Stone, C.J:— I have had the advantage of perusing the judgment about to be delivered by Bose, J. If I may say so, this judgment is so weighty and lucid an exposition of the branch of law in question that it is not necessary for me to add anything except to say that I agree with it.

Vivian Bose, J.:— The question in this appeal is whether a Maharashtra Brahmin, resident in the Central Provinces, is to be governed by the Bombay or the Benares interpretation of the Mitakshara when migration is not proved in the sense that the exact origin of the family cannot be traced. The property in dispute which is situate in Chhatisgarh in the Central Provinces belonged to one Madhobhat. He died leaving two daughters, Mt. Salubai and the plaintiff, Mt. Mainabai. Salubai mortgaged her half share to the defendants on 22nd July 1921 and the mortgagees obtained a final decree for fore closure against Salubai's daughter, Salubai then being dead, and obtained symbolical pos session. Mainabai now sues for a declaration that Salubai having died the property has passed to her by survivorship. If the Benares view obtains, then she must succeed, but if Madhobhat was governed by the Bombay law then the plaintiff's suit must fail. Therefore what I have to deter, mine is whether the Bombay or the Benares interpretation of Mitakshara is to apply. Mt. Mainabai was a party to the previous litigation and she carried the matter up to the Judicial Commissioner's Court where it was decided that as Mainabai's share was not mortgaged, she could not be affected by the suit, and so the suit was dismissed against her and the question of her rights including the question now at issue, was left at large. The judgment is not clear on these points but that is the interpretation which both sides accepted in their pleadings and it was the assumption on which the appeal was argued before us. It appears from para. 3 of the appellate judgment in the previous suit, (Ex. D-8) that the proceedings were conducted there on the assumption that Madhobhat was a Maharashtra Brahmin and this also comes to have been the assumption throughout the present litigation though it was denied before us by the learned counsel for the plaintiff-respondent. We find for instance that the defendants made the following statement on 8th March 1932:

That the family of Dadaji Joshi migrated from Bombay Presidency and they being Maharashtra Brahmins their family is governed by the Bombay School of law.

2. The plaintiff's reply to this was:

It is denied that the plaintiff or her ancestors were governed by the Bombay School of law. They were not persons who migrated to these Provinces from the Bombay Presidency but they were governed by the lex loci namely the Mitakshara.

3. It will be seen then that the defendants made two distinct assertions in their statement, namely (1) that the family had migrated from the Bombay Presidency, and (2) that they were Maharashtra Brahmins. The plaintiff when replying to this did not challenge the second assertion though he did the first, and this seems to have been the position in the lower Appellate Court as well, for the learned Judge writes as if this was an accepted fact. After holding that migration had not been proved he continued:

The fact that the plaintiff's families are Maharashtra Brahmins and had settled in Berar still does not make them as governed by the Mayukha.

4. In a country like India where the people generally are so intensely community conscious and where the usual reply to the question ‘who are you’, is not a name but a caste, we have no doubt that an allegation, of this kind would have produced an immediate retort if untrue. The question is of such vital importance to them. Whether a daughter gets a limited interest or an absolute estate is only a side issue, but the caste or community to which a man belongs that is an entirely different matter. It affects not only his social status but that of his family. It affects their dinings and their marriages and their deaths; it affects their social and religious customs and beliefs, and in a sense even what they conceive to be their life after death. I therefore think it is now too late to challenge through the mouth of counsel at the stage of argument in second appeal the assertion that Mohobhat was a Maharashtra Brahmin. Consequently what I have to determine is exactly what that phrase connotes. It is clear that it cannot mean one of the original residents of the locality, for, it is historically incontrover title that the place where this family resides and has its domicile, namely Chhattisgarh, is not and never has been known as Maharashtra, though the Maharattas did penetrate as far as that and were in power there for a short time; in fact the British obtained this stretch of land from them. It is equally beyond doubt historically that a race or tribe of people known as Maharashtrians were not there first, and even now are not so numerically or politically predominant in this tract as to justify the inference that they have so impressed their particular phase of Hindu ideas and usages upon the people as to make that the prevalent law of the locality so far as Hindus resident there are concerned. Their advent to this part of India can be traced to comparatively modern times, and though it is possible that a few stray families may have been there even in the earliest times, they could not have come except as immigrants.

