanmalidas, 7 Bom. L. R. 644 at p. 651: (29 Bom. 621):

"Then it has been said that we are infringing the principle of stare decisis as there is a long course of decisions in this Court opposed to the view which we have expressed.

The principle of stare decisis is of undoubted value in its bearing on the law of property, but we know of no reason why in the department of procedure we should be frightened by that doctrine from bringing our practice, in this Ct. into conformity not only with the settled practice existing over the whole of India, but also, as we think, the plain terms of the Code."

And in Dinanath v. Malvi and Co., 32 Bom. L. R. 272 at p. 283: (a. I. R. (17) 1930 Bom. 213) [LQ/BomHC/1929/118] :

"These decisions have established the law relating to such deposits in contracts for the sale of immoveable property. It is important that there should be as little uncertainty as possible in contracts relating to the sale and purchase of land and parties who have contracted on the assumption that the law is settled should not be left to discover later that it is not. Probably there are at this moment many contracts outstanding in which such a clause relating to deposit has been inserted on the assumption that the law in this Presidency is settled and these would all be disturbed if a different view of the law were taken by us now. The principle of stare decisis is especially important in the case of contracts relating to land."

And in Balu Sakharam v. Lahoo, 39 Bom. L. R. 382 at p. 414 : (a. I. R. (24) 1937 Bom. 279 F. B.):

"There are a great many Indian Cases dealing with the effect of adoption by a widow of a Hindu divided at the date of his death upon the divesting of his property. The rules established by those cases are summarised in Mullas Principles of Hindu Law, 8th edn., at p. 553 (published in 1936 after the decision in Amarendras case, (a. I. R. (20) 1933 P. C. 155) as establishing that the adoption by such a widow cannot divest any estate by inheritance unless the estate at the time of adoption vested in the adopting widow either as her husbands heir or as the heir of her son dying without leaving any wife, children, or other heir nearer than herself. These rules have existed for many years, and a great number of titles must depend upon them. In my opinion, it would be quite wrong for any Ct. in this country to hold that the P. C. intended to cast a doubt on long established rules which were not referred to, and to override cases not cited, on which titles depend. So to hold would in my judgment be mischievous in the extreme, and would open the gates of a flood of litigation." (Per Beamont C. J.)

The principle of stare decisis is, therefore, a sound principle to follow, and in the circumstances which we have pointed out above, viz. that the law as applicable to the Hindu residents of North Kanara District was settled to be the Bombay school of Hindu law and the Hindu residents of the North Kanara District as well as the lawyers advising them as also the Cts. of law administering the law unto them accepted the Bombay school of Hindu law as applicable to them, it would be unsettling the law if at this late stage after the lapse of 75 years and more we accept the contrary position and hold that they are governed by the Madras school of Hindu law.

23.The principle of stare decisis has been accepted not only in regard to the decisions of the Cts. of co-ordinate jurisdiction but also in regard to the decisions of Cts. which have only a conditional authority as precedents. Salmond in his Jurisprudence, 9th Edn , p. 26 (10th Edn., p. 185) has the following observations to make:

"For a conditionally authoritative precedent to be overruled it is also necessary that in so doing the Cts. should not run the risk of making the law uncertain, in their efforts to make it just; for until overruled it will have been law, it will have been relied upon as such in numerous instances, so that to alter it even for a more just rule may cause grave inconvenience, and disturbance of mens affairs. Certainty as well as justice is the object of the law.....

It follows from this that, other things being equal, a precedent acquires added authority from the lapse of time. The longer it has stood unquestioned and unreversed, the more harm in the way of uncertainty and the disappointment of reasonable expectations will result from its reversal. A decision which might be lawfully overruled without hesitation while yet new, may after the lapse of a number of years acquire such increased strength as to be practically of absolute and no longer of merely conditional authority. This effect of lapse of time has repeatedly received judicial recognition.

Viewed simply as the decision of a Ct. of first instance, the authority of this case, notwithstanding the respect due to the Judges who decided it, is not binding upon us; but viewed in its character and practical results it is one of a class of decisions which acquire a weight it effect beyond that which attaches to the relative position of the Ct. from which they proceed. It constitutes an authority which, after it has stood for so long a period unchallenged, should not, in the interest of public convenience, and having regard to the protection of private rights, be overruled by this Ct. except upon very special considerations. For twelve years and upwards, the case has continued unshaken by any judicial decision or criticism. (Pugh v. Golden Valley Railway Co. (1880) 15 Ch. D. 330 at p. 334: (42 L. T. 863).

When an old decided case has made the law on a particular subject, the Court of Appeal ought not to interfere with it, because people have considered it as establishing the law and have acted upon it. (Smith v. Keal, (1882) 9 Q. B. D. 340 at p. 352 : (47 L. T. 143).

We find the law to have been accepted as stated for a great length of time, and I apprehend that it is not now within our province to overturn it. (Foakes v. Beer, (1884) 9 A. C. 605 at p. 630: (54 L.J.Q B. 130)."

