Dawson-Miller, C.J:— The only question raised in this appeal is whether the learned Judge was right in holding that the parties in this case were governed by the Dayabhaga School of Hindu Law. The plaintiffs sued for a declaration of their title to and recovery of possession over the estate of Charan Mahto who died childless in the year 1887. Upon his death some dispute appears to have taken place between his two sisters and his mother and grandmother on the one hand and the descendants of a brother of his grandfather on the other. The matters in dispute appear to have been left to the decision of a neighbouring zamindar and he decided what he thought would be the proper solution of the dispute between the parties. He decided apparently that Charan Mahto's mother Fulmani Mahatani, and her mother-in-law Badhamani Mahatani, should remain in possession of the property in dispute for their lifetime as maintenance, but that after their deith the property should go to the defendants' branch of the family. Fulmani Mahatani remained in possession of this property from that time up to the time of her death in 1919, the mother-in-law having predeceased her. It appears that she male a gift of the property in 1901 to her daughters, sisters of Charan Mahto, and two of the plaintiffs in the present suit. The main question in contention between the parties in this case was whether they were governed by the Hindu Law or whether they were governed by the laws and customs of the aboriginal tribe to which they originally belonged. If they were governed by the custom of the aboriginal tribes then undoubtedly the property would go to the defendants' branch of the family on the death of Charan Mahto. If they were governed by the Dayabhaga School of Hindu Law then it is equally clear that the property would go to the plaintiffs' branch of the family. This was the main question in dispute between the parties.
2. Both Courts found that they were governed by the Dayabhaga School of Hindu Law. We are asked to say in this appeal that the learned Judge was not justified in arriving at the conclusion that even if the parties were undoubtedly governed by Hindu Law they were still governed by the Dayabhaga School of Hindu Law, and it is contended that he has not properly considered that question, but has assumed that because the parties lived in Manbhum, where apparently there are a number of Bengalis, the Dayabhaga School of Hindu Law prevailed throughout that locality and therefore the parties in this case were governed by that School of Hindu Law. The only question really which the learned Judge had to decide was whether the parties were Hindus or not; for it appears front his judgment that it was not disputed by the learned vakil who argued the appeal that if the parties were Hindus the plaintiffs would succeed to the property left by Charan. There was an admission by the learned vakil who appeared on behalf of the defendants that if the parties were Hindus it was unnecessary to go into the question whether the Dayabhaga or the Mitakshara School of Hindu Law applied, because in that case he conceded that they could not succeed to this property. In those circumstances it seems to me that we cannot send the case back again to the learned Judge to determine the very question of fact which was conceded by the learned vakil who appeared on behalf of the defendants and that is the only question which was raised in this appeal. It was suggested that the learned Judge was wrong in failing to consider the effect of what has been called family arrangement, which I have already referred to, made on the death of Charan Mahto. It does not appear to me that this was a family arrangement in the ordinary sense of the term. It was merely a dispute between the mother as to her maintenance and the other branch of the family who were claiming throughout that the property ought to go direct to them. The zamindar who settled that dispute for them considered that the mother ought to be entitled to remain in possession of the property during her lifetime and that afterwards it should go to the defendant's branch of the family. I do not think that anybody else was bound by that arrangement. This appeal must be dismissed with costs.
3. Macpherson, J.:— I agree. As a result of the astonishing admissions made at the Bar in the Court of the District Judge this second appeal manifestly cannot succeed.
4. By way of supplement to the judgment which has just been delivered by my Lord the Chief Justice, it seems expedient to make some observations on cerain misconceptions which arose in the course of the litigation.
5. The parties are Kurmi-Mahtos of the Manbhum pargana of the Manbhum district. They are descendants of two brothers, the plaintiffs (respondents) being two granddaughters (son's daughters) of Dinu, the elder brother and their sons, and the defendants (appellants) being a son and deceased sons' sons of Kinu, the younger brother. The property in controversy belonged to Charan, only son of the only son of Dinu, and brother of the first two plaintiffs and was held by Charan's mother Fulmani till her death in 1326. The plaintiffs alleged title by inheritance, on the ground (1) that they are Hindus governed by the Dayabhaga law and (2) by gift from Fulmani and denied the tribal custom in assertion of which the defendants took possession after Fulmani's death. The defence substantially was that only agnates succeed as the parties are not governed by the Hindu shastras at all, but the right of succession is determined by the tribal custom and usage of the Kurmi-Mahto tribe whereby the plaintiffs would not, but the defendants would inherit to Charan, but they also ill-advisedly added that they are not Hindus. They also put forward a mimansapatra of 1887 (found by the District Judge to be genuine which showed that the zamindar had decided that Fulmani and her mother-in-law should hold the property in dispute as maintenance for life, after which it should go to the eldest son of Kinu, who was the original Defendant No. 1.)
