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TMI Blog1898 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... rge territory of Bundelkhand, the sovereignty of which passed to the Company by treaties with the Peishwa. The chieftainship was continued to the existing chief, called the Rao, and to his family, which became extinct in the year 1840. The estate of Gursarai was managed for the chief by Dinkar Rao, the head of a noble family, till his death in 1831. He had two sons, Balkrishen and Kesho. Balkrishen, having no issue, adopted his nephew Atma, one of Keaho's sons; and he died about the time of the change of dominion. When the Company's officers came to make the requisite arrangements they found Kesho in occupation of the estate. 3. It is conclusively established in this suit that Dinkar Rao and his sons had no proprietary interest in the estate; they were only managers, accountable to their chief for the revenues and bound to deal with the estate as he ordered. It is probable that the officers of the Company who came to deal with the Jalaun lands were, as both the Deputy Commissioner and the Commissioner of Jhansi have intimated, under a misapprehension on this point, and thought that Kesho enjoyed some proprietary holding on a favourable rent, called locally an obari tenur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that which has legal validity. 8. On the 4th of August 1866 Major McNeile, then Commissioner of Jhansi, wrote to the Provincial Board of Revenue intimating that Kesho was anxious to obtain the orders of Government regarding the terms on which his estate was to descend to his sons. The letter relates not only to Gursarai, but to other villages which it seems had been granted to Kesho for his loyalty during the Mutiny. The writer mentions the agreement between the brothers thus: All parties interested in the matter have consented that Atma Ram shall take half the estate on his father's death and the other four brothers one-eighth each, and this may be considered as finally adjusted. 8. He then goes on to suggest what shall be done with what he calls the quit-rent, meaning the obari or reduced jama. He goes into in my particulars which need not be detailed now because they are summed up in a document of higher authority, which was not produced to the two lower Courts, but was before the High Court. 9. That document is a letter from the Board of Revenue to the Government of the North-West Provinces. The material passages are as follows: The Raja's eldest son, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Secretary of State is dated the 25th of February 1867, and is as follows: Having considered in Council the letter of Your Excellency's Government, No, 190, dated 23rd November 1866, in which you suggest the continuance to the loyal members of the family of Kesho Rao Dinkar of Gursarai in Bundelkhand, of the entire estate now held by him, on the terms set forth by the Board of Revenue of the North-West Provinces and Commissioner of the Jhansi Division, I have to signify to you the ready assent of Her Majesty's Government to the indulgence now accorded to the family of this meritorious chieftain. You will of course take measures to prevent the occurrence, on the death of the aged chief, of any dispute relative to the succession of the second son. 12. Nobody has doubted that by the term second son Atma is meant. It is to be observed that this letter is not only the effective source of whatever title Kesho's descendants have, but is also the most accurate statement of the true nature of the grant to them. Previous documents in 1852 and 1866 use some inapt and inaccurate expressions such as family agreements, rights, descent of the estate, and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute in the case. 15. The Deputy Commissioner, who formed the Court of First Instance, shows that the family of Dinkar Rao were simply managers, and that the plaintiffs failed to prove any grant except that of the Secretary of State, which he calls the sanad on which the defendant bases his claim to succession. He dismissed the claim with costs. 16. On appeal the Commissioner found that the estate was acquired by Kesho, and that the plaintiffs as heirs of Kesho had a title superior to that of the defendant; and he decreed accordingly. His view, to state it very briefly, was that in some way not now apparent the ownership of the estate had become absolutely vested in Kesho, and that the official correspondence and acts in 1852 and 1866 are explained by confining the discretionary action of the Government to the obari or favourable jama. That view has been supported by Mr. Cowell in argument at this Bar. It is true, as before observed, that some expressions in official letters tend to imply that the writers ascribed to Kesho some proprietary interest which it is shown that he did not in fact possess. It is also true that the estate and the jama are not always clearly disting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obscurely, in the issues they have been fully put in evidence, and they have formed the main subject of discussion and decision in all three Courts. The High Court are right in treating the case as not within the rule. As between plaintiff and defendant the case has been thoroughly tried out. Indeed, Mr. Mayne for the defendant does not now dispute that the other members of the family are entitled to a moiety. It is quite right to make a declaration on the subject. But then their Lordships think that the terms of the declaration maybe advantageously modified, and that the Court may found on the declaration an inquiry into the plaintiffs' title. 20. According to the letter of the 17th of August 1866, paragraphs 6 to 10, the persons entitled to the four shares, each to a separate share, are the other four sons of the present Raja. Two of those sons are plaintiffs, and one being dead is represented by his adopted son, who is a plaintiff. Tantia, the eldest, is passed over in silence. But under the family compact which is the basis of the grant, Tantia takes a share. It was his claim by primogeniture which was set aside, not his claim as a sharer, as is clearly shown by Major ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he made an alternative case that he was at all events entitled to a moiety. Even now, though he does not claim the entirety, his whole appeal is grounded on his objection to any declaration as to the moiety which is not his. And he has excluded his co-sharers at least till the High Court judgment was delivered, if not later. 25. Though their Lordships agree with the High Court on the substance of the case, and indeed are doing little more than to apply the views of the learned Judges in a more ample way, it will be simpler in point of form to discharge their decree and to substitute a decree to the following effect:--Reverse the decree of the Commissioner of Jhansi. Declare that the defendant Atma Ram was entitled to a moiety only of the Gursarai estate, and that his successors in title are now entitled to a like moiety. Declare that the other moiety belongs to the persons entitled thereto by virtue of the letter of the Secretary of State in Council, dated the 25th of February 1867, and according to the terms of the letter of the Board of Revenue dated the 17th of August 1866 (that is to say) the four brothers of Atma then living referred to in the last-mentioned letter or tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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