BAJRANGI SINGH Vs. MANOKARNIKA BAKHSH SINGH

JUDGEMENT

(1.) Sitla Baktah Singh, a Hindoo of the tribe of Bhale Sultan Chhattris, resident in Sultanpur, died some time before the annexation of Oudh, leaving him surviving a widow named Daryan Kunwar and two daughters, Janga Kunwar and Jagrani Kunwar. He was absolute owner of an estate known as Pidara Kurnai and other property, which at his death passed to his widow and, at her death, would have passed to his daughters, but for a custom of the tribe excluding daughters and their issue from succession. The widow died on the 6 h of August 1892. having previously said the whole of the estate to her son-in-law Maheshar Bakhsh Singh, the husband of her daughter Jagrani Kunwar and mutation of names in the Revenue Registers was effected in his favour. After the death of Maheshar, which occurred on the 3 of April 1893, the name of his son, Manokarnika Bakhsh Singh the present respondent was entered in the Government Records as proprietor of the estate; and the present appellants (with one Mahpal Singh, who died while the case was pending) brought The suit now under appeal, claiming that, by reason of the custom of the Bhale Sultan Chhattris, they were the next heirs in reversion to the estate of Sitla Bakhsh.

(2.) In the Courts below and before their Lordships two main questions were raised. First, whither the custom had been proved; and, secondly, whether certain deeds confirming the sales by the widow to Maheshar, executed by the then nearest reversioners and disclaiming all title to the property in dispute, were binding on their descendants, the appellants, who were the nearest reversioners at the time when The succession opened, at the widow's death. In the Courts in India, the District Judge held the custom not proved and the deeds not binding the Judicial Commissioner came to the exactly opposite conclusion on both points. The conflict of opinion in the Courts in India upon the question of custom has made it necessary for their Lordships to examine carefully the evidence in this case, in order to ascertain whether the alleged custom has been a his facturily proved. In making this examination, their Lordships have been materially assisted by the elaborate analysis of the evidence made by both the learned Judges below and by the learned Counsel who argued the appeal. They will briefly state the grounds on which they consider the judgment of the Judicial Commissioner on this point must prevail.

(3.) The Bhale Sultan clan appear to have derived their name, some three centuries ago, from their warlike exploits in the service of the Emperors of Delhi. They are now settled in considerable numbers in the district of Sultanpur in Oudh, in several villages in which they constitute the bulk of the population. It the language of the Indian Evidence Act. 1872. (section 43) they form a, "considerable class of persons." The evidence in support of the custom was mainly oral and no document was produced of an earlier date than the British annexature. Thirty-five witnesses were examinpd on behalf of the apellants. They were all members of the Bhale Sultan clan, mostly men of mature age and of good position. They all gave evidence that in their clan it was the custom that daughters and their issue were excluded from succession to the separated as ate of their father and put forward thirty-nine instances in which this exclusion had taken place. The Judicial Commissioner held that twenty of the so instances had been satisfactorily proved. For the respondent no evidence was given in contradiction of these instances, though ample time was allowed but for the production of such testimony had it been available but six witnesses were called, one of whom had signel a Ujib-ul-arz in which the custom was set up and two gave evidence in support of the custom.