grace and favour of the Government in the exercise of their sovereign authority, and the portion restored became thenceforth the separate self-acquired property of the heir, though with all the incidents of the family tenure of the old estate as an impartible Raj. Beer Pertab Suhee v. Rajender Pertab Sahee (1) followed. There is no inconsistency between a custom of impartibility and the right of females to less it is proved that the custom extends to the inherit; and the general law must prevail, unexclusion of females. The onus of proving that they are excluded lies on the party alleging it. APPEAL from a decree (14th April 1899) of the High Court at Calcutta, reversing a decree (9th July 1897) of the Subordinate Judge of Tirhoot, and dismissing the appellant's suit. The plaintiff appealed to His Majesty in Council. Hindu Law-Impartible Raj CustomOnus of proof-Raj seized by Govern- the Bettia Raj and the properties belongThe subject of dispute in this case is ment-Subsequent re-grant effecting di-ing thereto, and the suit was brought by vision of the estate-Grant to heir of former holder-Custom of exclusion of females. The East India Company seized an impartible Raj, the holder of which had been driven out of the country for acts of rebellion, and placed it under the management of their officers. Subsequently they effected a division of the Raj estate, reinstating in one portion of it the heir of the former holder, and granting the other portion to members of another branch of the same family. Held, that the reinstatement must under the circumstances be treated as proceeding from the * L. R., 29 I. A., 178; I. L. R. 29 Calc. 828. Ram Nundun Singh against Maharani Sheo Ratan Koer, the senior widow of Maharaja Sir Harendra Kishore Singh, the last full male owner of the Raj, who died childless and intestate on 26th March, 1893, leaving him surviving the said defendant and Maharani Janki Koer, the respondent, his junior widow. The plaintiff claimed to be the nearest surviving reversioner of Harendra Kishore Singh. The following pedigree shows the relationship of the parties : (1) (1867) 12 Moore's I. A. L. On the death of Harendra Kishore, the defendant Sheo Ratan Koer claiming to be entitled, as his senior widow, to be the heir of her husband, took possession of the Raj and its estates, and proceeded to deal with them as owner, whereupon this suit was brought on 26th July 1895. as The plaint alleged that the property in dispute was an impartible Raj consisting of the four estates of Majhwa, Simrown, Mailsi, and Babra, which by both family and local custom was governed as to its descent by the law of lineal primogeniture as it existed under the Mitakshara law; that on the death of Dhrub Singh, who had no natural-born son, the estate descended to Jugal Kishore, the son of Dhrub Singh's daughter, whom he had affiliated in his family according to the custom of the Bhuinhars, to which class he belonged, as his adopted son; that the two pergunnahs of Maihsi and Babra and tuppa Duho Suho, forming part of the Raj, had been granted by Dalip Singh to his brothers Prithi Singh and Satrajit Singh "babuana" of maintenance grants for them and their families; that after his succession Jugal Kishore incurred the displeasure of the East India Company, who then had the Dewani of Bengal, and left British territory for some time, and that during his absence Srikishen Singh, as representing the next senior branch of his family, was dignified by the East India Company with the title of Raja and placed in possession of the Bettia Raj and was allowed to receive and enjoy the income of the estate, and that after the death of Satrajit his son Abdhut Singh was associated by the Government with Srikishen in such holding; that subsequently Jugal Kishore returned into British territory, and the pergunnals of Majhwa and Simrown were given back to and settled with him, and the " babuana " pergunnahs of Maihsi and Babra and tuppa Duho Suho were left and settled with Srikishen Singh and Abdhut Singh as maintenance grants; that the Raj there after descended according to the law of regular lineal primogeniture to Harendra Kishore, upon whose death childless it was taken possession of by Sheo Ratan Koer, the defendant, adversely to the right heir, the plaintiff's elder brother, Shone Nundun Singh, on whose death childless the right to the Raj estates vested in the plaintiff. The plaintiff submitted that females were by custom excluded from succession, and that therefore the defendant had not as Harendra Kishore's widow any right to succeed, but that the estate descended to him as the nearest male heir by the rule of lineal primogeniture. He alleged that the defendant was wasting and dissipating the estate, and prayed for a declaration of his title, for possession, mesne