Dismissed¶141

Santoshi Giri v. Champa Devi

Jharkhand HC1 Dec 2025SA/22/1995

Case brief

AI extract

What is this about?

Partition suit; Dayabhaga versus Mitakshara School of Hindu Law; onus/burden of proof of ancestor's year of death (Bholanath Goswami, alleged 1926); concurrent findings; second appeal; no perversity; 1925 Khatian recording female co-sharer Kaushailaya Devi; Hindu Women's Right to Property Act 1937 context; daughter's inheritance under Dayabhaga School; Title Suit No. 14 of 1982; Title Appeal No. 94 of 1989; Sub-Judge IVth Dhanbad; 6th Additional District Judge Dhanbad; Lakhiabad/Nirsa/Dhanbad; Jharkhand High Court; appeal dismissed.

What did the court decide?

The courts below rightly concluded that, since the defendants had pleaded that Bholanath Goswami died in the year 1926, it was for the defendants to prove this fact by cogent evidence, which they failed to do. ¶121

Santoshi Giri Vs Champa Devi — Succession and Inheritance | Jharkhand HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶141

Issue for consideration

Whether the family of the parties were governed by Dayabhag School of Hindu Law? +1 more

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Court's answer

First substantial question of law answered: the learned courts rightly, and based on the materials on record, came to the conclusion that the family of the parties is governed by the Dayabhaga School of Hindu Law.

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Ratio / Principle

¶121

Key takeaways

No material on the records of the case establishes that Bholanath Goswami died in the year 1926, and no substantial question of law was framed on the point of perversity.ratio¶121
Second substantial question of law answered: in the facts and circumstances of the case it was the defendants' onus to prove that Bholanath Goswami died in 1926.ratio¶122
Both substantial questions of law are essentially questions of fact and have been answered in favour of the plaintiffs (respondents) and against the contesting defendants (appellants).

Detailed headnote1 paragraphs

Second appeal (S.A. No. 22 of 1995 (R), High Court of Jharkhand) against the concurrent findings of the courts below decreeing partition of Schedule-B property in Title Suit No. 14 of 1982 (Sub-Judge IVth, Dhanbad, judgment dated 30.08.1989), affirmed in Title Appeal No. 94 of 1989 (6th Additional District Judge, Dhanbad, judgment dated 20.04.1995). Two substantial questions of law framed on admission (order dated 30.11.1995): (1) whether the family of the parties was governed by the Dayabhag School of Hindu Law; (2) whether it was the defendants' onus to prove that Bholanath Goswami died in 1926. Held: both questions were essentially questions of fact. On (1), the courts below had relied on the 1925 Khatians (Ext. 1, 1/A, 1/B) recording Kaushailaya Devi, a female, as co-sharer, and on the parties' location and Bengali language/culture, to find the family governed by the Dayabhaga School, under which Gulanchi Devi, the only daughter of Bholanath, inherited his share; this Court upheld that finding as free from perversity. On (2), since the defendants themselves pleaded the 1926 death, the onus lay on them; they failed to discharge it, no material established the 1926 death, and no substantial question was framed on perversity. Both questions answered against the appellants and in favour of the respondents; appeal dismissed; pending interlocutory application dismissed as not pressed; records ordered to be sent back forthwith.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 22 of 1995 (R)

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1. Prabhu Goswami (died on 05.03.2015 and substituted vide order dated 25.06.2015)

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1(a) Gopal Goswami, Son of Late Prabhu Goswami (died on 06.03.2018

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& deleted vide order dated on 18.02.2021)

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1(b) Santhosi Giri, Daughter of Late Prabhu Goswami

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1(c) Sarbani Giri, Daughter of Late Prabhu Goswami

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All are resident of Village- Lakhibad P.O. and P.S.- Nirsa, District- Dhanbad.

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2. Lakshman Goswami

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Both Sons of Late Durjodhan Goswami

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3. Smt. Mani Bala Goswami, Wife of Bhagwan Goswami and daughter of Late Durjodhan Goswami (died on 07.06.2018 & deleted v.o.d 18.02.2021)

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4. Kunj Bihari Goswami

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5. Krishna Pado Goswami (died & deleted v.o.d. 25.06.2015)

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5(a) Lilawati Devi (died on 09.11.2019 & deleted v.o.d. 18.02.2021)

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5(b) Shambhu Nath Goswami, Son of Late Krishna Pado Goswami

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6. Dhananjay Goswami (died on 07.08.2015 & deleted v.o.d. 18.02.2021) 6(a) Pappu Goswami

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6(b) Vikram Goswami

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Both sons of Late Dhananjay Goswami, residents of village, P.O.Lakhiabad, P.S.- Nirsa, District- Dhanbad

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6(c) Sarita Devi, D/o Late Dhananjay Goswami, Wife of Ramesh Goswami, resident of Village- Barwa East, P.O.- Nirsa, DistrictDhanbad.

