VIMLA BAI (DEAD) BY LRS. versus HIRALAL GUPTA AND ORS.

Citation: [1989] SUPP. 2 S.C.R. 759 · Decided: 22-12-1989 · Supreme Court of India · Bench: L.M. SHARMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

{ 
VIMLA BAI (DEAD) BY LRS. 
A 
' 
v. 
HIRALAL GUPTA AND ORS. 
DECEMBER 22, 1989 
[L.M. SHARMA AND K. RAMASWAMY, JJ.] 
B 
Hindu Law: Hindu governed by his personal branch of law-
Migration cannot be presumed but to be established by evidence .. 
' 
Indian Evidence Act: Sections 37, 57, 81-Statements made in 
Government '(Jazetteer-Admissibility as evidence. 
c 
One Hariba Bhagwat had a son Appaji and daughter Bajabai. 
Appaji in turn had a son Rakhmaji and a dangbter Bhikubai, the 
plaintiff who had filed 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 prefer-
D 
red this appeal by special leave confined to one of the houses, the parties 
having settled their dispute regarding the other house • 
... 
Bajabai 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 (She-
E 
pards) 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 snit property i.e. house No. 88 to Shanker Lanke a 
Brahmin, the first defendant by a registered gift deed dated October 31, 
1944. Shanker Lanke in torn hypothecated the House to one Hira Lal, 
the first respondent on September 21, 1948. Sonnbai died in 1947. 
F 
' 
The case of the plaintiff was that the family is governed by the 
Bombay School of Hindu Law wherein f~male Bandhu is an heir aitd 
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 
G 
donot bind her and the respondents are in unlawful possession as tress-
passers. The material defence relevant for the disposal of this appeal is 
that_ the persons concerned are ~overned by the Banaras School of 
Hindu Law under which a female bandhu is not an heir. H iralal' s case 
was that he had no objection to hand over the possession provided he 
was paid the consideration ofRs.12,000 borrowed by Shanker Lanke, the 
H 
).. donee. 
159 
760 
SUPREME COURT REPORTS 
I 1989] Supp. 2 S.C.R. t 
A 
The Trial Court came to the conclusion that the parties are gover~ 
ned by the Bombay School and not the Banaras School of Hindu Law 
and the plaintiff is the heir of Rajkbmaji. 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 
B 
belonged to Dhangar caste, being migrants from U.P. (Mathura) tu 
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 Matbura and thereby they were governed by the 
c Banaras School of Hindu Law under1whicb the female Bandhu is not an 
heir to succeed to the estate of the last male bolder. Reversing the 
decree passed by the Trial Court, the suit was dismissed. 
This Court in allowing the appeal by the legal representative of 
the plaintiff, 
D 
HELD: In India a Hindu is governed by bis personal branch of 
law which be carries with him where ever be g~s. 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 pre-
E sumption will be that be is governed by the law or the special custom by 
which he would have been governed in his earlier borne at the time of 
migration. [767B-C] 
Migratim;i is changing one's abode, quitting one's place of birth 
and settling permanently at another place. The burden of proving 
F 
migration lies on the person setting up the plea of migration. Migra-
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lion can llot be presumed but it must be established by adduction of 
evidence. [7640-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 
G 
57(13) declares that on all matters of public history, the Court may 
resort for its aid to appropriate b

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