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TMI Blog1916 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... e kabuliyat , or engagement for the payment of revenue, executed by Jamshed Ali Khan, bears date the 22nd January 1859. On the 17th October 1861, he received a sanad conferring on him the full proprietary right, title, and possession" of the estate of Deogaon and of Altnasgunj, consisting of the villages in the list attached to his kabuliyat . This sanad, among other conditions, declared as follows: 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, i.e., sons, nephews, etc., according to the rule of primogeniture, but you and all your successors shall have full power to alienate the estate, either in whole or in part, by sale, mortgage, gift, bequest, or adoption, to whomsoever you please. 4. Jamshed Ali Khan died in 1835; his name, however, is found entered as talukdar in the lists Nos. 1 and 2 mentioned in Act I of 1869 (the Oudh Estates Act). 5. He was succeeded by his son Rajah Azam Ali Khan, who appears to have acquired, between 1868 and the time of his death, considerable property, moveable and immovable, which, not coming within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate Judge relates to the question of custom, and is in these terms: Whether there exists any custom in the family of the parties relating to the acquired property, under which a single member becomes the owner, and according to which the father of the defendant and the defendant alone became entitled? 10. The onus of establishing the family custom was placed on the defendant; and although his Pleader appears to have objected that this burden was wrongly thrown on him, he produced a considerable body of evidence, oral and documentary, in support of his allegation regarding the course of descent relating to the family property. The plaintiff, in rebuttal, as it is called, of the case made by the defendant, gave his own evidence and examined his sister, a lady of the name of Kaniz Batul, widow of the late Nawab of Hasanpur. He also produced some wajib-ul-arz, or village administration papers for several years ranging from 1864 to 1873. To these their Lordships will refer, very shortly, later on. 11. On the question whether Act I of 1869 applied to the estate of Deogaon, the Subordinate Judge held in substance that as Jamshed All Khan had died before it came into force, his name w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction between ancestral and acquired property. 14. The judgment of the Judicial Commissioners has been assailed in this appeal chiefly on two grounds: firstly, it is contended that the presumption on which the learned Judges have mainly rested their decision, has been wrongly raised and wrongly applied; and, secondly, that the onus has been wrongly thrown on the plaintiff, inasmuch as it lay on the defendant, as established in Janki Pershad Singh v. Dwarka Pershad Singh 20 Ind. Cas. 73 : 40 I.A. 170 at p. 175 : 35 A. 391 : 17 C.W.N. 1029 : 14 M.L.T. 110 : 25 M.L.J. 34 : (1913) M.W.N. 630 : 18 C.L.J. 200 : 11 A.L.J. 818 : 15 Bom. L.R. 153 : 16 O.C. 216 (P.C.), known locally as the Banimau case, to prove affirmatively the custom alleged by him. The two points are so closely inter-related that their Lordships do not propose to discuss or consider them separately. 14. The contentions of the parties on the question of presumption rest on the provisions of Sections 8 and 10 of the Act; and although these sections have formed the subject of discussion in several previous decisions of this Board, it becomes necessary again for the purposes of this judgment to refer to them shortly. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally came under list No 3 and not under list No. 2, and that, consequently, no presumption as to a custom relating to the descent of the estate can arise. In support of this contention, reference is made to the Chief Commissioner's circular, dated the 18th day of January 1860, by which the talukdars were invited to file a written declaration," expressing their desire that their estate should not be subdivided at their death "or in any-future generation." A similar expression of wish was invited from such talukdars as had received sanads, and in whose families the law of primogeniture does not prevail." 