judgement:
ivil Misc.
Petition (C) No. 13066 of 1989.
IN Civil Appeal No. 2628 of 1980.
563 A.K. Sen and V.B. Joshi for the Petitioner.
G.L. Sanghi, C.M. Lodha, Shankar Ghosh, H.M. Singh and C.P. Mittal for the Respondents.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
In this petition the petitioner has prayed for convicting Respondents 1 and 2 for committing the contempt of this Court by violating the terms and conditions of the undertaking filed in Civil Appeal No. 2628 of 1980 and for a direction that whosoever is in possession of the suit premises be handed over to the petitioner.
The peti tioner as the owner and landlord of the property, Tika No. 3, City Survey House, bearing No. 344/345, Jambli Naka, Thane, consisting of ground floor, first floor and second floor in which the business of restaurant known as Ramakr ishna Hindu Hotel or Ramakrishna Hotel is carried on, filed Civil Suit No. 2 13 of 1970 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name, P.A. Dange, V.A. Dange, Haribhan Shivale and Giri Anna Shetty for eviction from the above said premises.
The suit was decreed by the Trial Court.
The first respondent who was the first defendant in the suit alone filed an appeal against this decree before the Dis trict Court.
The appeal was dismissed confirming the order of eviction.
Thereafter, the first respondent filed writ petition No. 354 of 1975 in the High Court of Bombay and that writ petition was also dismissed.
Though defendants 2, 3, 4 and 5 did not file the appeal or take the matter fur ther to the High Court they were implead as respondents in the appeal and the writ petition filed by the first respond ent herein.
The first respondent thereafter filed Civil Appeal No. 2628 of 1980.
The said appeal was dismissed by this Court on 18th of August, 1987.
However, at the request of the appellant this Court allowed the appellant to contin ue to be in possession and carry on the business till 31.3.1989 subject to the "appellant and all those persons who are now occupying the premises as employees or staff and are staying in the premises file an usual undertaking in this Court within eight weeks from today stating inter alia that they will hand over and deliver over vacant possession of the premises on the expiry of the period mentioned above and also indicate that they will go on depositing the mesne profits until the possession is delivered.
In default of furnishing or filing the undertaking in the manner indicat ing within the 564 time aforesaid the decree of execution shall become executa ble forthwith." In pursuance of this order the first respondent K.M.M. Shetty filed an undertaking on 5.10.1987.
The first respond ent through his advocate had produced the muster roll show ing the names of persons employed by him for running the hotel business in the suit premises as well as a list of persons staying in the said hotel.
This list showed 17 persons as being the employees and persons staying in the hotel, and as directed by this Court the 17 persons also filed an undertaking.
Some time in the beginning of 1989 one Raghuram A. Shetty second respondent in the contempt application filed Civil Suit No. 306 of 1989 in the Thane Civil Court before the IIIrd Joint Civil Judge, Senior Division, Thane, for a declaration that the decree for eviction obtained in respect of the suit premises in Civil Suit No. 2 13 of 1970 cannot be executed against him and for a permanent injunction, against the petitioner herein.
Pending the suit he had also filed an application under Order 39 Rule 1 and 2 read with section 151 of CPC for a temporary injunction from executing the decree for eviction.
By an order dated 5.4.1989, the IIIrd Joint Civil Judge, Thane, granted a temporary injunc tion against the petitioner herein restraining him upto the disposal of Civil Suit No. 306 of 1989 from executing the decree for eviction given in Civil Suit No. 213 of 1970.
Thereafter, the petitioner has filed this contempt petition both against his original tenant K.M.M. Shetty and also against the second respondent who was the plaintiff in Civil Suit No. 306 of 1989.
The second respondent has filed a reply statement in which he has contended that P.A. Dange had taken over the hotel business which was being carried on by the tenant K.M.M. Shetty in the name and style of "Ramkrishna Hindu Hotel" at the ground floor of the suit premises on 29.11.1986 and under an agreement dated 2nd January, 1967 the said P.A. Dange with the consent of the tenant trans ferred the said business and the exclusive possession of the hotel to the second respondent herein.
Subsequently there was another agreement executed between the tenant and the second respondent on 1.8.1972 under which the second re spondent was paying royalty to the tenant and that to the knowledge of the petitioner he was in the occupation of the premises and carrying on the business and that in spite of it he had not been impleaded in the eviction suit or the subsequent proceeding and that therefore he was not bound by the decree for eviction.
A 565 rejoinder has been filed by the landlord petitioner to this reply.