5. Whatever else the term Maharashtra may mean, it must connote either a geographical entity or a race or tribe of people. If it is clear that Chhattisgarh was never known as Maharashtra, and if it is equally beyond doubt that a race or tribe of people known as Maharashtrians never inhabited this area as a race or tribe, then it follows that any Maharashtrian who was found in these parts must have come as an immigrant, either he himself or his ancestors, and the fact that his family has stained its individuality intact as Maharashtrians must mean that they have not been absorbed into the particular strata of Hindu society prevalent and predominant in the locality. It must mean that they have carried with them their own law and their own usages from wherever it is that they came and preserved them as carefully as they have their own identity. Another thus is also clear. These provinces were not either a geographical or a political unit till the advent of the British, and even then were not taken over whole, sale, but were slowly amalgamated by the addition of tracts of territories from time to time from different persons and for different reasons. On the other hand Hindu religion a id culture, its laws and traditions, with its varying usages and differing interpretations, had crystallised as entities long before this time. Therefore we have to visualise the scene as it existed before the British Era. It does not follow that the ideas then prevailing in one section of the area now known as the Central Provinces were equally prevalent in another. It is impossible to make a sweeping assertion that this or that is the lex loci of the Provinces as a whole with, out finding out whether the influences at work which impressed themselves upon a particular locality to such an extent as to make them the predominating factors in determining its law and usages were also at work elsewhere and were equally successful.

6. The origin of the term Maharashtra is obscure. Russel in his Tribes and Castes of the Central Provinces, Vol. 4, p. 129, is of opinion that the balance of authority favours the view that it was the native name of Bombay and that it was derived from that of the caste which resided there. He quotes Wilson in support of this. On the other hand he puts forward an alternative theory which he considers less probable, namely that it is a corruption of Maha Rashtrakuta and came to be so called after the Rashtrakuta Rajput Dynasty of the 8th and 9th Centuries. His objections to this alternative view have weight. He points out that countries or tracts are seldom named after ruling dynasties and also that the name Maharashtra was known in the 3rd century B.C long before the Rashtrakutas became prominent. As against this, is the fact that countries often receive the names of the races who inhabit them. The name India itself is the most prominent illustration of that; the land of the Hindus. Gajarashtra or as it is now known Gujrat, the country of the Gujars, and Saurashtra or Surat, the country of the Sauras, are other examples. But none of this is conclusive and no historian of repute seems to be willing to commit himself to a definite conclusion. See Com bridge History of India, pp. 602 and 603: The Imperial Gazetteer of India, p. 439; Grant Duff's History of the Mahrattas (S.M Edward's Edition, 1931) Vol. 1, pp. 42 and following. The question is also complicated by a large outflow of propaganda in which the Mahrattas have been putting forward claims to Rajputa origin with growing insistency, and the matter has been litigated in the Courts on more than one occasion. See 48 Mad 1,1 where such claims were doubted and 52 Bom 4972 where they were accepted. In this state of uncertainty, I feel it is impossible to decide this case on historical or ethnographical grounds. In fact, as Madgaonkar, J. remarked at p. 502 of the Bombay decision just cited:

The difficulty is be great as perhaps to justify a doubt it the ordinary Courts of law are fitted to decide such questions unless the Legislature is prepared to lay down general roles for application in cases such as the present.

7. All we can hope to do here is to evolve a sound working rule which will fit in with the customs, ideas, and feelings of the peoples it is to affect and at the same time conform to general legal principles. These general principles have often been expounded by their Lordships of the Privy Council. In 16 NLR 1873 at p. 189 they state:

It is absolutely settled that the law of succession is in any given case to be determined according to the personal law of the Individual whose succession is in question.

8. Then they quote a passage from Mayne's Hindu law which is to the following effect:

Prima facie any Hindu residing in a particular province of India is held to be subject to the particular doctrines of Hindu law recognized in that province……. But this law is not merely a local law. It becomes the personal law, and part of the status of every family which is governed by it; consequently where any such family migrates to another province governed by another law, it carries its own law with it.

9. After this their Lordships proceed:

Of course, if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In that sense only is domicile of importance. But if more is known, then in accordance with that knowledge his personal law must be determined, unless it can be shown that he has renounced his original law in favour of the law of the place to which he migrated.

10. In an earlier case in 29 Cal 4334 their Lordships remarked at p. 452 that:

The tenacity of such customs, even under the strain of migration, has been repeatedly recognized by the law in questions such as the present. Accordingly the question being primarily one of personal as distinguished from geographical custom it is of the first importance to Inquire into the origin of the family.

11. Migration in that case had been more than a hundred years back (see p. 440); so far back indeed that all that the parties had to go on was tradition, and yet the learned Judges of the High Court whose judgment was upheld remarked that once migration is established strong proof is required from the person making the assertion that they have abandoned the one and adopted the other. (See p. 440.)