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6(d) Pukki Devi, D/o Dhananjay Goswami, Wife of Pandaw Giri, resident of Village- Tarabad, P.O. and P.S.Chitra, District- Deoghar.

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6(e) Seema Devi, D/o Late Dhananjay Goswami, Wife of Bikash Bharti, resident of Village- Demoria, P.O.- Gernapari, P.S.- Kankar Tola, District- Birbhum (West Bengal)

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7. Dhiren Goswami, Son of Late Parmeshwar Goswami

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8. Sita Devi @ Sita Goswami Wife of Prasad Goswami (died on 08.06.2018 & deleted v.o.d. 18.02.2021)

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9. Genu Debya @ Genu Bala Devi, widow of Late Bibhishan Goswami (died on 05.08.2017 & deleted v.o.d 18.02.2021)

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10. Shanti Devi @ Shanti Goswami wife of Janki Goswami. (died on 20.11.2018 & deleted v.o.d. 18.02.2021)

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10(a) Naresh Giri, S/o Late Janki Goswami, resident of Village Lakhiabad, P.S.- Nirsa, District- Dhanbad

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10(b) Jasoda Devi, Wife of Vijay Goswami, resident of VillageFatehpur, P.O.- Kaliasol, P.S.- Nirsa, District- Dhanbad

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10(c) Kamla Devi, wife of Manoj Goswami, resident of Village Lakhiabad, P.O.- Barwa East, P.S.- Nirsa, District- Dhanbad, Jharkhand. 10(d) Mithila Devi, Wife of Manbhul Giri, resident of VillageBalibhasa, P.O.- Durma, District- Purulia (West Bengal)

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11. Renu Bala Goswami @ Denu Bala Goswami @ Renu Bala Devi, wife of Siban Goswami

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9 and 11, daughters of Late Parmeshwar Goswami, 1 to 9 residents of village- Lakhiabad, P.S.- Nirsa, District- Dhanbad

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10 and 11 resident of Village Junori, P.s. Nawadih, District- Giridih.

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12. Kamla Devi, wife of Late Baidhya Nath Goswami

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13. Siya Saran Goswami

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14. Haradhan Goswami

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13 and 14 Sons of Late Baidyanath Goswami

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15. Purani Bala Devi @ Puran Devi, daughter of Late Baidyanath Goswami

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16. Buchi Goswami, daughter of Late Baidhyanath Goswami (minor) being represented through her mother and natural guardian, Kamla Devi, appellant no. 12 herein.

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17. Smt. Janki Debya @ Janki Devi wife of Ramdas Goswami Daughter of Late Lakshmi Goswami (died on 11.08.1996 & deleted v.o.d. 18.02.2021)

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17(a) Niwaran Goswami, Son of Late Ram Das Goswami, 12 to 17(a) residents of VillageLakhiabad, P.S.Nirsa, District- Dhanbad.

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18. Montu Mondal Son of Late Shambhu Mandal, residents of Village Jhirka P.S.- Nirsa, District- Dhanbad.

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19. Haldhar Mondal Son of Late Paru Mandal (died on 20.06.2017 & deleted v.o.d. 18.02.2021) 19(a) Napal Mondal 19(b) Dhiren Mondal 19(c) Gopal Mondal 19(d) Nimai Mondal

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All Sons of Late Haldhar Mondal, resident of Village- Jhirka, P.O.Jhirka, P.S.- Nirsa, District- Dhanbad.