As stated earlier the Suit No. 213 of 1970 was filed by the petitioner for eviction not only against the original tenant K.M.M. Shetty but also against P.A. Dange, V.A. Dange and two others.
The case of the petitioner landlord was that the tenant had sub let the premises to the said P.A. Dange defendant No. 2 and V.A. Dange defendant No. 3.
The tenant filed written statement contending that he had allowed the second defendant to manage and conduct the said hotel busi ness under the terms and conditions set out under an agree ment made and entered into between them and that Municipal licence for the business had always been and still in the name of the tenant first defendant.
Neither P.A. Dange nor V.A. Dange ever stated that they had parted with the posses sion to the second respondent either as a licensee or in any other capacity.
Again in the Writ Petition No. 354 of 1975 filed in the High Court the first respondent had stated that P.A. Dange was permitted to conduct the said business under an agreement dated 29th February, 1970 on his paying the tenant a sum of Rs.500 per month by way of royalty, that this agreement was subsequently renewed on 29th January, 1970 increasing the royalty amount from Rs.500 to Rs.600 per month but, however, during the pendency of the appeal before the learned District Judge, Thane, defendants 2 and 3 had returned the business together with the premises, stock in trade, furniture, fittings and all paraphernalia which were given to them for conducting the said business to the first respondent herein and that the first respondent had been in sole possession and occupation of the said premises and of the business conducted therein and he himself had been carrying on the business from that time.
Again in this Court when he filed the special leave petition the first respond ent prayed for stay of dispossession.
This Court by an order dated 5th November, 1980 granted stay of dispossession on condition that the respondent will continue to pay compensa tion equivalent to rent every month regularly to the peti tioner herein and that he shall not induct anybody else in the premises in question.
When the petitioner received notice in Civil Suit No. 306 of 1989 he sent the lawyer 's notice dated 14th March, 1987 to the first respondent inviting his attention to the undertaking given by him to vacate the premises before the 31st of March, 1989 and the consequences that may follow, if in breach of the said undertaking, he does not hand over possession.
In this notice he also brought to the notice of the first respondent that the suit was filed at the instiga tion of the first respon 566 dent and charged collusion between first and second respond ent and stated that the suit is based on false and ficti tious allegations intentionally made to postpone the date of delivery of the premises.
The first respondent sent a reply to this notice on 23.8.1989 stating that he is not at all concerned in any manner whatsoever with the suit filed by the second respondent, and that he would be filing necessary affidavit in the Suit No. 306 of 1989.
The first respondent filed an affidavit in the suit in which also he stated that he had nothing to do with the suit filed by the plaintiff and denied the claim of the plaintiff and further stated that the suit premises had to be handed over to the peti tioner by 31.3.1989 as per his undertaking given in this Court.
He had also prayed the Court to pass "such suitable orders to facilitate compliance of the orders" of this Court in respect of the suit premises.
he had enclosed copy of his reply to the lawyer 's notice sent by him to the petitioner along with this affidavit.
However, for the first time in the reply filed to the contempt application the first re spondent had stated that "the petitioner has with ulterior motives deliberately withheld from this Hon 'ble Court mate rial facts i.e. the respondent No. 1 has not been (in land lord 's knowledge) in the suit premises since 1967 i.e. even before the suit for eviction was filed in the trial court" and that "at that time of final hearing of the appeal, it was landlord 's duty to bring to the notice of this Hon 'ble Court that the answering respondent is not in possession of the dispute premises.
" He had further stated that when the undertaking was filed by him he was not in possession of the suit premises and that it was well within the knowledge of the landlord.
He had also stated that the second respondent had been in possession of the suit property.
We cannot now accept this statement of the first respondent that he was not in possession at the time when he gave the undertaking on the facts and circumstances stated above.
If the second respondent is in possession as he claims now, it would mean that the first respondent had been playing a fraud on the Court, and sweating false affidavits and making false state ments and obtaining orders on the basis of such false state ments.
It may be noted, however, that there was absolutely no need for making such false allegations and obtain orders which are of no use to him if he had not been in possession, as stated now.
If it is said that he might have been moti vated by a desire to spite the landlord and to deprive him of the possession it would clearly be an abuse of the proc ess of the Court.
Throughout P.A. Dange and the first respondent who were stated to have given a licence to the second respondent for carrying on the business were parties to the proceedings but they never informed 567 the Court about the possession being with the second re spondent.
As already stated the learned counsel for the first respondent produced in this Court at the time of hearing of the Civil Appeal the muster roll for running the hotel as well as a list of persons who are stated to be staying in the hotel.
In that list the second respondent 's name did not find a place.
