ivil Appeal No 322 of 1973
From the Judgment and Order dated 4121970 of the Madhya Pradesh High Court in First Appeal No 90 of 1962
Awadh Bihan Rohtagis Vivek Gambhir and SK Gambhir for the Appellants
UR Lalit and GB Sathe for the Respondents
The Judgment of the Court was delivered by 762 K RAMASWAMY J
1
This appeal by special leave by the legal representatives of the plaintiff Bhikubai arises from decision in First Appeal No 9062 of the High Court of Madhya Pradesh Indore Bench dated July 18 1982 reversing the decree of the trial court in OS No 2951 filed for possession and mesne profits of two houses Nos 88 of 89 situated at Nandlalpura Indore City mentioned in the plaint schedule
In this appeal we are only concerned with House No 88 as the parties have settled their dispute regarding to the other house
The admitted facts are that one Hariba Bhagwat of Mouza Pisore village had a son by name Appaji and a daughter Bajabai
Appaji in turn had a son by name Rakhmaji and a daughter Bhikubai the plaintiff
Bajabai was married to Ganpatrao Page of Madhavagoan vil lage
As they were issueless they adopted Rakhmaji
Both the villages are situated in Ahmednagar District of Bombay Province
They are Dhangars Shepard by caste
All of them migrated to Indore
Rakhmaji died in 1918 and Sonubai his childless widow succeeded to the two houses and other properties as limited owner
She gifted House No 88 to Shankar Lanke a brahmin first defendant by a registered gift deed dated October 31 1944 under Ex DI 5
Shankar Lanke in turn hypothecated House No 88 to Hiralal fifth defendantfirst respondent on September 21 1948 under Ex 5 D3
Sonubai died on March 11 1949
Rakhmaji was the natural brother of Bhikubai but by operation of law namely adoption he became her father s sister s son ie a band hu
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 as limited owner had no power to dispose of the properties by way of gift and so the gift deed and the mortgage are void and do not bind her
The respondents are in unlawful possession as trespassers
The suit was resisted by the first defendant the donee on diverse grounds
The material defence relevant for the disposal 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 the mortgage was for consideration and that he had no objection to hand over the possession of the property provided the consideration of Rs 12000 borrowed by Shankar Lanke was paid to him
The trial court framed as many as 14 issues with sub issues on each count
It found on issue No 6a which is material for the purpose of this case that the parties are governed by the Bombay School and not the Banaras School of Hindu Law the plaintiff is the heir of Rakhmaji as his mother s brother s daughter and though the consi 763 deration was paid under the mortgage obtained by Hiralal it was not taken after due inquiry about existence of legal necessity and in good faith
The gift deed was declared void and does not bind the plaintiff
The plaintiff was held entitled to possession and mesne profits
The claim for refund of the mortgaged money was rejected
Accordingly the suit was decreed
Hiralal and another filed the appeal
Shankar Lanke did not file any appeal
It was contended before the High Court that the plaintiff s family belonging to Dhangar caste were migrants from UP Mathura to Auran gabad from where they had further migrated to Central Prov ince now Madhya Pradesh
They are governed by the Banaras School of Hindu Law
There is no proof that they abandoned the personal law namely Banaras School of Hindu Law and adopted Bombay School of Hindu Law
This contention found favour with the Hindu Court which relief upon the statement made in Indore State Gazette of 193 1 at page 20 wherein it was claimed to have been recorded that Holkars belonged to Dhangar caste and it would appear that they were originally residents of the country side around Mathura and they mi grated to Aurangabad District and thereafter Phaltan Parga na
At page 90 it was mentioned about Dhangars in general and that in Indore Shepard caste was the ruling family
Many of the Dhangars were Shivail s trusted Maoles used for Gureilla warfare
In domestic life as also in language dress and food they closely resemble the Marathas though in the caste scale their position is lower
Their deity is Khandoba
The High Court also found that the parties name ly Rakhmaji s father and Ganpatrao Page were residents of Ahmednagar District
Their family God is Malhar Jijori which is situated in the District of Poona
They migrated from Maharashtra to Indore
This finding is based on the evidence of not only the plaintiff PW 4 but also the admission made by the defendant No 1 and his witness DW No 8 Placing reliance solely on the recital in the Indore State Gazette it was concluded that the parties had migrat ed from Mathura and thereby they are 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
