THAKUR RAJINDRA BAHADUR SINGH Vs. RANI RAGHUBANS KUNWAR

JUDGEMENT

(1.) The suit in which these consolidated appeals have arisen came on appeal before the Board in 1905. The Board which heard the appeal finally decided several important questions which were in dispute between the parties, but did not finally dispose of some other questions which related to portions of the property which were in dispute in the suit, and in respect of the questions which were not then finally decided advised His Majesty that these questions should be remanded to the Court of the Judicial Commissioner of Oudh with power to that Court to remit the case to the Court of the Subordinate Judge for inquiry. The judgment of the Board is reported in 32 I.A. 203. The Court of the Judicial Commissioner made on the 4th March, 1907, a decree which dealt with some of the questions in dispute, and on the 21st January, 1909, a further decree, which dealt with the remaining questions in dispute, and from those decrees these consolidated appeals have been brought. The original parties to the suit are dead and to understand the position of the parties to these consolidated appeals it is advisable to state, so far as it is material for that purpose, the pedigree of the family to which they belong, so far as it has been proved or admitted in this litigation. The members of the family are Hindus.

(2.) The property to which the suit related was property, movable and immovable, of which Balbhaddar Singh died possessed on the 12th December, 1898. On his death his widow Rani Raghubans Kunwar and his brother Sheo Singh each claimed adversely to the other all the property of which Balbhaddar Singh had died possessed, the Court of Revenue made an order for the mutation of names in favour of Sheo Singh, and he obtained possession of all the property, movable and immovable. Rani Raghubans Kunwar on the 6th February, 1900, brought this suit against Sheo Singh for possession of all the movable and immovable property. She alleged that Balbhaddar Singh had been adopted by his uncle Girwar Singh, and that Girwar Singh had by his will devised all his property to Balbhaddar Singh, who had enjoyed it until his death. Her suit was resisted by Sheo Singh, who alleged that all the property claimed by her appertained to taluqa Mahewa and was impartible ; that by a custom in the family females were excluded from the inheritance ; that the succession to the taluqa was governed by Section 22 of the Oudh Estates Act (I of 1869), under which he claimed that a brother was entitled in property to the widow; and he denied that Balbhaddar Singh had been adopted by Girwar Singh. Sheo Singh relied upon a sanad of the 19th October, 1859, by which the Government had granted taluqa Mahewa to Gajraj Singh and his heirs without other limitation of the line of inheritance. At some period of the litigation a copy of a sanad which was granted by the Government to Girwar Singh in 1861 was produced, and the Board in 1905 held that the copy was admissible in evidence, and that Girwar Singh had in fact surrendered to the Government the sanad which had been granted to Gajraj Singh in 1859 and the estate which had been granted by it, and in lieu of that sanad had accepted the sanad of 1861. The sanad of 1861 said expressly :- It is another condition of this grant that in the event of your dying intestate, or of any of your successors dying intestate, the estate shall descend to the , nearest male heir according to the rule of primogeniture.

(3.) The Courts in India had held that the sanad of 1861 could not in law operate to substitute the line of descent prescribed by it, for the line of descent prescribed by the earlier sanad of 1859, and having found that Balbhaddar Singh had been adopted by Girwar Singh and had succeeded to taluqa Mahewa under the will of Girwar Singh, and that the alleged custom excluding females from the inheritance had not been proved, gave Rani Raghubans Kunwar a decree for possession. That alleged custom excluding females from inheritance was the only custom of the family which Sheo Singh attempted to prove.