Now if the first respondent states that the second respondent had been in the possession of the suit premises and carrying on the hotel business ever since 2nd January, 1967 the first respondent is guilty of deliberately suppressing the facts and giving a false under taking to this Court that he is in possession of the suit premises.
In the Civil Suit No. 306 of 1989, the second respondent had prayed for the injuction on the basis that he was a licensee originally from P.A. Dange and later under the tenant himself and that though there was no privity between the petitioner and the second respondent, by reason of certain amendments to the Bombay Rents, Hotel and Lodging House Rates Control Act he had become the tenant directly under the petitioner herein and entitled to protection.
An interim injuction has been granted by the IIIrd Joint Civil Judge, Thane, on the ground that it is necessary, till the plaintiff establishes his right, to allow him to be in possession.
The learned Judge was not well founded in this view.
In the light of the earlier statements made by the first respondent K.M.M. Shetty, P.A. Dange and V.A. Dange in the eviction proceedings and in this Court and in the light of the undertakings given by the first respondent and 17 others the learned Judge should have directed the plaintiff to prove his claim in the suit first before any relief is given against the defendants pending the suit.
It may be mentioned that the argument of the learned counsel of the petitioner was that the first respondent had falsely insti gated the second respondent to file the suit and obtain an injunction.
If this contention is true then the first re spondent is guilty of contempt in not handing over vacant possession as per the undertaking and in fact the second respondent would equally be guilty as abetor of the breach.
However, we are not going into the question of the second respondent 's right in Civil Suit No. 306 of 1989 and that may have to be decided after trial.
Suffice it to say that we are of the view that the order of injunction against the petitioner from executing the decree against the second respondent is not justified in this case.
We would like to add that as the facts of the undertaking given and the various statements made by the tenant in the eviction pro ceedings were before him, we would have expected the learned Civil Judge, Thane, to have directed the parties to obtain a clarification from this Court, if there 568 was any doubt as to the executability of the decree passed by this Court.
Be that as it may, we now direct that that portion of the order granting injunction against the petitioner from executing the eviction decree against the second respondent, on the facts and circumstances of this case, shall not be operative and that petitioner is entitled to execute the decree for eviction against all persons who are in posses sion of the property.
Now coming to the question of relief that is to be granted to the petitioner and the punishment to be imposed on the first respondent, the learned counsel for the first respondent contended that his client is an old man of more than 84 years and that in fact though he was willing to hand over vacant possession, on the facts and circumstances he could not comply with undertaking bona fide.
When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof.
The breach of an under taking given to the Court by or on behalf of a party to a civil proceedingS. 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 per sons breaking that undertaking as would their disobedience to an order for an injunction.
It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt.
The remedy in such circum stances may be in the form of a direction to the contemnor to purge the contempt or a sentence imprisonment or fine or all of them.
On the facts and circumstances of this case in the light of our finding that there was a breach of the undertaking we think that mere imposition of imprisonment or fine will not meet the ends of justice.
There will have to be an order to purge the contempt by directing the first respondent contemnor to deliver vacant possession immediate ly and issuing necessary further and consequential direc tions for enforcing the same.
In the foregoing circumstances, we find the first re spondent guilty of committing contempt by wilful disobedi ence of the undertaking given by him in this Court and accordingly we convict him and 569 sentence him to pay a fine of Rs.500 within the period of four weeks, failing which he shall suffer simple imprison ment for one month, and also direct him to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him.
We further direct the District Magistrate, Thane, to evict all those who are in physical possession of the property including the 2nd respondent and his men and if necessary with police help and give vacant possession of the premises to the petitioner forthwith.
However, we discharge the rule issued against the second respondent.

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 18.8.1987.
However at the request of the appellant this Court had allowed him to continue to be in possession and carry on the business till 31.3.89 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 K.M.M. 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]


judgement:
vil Appeal No. 10030 of 1983.
From the Judgment and Order dated 6.9.1983 of the Madhya Pradesh High Court in S.A. No. 475 of 1977.
A.B. Rohtagi and S.K. Gambhir for the Appellant.
V.M. Tarkunde and S.V. Deshpandey for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal is directed against the decree of the Madhya Pradesh High Court for eviction of the appellant from a house after holding him to be the respondents ' ten ant.
The appellant denied the title of the plaintiffs and their case that he has been in possession of the property as their tenant.
The trial court accepted the plaintiffs ' case and passed a decree in their favour, which was set aside on appeal by the first appellate court.
The decision was re versed by the High Court in second appeal by the impugned judgment.
Admittedly the house which was in possession of the defendant 's father Misri Lal as a tenant belonged to one Smt.