profits and other relief. The defendant in her written statement alleged that the Raj of Bettia did not exist in the time of Ugrasen Singh (who was the owner of the Raj Reasut or principality of Sirkar Champarun), but was only created about a century later, when it was conferred upon Jugal Kishore Singh by the East India Company; that the pergunnahs Mailsi aud Babra were not held as maintenance grants with tuppa Dubo Suho; that the customs of lineal primogeniture and of making maintenance as babuana grants did not prevail in the family; that Jugal Kishore was not the adopted son of Dhrub Singh, but was only his daughter's son, and that he, acting adversely to his uncles, took possession of Sirkar Champarun, then consisting of, amongst other properties, the pergunnahs of Majhwa, Simrown, Mailsi and Babra, and executed to the East India Company a kabaliat for the entire Sirkar Champarun, and held possession thereof until 1765-66, when he took up arms against the British Government and fled to Bundelkhund, whereupon the whole of Sirkar Champarun was confiscated by the British Government; that the title of Raja had not been in Jugal Kishore's absence conferred upon Srikishen Singh, and that the pergunnahs Maihsiand Babra had not been before Jugal Kishore's flight in the possession of Srikishen and Satrajit as maintenance grants; that Jugal Kishore having sued for pardon, the Government of India on 25th June 1771 divided up Sirkar Champaran and constituted Majhwa and Simrown the Raj Reasut of Bettia and allotted the pergunnahs of Maihsi and Babra to Srikishen Singh and Abdhut Singh, the descendants of Raja Guj Singh, since when the allottees and their descendants had received and enjoyed the malikhana (or landlord's share of the income of the properties) until the Decennial Settlement in 1789; that at the time of the Decennial Settlement Raja Bir Kishore Singh and Sri Kishore Singh applied for settlement with them respectively of the entirety of Sirkar Champaran to the exclusion of the other of them, when the then Governor-General on 22nd September 1790 directed that "As the late President and Council thought proper to divide the zemindari of Champarun, allotting to Jugal Kishore Singh the districts of Majhwa and Simrown and to Srikishen Singh and Abdhut Singh those of Maihsi and Babra," the heirs of those persons respectively should be restored to the possession and manage ment of the said districts; that there had not been since that time any community of interest or commensality between the respective families of Jugal Kishore Singh and Srikishen Singh, the latter of whom had by arrangement with his uncle, Satrajit Singh, obtained the whole of the two pergunnahs of Maihsi and Babra; that on 6th May 1808 Gunga Pershad singh, son of Srikishen Singh, sued Bir Kishore Singh, son of Jugal Kishore singh, to recover the pergunnahs of Majhwa and Simrown (part of Bettia), admitting that he had possession of Maihsi and Babra, the remaining part of Champarun Sirkar, and that litigation was carried up to the Privy Council by Gunga Pershad Singh, who was unsuccessful in every Court; that on the death of Maharaja Anund Kishore Singh in 1838 the Raj Reasut of Bettia had gone to his brother, Newal Kishore Singh, and not to Anund Kishore's widow, but the defendant alleged that this was not on account of any custom prohibiting female succession, but was because Anund Kishore and his brother Newal had been joint and undivided, and she denied the existence of any custom preventing females from taking the estate; that no custom of lineal primogeniture existed in the family; that the plaintiff was not a member of the same joint family with Harendra Kishore Singh, the defendant's late husband, and she further pleaded champerty and maintenance as disentitling the plaintiff to maintain the suit. The defendant also denied waste and pleaded an absolute title by adverse possession. Issues were settled, of which the following only are material for the pur pose of this appeal : 5th. - Did Srikishen Singh and Abdhut Siugh obtain pergunnahs Mailsi and Babra and tuppa Duho Suho as a babuana maintenance from the Bettia Raj? 6th. Is the Bettia Raj governed by the law of succession alleged in the plaint? 8th.-Was Raja Jugal Kishore Singh the adopted son of Raja Dhrub Singh by a valid adoption, and did he inherit the Raj under the law of succession alleged by the paintiff ? 11th.-To what did the widow of Raja Annund Kishore Singh owe her exclnsion from the estate of her husband-to the law of succession alleged by the plaintiff or to the law of commensality and survivorship alleged by the defendant ?, 12th. Is plaintiff the heir in preference to the defendant under the law of succession governing the Bettia Raj? 15th. If the defendant's account of the creation of the Bettia Raj be true, did Jugal Kishore Singh acquire such an independent title to the Rajas severed its connection with the right of inheritance of the family of Raja Ugrasen Singh ? 