ivil Appeal Nos
204205 of 1975
From the Judgment and Decree dated 98
1974 of the Karnataka High Court in MF Appeal Nos
582 and 584 of 197 1
VC Mahajan NP Tarachand Sharma and CV Subba Rao for the Appellant
KR Chaudhary NP for the Respondents
The Judgment of the Court was delivered by MM PUNCHHI J
It is to establish a right of appeal in the appellate forum of the High Court that the Special Military Estates Officer Bangalore the common appellant in these two Civil Appeals by Special Leave is here in this Court challenging the common judgment and order of the High Court of Karnataka
The facts leading to the present appeal are these
Some lands the extent and description of which is not material here belonging to the first respondent in either of these two appeals were requisitioned by the Union of India under Section 29 of the Defence of India Act 1962 hereafter referred to as the Defence Act by issuing a notification to that effect on April 8 1963
The possession of such lands was taken by the military authorities on May 28 1963
The competent authority being the Deputy Commissioner of the district fixed Rs280 per acre per annum as crop compensa tion
Respondent No 1 was not satisfied with the measure of compensation
He sought a reference from the competent authority to an arbitrator
The Arbitrator so appointed went into the matter and finally made an award on June 30 8 1971 whereby he worked out rental compensation at the rate of Rs696960 per acre per annum on the premises that the value of the land worked out to be Rs116160 per acre and if 6 per cent interest were to be awarded thereon the figure arrived at would be Rs696960 per acre which could well be the rental income per annum
Obviously the increase was sharply contrasted being Rs280 per acre per annum as award ed by the competent authority and almost Rs7000 per acre per annum as awarded bythe Arbitrator
The aggrieved Spe cial Military Estates Officer filed two appeals against the orders of the Arbitrator in the High Court of Karnataka at Bangalore taking shelter under Section 11 of the Requisi tioning and Acquisition of Immovable Property Act 1952 hereafter referred to as the Requisitioning Act
At the time of their final disposal a preliminary objection was raised on behalf of the respondents that the appeals were not maintainable which found favour with the High Court
The appeals were consequently held not maintainable and accordingly dismissed
This has led the appellant Special Military Estates Officer to this Court
It is not far history that the Defence Act was passed by the Parliament in the wake of the Chinese aggression in order to provide inter alia special measures to ensure public safety and interest in the Defence of India and Civil Defence and other connected matters
It had been passed when the Requisitioning Act was already in force
Under the provisions of both the Acts immovable property could be requisitioned
Reference for the purpose may be had to section 3 of the Requisitioning Act and Section 29 of the Defence Act
Under both Acts compensation on such requisi tion is determinable and payable and any person interested being aggrieved by the amount of compensation so determined can have an Arbitrator appointed to determine compensation
The award of the Arbitrator on such determination under Section 8 is appealable under Section 11 of the Requisition ing Act before the High Court within whose jurisdiction the requisitioned property is situate
The award of the Arbitra tor made under Section 30 in pursuance of the requisition made under Section 29 of the Defence Act is apparently final though specifically not provided so since no right of appeal against the award of the Arbitrator has been conferred thereunder on any authority
The Defence Act ceased being applicable as it perished on January 10 1968
Simultaneously Section 25 in the Requisitioning Act was substituted
The substituted Section 25 reads as follows 251 Notwithstanding anything contained in this Act any immovable property requisitioned by the Central 9 Government or by any officer or authority to whom powers in this behalf have been delegated by that Government under the Defence of India Act 1962 and the rules made thereun der including any immovable property deemed to have been requisitioned under the said Act which has not been re leased from such requisition before the th January 1968 shall as from that date be deemed to have been requisi tioned by the competent authority under the provisions of this Act for the purpose for which such property was held immediately before the said date and all the provisions of this Act shall apply accordingly
Provided that a all determinations agreements and awards for the pay ment of compensation in respect of any such property for any period of requisition before the said date and in force immediately before the said date shall continue to be in force and shall apply to the payment of compensation in respect of that property for any period of requisition as from the said date b anything done or any action taken including any orders notifications or rules made or issued by the Central Government or by any officer or authority to whom powers in this behalf have been delegated by that Government in exercise of the powers conferred by or under Chapter VI of the Defence of India Act 1962 shall in so far as it is not inconsistent with the provisions of this Act be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this section was in force on the date on which such thing was done or action was taken
2 Save as otherwise provided in sub section 1 the provisions of the Defence of India Act 1962 and the rules made thereunder in so far as those provisions relate to the requisitioning of any such immovable property as is referred to in sub Section 1 shall as from the th January 1968 cease to operate except as respect things done or omitted to be done before such cesser and Section 6 of the  shall apply upon such cesser of operation as if such cesser were a repeal of an enactment by a Cen tral Act