Raj Rani who sold the same on 11.8.1952 to the plain tiffs ' predecessor ininterest, Navinchand Dalchand.
In 1959 a suit for his eviction was filed by Navinchand, which was resisted on the ground that Smt.
Raj Rani had earlier trans ferred the house to a trust and she, therefore, could not later convey any title to Navinchand.
The trial court re jected the defence and passed a decree against which Misri Lal filed an appeal.
During the pendency of the appeal the parties resolved their dispute amicably.
Misri Lal accepted the title of Navinchand and a deed, Ext.
P. 20, creating a fresh lease in favour of Misri Lal under Navinchand as lessor, was executed with effect from 1.12.1962.
The appeal was disposed of by recording this fact and stating further that the arrears of rent had been paid off.
The compromise petition and the decree have been marked in the present suit as Ext.
P 21 and Ext.
Misri Lal continued to occupy the house till he died in 1972 leaving behind his son, the present appellant, as his heir and legal representative.
Navinchand sold the suit property to the plaintiffs respond ents on 4.1.1973, who sent a notice to the appellant on 14.3.1973.
Since the 538 appellant refused to recognise them as owners of the house, another notice terminating the tenancy was served in January 1976 and the present suit was filed in June of the same year.
The appellant resisted the claim in the plaint on the same old plea which his father Misri Lal had unsuccessfully taken in the earlier suit, namely, that Smt.
Raj Rani having transferred the disputed house to a trust in 1936 was not competent to re transfer it to Navinchand Dalchand, the vendor of the plaintiffs respondents.
The trial court disbe lieved the defence version holding that although Smt.
Raj Rani had executed a trust deed in 1936, but the same was not acted upon and the trust does not appear to have come into existence.
On appeal the first appellate court reversed the finding and further held that the defendant could not be estopped from challenging the title of the plaintiffs.
It has been the case of the appellant that the con sent of Misri Lal to the compromise in the earlier suit was obtained by force, but the plea was not substantiated by any evidence, and it has been pointed out by the High Court that the appellant admitted in his deposition that to his knowl edge no force had been used against Misri Lal.
The High Court further rightly rejected the argument that the decree, Ext.
P. 22, would not bind the parties since it was founded on a compromise and not on an adjudication by the court on the question of title.
The court also observed that the statements made in the compromise petition, Ext.
P. 21, in the earlier suit support the case of the plaintiffs inde pendently of the compromise decree, and further, the defence plea has to be rejected in view of the deed, Ext.
P. 20, creating a fresh lease.
These findings were sufficient for the disposal of the appeal but the High Court proceeded to consider the question whether Smt.
Raj Rani had in fact transferred the suit house in favour of a trust, and decided the issue against the appellant.
The grievance of Mr. Rohatagi, the learned counsel for the appellant, that in view of the limited scope of a second appeal under section 100 of the Code of Civil Procedure, the High Court was not justified in setting aside the find ing of the first appellate court on the question as to whether the property had been alienated in 1936 in favour of the trust or not is well founded.
After the court reached a conclusion against the defendant on the basis of the lease deed, Ext.
P. 20, the compromise petition, Ext.
P. 21, and the compromise decree, Ext.
P. 22, it should not have pro ceeded to decide the dispute relating to title on merits on the basis of the evidence.
However, this error cannot help 539 the appellant unless he is able to successfully meet the effect of Ext.
P. 20, Ext.
P. 21 and Ext.
P. 22.
It has been strenuously contended by Mr. Rohatagi that the principle that a tenant is estopped from challeng ing the title of his landlord is not available to the land lord 's transferee in absence of attornment by the tenant.
Reliance was placed on Kumar Krishna Prosad Lal Singha Deo vs Baraboni Coal Concern Ltd., and Others, A.I.R. 1937 P.C. 252; Mangat Ram and Another vs Sardar Meharban Singh and Others, ; D. Satyanarayana vs P. Jagdish, [ ; and Tej Bhan Madan vs 11 Addl.
District Judge and Others, ; , and a passage from Halsbury 's Laws of England 4th Edn.
16, Paragraph 1628.
The learned counsel strenuously contended that the appellant tenant cannot be estopped from challenging the derivative title of the plaintiffs as he was not inducted into the house by them.
He relied upon the comments of Sarkar on section 116 in his book on the . 7.
It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff.
Where the landlord has not himself inducted the tenant in the disputed property and his right, are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different.
A tenant already in possession can challenge the plaintiff 's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by section 116 of the Evidence Act.
The section does not permit the tenant, during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property.
The rule is not confined in its application to cases where the original landlord brings an action for eviction.