Alternatively it also found that even applying the Bombay School of Hindu Law Mitakshara the plaintiff had not established that she was an heir to Rakhmaji
Accordingly the appeal was allowed
At the outset it is made clear that neither Hiralal nor Shankar Lanke pleaded that the plaintiff or her ances tors had migrated from Mathura and settled down in Ahmedna gar District
The specific plea of the plaintiff in para graph 5 of the plaint that they were original residents of Ahmednagar District was not disputed
Hiralal 764 did not also plead that the Banaras School of Hindu Law would apply to the plaintiff s family
Shankar Lanke vaguely pleaded this but adduced no evidence in proof thereof
Both the Courts have concurrently found that the plaintiff Rakhmaji and Ganpatrao Page are Dhangars by caste their family God is Khandoba of Jijori their manners and customs were also of Maharashtrian vide DW 8 Khsumrao and the High Court also further found that Undoubtedly true that the customs manners marriages and the way they worship the God are all the same as that of Maharashtrians or of the Marathas
 But the customs dress language and manners may not by themselves show that person migrating from Mathura has given up the law of origin though they are relevant facts
It must also be proved that in a particular case that they have given up their law of origin ie the Banaras School of Hindu Law and adopted the law of domicile ie the Bombay School of Hindu Law
Accordingly it was held that the parties are governed by the Banaras School of Hindu Law
Migration is changing one s abode quitting one s place of abode and settling permanently at another place
The burden of proving migration lies on the person setting up the plea of migration
As seen the respondents neither pleaded nor proved that the plaintiff s family migrated from Mathura to Ahmednagar in Bombay Presidency
When the plain tiff was examined as a witness no attempt Was made to elicit from her that they or their ancestors were migrants from Mathura and settled down in Ahmednagar
On the other hand the specific plea of the plaintiff in her plaint that they were the original residents of Ahmednagar District remained undisputed
In Hindu Law by Raghavachariar 8th Edition 1987 edited by Prof section Venkataraman who was himself an authority on Hindu Law in paragraph 32 stated that a fami ly s original place of abode can be inferred from the Chief characteristics of the family
In Keshao Rao Bapurao  Anr
vs Sadasheorao Dajiba AIR 1938 Nagpur 163
Vivian Bose J as he then was held that wherever a family is found cling ing to its individuality and retaining its identity as Maharashtrian it must be presumed until the contrary is shown that it hailed from the race of group of people known as Maharashtrians and carried the law of Maharashtra with them
Thus it is clear that migration cannot be presumed but it must be established by abduction of evidence
The question then arises is whether the recital in Indore State Gazette relied on at the appellate stage can form the sole base to establish that the plaintiff s family were the migrants from Mathura in UP Section 37 of the Evidence Act 1872 postulates that any statement made in a Government Gazette of a public nature is a relevant fact
Section 5713 declares 765 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 genuineness of Gazettes coming from proper custody
Phipson on Evidence The Common Law Library Thirteenth Edition at page 510 paragraph 2507 stated that the Government Gazettes     are admissible and sometimes conclusive evidence of the public but not of the private matters contained therein
In Rajah Muttu Ramalinga Setupati vs Perianayagum Pillai 1873 74 LR 1 IA 209 at p 238 the Judicial Committee while considering the reliability of a report sent by the District Collector to the Commissioner about the management of a temple held that when the reports express opinions on the private rights of parties such opinions are not to be regarded as having judicial authority or force
But being the reports of public officers made in the course of duty and under statutory authority they are entitled to great consideration so far as they supply infor mation of official proceedings and historical facts and also in so far as they are relevant to explain the conduct and acts of the parties in relation to them and the pro ceedings of the Government rounded upon them
Same view was reiterated in Martand Rao vs Malhar Rao 1927 28 LR 55 IA 45 at 48 on the question of reliability of official reports relating to succession to a Zamindari and held that their Lordships consider it necessary at the outset to point out that though such official reports are valuable and in many cases the best evidence of facts stated therein opinions therein expressed should not be treated as conclu sive in respect of matters requiring judicial determination however eminent the authors of such reports may be