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20. Sarda Devi, wife of Prablad Goswami, Village- Junori, P.S.- Nawadih, Giridh (deleted v.o.d. 22.11.1995)

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21. Janki Devi, Wife of Shirish Goswami, Village- Lakhiabad, P.S.- Nirsa, District-Dhanbad. (deleted v.o.d. 22.11.1995)

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… … Defendants/Appellants/Appellants

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Versus

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1. Rakho Hari Goswami (died and substituted v.o.d 24.11.2022) 1(a) Chamba Devi, Widow of Late Rako Hari Goswami 1(b) Anil Giri, Son of Late Rako Hari Goswami

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Both are resident of Kaladih, P.S.- Gobindpur, District- Dhanbad

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2. Rajdeo Goswami

3. Radheshyam Goswami

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4. Ramraj Goswami All are son of Bibhishan Goswami, resident of Kaladih, P.S.Gobindpur, District- Dhanbad

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5. Smt. Paddawati Devi, wife of Dhirendra Goswami daughter of Late Bibhishan Goswami, resident of Lakhiabad, P.S.- Nirsa, DistrictDhanbad

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6. Urmila Goswami, wife of Nim Goswami, daughter of Late Bibhishan Goswami, resident of Village- Junori, P.S.- Nawadih, District- Dhanbad (died & deleted v.o.d. 18.02.2021)

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… … Plaintiffs/Respondents/Respondents

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7. Ashu Mondal, Son of Moti Mondal, resident of Village- Jhirka, P.S.Nirsa, District- Dhanbad (died & deleted v.o.d. 18.02.2021) 7(i) Amal Mondal

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7(ii) Dharmi Mondal

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Both are the sons of Late Ashu Mondal, resident- P.O. and VillageJhirka, P.S.- Nirsa, District- Dhanbad

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7(iii) Kalyani Mondal, daughter of Late Ashu Mondal, wife of Shyama Pado Mondal, resident of village- Sahajori, P.O.- Bhitia, P.S.Govindpur, District- Dhanbad.

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7(iv) Bina Mondal, Daughter of Late Ashu Mondal, Wife of Mantu Mondal, P.O., P.S. & Village- Ramchandrapur, District- Purulia (W.B)

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… … Defendants/Appellants/Proforma Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants :Mr. Manjul Prasad, Senior Advocate Mr. Akhouri Prakhar Sinha, Advocate Mr. Aman Kedia, Advocate For the Respondents : Mr. P.K. Mukhopadhyay, Advocate Mr. Shashi Kant, Advocate Mr. A.K. Sahani, Advocate Mr. S. Rehman, Advocate ---

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30 /01.12.2025

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1. Heard learned counsel for the parties.

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2. This appeal has been filed against the judgment dated 20.04.1995 (decree signed on 01.05.1995), passed by the learned 6^th Additional District Judge, Dhanbad, in Title Appeal No. 94 of 1989,

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whereby the appeal has been dismissed and the judgment dated 30.08.1989 (decree dated 13.09.1989), passed by the learned SubJudge IV^th Dhanbad, in Title Suit No. 14 of 1982 has been confirmed.

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3. The suit was filed seeking partition of Schedule-B property and the suit was decreed. The defendants filed the appeal and the appeal was dismissed by the learned 1^st appellate Court. Consequently, the defendants are the appellants before this Court.

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4. This appeal was admitted for final hearing vide order dated

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30.11.1995 on the following substantial questions of law: -

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“(1) Whether the family of the parties were governed by Dayabhag School of Hindu Law?

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(2) Whether in the facts and circumstances of the case it was the defendants’ onus to prove that Bholanath Goswami died in 1926?”

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5. Learned counsel appearing on behalf of the respondents representing the plaintiffs, at the first instance submitted that the points formulated as substantial questions of law are no substantial question of law in the eyes of law. They are essentially questions of facts and both the Courts have given clear findings that the parties were governed by Dayabhaga School of Hindu Law and it was the defendants’ onus to prove that Bhola Nath Goswami died in 1926 as the defendants asserted that Bhola Nath Goswami died in the year 1926. The learned counsel submits that both the Courts have given concurrent findings after appreciating the materials on record, therefore, these are not substantial questions of law at all. He has also submitted that in the 2^nd appeal, in absence of any perversity, there is no scope for re-appreciating the materials on record and has submitted that this appeal be dismissed.

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6. Learned counsel for the appellants has placed the judgment passed by the learned trial Court as well as the learned 1^st appellate Court and has submitted that though the questions are essentially questions of facts, but once it has been framed, the same is required to be answered.

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7. Title (Partition) Suit No. 14 of 1982 was filed by sons of Late Bibhishan Goswami. The suit was for partition and the genealogy has been given in the plaint showing that Hinglal Goswami was the common ancestor having three sons namely, Durjodhan Goswami, Puran Lal Goswami and Bholanath Goswami and the parties were descendants of the three branches. Bholanath Goswami had only one daughter namely, Gulanchi Devi and as per the genealogy, she had a number of children, both male and female.