20th.-Have the plaintiff and his ancestors been separate in food and estate from the family of the defendant's husband since the time of Jugal Kishore Singh, and does such separation affect the plaintiff's right to succeed to the Raj? The Subordinate Judge found that the Bettia Raj or the Raj Reasut of Sirkar Champarun was an impartible estate of ancient origin and held upon a tenure of military service in the Moghul times, the first holder being Udai Karan Singh a general of the Emperor Akber, the grandfather of Raja Ugrasen Singh. On the 5th issue he found that there was no positive evidence that Maihsi, Babra and tuppa Duho Suho had ever been granted as babuana estates to Srikishen Singh and Abdhut Singh deciding this issue therefore against the plaintiff. On the 6th and 11th issues dealing with the law of succession to the Bettia Raj the Subordinate Judge held that: : "The Raj has invariably"descended in the eldest male line. It may be true that some of the Rajas of Bettia were nominated by their predecessors by whom they were given Rajgi tilak in their lifetme. But as the rule offlineal Primogeniture was not departed from in a single instance, their nominaition rather goes to establish the rule than disprove it. As held in Hira Nath Koer v. Ram Narayan Singh (1) it is a rule of law independent of custom that a female cannot inherit an impartible Raj which is an ancestral property of an undivided Hindu family governed by the Benares School, where there are male members of the family qualified to succeed as heirs. A custom modifying the law must be a custom to admit females, not a custom to exclude them. This ruling was ap proved by their Lordships of the Privy Council in Chintamun Singh v. Nowlukho Konwari (2) and also in Rup Singh v. Baisni (3) where it was further held to be a binding authority. It is for the defendant, therefore, to prove that according to the custom governing the "family of her husband, she is entitled to succeed. There is, however, not a scintilla of evidence to prove such custom; on the contrary, the exclusion of Anund Kishore's widow from succession indicates that no such custom obtained in the family of the Maharajas of Bettia." On the question whether the same rule of primogeniture that governed the succession in the direct line applied also in cases of collateral succession, he held upon the evidence in the case and upon the authority of the Madras High Court in Naraganti Achammagaru v. Venkata Chalapati Nayanivaru (4) that it did so. (1) (1872) 9 B. L. R. 274. (2) (1875) I. L. R. 1 Calc. 153: L. R. 2 I. A. 263 (3) (1884) I. L. R. 7 All. 1: L. R. 11 I. A. 149. (4) (1881) I. L. R. 4 Mad. 250. He decided the 6th and 11th issues therefore in favour of the plaintiff. On the 8th issue as to the capacity in which Jugal Kishore Singh succeeded, the Subordinate Judge held that the parties belonged to the Bhuinhar caste, amongst whom it was shown that a custom of adopting a daughter's son prevailed; and that the adoption of an only son was not null and void, referring to Beni Prasad v. Hardai Bibi (5) and Ramalakshmamma Gurulingaswami v. (6). On this issue therefore he found that Jugal Kishore Singh had been duly adopted and so affiliated in to the family of his maternal grandfather, and that he "succeeded" to the Raj as Dhrub Singh's adopted son and under the customary law of succession governing Dhrub Singh's family." The 12th, 15th, and 20th issues the Subordinate Judge considered together. He distinguished the Hunsapore_case, Beer Pertab Sahee v. Rajender Pertab Sahee (7), the Shivagunga case, Katama Natchier v. Rajah of Shivagunga (8), and the Nazvid case, Venkata Rao v. Court of Wards (9) from the present one on the ground that in those cases there had been an absolute forfeiture and confiscation of the estates and their revenue by the Government, and subsequently aregrant in each case; and held that there had been no confiscation of Bettia and no new grant to Jugal Kishore Singh to whom or to Srikishen Singh (whilst he held it) there had been a continuous payment of malikana during all the time the Government retained possession of the estate. Consequently when Majhwa and Simrown were restored to Jugal Kishore, they did not thereby become his self-acquired or separate property. On the question of whether there had been any separation of the family of the plaintiff and that of the defendant, or any division of the property, or whether (5) (1892) 1. L. R. 14 All. 67, (6) (1894) I. L. R. 18 Mad. 53 on appeal L. R. 26 I. A. 113: I. L. R. 22 Mad. 398. (7) (1867) 12 Moore's I. A. 1. (9) (1879) I. L. R. 2 Mad. 128: L. R. 7 I. A. 138. |