In Arunachellam Chetty vs Venkatachellapathi Guru Swamigal 1919 LR 46 IA 204 it was held that while their Lordships do not doubt that such a report Inam register would not displace actual and authentic evidence in individual cases yet the Board when such is not available cannot fail to attach the utmost importance as part of the history of the property to the information set forth in the Inam register
This view was followed by this Court in Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi  Ors  at p 788
Same is the view expressed in The Poohari Fakir Sadavarthy of Bomdilipuram vs The Commissioner Hindu Religious  Charitable Endowments 1962 Suppl
2 SCR 276 and held that Inam register is of great evidentiary value but the entries cannot be accepted on the face value without giving due consideration to other evidence on record
In Mahant Shri Srinivasa Ramanuj Das vs Surajnarayan Dass  Anr 1966 Supp
SCR 436 at p 447 relied on by Shri Lalit learned senior counsel for the respondents it was held that the statements in the Gazetteer can be consulted on matters of public history
This is also 766 the case relating to entries in Inam Register
Inam Fair Registers are maintained while exercising the statutory power and the entries were made in the relevant columns during the course of discharging official duties and so they are entitled to weight and great consideration while as sessing the evidence
Therefore this Court did not lay any rule contrary to what has been laid by the Judicial Commit tee or by this Court in the decisions referred to hereinbe fore
The Statement of fact contained in the official Gazette made in the course of the discharge of the official duties on private affairs or on historical facts in some cases is best evidence of facts stated therein and is enti tled to due consideration but should not be treated as conclusive in respect of matters requiting judicial adjudi cation
In an appropriate case where there is some evidence on record to prove the fact in issue but it is not suffi cient to record a finding thereon the statement of facts concerning management private temples or historical facts of status of private persons etc
found in the Official Gazette may be relied upon without further proof thereof as corrobo rative evidence
Therefore though the statement of facts contained in Indore State Gazette regarding historical facts of Dhangars  social status and habitation of them may be relevant fact and in an appropriate case the Court may presume to be genuine without any further proof of its contents but it is not conclusive
Where there is absolutely no evidence on record in proof of the migration of the family of the plaintiff or their ancestors from Mathura area the historical factum of some Dhangars having migrated from UP and settled down in Aurangabad District or in the Central Province by itself cannot be accepted as sufficient evidence to prove migration of the plaintiff family
Further no evidence was placed on record connecting Holkars of Indore with Dhangars of Bombay Province
Shri Lalit learned counsel admits that the statement of facts of Dhangars contained in Indore State Gazette is not conclusive evidence but he says that it may be taken into account as evidence connecting the family of the plaintiff
In the absence of any evidence proving migration of the family of the plain tiff or their ancestors from Mathura to Ahmednagar the historical factum of the migration of Dhangars from UP State mentioned in Indore State Gazette is of little assist ance to the respondents so as to hold that they carried with them to Indore the Banaras School of Hindu Law prevailing in Uttar Pradesh
Even as regards the Dhangars as migrants Thurston on Caste and Tribes of Southern India in Vol
III p 167 stated that the statement of the census Report of 190 1 establishes that Marathi Caste of Shepard are Dhangars and their home speech is Marathi and they are the residents 767 Of Bombay Presidency
It would thus show that even in 1901 Dhangars were held to be original Marathis of Bombay Presidency
We therefore hold that the case before us that Bhikubai the plaintiff and her family had migrated from Mathura to Ahmednagar District in Bombay Presidency has not been proved and admittedly they migrated from Ahmednagar to Indore
In India a Hindu is governed by his personal branch of law which he carries with him wherever he goes
But the law of the province wherein he resides prima facie governs him and in this sense and to this extent only the law of domicile is of relevance or importance
But if it is shown that a person came from another Province the presumption will be that he is governed by the law or the special custom by which he would have been governed in his earlier home at the time of migration