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8. The land in Khata Nos. 8, 9, 117, 129 and 130 at Mouza Lakhiabad, Khata Nos. 74, 77, 78, 79 and 80 at Mouza Bili and Khata No. 42 of Mouza Jitpur belonged to and were recorded in the name of Hinglal Goswami having one share and Jagarnath Goswami, Motilal Goswami, sons of Gangadhar Goswami and Koushlya Debya, wife of Late Sagar Goswami jointly having another share. The land was described in schedule-A to the plaint.

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9. It was the case of the plaintiffs that Hinglal Goswami died sometimes in the year 1946 leaving behind his three sons namely, Durjodhan Goswami, Puran Lal Goswami and Bholanath Goswami. The defendants nos. 1 to 3 represented the branch of Durjodhan Goswami while defendant nos. 4 to 12 represented the branch of Puran Lal Goswami. The plaintiffs and the defendants 2^nd party were representing the branch of Bholanath Goswami. After death of Hinglal Goswami, his sons inherited the property in three equal shares. After death of Bholanath Goswami, his share was inherited by his only daughter Gulanchi Devi who was married. It was asserted that the family is governed by Dayabhaga School of Hindu Law and also by Hindu Succession Act. Since Gulanchi Devi died in the year 1976, the plaintiffs and the defendants 2^nd party inherited the interest in equal shares. It was also asserted that the entire share of co-owners of the suit property i.e., Jagarnath Goswami, Motilal Goswami and Koushlya Debya were partitioned amongst them and Hinglal Goswami long ago. 10. It was the specific case of the plaintiffs that after death of Hinglal Goswami, his three sons inherited the property and after death of one of the sons namely, Bholanath Goswami, his share was

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inherited by his only daughter namely, Gulanchi Devi as they were governed by Dayabhaga School of Hindu Law and the plaintiffs were the descendants of Gulanchi Devi, daughter of Bholanath Goswami. 11. Further, on death of Hinglal Goswami, his three sons continued to possess schedule-B land, but for the purpose of convenience, they were possessing it separately. Howeve, there was no partition by metes and bounds and late Gulanchi Devi was being supplied with her share of usufruct through her Bhagidars who were cultivating on her behalf. As long as Gulanchi Devi was alive, there was no trouble, but upon her death, the trouble started. It was their case that the plaintiffs were entitled to 1/3^rd share in the inheritance of Gulanchi Devi and they were entitled to 2/9^th share in the entire schedule-B land while the rest were entitled to 1/9^th share belonging to the defendants 2^nd party.

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12. The defendant nos. 1 and 2 filed their written statement , inter alia, stating that there was no unity of title and the suit was not maintainable. All the properties were brought in the common hotchpot. Land recorded in Khata No. 43 in Mouza Jitpur was not included in the schedule to the plaint. The suit also suffered from mis-joinder and non-joinder as the purchasers from defendants were not parties. It was also asserted that the plaintiffs and the defendants 2^nd party had no unity of title and possession in the suit land. The genealogy was accepted. However, it was asserted that Hinglal Goswami died in the year 1928 and the parties are guided by Mitakshara School of Hindu Law and not by Dayabhaga School of Hindu Law. 13. The contesting defendants denied that after death of Hinglal Goswami, his three sons inherited the property in equal share. It was also denied that after death of Bholanath Goswami, his share was inherited by his only daughter Gulanchi Devi. It was asserted that Durjodhan died sometimes in the year 1935, Puranlal Goswami died sometimes in the year 1936 and Bhonalath died sometimes in the year 1926 leaving behind his only daughter Gulanchi Devi. After death of Bholanath Goswami, the surviving sons, Durjodhan and Puranlal Goswami inherited the properties of Bholanath Goswami and thus, Durjodhan came in possession of half interest of the property of

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Hinglal and Puranlal Goswami remained in possession of half of the properties and after their death, their sons and descendants have inherited the property unconcerned with Gulanchi Devi – the only daughter of Bholanath Goswami. It was denied that the plaintiffs and the defendants 2^nd party never inherited the interest in the property of Hinglal Goswami.

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14. The learned trial court decreed the suit. The learned trial Court observed that from the documentary as well as the oral evidence adduced by both the parties, it was not clear that Bhola Nath Goswami died in the year 1926 and observed that prima facie the burden was upon the defendant 1^st party who alleged that Bhola Nath Goswami died in the year 1926 which the defendant 1^st party failed to prove. Learned trial Court was of the view that in absence of evidence, it was difficult to hold that Bhola Nath Goswami died in the year 1926 and the contention of the plaintiff that Bhola Nath died after 1926 was accepted by the learned Trial Court.