10 The requisitioned property admittedly was not released before January 10 1968 in terms of Section 251 of the Requisitioning Act afore quoted Since the requisition had not been released before January 10 1968 from that day onwards it had to be treated deemingly to have been requisi tioned by the competent authority under the provisions of the Requisitioning Act for the purpose for which such property was held immediately before the said date and all the provisions of the said Act were to apply accordingly
The objection to the maintainability of the appeals rested on proviso a afore quoted on the ground that the word determination  in the context meant determination only by the competent authority under the Defence Act and since such determination held the field and was in force immediately before January 10 1968 no challenge thereto could be made by appealing against the same on the premises that a provi sion amongst all the provisions of the Requisitioning Act provided an appellate forum challenging the same
The objec tion was met on the argument that the word determination  when considered in the context of the proviso meant final determination  and not merely determination of compensation at the level of the competent authority
The High Court as said before upheld the objection dismissing the appeals
It is settled law that the right of appeal is a substan tive right conferred on a party by the statute
The confer ring of right of appeal is not circumscribed by the right being available at the time of the institution of the cause in the court of the first instance
The right of appeal in a given situation may already be available at the institution of the cause in the court of the first instance or may even be subsequently conferred
In either situation without any distinction such right is conferred by statute
Here as would be seen Section 251 substantively provides that the requisition of property under the Defence Act continuing upto January 10 1968 is deemingly a requisition by the competent authority under the provisions of the Requisition ing Act and all the provisions of the said Act shall apply thereto accordingly
Proviso a however says that all determinations agreements and awards for the payment of compensation in respect of any such property for any period of requisition before the said date and in force immediately before the said date shall continue to be in force and shall apply to the payment of compensation in respect of that property for any period of requisition as from the said date
It is discernible from the scheme of things and from the reading of Section 25 of the Requisitioning Act as a whole that for the period of requisition before January 10 1968 the determination for payment of compensation 11 under the Defence Act would remain untouched and unaltered for appeal had never been provided under that Act
The reason is not far to seek because the order of the compe tent authority under the Defence Act was for the purpose of Defence of India
That purpose having gone with effect from January 10 1968 the same determination for payment of compensation being applicable to the post date period was deemingly a requisition by the competent authority under the Requisitioning Act and since all the provisions of the said Act applied to such a requisition the payment of compensa tion as from January 10 1968 became appealable as an appeal is provided under this Act
In that sense the word determination  so far as it related to the period of requisition prior to January 10 1968 was a determination final in character whether it was right or wrong as having been made under the Defence Act
But for the period thereaf ter the word determination  in the context would mean final determination  ie the determination of the compe tent authority if unchallenged and becoming final and if appealed against final determination by the appellate forum
In this sense the latter portion of proviso a cannot be allowed to eat away the applicability of all the provisions of the Requisitioning Act inclusive that of appeal under Section 11 of the Act
Thus a harmonious con struction of the said proviso with the whole of parent section persuades us to hold that the rate of compensation as determined by the competent authority under the Defence Act was valid uptil the period before January 10 1968 but from that day onward the same rate of compensation per annum would keep applying till upset or altered in appeal because deemingly from that date it is a requisition under the other Act and of a different worth and correctable in appeal
The Arbitrator as it appears had passed both the awards on June 30 197 1 pertaining to the period commencing from May 28 1963 the date on which the possession of the land requisi tioned was taken and valid for the period following and ensuing
Plainly the award was made covering a period not only prior to January 10 1968 but to a period thereafter also
As we have interpreted Section 25 the objection as raised before the High Court was valid for the period before January 10 1968 but not beyond the period commencing thereafter
The High Court s view  in sustaining the objec tion for the later period as well does not commend to us
The Legislature by enacting Section 25 of the Requisitioning Act and on the perishing of the Defence Act has more than impliedly made available a right of appeal regarding the rate of compensation for a property remaining under requisi tion for the post th January 1968 period recurring as the rate of compensation would be
We hold it accordingly
12 For the view above taken we partially allow these appeals and remit these cases back to the High Court of Karnataka for disposal on merits in accordance with law
We however make no order as to costs in the appeals before us
