SOMESHWARI PRASAD NARAIN DEO Vs. MAHESHWARI PRASAD NARAIN DEO

JUDGEMENT

(1.) The dispute in this appeal relates to the succession to an estate, situate in the Province of Behar, which is known as the Dhanwar Estate. The succession opened on the death of Ran Bahadur Narain Deo, which took place on 6 October 1900. He left surviving him, two sons, Ishwari Prasad Narain Deo and Harihar Prasad Narain Deo. It appears that the Court of Wards had taken possession of the estate in the lifetime of the deceased, but released it after his death to his elder son Ishawari Prasad. The suit was commenced in 1917 by the younger son for a partition of the estate, and subsequently his sons and other persons were added as plaintiffs. The claim was resisted on the ground that the estate was impartible, and that the succession to it was governed by the rule of lineal primogeniture. It was pleaded that the plaintiff, Harihar Prasad, being a junior member of the family, was entitled, not to a share in the estate, but only to maintenance. The Courts below, the Subordinate Judge who tried the suit, and the High Court at Patna, who heard the appeal from his judgment, have upheld this plea; and the principal question for determination is whether the estate descends according to the rule of lineal primogeniture.

(2.) Now, the Dhanwar Estate is an estate of considerable age, and, apart from the traditions which rest upon doubtful material, there is abundant documentary evidence to show that in the first half of the 18 century, it consisted, not only of 17 nankar (revenue free) villages and 53 khalsa (revenue paying) villages, but also of other territories. The estate was at that time known as Pargunnah Kharagdiha, and was held by Mode Narain, an ancestor of Ran Bahadur. Mode Narain was evicted in 1752 by one Kamdar Khan, who was succeeded by his son Ekbal Ali Khan. In 1774, Ekbal Ali Khan rebelled against the East India Company, who had acquired the Diwany of the Province of Behar, with the result that he lost the estate by forfeiture. Mode Narain's grandson, Girwar Narain, had helped the Company in suppressing the rebellion ; and he was rewarded in 1775 with the grant of 17 nankar villages. In 1805, one khalsa village, Mandhirkha, was settled with him; and this was followed in 1810 by the settlement of other khalsa villages, 52 in number. These villages (both nankar and khalsa) formed part of the estate, which had descended to Mode Narain from his ancestors, and from which he was expelled by force in 1752. The pedigree table of the family which is not in dispute, shows that Girwar Narain had a younger brother Sobh Narain; but all the villages were granted to the elder brother, who provided only maintenance for his younger brother.

(3.) After Girwar Narain's death, the whole of the estate, comprising seventy villages, devolved upon his elder son Khem Narain, and upon the latter's death descended to his son Ban Bahadur. It appears that during Ban Bahadur's tenure several immoveable properties were purchased out of the income which accrued from the ancestral estate, and it is a matter for consideration whether the properties so acquired are governed by the same rule of succession as is applicable to the ancestral estate. The Courts below have discussed the evidence in detail and reached the conclusion that the ancestral estate is impartible, and that its devolution is governed by a family custom under which it passes to a single heir according to the rule of primogeniture. The learned Judges of the High Court, in concurrence with the Subordinate Judge, hold that the following facts have been established : (1) The estate, prior to 1752, partook of the nature of a raj and descended to a single heir in accordance with the rule of lineal primogeniture. (2) The same incidents of impartibility and descent to a single heir continued after the grant made by the East India Company to Girwar Narain. (3) The junior members of the family received only maintenance out of the estate. They did not assert their right to a share in the estate, or if some of them asserted that right, they failed in their attempt. These conclusions are! supported by evidence, and their Lordships are not prepared to depart from their usual practice of not disturbing concurrent findings on issues of fact recorded by the Courts in India. It is clear that these findings fully establish the custom of primogeniture invoked by the defendants. In view of this custom the plaintiff's claim to a share in the ancestral estate must fail.