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15. With respect to the point as to whether the parties are governed by Mitakshara School of Hindu Law or Dayabhaga School of Hindu Law. The learned trial Court took up the matter right from paragraph no. 11 onwards and after considering the materials on record including the fact that the area to which the parties belonged which was Purulia form part of the West Bengal State and also the Khatian of the year 1925. The learned trial Court came to finding that the family was governed by Dayabhaga School of Hindu Law .

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16. Learned trial court specifically dealt with issues as to whether the parties are governed by Mitakshara School of Hindu Law or Dayabhaga School of Hindu Law in paragraphs 11, 12 and 13 as follows:

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“ 11. Now the next question is to be decided whether the families of the parties were governed by Mitaksara School of Hindu law or Dayabhaga School of Hindu law. The plaintiff made assertion in the plaint that families were governed by Dayabhaga school of Hindu law were as the deft. Ist party stated in the written statement that families were governed by

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Mitaksara school of Hindu law. On this point there is absolutely no oral evidence adduced by the parties. P.w. 1, 2, 3, 4, 5 and 6 have not stated in their evidences clearly that families were governed by Dayabhaga school of Hindu law. Similarly D.W. I, D.W. 2, 3, 4, 5, 6 and 7 have not deposed in their evidences that families were governed by Mitaksara school of hindu law.

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12. At the time of argument defendant’s lawyer contended that general presumption is that the families were governed by Mitakasara school of Hindu law unless contrary is shown. In the present suit plaintiff has failed to prove that the families were governed by Dayabhaga school of Hindu law it means that the families were governed by Mitaksara school of Hindu law. On the other hand, defendant’s lawyer contended that the families were governed by Dayabhaga school of hindu has proved by the documents filed by the plaintiff. The documents filed by the plaintiff and it cannot be reverted by the deft during the hearing of the suit nor the deft. Ist party has challenge the genuineness of the documents.

¶102

13. In the present suit one thing is to be remember that previously Dhanbad district was within Purulia Sub Division. Purulia Sub Division was the part of Manjhum district. Subsequently some part of Purulia sub-Division was divided and Dhanbad came into Bihar province and Purulia form part of West-Bengal state. So it will be presumed that Bengal School of Hindu law i.e. Dayabhaga School of Hindu law was prevalent between the parties because Dayabhaga school of Hindu law was common in Bengal whereas in the other province Mitaksara school of Hindu law prevails. So in this case presumption is not drawn in favour of deft. Ist party that Mitaksara school of Hindu law was prevails unless contrary is shown. Ext. I, I/a and I/b are the Khatian of mouza Jitpur, Lakhiabad and Bili. These Khatians were recorded in the name of Hing-Lall Goswami, Jagarnath

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Goswami, Gangadhar Goswami and Kausalaya and others. Ext. I is the Khatian of mouza Jitpur. The Khatian was prepared in the year 1925 before commencing of Hindu Woman right to property Act 1937. From perusal of Ext. I I find that the name of Kausalya Devi is there. If the family was governed by Mitaksara school of Hindu law then in that case the name of Kausalaya Devi was not mentioned in the Khatian which was prepared in the year 1925. It goes to show that families are governed by Dayabhaga School of Hindu law. In Dayabhaga school of Hindu law the share of the heirs are definite. The female is also entitled to get share left by the deceased. On the other hand in the Mitaksara school of Hindu law before 1937, after the death of a deceased male owner the property passed to the next reversioners if the male member of the deceased was not alive. Ext. I clearly shows that Kausalya Devi was the wife of Sagar Goswami. It shows that Gangadhar Goswami died and after the death of Gangadhar Goswami, his interest was inherited by Kausalya Devi. It clearly prove the version of the plaintiff that family was governed by Dayabhaga school of Hindu law. If I come to the conclusion that the family was governed by Dayabhaga school of Hindu law, then if for the argument sake it will be presumed that Bhola Nath died in the year 1926 then in that case also, Gulanchi or the widow of Bhola Nath will inherited the property left by Bhola Nath. D.W. 7 had clearly stated in his evidence that after the death of Bhola Nath his widow namely, Domni and his daughter Gulanchi Devi lived in the house of Bhola Nath. The widow of Bhola Nath died and after the death of Bhola Nath 8 to 10 years after. The evidence of D.W. 7 clearly shows that the widow of Bhola Nath and daughter of Bhola Nath reside in the same house in which Bhola Nath reside. So I come to the conclusion that the family was governed by Dayabhaga school of Hindu law. In absence of any prove it cannot be said that Bhola Nath died before 1926. If Bhola Nath died

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after 1937 certainly in that case the widow of Bhola Nath will get the share in the property left by Bhola Nath and the property may not pass to the reversionary to Bhola Nath i.e. brother of Bhola Nath and heirs of Bhola Nath.”