An inference of migration can well be made from the known facts of the chief characteristics of the family the language observance of customs and rites though they are not sufficient to prove that they are gov erned by a particular school of law
The presumption can be displaced by showing that the immigrant had renounced the law of the place of his origin and adopted the law of the place to which he had migrated
The onus lies on the person alleging that the family had renounced the law of its origin and adopted that prevailing in the place to which he had migrated vide Hindu Law by Raghavachariar Eighth Edition para 32 at pages 30  31
The same view was expressed in Mulla s Hindu Law edited by Justice ST Desai 15th Edn in para 13A and 14
In Hindu Law By SV Gupta Vol 1 Third Edition p 50 article 10 it is stated that in case of migration of a Hindu from one part of India to another it is presumed that he and his descendants continue to be governed by the law of the school to which he belonged before migration
Such presumptions are rebuttable
In Balwant Rao  Ors
vs Baji Rao  Ors AIR 1921 PC 59
Lord Dunedin speaking for the Board held that it is absolutely settled that the law of succession in any given case is to be determined according to the personal law of the individu al whose succession is in question
In that case it was found that Bapuji s ancestors at one time lived in Bombay Province and his migration at the place of death was ob scured
Therefore it was held that the original law that prevailed in Bombay Province at the time of migration gov erns the succession to a Maharashtra Brahmin and Bombay School of Mitakshara Law would apply and the daughter would take her father s property as an absolute owner and her hefts alone would be entitled to succeed to her estate
This was reiterated by Bose J in Keshav Rao s case in consider ing the question of migration by a Maharashtra Brahmin residing in Central 768 Provinces and was held to be governed by the Bombay School of Mitakshara Hindu Law when migration is not proved in the sense that the exact origin of the family cannot be traced
Same view was followed in Udebhan Rajaram vs Vikram Ganu Accordingly we hold that the plaintiff and her family carried with them to Indore their personal law namely Hindu Law of the Mitakshara applicable to Bombay Province and not Banaras School of Hindu Law
The question then is whether the plaintiff is an heir to Rakhmaji the last male holder of the estate left by Sonubai his widow
In Bhagirathibai vs Kahnujirav ILR 11 Bombay 285 the Full Bench held that under the Hindu Law as prevailing in Bombay Presidency a daughter inheriting from a mother or a father takes as an absolute estate which passes on her death to her own heirs and not to those of the preceding owner
Thereby Hindu female is recognised under the Bombay School of Hindu Law to be an heir to last male holder of the estate and takes the property as an absolute owner
The immediate question therefore is wheth er the plaintiff is an heir as bandhu
In Mayne s Hindu Law 12th edn revised by Justice Alladi Kuppuswami Chief Justice Retd of Andhra Pradesh High Court in paragraph 504 at p 735  736 stated the meaning of the word bandhu  thus The term bandhu  or bandhava  meant relations in general and included both agnates and cognates though it was sometimes confined to agnates in some of the Smriti texts relating to succession and gotra kinship as for instance in the Vishnusmriti and in some of the verses in Manusmriti
The Mitakshara explains that the term bandhavas  in the above test of Manu means Atma Bandhus Pitrubandhus and Matrubandhus vide Mit
on Yajn
III 24 Setlur edn
1169Naraharayya s translation 56
In paragraph 543 at page 761 dealing with the third division of heirs namely bandbus  and of their enumera tion in paragraph 544 it was stated that the enumeration is only illustrative which read thus Para 543 Bandhus The third division of heirs consists of bandhus Table B
They are the sapindas related through a female being within five degrees from and inclusive of common ancestor in the line or lines in which a female or females intervene paras 121 126 In the portion of his work relating to succes sion Vijnanesvara styles them as sapindas of a different gotra
The term bandhu  has therefore acquired in the system of the Mitak shara a distinctive and technical meaning and signifies bhinnagotra sapindas
They are the 769 three classes 1 atmabandhus or one s own bandhus 2 pitrubandhus or the father s bandhus and 3 matrubandhus or the mother s bandhus
The relevant passage in the Mitaksha ra is as follows Cognates are of three kinds related to the person himself to his father or to his mother as is declared by the following text