A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in.
So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge.
The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non existent in the eye of law.
By way of an illustration one may refer to a case where the original landlord had the fight of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition.
the tenant in such a case can attack the derivative title of the transferee plaintiff but not on 540 the ground that the transferor landlord who had initially inducted him in possession did not have the right to do so.
Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is forbidden to plead that subsequently the landlord lost this right.
These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the begin ning of the tenancy.
Coming to the facts of the present case, it may be recalled that fresh tenancy had been created in favour of Misri Lal, father of the present appellant, under Navinchand by deed Ext.
P. 20, and this fact was fully established by the decree, Ext.
P. 22.
The appellant, in the shoes of his father, is as much bound by these documents as Misri Lal was, and he cannot be allowed to deny the relationship of landlord and tenant between Navinchand and himself.
It has not been the case of the appellant that Navinchand later lost the title or that he had transferred the same to anoth er person, nor does the appellant say that there has been any defect in the sale deed executed in favour of the present plaintiffs.
In other words, the acquisition of title by the plaintiffs from Navinchand, if he be presumed to be the rightful owner, is not impugned, that is, the derivative title of the plaintiffs is not under challenge.
What the appellant wants is to deny their title by challenging the title of their vendor Navinchand which is not entitled to do.
None of the decisions relied upon by Mr. Rohtagi assists him.
On the other hand, the judgments in Kumar Krishna Prosad Lal Singha Deo vs Baraboni Coal Concern Ltd. and Others, AIR 1937 PC 25 1 and Tej Bhan Madan vs Addl.
District Judge and Others, ; , demonstrate that the plea of estoppel of the plaintiffs is well founded.
The Privy Council Case arose out of a suit for realisation of royalties due on Coal raised by the lessee defendant company.
The original lease was granted by the father of the plaintiff, the Raja of Panchkote, in favour of one Radha Ballav Mukherjee.
The defendant was sued as assignee.
The original lease contained a clause giving the lessor a charge for royalties upon the collieries and its plant which was sought to be enforced.
Since there was some dispute about the ownership of the colliery, the defendant company by way of abundant caution obtained a second assignment from anoth er source, being the Official Assignee.
The plaintiff 's claim was denied by the company on the grounds that (i) his father the Raja was not the owner of the colliery and the company was in possession of the colliery as a lessee on the strength of the other assignment from the Official Assignee, 541 and (ii) the company, being merely a transferee from the original lessee Radha Ballav Mukherjee and not being itself the original lessee, could not be estopped from challenging the Raja 's or his son 's title.
While rejecting the defend ant 's stand the Privy Council observed thus: "What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself dis closes the defect of title.
The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc.
In this sense it is true enough that the principle only applies to the title of the landlord who "let the tenant in" 'as distinct from any other person claiming to be reversioner.
Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end.
" The expression "derivative title" was referrable to the plaintiff, and the Privy Council concluded by observing that the case did not raise any difficulty as there was "no dispute as to the plaintiff 's derivative title".
While rejecting the argument on the basis that the company was not the original lessee and being merely an assignee was free to challenge the lessor 's title, it was said that "the tenancy under section 116 does not begin afresh every time the interest of the tenant or of the landlord devolves upon a new indi vidual by succession or assignment.
" The circumstances in the case before us are similar.
The appellant does not contend that Navinchand had subsequently lost his title or that there is any defect in the derivative title of the plaintiffs.
His defence is that Navinchand did not own the property at all at any point of time, and this he cannot be allowed to do.
He cannot be permitted to question his title at the time of the commencement of the tenancy created by Ext.
P. 20. 10.
In Tej Bhan Madan vs 11 Addl.
District Judge and Others, ; , the question was whether there was a disclaimer of the landlord 's title on the part of the appellant tenant so as to incur forfeiture of the tenancy.
The premises in question originally belonged to one Shamb hoolal Jain, who died leaving behind his wife, two sons and a daughter by the name of Mainawati.
The property was sold in execution of a money decree and was purchased by Maina wati in 1956.
Mainawati conveyed the property to one Gopi nath Agarwal and the 542 appellant who was in possession as tenant attorned the tenancy in his favour.
Subsequently Gopinath sold the same in favour of the third respondent, Chhaya Gupta, and both Gopinath and Chhaya Gupta asked the appellant to attorn the tenancy in favour of Chhaya Gupta.
The appellant declined to do so and challenged not only the title of Chhaya Gupta but also the validity of the sale in favour of Gopinath.
This led to the filing of the case for his eviction on the ground of disclaimer.