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17. It was the specific case of the plaintiffs before the learned trial court that they were governed by Dayabhaga School of Hindu Law and therefore, Gulanchi devi, being the only daughter of Bholanath was entitled to inherit his entire property. On the other hand , it was the case of the defendants that the parties are governed by Mitakshara School of Hindu Law and there are only two modes of inheritance; one is survivorship and the other is by succession. It was their further case that Bholanath Goswami died prior to Hinglal Goswami i.e., sometimes in the year 1926 and by that time, Hindu Women’s right to property had not come into existence and therefore, after death of Bholanath, his share would devolve upon the next reversioners immediately, i.e., the share of Bholanath was inherited by Durjodhan and Puranlal. It was asserted that Gulanchi being a daughter, had no share in the property left by her father.

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18. The learned trial court specifically dealt with the point with regard to the year of death of Bholanath Goswami and recorded in paragraph 8 of its judgment that the defendant 1^st party asserted that Bholanath Goswami died in the year 1926 and since it was the assertion of the defendants, it was for the defendants to prove this fact.

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19. The learned trial court discussed the evidence of defendants’ witnesses and recorded that their oral evidences were of no use. The learned Court thereafter took up the documentary evidences for consideration from paragraph 10 onwards and recorded the finding as under:

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“10. Now come to the documents filed by the parties. The deft. Ist party filed the certified copy of plaint of Title suit no. 64/30 which is Ext. B. The plaint of Title suit no. 65/30 is Ext. B/I on the record. From these documents the deft. Ist party wanted to show that in both the plaints it were shown that Durjodhan Goswami and Puranlal Goswami are sons of Late Hinglal Goswami. It means that Hinglal died before 1930. In Ext. B and B/I which are the plaint of Title suit no. 64/30 and 65/30 the

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name of Bhola Nath was not mentioned. If Bholanath alive at that time certainly he would be party in both the suits but the name of Bhola Nath was not mentioned in Title suit no. 64/30 and 65/30. It goes to show that Bhola Nath died prior to 1930. The plaintiff’s lawyer contended that only the name of Bhola Nath was not mentioned in the plaint it will not established that Bhola Nath died in the year 1926. Title suit no. 64/30 & 65/30 were filed against the Kurfa raiyat so it is not necessary to implicate all the co-sharers in both the aforesaid suits. Ext. B and B/I are not the prove of the death of Bhola Nath. The submission of the plaintiff’s lawyer seems to be tenable. P.W. 6 who is one of the plaintiff in the present suit has also explained in his evidence that Bhola Nath was not made party in the aforesaid suits because Durjodhan and Puranlal were looked after the suits. Bhola Nath not looked after the suits so he was not included as party in Title suit no. 64/30 and 65/30. The explanation given by P.W. 6 are reasonable. So from the documents as well as the oral evidence adduced by both the parties it will not be clear that Bhola Nath died in the year 1926. Prima facie the burden lies upon the deft. Ist party who alleges that Bhola Nath died in the year 1926. The deft. Ist party have failed to prove that Bhola Nath died in the year 1926. In absence of the evidence, it is difficult to hold that Bhola Nath died in the year 1926. So the contention of the plaintiff that Bhola Nath died after 1926 can be accepted.”

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20. Before the learned 1^st appellate court, the very first paragraph records that the main point before the learned 1^st appellate court was that the learned trial court did not properly appreciate recording the date of death of Bholanath Goswami and that the court presumed that the parties are governed by Dayabhaga School of Hindu Law whereas they are governed by the Mitakshara School of Hindu Law.

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21. After considering the oral as well as documentary evidences, the learned 1^st appellate court held that the defendants failed to establish that Bholanath had died in the year 1926. The learned Court was of the view that since defendants had taken a specific plea that Bholanath Goswami died in the year 1926, it was for the defendants to prove the same which the defendants miserably failed to prove.