The sons of his own fa ther s sister the sons of his own cognate kindred
The sons of his father s paternal aunt the sons of his father s maternal aunt and the sons of his father s maternal uncle must be deemed his father s cognate kindred
The sons of his mother s paternal aunt the sons of his mother s maternal aunt and the sons of his mother s maternal uncle must be reckoned his mother s cognate kindred
Here by reason of near affinity the cognate kin dred of the deceased himself are his succes sors in the first instance on failure of them his father s cognate kindred or if there by none his mother s cognate kindred
This must be understood to be the order of succession here intended
Para 544 Enumeration only illustrative Evidently the enumeration of the above nine bandhus was not intended to be exhaustive but only illustrative
When defining sapinda Vijnanesvara says So also is the nephew a sapinda rela tion of his maternal aunts and uncles and the rest because particles of the same body the maternal grandfather have entered into his and theirs likewise does he stand in sapinda relationship with paternal uncles and aunts and the rest
In the light of this his definition of bandhus or bhinnagotra sapindas makes it clear that maternal aunts and uncles and their descendants as well as paternal aunts and their descendants are bandus and that his enumeration is purely illustrative
Visvarupa and Mitra Misra in his Vir amitrodaya recognised this by including the maternal uncle and the like in the term bandhu  purely by way of illustra tion
Referring to the maternal uncle s sons the Virami trodaya says that it would be extremely im proper that their sons are heirs but they themselves though nearer are not heirs
After some fluctuation of opinion it was finally settled that the enumeration of bandhus in the Mitakshara is not exhaustive but illustrative only
 In paragraph 536 at page 757 it is stated that in Bombay the daughters of descendants ascendants and collat erals within five degree 770 inherit as bandhus in the order of propinquity such as the son s daughter the daughter s daughter the brother s daughter the father s sister and so on
In Raghavachariar s Hindu Law at page 412 in para 458 it is stated that the daughters of descendants ascendants and collaterals upto fifth degree are bandhus and the test of nearness of blood is to be applied in ascertaining their order of succession
In Mitakshara and Dayabhaga by Colebrooke 1883 Edn at p 99 it is stated in Sec
VI on the succession of cognate kindred bandhu that on failure of gentiles the cognates are heirs
Cognates are of three kinds related to the person himself to his father or to his mother
At page 100 it is further stated that heir by reason of near affinity the cognate kindred of the deceased himself are his successors in the first instance on failure of them his father s cognate kindred or if there be none his mother s cognate kindred
This must be understood to be the order of succession here intended
In Girdhari Lall Roy vs The Bengal Government 1867 79 Moore s Indian Appeals 448 the question arose whether the maternal uncle of the last male holder is a bandhu entitled to succession of the estate of the deceased
While consider ing the question exhaustively of the texts of Hindu Law on this topic including Sec
VI of Colebrooke s referred to above of the order of succession by bandhus it was held by the Judicial Committee that if for the determination of the question under consideration their Lordships were confined to the four corners of the Mitakshara they would feel great difficulty in inferring from the omission of the maternal uncle and the father s maternal uncle from the persons enumerated in this text that either of those relatives is incapable of taking by inheritance the property of a de ceased Hindu in preference to the King
Such an inference in the teeth of the passages which says that the King can take only if there be no relatives of the deceased seems to be violent and unsound
For the text does not purport to be an exhaustive enumeration of all Bandhus who are capable to inheriting nor is it cited as such or for that purpose by the Author of the Mitakshara as is used simply as a proof or illustration of his proposition that there are three kinds of classes of bandhus and all that he states further upon it is the order in which the three classes take viz that the bandhus of the deceased himself must be exhausted before any of his father s bandhus can take and so on
Accordingly it was held that the maternal uncle is capable of inheriting the estate
This view was followed in Muthus wami Mudaliyar  Ors
vs Sunamedu Muthukumaraswami Mudali yar 1895 96 LR 231 A 83
Accordingly we hold that the enumeration of bandhus in various schools of Hindu Law of the rule of succession to the estate of the last 771 male Hindu as agnates or cognates or collaterals are only illustrative and not exhaustive