It is significant to note that the foundation of the proceeding for ejectment was the appellant 's denial of the title of Gopinath in whose favour he had earlier attorned the tenancy, and not the challenge of the deriva tive title of the third respondent.
Overruling the objec tions of the appellant, a decree for eviction was passed against him and his writ petition before the High Court was dismissed.
In this background he came to this Court and made an argument similar to the one pressed in the case before us.
Rejecting the appellant 's point, this Court observed thus: "The stance of the appellant against the third respondent 's title was not on the ground of any infirmity or defect in the flow of title from Gopinath, but on the ground that the latter 's vendor Mainawati herself had no title.
The derivative title of the third respondent is not denied on any ground other than the one that the vendor, Gopinath to whom appellant had attorned had himself no title, the implication of which is that if appellant could not have denied Gopinath 's title by virtue of the inhibitions of the attornment, he could not question third re spondent 's title either.
Appellant did himself no service by this stand.
" The case is clearly against the appellant.
The above passage as also the last sentence in paragraph 4 of the judgment which is mentioned below also indicates as to what can be termed as a derivative title which a tenant may be free to challenge: "But the appellant tenant declined to do so and assailed not only the derivative title of the third respondent to the property but also the validity of the sale in favour of Gopinath himself.
In D. Satyanarayana vs P. Jagdish, ; , the Court was dealing with one of the exceptions to the rule of estoppel which permitted a sub tenent: 543 "to show that since the date of the tenancy the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder.
The facts were that the appellant was a sub tenant of the tenantrespondent and the landlord served a notice on him terminating the tenancy of the tenant respondent on the ground of unlawful subletting.
The appellant thereupon attorned in favour of the paramount title holder and started paying the rent directly to him.
The tenantrespondent, thereafter, commenced the eviction proceeding and a decree was passed which was challenged before this Court by the appellant tenant.
After enunciating the general rule of estoppel under section 116 of the Evidence Act the Court pointed out the exception where a tenant is evicted by the paramount title holder and is thereafter reinducted by him under a fresh lease.
Extending this exception to the tenant 's ap peal, it was held that the rule applied where the tenant can show: "That even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder.
" The decision is patently not applicable to the case before us.
In Mangat Ram and Another vs Sardar Meharban Singh and Others, , the principle decided was stated in the following words: "The estoppel contemplated by section 116 is re stricted to the denial of title at the com mencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title to the lessor had since come to an end.
" The Lahore case is also clearly distinguishable.
After the death of the lessor her daughters claimed rent from the tenants.
The tenants disputed their derivative title and the court held that though the tenants would not dispute the title of the mother at the commencement of the lease, they were entitled to challenge the derivative title of the plaintiffs and that the daughters had to prove that the property was Sridhan of their mother which they inherited under the Hindu Law.
The principle was correctly enunciated there, but that does not help 544 the appellant at all.
To the same effect are the following observations in Halsbury 's Laws of England 4th Edn., Vol.
16, paragraph 1628 relied upon by Mr. Rohatgi: "Thus although an assignee of the lessor is to all intents and purposes in the same situation as the lessor, and takes the benefit of and is bound by a lease by estoppel, the lessee is not estopped from showing that the lessor had no such title as he could pass to the assign ee, or that the person claiming to be the assignee is not in fact the true assignee." (emphasis supplied) The significance of the words which have been underlined above has to be appreciated for correctly understanding the principle enunciated.
For the reasons mentioned above, we hold that the appeal has no merit and is accordingly dismissed with costs.
N.V.K. Appeal dis missed.

dataset_name: IN-Abs

summary:
The respondents claimed to be the owners of the suit property by virtue of a registered sale deed in their favour by one Navinchand, who had purchased the property from his predecessor in interest Smt.
Raj Rani on 11.8.1952.
The appellant 's father Misri Lal was her tenant.
In 1959 a suit was filed by Navinchand for eviction of Misri Lal, which was resisted by the tenant on the ground that Smt.
Raj Rani had earlier transferred the house to a Trust and as such she could not later convey any title to Navinchand.
The Trial Court rejected the defence, and passed a decree against Misri Lal.
Misri Lal filed an appeal.
During its pendency, the parties resolved their dispute, by entering into a compromise.
A deed Ext.
P. 20 creating a fresh lease in favour of Misri Lal under Navinchand as lessor, was executed w.e.f. 1.12.1962.
A compromise petition exhibit P. 21 was filed and the case decreed in terms of the compromise exhibit P. 22 Misri Lal continued to occupy the house till he died in 1972 leaving behind his son, the appellant.