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22. This court finds that the date of death of Bholanath Goswami is essentially a question of fact. Since the defendants had pleaded that Bholanath Goswami died in the year 1926, the learned courts have

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rightly come to the conclusion that it was for the defendants to prove this fact by cogent evidence which they failed to prove. No material has been pointed out from the records of the case to show that there was any material to establish that Bholanath Goswami died in the year 1926 nor any such substantial question of law has been framed on the point of perversity.

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23. The finding of the learned trial Court has been arrived at after considering the materials placed on record and during the course of hearing, learned counsel for the appellants has not been able to show any perversity in the matter of appreciation of evidence by the learned Trial Court or by the learned 1^st appellate court while upholding the findings. Accordingly, in the facts and circumstances of the case it was the defendants’ onus to prove that Bholanath Goswami died in 1926. The 2^nd substantial question of law is accordingly answered.

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24. With respect to the point as to whether the parties are governed by Dayabhaga School of Hindu Law or by Mitakshara School of Hindu Law, the discussions of the learned 1^st appellate court are in paragraph 6 and 9 of the judgment which are as under:

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“ 6. The learned trial court framed five issues. Under issue No (4), the trial court decided the question whether the plaintiff is entitled to a decree as claimed for. He decided the question in the affirmative under this issue. The learned trial court examined the point whether the family of the plaintiff and contesting defendants were governed by Dayabagh School of Hindu law or Mitakshara School of Hindu Law and found from evidence on record that they are governed by Dayabagh School of Hindu Law. The learned lower court found that it is admitted by the parties that Hing Lal Goswami had three sons, Duryodhan, Puran Lal and Bhola nath and Gulanchi Devi was the daughter of Bhola Nath Gosawami and that the defendants 2^nd party are the descendants of Gulanchi Devi. It is also admitted by the parties that the lands in dispute are recorded in the name of Jagar Nath and Hing Lal and others. It appears that the contesting defendant in the lower court as well as in this court contended that the family of the plaintiffs are governed by Mitakshara School of Hindu Law in which females were not the co-partitioners and as Bhola Nath Goswami died in or about the year 1976, her daughter Gulanchi Devi did not inherit him as she was not entitled to

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inherit under the Mitakshara School of Hindu law. Thereafter, trial court found that the contesting defendant have not given evidence in support of their claim that the suit property is governed by Mitakshara school of Hindu Law. The learned trial court has correctly opined that the parties are to prove school of Hindu law which governs them because it is their personal law. The learned trial court found that the family of the plaintiff and the contesting defendant have bangali language and culture and have come in Bihar state due to re-organization of the boundaries of Dhanbad and Purulia District, which were earlier in Manbhum sub-division where bangali language and culture was prevalent and Dayabagh school of Hindu Law governed. This findings of the learned trial court is correct because the school of Hindu Law are personal laws and rules of lex loci does not apply. So learned lower court did not take the presumption that in Bihar Mitakshara School of Hindu Law is applicable to the property involved in this suit. On perusal of record I find that the contesting defendant have not adduced evidence to support their claims that plaintiff and the contesting defendants are governed by Mitakshara school of Hindu Law. Learned lower court has correctly found that the suit lands thus previously were in west Bengal and as such law of presumption could not be made in favour of the contesting defendant that Mitakshara School of Hindu Law is applicable. In this regard the learned trial court looked into the Exhibit no. (1), 1/A and 1/B, the Khatihan of mauza, Jeetpur, Lakhiyabad and Billy recorded in the name of Hing Lal Gosawami, Jagarnath Gosawami, Gangadhar Gosawami, Kaushaila Devi and others. The Khatihan were prepared in the year 1925 when the Hindu Women right to property act 1937 was not in existence and that the name of Kaushailaya Devi was recorded in Ext. (1) clearly indicated that a female was also entitled to inherit in 1925. Learned lower court thus come to definite findings that the entry of name of Kaushailaya Devi, a female, in the record of right proved that Dayabagh School of Hindu Law is applicable. This finding of the learned lower court is quite correct. I perused the Khatihan and find that the Kaushailya Devi is recorded as tenant with other male cosharers. The contesting defendant could not falsify the said entry of Kaushailaya Devi in the said record of right, so, it appears that the main point of contention of the contesting defendant that the suit property are governed by Mitakshara school of Hindu law is not maintained and the

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other objections of possession based on the said contention became furtile.