NVK Appeals allowed partly


Summary:
One Hariba Bhagwat had a son Appaji and daughter Baja bai
Appaji in turn had a son Rakhmaji and a daughter Bhiku bai the plaintiff who had flied a suit for possession and mesne profits of two houses
The suit was decreed by the Trial Court but on appeal reversed by the High Court
The Legal representative of the plaintiff then preferred this appeal by special leave confined to one of the houses the parties having settled their dispute regarding the other house
Bajabal and her husband Ganpat Rao Page being issueless had adopted Rakhmaji
All of them belonged to villages situated in Ahmednagar District of Bombay Province and are Dhangars Shepards by caste but had migrated to Indore
On Rakhmaji s death Sonubai his childless widow succeeded to the properties as limited owner
She gifted the suit proper ty ie house No 88 to Shanker Lanke a Brahmin the first defendant by a registered gift deed dated October 31 1944
Shanker Lanke in turn hypothecated the House to one Hira Lal the first respondent on September 21 1948
Sonubai died in 1947
The case of the plaintiff was that the family is gov erned by the Bombay School of Hindu Law wherein female Bandhu is an heir and thereby she was entitled to succeed to the estate of Rakhmaji Sonubai the issueless widow of Rakhmaji as limited owner had no power to dispose of the properties so the gift deed and mortgage are void and do not bind her and the respondents are in unlawful possession as trespassers
The material defence relevant for the dis posal of this appeal is that the persons concerned are governed by the Banaras School of Hindu Law under which a female bandhu is not an heir
Hiralal s case was that he had no objection to hand over the possession provided he was paid the consideration of Rs 12000 borrowed by Shanker Lanke the donee
760 The Trial Court came to the conclusion that the parties are governed by the Bombay School and not the Banaras School of Hindu Law and the plaintiff is the heir of Rajkhmaji
The gift deed was declared void and not binding on the plaintiff and the suit was decreed and the claim for refund of the mortgage money was rejected
Hira Lal appealed
It was contended before the High Court that the plaintiff s family belonged to Dhangar caste being migrants from UP Mathura to Aurangabad from where they had migrated to Central Province now Madhya Pradesh and were governed by the Banaras School of Hindu Law
This contention found favour with the High Court which placing reliance solely on the recital of the Gazetteer concluded that the parties had migrated from Mathura and thereby they were governed by the Banaras School of Hindu Law under
which the female Bandhu is not an heir to succeed to the estate of the last male holder
Reversing the decree passed by the Trial Court the suit was dismissed
This Court in allowing the appeal by the legal represen tative of the plaintiff HELD In India a Hindu is governed by his personal branch of law which he carries with him where ever he goes
But the law of the province wherein he resides prima facie governs him and in this case and to this extent only the law of domicile is of relevance or importance
But if it is shown that a person came from another Province the presump tion will be that he is governed by the law or the special custom by which he would have been governed in his earlier home at the time of migration
767B C Migration is changing one s abode quitting one s place of birth and settling permanently at another place
The burden of proving migration lies on the person setting up the plea of migration
Migration can not be presumed but it mast be established by abduction of evidence
764D G Section 37 of the Evidence Act 1872 postulates that any statement made in Govt
Gazette of a public nature is a relevant fact
Section 5713 declares that on all matters of public history the Court may resort for its aid to appropriate books or documents of reference and section 81 draws a presumption as to the genuineness of Gazettes coming from proper custody
764H 765A The State of facts contained in the official Gazetteer made in the course of the discharge of the official duties on private affairs or on 761 historical facts in some cases is best evidence of facts stated therein and is entitled to due consideration but should not be treated as conclusive in respect of matters requiring judicial adjudication
766B C The onus lies on the person alleging that the family had renounced the law of the origin and adopted that prevailing in the place to which he had migrated
The plaintiff and her family on migration from Ahmednagar carried with them to Indore their personal law namely the Bombay School of Hindu Law under which a Hindu female is recognised to be an heir to last male holder of the Estate and takes the property as an absolute owner
The Plaintiff being the only nearest bandhu of Rakhmaji is entitled to succeed to his estate as an heir and thus entitled to the possession of the House in question with mesne profits
767D 768B A Keshao Rao Bapurao  Anr
vs Sadasheorao Dajiba AIR 1938 Nagpur 163 Rajah Mattu Ramalinga Setupati vs Peria nayagum Pillai 1873 74 LR 11A 209 at p 238 Martand Rao vs Malhar Rao 1927 28 LR 551 A 45 at 48 Arunachel lam Chetty vs Venkatachellapathi Guru Swamigal 1919 LR 46 IA 204 Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi  Ors  at p 788 The Poohari Fakir Sadavarthy of Bomdilipuram vs The Commission er Hindu Religious  Charitable Endowments 1962 Suppl
2 SCR 276 Mahant Shri Srinivasa Ramanuj Das vs Surajnarayan Dass  Anr 1966 Snpp
SCR 436 at p 447 Balwant Rao  Ors
vs Bali Rao  Ors AIR 1921 PC 59 Udebhan Rajaram vs Vikram Ganu  Bhagirathibai vs Kah nujirav ILR 11 Bombay 285 Girdhari Lall Roy vs The Bengal Government 1867 79 Moore s Indian Appeals 448 and Muthus wami Mudaliyar  Ors
vs Sunamedu Muthukumaraswami Muddali yar 1895 96 LR 23 IA 83 referred to