A fresh dispute started after Navinchand sold the suit property to the respondents plaintiffs on 4.1.73, who gave notice of the sale to the appellant on 14.3.73.
As the appellants refused to recognise them as owners, the respond ents terminated the tenancy and filed a suit for ejectment against the appellants.
This suit was resisted on the same old plea that Smt.
Raj Rani having transferred the suit property to a Trust was not competent to retransfer the property to Navinchand the vendor of the respondents.
The trial court disbelieved the defence version holding that although Smt.
Raj Rani had executed a trust deed in 1936, but the same was not acted upon and that the trust did not appear to have come into existence.
The suit was accordingly decreed.
535 On appeal, the first appellate court reversed the above finding and held that the defendant could not be estopped from challenging the title of the plaintiffs.
In second appeal, the High Court reversed the decree of the First Appellate Court, and held that the defendants were estopped from challenging the decree, Ext.
P. 22 which would bind the parties since it was founded on a compromise, and not on an adjudication by the court on the question of title.
It also observed that the statement made in the compromise petition exhibit P. 21 in the earlier suit supported the case of the plaintiffs independently of the compromise decree and that the defence plea had to be rejected in view of the deed Ext.
P. 20 creating a fresh lease.
In the appeal to this Court, it was contended on behalf of the appellant that having regard to the limited scope of a second appeal under section 100 C.P.C., the High Court was not justified in setting aside the finding of the Appellate court on the question whether the property had been alienat ed in 1936 in favour of the trust or not, that having reached a conclusion against the defendant on the basis of the lease deed exhibit P. 20, the compromise petition exhibit P. 21 and the compromise decree Ext.
P. 22, it should not have proceeded to decide the dispute relating to title on merits on the basis of evidence.
It was further contended that the appellant/tenant cannot be estopped from challenging the derivative title of the plaintiffs as he was not inducted into the house by them.
Dismissing the appeal, the Court, HELD: 1.
The doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plain tiff.
Where the landlord had not himself inducted the tenant into the disputed property and his rights are founded on a derivative title, for example, as an assignee, donee, vend ee, heir, etc., the position is a little different.
[539D] 2.
A tenant already in possession can challenge the plaintiff 's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by section 116 of the Evidence Act, which does not permit the tenant during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenan cy a title to the property.
The rule is not confined in its application to cases where the original landlord brings on action for eviction.
[539E] 536 3.
A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in.
So far as claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel and is vulnerable to a challenge.
The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non existent in the eye of law.
[539F G] 4.
In a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of dispo sition, the tenant can attack the derivative title of the transferee plaintiff but not on the ground that the trans feror landlord who had initially inducted him in possession did not have the right to do so.
Since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost this right.
These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy.
[539H; 540A B] 5.
The tenancy under section 116 does not begin afresh every time the interest of the tenancy or of the landlord devolves upon a new individual by succession or assignment.
[541E] 6.
In the instant case, the acquisition of title by the plaintiffs from Navinchand, if he be presumed to be the rightful owner, is not impugned, that is, the derivative title of the plaintiffs is not under challenge.
What the appellant wants is to deny their title by challenging the title of their vendor Navinchand which he is not entitled to do.
[540D] 7.
The appellant in the instant case does not contend that Navinchand had subsequently lost his title or that there is any defect in the derivative title of the plain tiffs.
His defence is that Navinchand did not own the property at all at any point of time, and this he cannot be allowed to do.
He cannot be permitted to question his title at the time of the commencement of the tenancy created by Ext.
P. 20.
[541F] Kumar Krishna Prasad Lal Singha Deo vs Baraboni Coal Concern Ltd. & Ors., ; Mangat Ram and Another vs Sardar Meharban Singh and Others, ; D. Satyanara 537 yana vs
P. Jagdish; , and Tej Bhan Madan vs 11 Addl.
District Judge & Ors., ; , distin guished.


judgement:
ivil Appeal No. 322 of 1973.
From the Judgment and Order dated 4.12.1970 of the Madhya Pradesh High Court in First Appeal No. 90 of 1962.
Awadh Bihan Rohtagis Vivek Gambhir and S.K. Gambhir for the Appellants.
U.R. Lalit and G.B. 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. 90/62 of the High Court of Madhya Pradesh, Indore Bench, dated July 18, 1982 reversing the decree of the trial court in O.S. No. 29/51 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 defendant/first 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, i.e. 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. 12,000 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 U.P. (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, D.W. 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 D.W. 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, i.e. the Banaras School of Hindu Law, and adopted the law of domicile, i.e. 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 U.P. 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 57(13) 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 25.07 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] L.R. 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] L.R. 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] L.R. 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 U.P. 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 U.P. 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 S.T. Desai, 15th Edn., in para 13A and 14.