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7…

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8…

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9. In para (11) and (13) of the judgment, learned trial court has considered the school of Hindu Law applicable. In this regard, he perused the evidence of plaintiff’s witness as well as the evidence of the defence witness and correctly found that they have given no material to decide which of the Hindu law is applicable. But the learned trial court relied upon in the Khatihan marked Ext. (1), (1/A) and (1/B) adduced on behalf of the plaintiffs. Learned trial court found that the Ext. (1) the Khatihan of village Jeetpur has entry of Kaushailaya Devi, widow of Sagar Goswami (a co-sharers of Hing Lal Gosawami, Jagarnath and Gangadhar Gosawami) and came to a definite findings that Dayabagh school of Hindu Law is applicable to the family involved because the name of female Kaushailaya Devi is recorded as co-sharers in the said Khatihan. Learned trial court has thus correctly found that Dayabagh school of Hindu Law is applicable in this suit because in the year 1925 when the said Khatihan was prepared the female could not have been recorded as co-parcener with male coparcerners in the records of right. I agree with the learned trial court’s findings that the Dayabagh school of Hindu Law is applicable to the families of the suit involved. The learned trial court further considered that D.W. (4) (who is defendant No. 1) admitted that Domini and Gulanchi Devi, the widow and daughter of Bhola Nath respectively, lived in the house of Bhola nath after his death. This also supports that after the death of Bhola Nath, Gulanchi Devi lived with mother in her paternal house. Regarding the possession of the suit property, the learned trial court considered in para-14 and found that P.W. (3) to six all support possession of the plaintiff and P.W. (2) stated in his evidence that Gulanchi Devi cultivated through Dhiren Gosawami. D.W. (1) Tikka ram Tuddu has in his crossexamination in para – (6) admitted that the plaintiff are in possession of the suit lands alongwith other co-sharers. So the rent receipt produced on behalf of the defendant which was marked Ext. (A) series are issued in the name of Hing Lal Gosawami which shows that family is not separate otherwise the rent receipt would have been issued in the separate name of the son and other descendants of Hing Lal Gosawami. So the learned trial court has correctly found that the suit property are not partitioned.”

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25. This court finds that the plaintiffs pleaded that the parties are governed by Dayabhaga School of Hindu Law and the contesting defendants pleaded that they are governed by the Mitakshara School of Hindu Law. The learned trial court considered the entire facts and circumstances of the case including all the evidences placed on record and also the location and the culture the parties and interalia, relied upon the Khatiyan marked Ext. (1), (1/A) and (1/B) and found that the Ext. (1) the Khatiyan of village Jeetpur has entry of Kaushailaya Devi, widow of Sagar Goswami (a co-sharers of Hing Lal Gosawami, Jagarnath and Gangadhar Gosawami) and came to a definite finding that Dayabhaga school of Hindu Law is applicable to the family involved because the name of female Kaushailaya Devi is recorded as co-sharers in the said Khatiyan. This finding has been upheld by the learned 1^st appellate court. This court is of the considered view that the learned courts have come to a definite finding based on facts and circumstances of the case and materials placed on record that the parties are governed by Dayabhaga School of Hindu Law which is essentially a question of fact. No perversity in the matter of coming to such finding has been pointed out by the learned counsel for the appellants nor any such substantial question of law has been framed that such finding suffers from any perversity. Accordingly, while answering the 1^st substantial question of law it is held that the learned court has rightly and based on materials on record, come to a conclusion that the family of the parties are governed by Dayabhaga School of Hindu Law.

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26. In view of the aforesaid facts and circumstances and in view of the substantial questions of law so framed, this Court has gone through both the judgments and has not found any error in the approach of the learned Courts while dealing with the aforesaid facts. 27. Thus, this court is of the view that both the substantial questions of law are essentially questions of facts and both have been answered in favour of the plaintiffs (respondents) and against the contesting defendants (appellants). This court finds that the family of

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the parties were certainly governed by the Dayabhaga School of Hindu Law and once the contesting defendants were claiming that Bhola Nath Goswami died in the year 1926, the onus was certainly upon the contesting defendants to prove this fact as pleaded by them. 28. In such circumstances, both the substantial questions of law are answered against the appellants and in favour of the respondents.

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29. This appeal is hereby dismissed.

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30. Pending interlocutory application, if any, is dismissed as not pressed.

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31. Let the records received from the learned courts concerned be sent back forthwith.

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(Anubha Rawat Choudhary, J.)

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Date of order: 01.12.2025 Simran/ Uploaded on:-27.02.2026

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