Decided on June 27,1900

Saparandhwaja Parshad Singh Appellant
Garurudhwaja Parshad Singh Respondents


DAVEY, J. - (1.) THE question on the appeal relates to the devolution of the ancestral estate of Thakur Girparshad Singh, who died in the year 1880. The defendant in the suit and present appellant is the eldest son of Girparshad, and contends that there is a custom of primogeniture in the family, and that, consequently, he is alone entitled to succeed to the estate. The plaintiff in the suit is his younger brother. He denies the existence of the alleged custom, and claims to share in the estate in accordance with the ordinary Hindu law of inheritance. The Subordinate Judge decided in favour of the alleged custom, and dismissed the suit with costs; but his decision was reversed by the High Court of Allahabad, and the appeal is from the judgment and decree of the latter Court. It is unfortunate that the plaintiff and present respondent has not appeared on this appeal. There are questions of the admissibility as well as the effect of evidence on which their Lordships would have been glad of the assistance of counsel for the respondent.
(2.) THE parties belong to a family known as the Beswan family. This family and two other families in the same district, called the Mursan and Hathras families, are Jat families of the Tenwa Clan, and are descended from a common ancestor named Nandram Faujdar, who is said to have died in the year 1695. The Mursan family is said to have been founded by Khushal, son of Zulkaran, one of the fourteen sons of Nandram. The Beswan and Hathras families alike have their descent from Jai Singh, another son of Nandram. The Hathras branch was divided from the Beswan branch in the person of Dyaram Singh in the fourth generation from Nandram, who died in the year 1823. The circumstances under which this separation took place are in controversy, and will be more fully considered hereafter. In the year 1817 Dyaram was deprived of the greater part of his possessions in consequence of his resistance to the British military forces, and his family do not now reside at Hathras. It appears from the evidence, and was accepted as a fact by both Courts, that the custom of primogeniture prevails in both the Mursan and the Hathras families. Their Lordships attach importance to this admitted fact. It points to a custom derived from a common ancestor, and lends strong antecedent probability to the appellant's case. The present Rajah of Mursan was called as a witness by the appellant; but he was supporting the respondent with a loan of money to be used for the purpose of the litigation. He could not, therefore, be expected to be very friendly to the appellant. But he does not venture to deny the existence of the custom in the Beswan family, and, singularly enough, had made no inquiry on the subject. He says: "In my family the custom of gaddinashini prevails. When a gaddinashini dies leaving several sons, one of them becomes gaddinashini and inherits all the property, and the others only get maintenance. I have heard that that custom of gaddinashini prevails in the Hathras Raj family. I do not know whether the custom of gaddinashini prevails in the Beswan family or not. I have no personal knowledge about it, and I did not make any inquiry on the point." Rajah Harnarain Singh, the present representative of the Hathras family, is a son adopted by the widow of the preceding Rajah, and was only twenty-two years of age at the time of the trial. He also is said to be unfriendly to the appellant on account of some previous litigation with Girparshad, in which the latter claimed his estates. Rajah Harnarain does not profess to know anything about the question in issue.
(3.) THERE are no records of any kind prior to the British conquest in 1803. The most important documentary evidence since that date is the record of a proceeding of the Court of the Collector of Aligarh district dated November 22, 1809. From the pedigree which is set out in the judgment of the Subordinate Judge and was accepted in the High Court, it appears that Bhuri Singh, the third in descent from Nandram, died in the year 1775, leaving two sons, Nawal and Dyaram, who, as already mentioned, was the founder of the Hathras family. Nawal Singh is stated to have died before 1800, leaving two legitimate sons, Harkishan (the eldest) and Jiwaram, and three illegitimate sons. Harkishan succeeded to Beswan in exclusion of Jiwaram, his younger brother, and died in 1808. He had two legitimate sons (who are stated to have been uterine brothers), Jey Kishore and Jogul Kishore. It is disputed whether Jogul Kishore survived his father; but for reasons to be presently stated, their Lordships think, with the Subordinate Judge, that the weight of evidence is in favour of his having done so, and of his having died without issue shortly afterwards. Harkishan also left three illegitimate sons. By his order of November 22, 1809, Mr. Elliot, the Collector of Aligarh, directed that a parwana be issued to Dyaram and Rajah Bhagwant Singh (the then representative of the Mursan family) asking them to give information whether there is any son of Harkishan other than Jey Kishore, and whether, according to the custom of Hindus, the property of Harkishan devolves upon Jey Kishore, and whether the sanads of jagir and istimrar should be granted to Jey Kishore.;

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