6. The tribal custom alleged is really not open to doubt but the Courts below considered the main question to be:
Whether the parties are aborigines or Hindus.
7. There they misunderstood the position, the question set out being as meaningless as would be the issue,
‘Are the parties English or Christians’
8. The term “aboriginal,” at least in Chota Nagpur, denotes race only. It is in fact so used in Section 46(6) of the Chota Nagpur Tenancy Act. It implies nothing as to religion which may be even within the same tribe Animism, a slight veneer of Hinduism, various intermediate stages of Hinduism, or Christianity. On the other hand, the term “Hindu” has in Chota Nagpur reference only to religion.
9. Now it does not admit of the faintest doubt that the Kurmi-Mahtos of the Mandhum District are racially an aboriginal tribe. They are the most numerous community (whether tribe or caste) of that district from which they have overflowed into the neighbouring districts. They have no concern whatever except in the accent of name with the Dravido Aryan agricultural and menial caste of Bihar Proper.
10. This important and numerous aboriginal tribe of agriculturists has, however, moved substantially towards Hinduism and rather faster than the other great tribes of the district, such as the Santals and Bhumijs. There is of course, a good deal of variation in the stages that have been reached in different parts of the district and neighbouring districts in-respect of the adoption or rather superimposition of Hindu practices, and some areas lag behind. Notification No. 550 of the 2nd May, 1913, under Section 332 of the Indian Succession Act, 1865 which withdrew the Act with retrospective effect from, among other tribes, the tribe “known as Kurmis” (that is the Kurmi Mahto tribe of Chota Nagpur, as distinguished from the entirely distinct Bihari caste of Kurmis) on the ground that they have customary rules of succession and inheritance incompatible with the provisions of that Act, indicates that the whole tribe at least had not then become Hindu: if all Kurmi-Mahtos were Hindus then the notification would have been unnecessary as the Act does not apply to Hindus.
11. The parties, though aboriginals, being found to be also Hindus, it was still for the plaintiffs to prove that succession was not agnatic as the defendants in possession contended that it was. It was for the plaintiffs to establish that the Dayabhaga applied. The agnates would inherit under the customary rules of succession and inheritance of all aboriginal tribes' in Chota Nagpur which, though they sometimes allow the widow or mother of the deceased to remain in possession of the whole or part of the inheritance by way of maintenance, are adamant against succession by or through daughters or sisters. The exceptional case of the ghar jamai in backward areas may be left out of consideration. It is also never safe to infer that a tribe or a member of a tribe, merely because of the adoption or superimposition of some Hindu practices, or even when it is practically Hinduized, is Hindu so as to be affected by the Hindu shastra in matters of succession. On the contrary it is at least consistent with experience and probabilities that the tribal customs as to succession should be carried on into and persist after the adoption of Hinduism. This is also the view of the late Hon'ble the Reverend Dr. Andrew Campbell, the highest authority on the aboriginals of Manbhum. Further the agnates would also inherit if on conversion to Hinduism, the parties had adopted the Mitakshara system. The Court did not consider this point. The trial Court presumed that inheritance was governed by the Dayabhaga system
“as it prevails in this part of the country.”
12. It is not clear whether the reference is to the pargana or district. But in either case it is far from settled law that the Dayabhaga system is the lex loci in the district of Manbhum, particularly the north and the western half, or indeed in any part of the district. Like the rest of Ghota Nagpur and the jungle mahals the district of Manbhum was until comparatively recent times, outside the Hindu pale. It was inhabited almost exclusively by aboriginal tribes who were not Hindus. The great landholders, most if not all of them converts to Hinduism from the tribes, are governed by the Mitakshara law which, though it may differ in details, accords broadly with tribal custom in the matter of exclusion of females from inheritance. Other Hindus are either immigrants or converted tribes or tribesmen. The former retain the law of the locality from which they immigrated as it stood at the date of immigration. To ascertain whether a Hindu who is an immigrant or the descendant of an immigrant belongs to the Mitakshara or Dayabhaga School it is necessary and sufficient to learn whether he belongs to an up-country or a Bengali caste and in a few exceptional cases, where the caste name is the same in both areas, some slight further particulars, e.g, the name of a Brahmin and in the case of a functional caste, the part of India from which immigration took place. Language is no criterion: many immigrant Hindus from up-country now speak a form of Bengali and that is also the home-language of some of the great land-owning families who are unquestionably governed by the Mitakshara School. The fact is there is no lex loci as to the system of Sindu Law which prevails in Manbhum or in any area of it. It cannot be predicated of a Hindu of that district and particularly of a convert to Hinduism from the local tribes that he belongs by operation of law to any particular school of Hindu Law whether Mitakshara, Dayabhaga or another. It is a matter of proof in each case whether they are governed by a particular School. Thus in the present instance the terms of the mimansapatra and the fact that they have Pande Brahmins would go to show, that at least the Dayabhaga rules have not been adopted by the parties. In point of fact aboriginals, with few exceptions, move towards Hinduism as a tribe or large section of a tribe in a particular area, and they certainly do not contemplate any change in the customary laws of inheritance and succession of the tribe. The onus is clearly upon the person who alleges that these customary laws have been discardel and that the aboriginal, convert adheres to a particular School of Hindu Law in the matter of inheritance. Fanindra Deb Raikat v. Rajeswar Das(1) is a case in point. That was a case of adoption in an aboriginal family which had become Hindu and their Lordships of the Judicial Committee held that looking to the origin and history of the family “the question is not whether the general Hindu Law was modified by a family custom forbidding adoption, but whether with respect to inheritance the family is governed by Hindu Law or by customs which do not allow an adopted son to inherit. The onus of proving that the adoption was lawful was on the defendant who relied upon it to defeat the title.”