12. So great is the tenacity with which Hindus hold to their ancient usages and follow their ancient traditions and customs that mere length of time in itself makes no difference. In 29 Cal 433, as I have observed, the migration was over 100 years back and the family had settled down in its new environment for four generations. In 2 MIA 1325 it was six generations. In 50 Cal 8986 eight or nine centuries had elapsed and in 50 Cal 3707 four centuries. In 12 MIA 818 it was “many generations ago” and their Lordships remarked that an adherence to family usages is a strong oriental habit” and that … “generally the love of them increases with their long prevalence.”

13. Bearing this in mind what is the significance of a family continuing to call itself Maharashtrian even though settled in a land which is not Maharashtra and among, what for these purposes may be termed, an alien people? What do we mean when we refer to a man in this connexion, as a Chinaman or an Englishman or a Maharatha or a Bengali? Surely this: that it indicates his racial origin, using the word “racial” in a loose and popular sense; that it shows either that his ancestors orginated in the geographical area from which his racial or tribal name is derived or that he belongs to a particular racial group or at any rate to a particular community. This is especially so among Maharashtrians who are not one which behind the rest of India in their homogeneity and pride of race, in their love of their own great traditions and in what one might almost term their clanishness, using that term in its finer sense. When therefore we find the great balk of Maharashtrians governed by the view of Mita kshara prevailing in Bombay, what does it indicate? Surely this that these people wherever they came from, whatever their origin, carried with them from place to place this particular law and that it has now become predominant in certain parts of Bombay only because they are the predominant people there. In fact, Russel and Wilson, whom I have already quoted, consider that the term “Maharashtra” is itself derived from the caste which resided there.

14. Their Lordships of the Privy Council point out in 16 NLR 187 at p. 191 that the reason why the Courts in Bombay and those in other parts of India have arrived at different results is because of the dominating influence of particular commentaries and then they explain:

Farther it must always he remembered that the commentaries are only commentaries. They do not enact they explain and are evidence of the congeries of customs which form the law.

15. Their Lordships then correct Drake. Brookman A.J.C, who thought that the law had been enunciated for the first time by a Bombay decision “as if it were a statute.” They point out that it was nothing of the sort and that it was only declaratory of the law as it had existed, and quote earlier Bombay decisions which refer to the Bombay view of the Mitakshara as in accordance with “pre-existing tradition in that Court and in the local profession in Bombay.” It must follow from this that the Mayukha did not create the Bombay view and that even though it was written by Nilkanth in the 17th century he merely recited the customs and usages which he found in vogue around him and knowing “the tenacity with which oriental races cling to their age-long traditions” it can only mean that this was always the law of the Maharashtrians, whoever they were, wherever they came from.

16. If that is so, then wherever we find a family dinging to its individuality and retaining its identity as Maharashtrian, it must be presumed until the contrary is shown that it hailed from the race or group of people shown as Maharashtrians and carried the law of Maharashtra with them; the law which according to the reasoning of their Lordships has always been their law and which has been as characteristic of them as their racial or communal identity, as distinct as their name. I am fortified in this by the fact that not one single case has been cited from other parts of India to show that any single family of Maharashtrians has ever been governed by the Benares school. Even in these provinces, beyond Second Appeal No. 270 of 1877, there is not a single case which is based on an examination of evidence showing that there is a large volume of custom or usage or tradition in respect of Maharashtrians generally in a particular locality, or even in respect of any particular family, which makes them subject to the Benares view.

17. The earliest case in the Central Provinces dealing with this question was decided on 26th October 1877. It is Second Appeal No. 270 of 1877 and is reported in the Columned Digest of Civil Rulings between 1862-77 issued in 1877. The report there is scanty, but from the original judgment it appears that the plaintiff admitted that the family had originally migrated from Western India, but claimed that the migration was some three or four centuries before the suit and so the family must be assumed to have acquired a fresh domicile in the Nagpur country, and there, fore must be taken to be governed by the Benares school. The learned Judicial Com missioner after referring to an article on Nagpur in the Central Provinces Gazetteer came to the following conclusion:

It is thus clear that even if the Hindu settlors from Upper India came in sufficient numbers to stamp their religion and laws upon the indigenons communities (the Gonds)—which there is no reason to believey—they were subsequently outnumbered and swamped by a large volume of immigration from the West and that prevailing and characteristic element in the population is now, and has been for at least a century, the Maratha. Why then should it be supposed that a Maratha Brahmin family, settling among a mainly Maratha population, and taking service under a Maratha prince, should adopt the law and customs of a comparatively small body of Hindustani immigrants? These Hindustanis had never had exclusive or dominant possession of the country. They merely constituted one out of many streams of Immigration, directed by a Gond prince Into a Gond country. It may be presumed that even on there first arrival, they had enough to do to hold the own, and it would be contrary to reason to suppose that scattered cultivating bodies, or oven occasional Government Officials and artisans, such as made up their numbers, should have imposed their law, first upon the country to which they came as humble settlors (and not the only settlors) and then upon a vastly larger body of conquering Invaders. I think it probable then that the Maratha conquerors found the country unoccupied by any of the Hindu schools of law and that they had no temptation or inducement to depart from their own Codes.

18. After this be proceeded to examine the evidence and found that the balk of it sap ported the view that the Bombay law prevailed among the Nagpur Maharathas and accordingly applied to Hindu law of Western India. This decision then which is based on an examination of historical records as well as on the evidence produced in that case decides that the lex loci in the Nagpur District is the law of Western India. Attempts were made in later cases to apply this to all Hindus in the southern part of the Central Provinces. It succeeded so far as Marathas in Wardha were concerned in a case quoted in 11 CPLR 499 at p. 54 but has since been confined to Maharathas in the Nagpur area only and not to Hindus generally. Except for this, the lex loci in these provisoes has been held to be the Benares law: See, 2 CPLR 18,10 11 CPLR 49 and 14 NLR 82.11 The next ruling is Second Appeal No. 420 of 1882 decided on 19th February 1883. It is reported as case No. 3½ in the volume of select cases published in 1886, 1888. It was accepted there that the parties had come from Poona, but the learned Judicial Commissioner decided as a matter of law, and not on an examination of evidence about custom, that the conclusion of the Bombay Judges was wrong. He therefore applied the Benares view. This is exactly what their Lordships of the Privy Council overruled in 16 NLR 187. The next case is reported as No. 23 in the same compilation. It is Second Appeal No. 159 of 1885 and was decided on 30th January 1886. Here again it was assumed throughout that the family had come from the Bombay Presidency. The learned Judicial Commissioner stated that there was nothing to show from what part of the Presidency they had come but being Maharatha Brahmins it is most probable that they come from the Poona District, or the Konkan, from whence most of the Maharatha population in this Province has come.” He then examined the law afresh and after coming: to the same conclusion as his predecessor in the ruling just cited, namely case No. 3½ above followed it. Drake Brook, man A.J.C who followed these decisions in 1 NLR 15412 fell into the same error and was expressly overruled by their Lordships of the Privy Council in 16 NLR 187. There is no other decision that I know of till AIR 1930 Nag 267.13 That was decided after the Privy Council and the learned Additional Judicial Commissioners came to the conclusion that the Privy Council did not warrant the view that the mere fact that a man is a Maharattha or a Maharashtra Brahmin means that he is governed by the Bombay school of law. They held that persons are primarily governed by the lex loci of their residence and rejected the view that the Bombay law is the lex loci of Hindus-resident in the southern part of the Province. Consequently they applied the Benares school.

19. With the utmost respect I do not think that this is what the Privy Council said. As I have already pointed out, they stress the fact that the personal law must be applied in every case where it is known, and it is only when it is not possible to ascertain that, that the law of the domicile is applied, and then only as a last-resort, and even then only because it is assumed that it is the personal law. This is the view that I took in 30 NLR 32214 and I still think it is right. There is however an obiter in that ruling which upholds AIR 1930 Nag 267 on the ground that the Benares interpretation of the Mitakshara has so repeatedly been applied to Maharashtrian residents of the Central Provinces that it has now come to be regarded as their personal law by them. These remarks were not necessary for the decision of that case and were made somewhat hastily without a careful examination of the position. Now that I have examined all the authorities, I can only find three decisions before the Privy. Council and one after it on this point. The Privy Council would have applied the Benares law in 16 NLR 187 if this assumption has been correct, and the solitary decision after their Lordships' ruling, namely AIR 1930 Nag 267, can hardly be said to have changed the current of these men's lives, especially as it has never been officially reported. I therefore dissent from the obiter in 30 NLR 322 and would overrule AIR 1930 Nag 267. The result is that the appeal succeeds. The Bombay rule applies and so the plaintiff's claim must fail. The decree of the lower Appellate Court is accordingly reversed and that of the first Court restored. The costs of this appeal and of the appeal in the lower Appellate Court will be paid by the plaintiff-respondent.

V.B.B/R.K

20. Appeal allowed.