In Hindu Law By S.V. 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.
1169)Naraharayya '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.
R.N.J. Appeal allowed.

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 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 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. 12,000 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 U.P. (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 57(13) 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] L.R. 11A 209 at p. 238; Martand Rao vs Malhar Rao, [1927 28] L.R. 551 A 45 at 48; Arunachel lam Chetty vs Venkatachellapathi Guru Swamigal, [1919] L.R. 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 P.C. 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.


judgement:
(C) No. 1269 of 1989.
2 (Under Article 32 of the Constitution of India).
K.M. Sharma petitioner in person.
Soli J. Sorabjee, Attorney General, Santosh Hegde, Additional Solicitor General, A.K. Sen, Manbir Singh, Girish Chandra and Ms. A. Subhashini for the Respondents.
The Court delivered the following order: ORDER Two contentions were raised by the petitioner in this writ petition challenging the appointment of Respondent No. 1, Shri Devi Lal as Deputy Prime Minister of India: (i) that the oath administered to him as Deputy Prime Minister was not the oath in accordance with the prescrip tion of the Constitution; and (ii) he was still functioning as the Chief Minister of Haryana when the oath of office of his new assignment was administered to him.
Pursuant to notice, two affidavits have been filed one by the Respondent No. 1 and the other on behalf of the Union of India.
In the affidavit of Respondent No. 1 certain precedents have been relied upon and the practice which has been followed eversince the Constitution came into force has been referred to.
Learned Attorney General appearing on behalf of the Union of India has stated that the form prescribed in the Third Schedule pursuant to the requirement of Article 75(4) of the Constitution is only for a Minister of the Union and there is no separate form even for the Prime Minister.
Since the Prime Minister is also a member of the Council of Minis ters, he takes the same oath as the other ministers are required to take.
He maintains that yet in view of the fact that the Constitution describes him as the Prime Minister, while being sworn into office, he describes himself as Prime Minister and this practice is in vogue eversince 1950.
The oath register is by the incumbent signed as Prime Minister and all other ministers sign as Ministers.
He further indi cates that describing Shri Devi Lal as Deputy Prime Minister is descriptive only and for all purposes he is a Minister and there is no 3 constitutional sanction for the post of Deputy Prime Minis ter as such.
Relying on a bench decision of this Court in the case of Virji Ram Sutaria vs Nathalal Premji Bhavadia & Ors., , learned Attorney General further contends that the prescribed oath should be divided into two parts, one which is descriptive and the other which contains the sub stantial part.
And according to him, as long as the substantial part is properly followed, a mere mistake or error in the descriptive part would not vitiate the oath.
This Court in the reported decision said: "In this case, as we have already noted, the essential requirement of Article 173 read with Form VII A was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India.
The words which precede this portion are merely descriptive of the person and of his nomination as a candidate.
" In view of the clear statement.
made by the learned Attorney General that Respondent No. 1 is just a Minister like other members of the Council of Ministers though he has been described as Deputy Prime Minister but the description of him as Deputy Prime Minister does not confer on him any powers of the Prime Minister, along with his other submis sions, we think the first contention raised by the petition er has no force.
So far as the second contention is con cerned, the petitioner himself does not press it.
We accordingly reject the writ petition for the reasons indicated above.
No costs.
P.S. S Petition dismissed.

summary:
The petitioner challenged the appointment of Respondent No. 1 as Deputy Prime Minister of India on the ground that the oath administered to him as such was not the oath in accordance with the prescription of the Constitution.
The petition was contested by Respondent No. 1 and the Union of India.
It was contended for the latter that de scribing Respondent No. 1 as Deputy Prime Minister was descriptive and for all purposes he was a Minister, that the form of oath prescribed in the Third Schedule pursuant to the requirement of Article 75(4) of the Constitution is only for a Minister of the Union, and that there was no separate form even for the Prime Minister.
It was further submitted that the prescribed oath is susceptible of division into two parts, descriptive and substantial, and as long as the substantial part is properly followed, as in the instant case, a mere mistake or error in the descriptive part would not vitiate the oath.
Dismissing the writ petition, HELD: Respondent No. 1 is just a Minister like other Members of the Council of Ministers though he has been described as Deputy Prime Minister.
The description of him as Deputy Prime Minister does not confer on him any power of Prime Minister.
It cannot, therefore, be said that the oath administered to him as Deputy Prime Minister was not the oath in accordance with the prescription of the Constitution.
[3E, 2D]