The Hindu Law of succession of Mitakshara School prevailing in Bombay Presidency recog nises that a female is an heir as a bandhu to succeed to the estate of the last male holder through her mother s side within five degrees to the last male holder
The plaintiff being the only nearest bandhu of Rakhmaji within five de grees through her mother is entitled to succeed to his estate as an heir
Accordingly we hold that the plaintiff is entitled to the possession of the plaint schedule House No 88 with mesne profits from the respondents
The contention of Shri Lalit that the mortgagee respondent is entitled in equity to a decree for refund of the mortgage money which was admittedly found to have been paid cannot be accepted as the same was not paid to the plaintiff
So far an the mortgagee s claim against the mortgagor is concerned he may pursue any remedy available to him under law
Accordingly the appeal is allowed the decree of the High Court is set aside and that of the trial court is restored to the extent of House No 88 with proportionate costs throughout
RNJ Appeal allowed


Summary:
The Petitioner landlord filed a suit No 213 of 1970 for eviction against the first respondent and four others in the court of Civil Judge Senior Division Thane
The suit was decreed by the Trial Court
The first respondent alone filed an appeal before the District Court
The appeal was dis missed confirming the eviction
Thereafter the first re spondent filed a Writ Petition in the High Court of Bombay which was also dismissed
The first respondent then filed Civil Appeal No 2628 of 1980 in this Court which was dis missed by this Court on 1881987
However at the request of the appellant this Court had allowed him to continue to be in possession and carry on the business till 31389 subject to the appellant and all his employees in the business filing an usual undertaking in the Court that they will hand over and deliver vacant possession of the premises on the expiry of the period mentioned above and will go on deposit ing the mesne profits until possession is delivered
In pursuance of this order an undertaking was filed by the first respondent as also by persons shown as his employees and staying in the premises
Sometime in the beginning of 1989 one Raghuram A Shetty Second respondent in this Petition filed Civil Suit No 306 of 1989 in the Thane Civil Court for a declaration that the decree for eviction obtained in respect of the premises in question in civil suit No 213 of 1970 cannot be executed against him and for a permanent injunction against the Petitioner herein
He also moved an application for a tempo rary injunction from executing the said decree
The Thane Civil Court granted a temporary injunction as prayed
That is how the Petitioner herein filed this contempt petition both against the original tenant KMM Shetty and the second respondent the Plaintiff in Civil Suit No 306 of 1989
After discussing in detail the various developments of the case 562 brought about by the first respondent as well as by the 2nd respondent herein this Court directed that the order grant ing injunction against the Petitioner from executing the eviction decree against the 2nd respondent shall not be operative and that the Petitioner is entitled to execute the decree for eviction against all persons who are in posses sion of the property
While holding the first respondent guilty of committing contempt by wilful disobedience of the undertaking given by him in this court the Court HELD Breach of an injuction or breach of any undertak ing given to a Court by a person in civil proceedings on the faith of which the Court sanctions a particular course of action is misconduct amounting to contempt
568F The remedy in such circumstances may be in the form of a direction to the contemnor to purge the contempt or a sen tence of imprisonment or time or all of them
568F When a court accepts an undertaking given by one of the parties and passes an order based on such undertaking the order amounts in substance to an injunction restraining that party from acting in breach thereof
568D The breach of an undertaking given to the Court by or on behalf of a party to a civil proceeding is therefore regarded as tantamount to a breach of injunction although the remedies were not always identical
For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking if broken would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction
568D E In the light of this Court s finding in the instant case that there was a breach of the undertaking mere impo sition of imprisonment or fine will not meet the ends of justice
There will have to be an order to purge the con tempt by directing the first respondent contemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same
568G