19. It appears that in response to this invitation, Jamshed Ali Khan submitted, on the 6th day of February 1860, the following representation: Sir, The British. Government has been pleased to confer upon me the proprietary rights of the Deogaon Estate, Pargana Jagdispur, District Fyzabad. I, therefore, wish and pray that after my death my estate may be allowed to continue in my family, generation after generation, in its entirety, without partition, according to the custom of rajgaddi , and the younger brother may get the maintenance from the gaddinashin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geniture from the scope of list No. 2. In fact, in Thakur Ishri Singh's case 11 I.A. 135 at p. 146 : 10 C. 792 (P.C.) : 8 Ind. Jur. 331 : 4 Sar. P. C.J. 628 : Rafiquo & Jackson's P. C. No. 79 : 6 Ind. Dec. (N.S.) 531 decided shortly after, where also the deceased talukdar's name was inserted in lists Nos. 1 and 2, Sir Arthur Hobhouse (afterwards Lord Hobhouse) delivering the judgment of the Board used the following language: "Now, however true it may be that if there is absolutely nothing to guide the mind to any other conclusion, an impartible estate will descend according to the law of primogeniture, it is impossible to say there is no such guide in this case." It was found in Thakur Ishri Singh's case 11 I.A. 135 at p. 146 : 10 C. 792 (P.C.) : 8 Ind. Jur. 331 : 4 Sar. P. C.J. 628 : Rafiquo & Jackson's P. C. No. 79 : 6 Ind. Dec. (N.S.) 531 that the deceased Talukdar Beni Singh had in his lifetime, on the 20th February 1860, in answer to the Chief Commissioner's circular letter already referred to, stated the usage in his family to be the selection of 'an able one" out of several sons without reference to seniority" to succeed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after declaring that "no persons shall be considered talukdars or grantees within the meaning of the Act, other than the persons named in such original or supplementary lists as aforesaid" (Section 9), provides that 'the Courts shall take judicial notice of the said lists and shall regard them as conclusive evidence that the persons named therein are such talukdars or grantees," that is, within the meaning of the Act." 25. This does not mean they shall be conclusive merely as to the fact that the persons entered therein are talukdars as defined in Section 2; in their Lordships' opinion, the provision of Section 10 goes much further; it means that the Courts shall regard the insertion of the names in those lists as a conclusive evidence" of the fact on which is based the status assigned to the person named in the different lists. For example, in list No. 2 such talukdars alone are included whose estates, according to the custom of the family' on and before the 13th February 1856" (the date of the first Annexation of Oudh), "ordinarily descended upon a single heir." Their title to have their names inserted in that list is based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajah Pertab Narain Singh v. Maharanee Subhao Kooer 4 I. 228 at p. 246 : 1 C.L.R. 113 : 3 Sar. P.C.J. 740 : 3 Suth. P.C.J. 458 : Rafique & Jackson's P.C. No. 46 : 1 Ind. Jur. 679 : 1 Ind. Dec. (N.S.) 983 : 3 C. 626 (P.C.) (a case under the Oudh Estates Act), where, in making the decree, their Lordships added the following limitation: The declaration, however, must, their Lordships think, be limited to the taluk and what passes with it. If the Maharajah had personal or other property not properly parcel of the talukdari estate, that would seem to be descendible according to the ordinary law of succession. 28. Similar differentiation was made in another Mitakshara case, which, however, did not arise in Oudh, but which equally exemplifies the rule. Srimati Rani Parbati Kumari Debi v. Jagadis Chunder Dhabal 29. I.A. 82 at p. 98 : 4 Bom. L.R. 365 : 29 C. 433 : 6 C.W.N. 490 : 8 Sar. P.C.J. 205. 29. Unless there be a custom by which self-acquired properties in a Mitakshara family become part of the ancestral estate, or unless it be shown that the person acquiring the same intended to incorporate such acquisitions with the estate, they descend by the ordinary law of inheritance. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the village relative to existing rights and customs. As such they are of considerable value in the determination of such rights and customs. But statements which merely narrate traditions and purport to give the history of devolution in certain families, not even of the narrators, stand in no better position than any other tradition. 32. The following facts connected with Jamshed Ali Khan's family will make this absolutely clear. It may be taken as a historical fact that some four centuries ago a Rajput adventurer of the name of Barawand Singh or Raja Barar, of the Rae Bareilly District, raided into the Fyzabad District, and after ousting the Bhar inhabitants from their ancient possessions, established himself there with his clan, apparently since then called the Bhale Sultan clan, on account of their prowess with the pike or lance. Barar's descendants appear to have multiplied immensely; some have remained Hindus, others have adopted the Moslem religion. Tradition ascribes the adoption of Islam to one of his early descendants, named Palandeo, who lived in the time of the Afghan Emperor Sher Shah, from whom he is said to have received the title of Malikpal. This Malikpa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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