13. Their Lordships then held on the evidence that whatever Hindu customs had been introduced into the family, the custom of succession by adoption had not Similarly in the present case the points for enquiry were first, whether the general Hindu Law was substituted for tribal custom in respect of inheritance as a part of the personal law of the parties, and if so, whether it was the Dayabhaga form of the Hindu Law on the point. On both points the onus would be on the plaintiffs; whereas if the parties had been persons unquestionably governed by ordinary Hindu Law, the onus in the first matter to prove a custom at variance with Hindu Law would be on the person who asserted its existence.
14. In cases relating to inheritance among aboriginals in Manbhum it is always necessary to enquire whether even if Hinduized (slightly, prtially, or completely) they have abandoned the tribal custom as to inheritance (usually they have not, even where, as is unusual, Hinduization is complete) and then is they have abandoned the tribal custom whit particular school of Hindu Law they have adhered to. Both points of enquiry are in Manbhum questions of fact to be determined on the evidence. Insufficiently considered decisions of subordinate Courts have in some measure been disturbing causes, but prima facie it would seem exceedingly improbable that a tribe when it establishes itself as a new caste, should discard a tribal custom of agnatic relationship as the criterion for inheritance, especially when the leading Hindu magnates of the district and a large section of the immigrant Hindus retain it, and other tribes of the district indisputably carry into Hinduism the custom of lineal primogeniture in the male line. When I had concluded these observations Mr. A.B Mukherji, appearing for the respondent, drew my attention to Trevelyan's Hindu Law, which speaks of the Bengal or Dayabhaga School as prevailing:
“where the Bengali language is spoken by the inhabitants of the country;”
15. And in a footnote gives a list of the five Commissioners' Divisions of Bengal, Manbhum in Bihar and Orissa and certain districts in Assam as Bengali-speaking areas. There are two comments to make. In the first place, in 1913 shortly after the work was published and just after I had been Judge of the district for the first time, I discussed the point with the learned author and I understood him to accept the view which I have set out above and to admit that even if Manbhum be conceded to be a Begali-speaking area the implication was not justifiable that the Dayabhaga prevails there particularly among non-Bengali castes or tribes such as the Kurmi Mahtos, Santals, Bhumijs and their congeners. The statement in the work referred to as to the Dayabhaga School is in fact only a rough generalization. The Dayabhaga School actually prevails among persons who are Bengalis rather than among persons who speak Bengali and rather than territorially where a majority of the people speak Bengali. In the second place, as has already been indicated, language is not the criterion, least of all in a border tract where the persons concerned are converted aboriginal tribes and indeed it is an unsolved problem what the language of Manbhum is. No doubt the late census shows Bengali as the language of two-thirds of the inhabitants, but this result was obtained by including many persons who speak Kurmali. Officially the language is Hindi or Bengali in the Dhanbad Sub-division were Hindi has a numerical preponderance over Bengali, and Bengali in the Sadar Sub-division. Then Kurmali, the tribal language of the aboriginal Kurmis, is recognized in the Linguistic Survey as a form of the Bihari (Hindi) language, and is classified as Hindi in the census reports. It was returned as the language of 2,11,000 persons in 1911, while the Kurmis (tribe and immigrant caste combined) in the district numbered 2,91,000. But as it is generally written in the Bengali character and to quote the Linguistic Survey, “it is looked at through Bengali spsctacles” in Manbhum the language was in 1921, probably under a misconception, often entered by enumerators as Bengali though it was really Hindi. My considered view is that the Dayabhaga system is not a lex loci in Manbhum in the matter of inheritance, and that certainly neither that system nor any other system of Hindu Law can be applied to the indigenous aboriginal tribes of the Manbhum district or members of those tribes, except on proof that they have adopted it.
16. Appeal dismissed.