The above passage which we have quoted from Salmond on Jurisprudence goes to establish that even in a case where the appellate Ct. would be normally entitled to overrule a decision reached by a subordinate Ct., it would apply the principle of stare decisis and not overrule the same after lapse of time, subjects acting upon that decision and the like considerations making it more expedient for the appellate Ct. not to unsettle the law which had been pronounced at one time and acted upon by the subjects.This reasoning is the more applicable in the present case before us when we find the position in law laid down as early as in any event 1878 if not earlier in West and Buhlers Digest of Hindu Law of Inheritance and Succession and decisions of our appellate Ct. in Manjappa Hegade v. Lakshmi, (15 Bom. 234) Mahabaleshwar v. Durgabai, (22 Bom. 199), Vithappa v. Savitri (34 Bom. 510 [LQ/BomHC/1910/42] : 7 I. C. 445), and Hosbanna Devanna v. Devanna Sannappa, (48 Bom. 468 [LQ/BomHC/1924/56] : A.I.R. (11) 1924 Bom. 444) [LQ/BomHC/1924/56] .

24. We would, therefore, following this principle of stare decisis, be loath to reverse the trend of decisions which have been reached so far by our appellate Ct. and have been followed all throughout and have, if at all, been dissented from by our appellate Ct. only in the years 1941 and 1946, which are very recent dates in comparison with 1878 and 1889, being respective dates of the second edn. of West and Buhlers Digest of Hindu Law of Inheritance and Succession and the decision in Manjappa Hegade v. Lakshmi, (15 Bom. 234). We are quite sure that if the attention of their Lordships of the P. C. had been drawn to this state of the law as we have discussed above, their Lordships would not have come to the decision which they did basing it merely on the concession made at their Lordships bar by the counsel appearing before them. We are equally sure that the learned Judges of our appellate Ct. who decided Dattatraya Maruti v. Laxman (44 Bom. L. R. 527 : A. I. R. (29) 1942 Bom. 260) [LQ/BomHC/1941/142] and Shantaram Sadashiv v. Mahabaleshwar, (49 Bom. L. R. 764 : A.I.R

. (35) 1948 Bom. 129) [LQ/BomHC/1946/145] also would not have come to the decision they reached in that behalf if the above position of law had been brought to their notice by the counsel appearing in the respective cases before them.



25. It was urged that even in the case of adoption their Lordships of the P. C. did not apply the principle of stare decisis and an instance was quoted before us in the decision of their Lordships of the P. C reported in Bhimabai v Gurunathgouda, 35 Bom. L. R. 200: (A.I.R. (20) 1933 P. C. 1). It has, however, to be observed that their Lordships of the P. C. did not consider this aspect with any seriousness for the simple reason that at p. 209 they observed :

"It was pressed on their Lordships that Ramji v. Ghamau, (6 Bom. 498 F.B.) had been accepted and acted upon in the Presidency of Bombay since 1879, and that the decision should not be disturbed. But this is a belated appeal. It should have been made when Yadao v. Namdeo, (A.I.R

. (9) 1922 P. C. 216) was before the Board. Yadao v. Namdeo (A.I.R

. (9) 1922 P. C. 216) was decided so far back as 1921, and if the H. C. at Bombay, after that decision, followed Ramji v. Ghamau, (6 Bom. 498 F.B.) it was wrong in so doing."

This argument, therefore, need not detain us any more.

26. Having regard to all the considerations which we have set out above, we have come to the conclusion that the Hindu residents of the North Kanara District are governed by the Bombay school of Hindu law and not by the Madras school of Hindu law.

27. The conclusion which we have reached above is sufficient to dispose of all the three appeals before us. In the case of the l. P. A. No. 6 of 1949, however, Bavdekar J. did not think it necessary to decide the case before him merely on this position in law and made an order of further remand sending down an issue as to whether the widow of a gotraja sapinda in the North Kanara District had, by positive acceptance and usage, a right to inherit to a propositus. Both the Cts. below found that in the affirmative, and Bavdekar J. himself on 03-01-1949, decided the S. A. No. 977 of 1948 in accordance with that finding which he accepted. It has been urged before us by counsel for Venkanna, the original deft, in that case, that there was no sufficient evidence of acceptance and usage which would justify the finding in the affirmative. There is no doubt that the evidence on the point is meagre. We, however, agree with Bavdekar J. in thinking that we are not here concerned with any question as to the custom overriding the ordinary law. What we are concerned with here is whether just as in the case of other parts of the Bombay Presidency the view of the expounders of the Bombay school of Hindu law was accepted in Karwar also to such an extent as it could be said that it had attained the force of law, and inasmuch as the only evidence which was on the record was in favour of such acceptance and usages, it must be held that that view has been accepted and sanctified by usage in the Karwar District also. Apart from the one instance which is to be found in Ex. 41 which leads to that conclusion the most glaring instance is the one in which the deft, himself was concerned, viz., the entering the name of Kamali in the Record of Rights in 1936 as the heir of Timmanna. The deft, himself opposed that entry but the Mamlatdar negatived his contention and registered the name of Kamali in the Record of Rights as such heir.On a consideration of the whole evidence, which was recorded on the further remand we are satisfied that the finding which was recorded by both the Cts. below and which was accepted by Bavdekar J. was correct and Laxmi, the original pltf. has succeeded in establishing her contention that she, the widow of a gotraja sapinda, has a right to inherit to the propositus Timmanna in preference to the deft. who is a more remote male gotraja sapinda of his.

28. Having regard to the conclusion which we have reached above, we dismiss the l. P. A. No. 6 of 1949 and confirm the decree which has been passed by Bavdekar J. The appellant in the l. P. A. No. 6 of 1949 will pay the resps. costs of the appeal. We also dismiss the S. A. Nos. 551 of 1948 and 377 of 1948 and confirm the decrees which have been passed by the lower appellate Cts. in each of them. The appelts. in both these appeals will of course pay the resps. costs of the respective appeals.

Appeals dismissed.