1872 MAHARANI V. NARAYAN SING. 1st, The decision of the Sudder Court in Koonwur Bodh Singh v. Seonath Singh (1). This was an action brought on the 19th April 1802 in the Zilla Court of Ramghur, by the two younger sons of Tej Sing, to recover from Maninath, the son BABOO RAM of the eldest, two-thirds of the estate. Pending the suit Maninath died, and was succeeded by his son Sidnath. The defence set up was that, according to the custom of the mountainous country in which the estate was situate, and the usage of the family, the estate was not divisible, but that, on the death of the raja, for the time being, he was always succeeded in the raj and zemindari by the eldest son, to the entire exclusion of the other members of the family. The Zilla Court gave judgment against the plaintiffs, and this judgment being affirmed on appeal by the Provincial Court of Patna, the plaintiffs appealed to the Sudder Dewanny Adawlut. The Court held that, having regard to the extent and situation of the estate, to the zemindar possessing the title of Raja, and to his maintaining a sort of feudal establishment of troops and jagirdars, the Court could entertain little doubt that it was not a common estate divisible by the laws of inheritance. The decrees of the Zilla and Pro vincial Courts were accordingly affirmed. 2nd,-A return made by Maharaja Shambunath Sing, on the 22nd June 1846, on the requisition of the Governor-General's Agent and Commissioner, calling for a "statement of heirship to the zemindari and ilakadars of the division. Ram Narayan, the plaintiff, was in that return put down as heir next in succession to his brother (2) Ramuath. Females were altogether excluded from this paper. - 3rd, A petition of Maharaja Ramnath, dated the 17th November 1862, written by way of answer to two perwannas, transmitting to the Maharaja for explanation copies of two petitions submitted by Maharani Thakurnath Sahi, widow of the late Maharaja Shambunath Sing, in which she made certain complaints. The following analysis of the petition was given by Markby, J., in his judgment:-It is a petition of the husband of the (1) 2 Sel. Rep., 92. (2) Bhai or cousin-brother. 1872 defendant, the late Raja Ramnath Sing, denying the claim of the MAHARANI Widow of Shambunath Sing, who seemed at that time inclined to assert her right. It is dated the 17th November 1862. It is BABOO RAM not signed by any one, nor does it appear to whom it is HIRANATH KOER v. NARAYAN SING. addressed, but both parties have relied on it as a statement made by Ramnath Sing. It begins by referring to two perwannas of the person to whom it is addressed, which had been sent to Ramnath Sing together with a copy of a petition of the Maharani Thakurnath Sahi, the widow of the Maharaja Shambunath Sing. One of these perwannas is then recited, and it seems to be an acknowledgment of the title of Ramnath Sing to the raj, and of the Maharani to maintenance, and tó contain a request by the writer that the proper provision for the Maharani's maintenance should be made. After this recital the claim of the Maharani to the raj as heiress is denied by Ramnath Sing, and his own claim is thus stated : As the Ramghur zemindari is an ancient ancestral property of your petitioner, according to the family and ancient usage (the Maharaja) in good faith and in sound state of mind, in the presence of assembled parties, marked your petitioner with the tilak of raj, and died. Then he sets out the history of the family from the time of Maharaja Sidnath Sing, and points out that Maharaja Lachminath Sing, though survived by his widow and a daughter (1), was succeeded by his brother: and then he says: In view of these circumstances, agreeably to the family usage, law and equity, reason and tradition, the Maharani is entitled to nothing more than food and raiment, because your petitioner and two others are three full brothers, and in default of heirs they succeed to the raj one after another. Then follows the answer to the second perwanna. It again refers to the Maharani's petition and to an assertion by her that Ramnath Sing lived separate from his brothers Shambunath Sing and acted as his dewan. This is strenuously denied by Ramnath, who asserts that he and Shambunath were "full brothers sharing in other's gain and loss," and that he only assumed the management of (1) From the pedigree filed by the plaintiff, it appeared that Lachminath Sing died without issue; see also the judgment of Jackson, J., post, p. 286. 1872 MAHARANI v. NARAYAN the property according to custom when Shambunath became too infirm to transact business. He then gives instances of a similar arrangement to this with regard to the management in other families, and denies that his having managed the business BABOO RAM of the zemindari is any evidence of separation. He goes on to say that, with the exception of himself, no one had any right in the property; and since he was a partner and had a right in the raj, no benami could be effected in his name; for which reason all the business was transacted in the benami or fictitious name of Kunwari Burgah, a domestic. Subsequently he refers to the statement he had already made, that the tilak was affixed on his forehead, and then again combats the statement that he had separated from his brother. He then denies some allegations which the Maharani had made of illtreatment. Next, he refers to certain instances of succession cited by the Maharani in her petition in her own favor, and says that "the practice of the jungle mehals is different from that of other districts." Some instances of the practice and usage of the jungle mehals are here given. Then he cites the cases of Palgunge, in which the brother succeeded in presence of the widow and nephew of the late Raja; of Kunda, in which the nephew succeeded in presence of the late Raja's widow; of Gowan, in which a cousin, in the fourth degree, succeeded in the presence of a female (the widow, no doubt) and a nephew of the late Raja. He says: Whereas your petitioner is the full brother of the late Maharaja, and lived in commensality with him, hence he is entitled to the raj considering his right from any point of view. The instances adduced of the Tikari Rani are not sufficient. The share of Baboo Motiram Sing was divided by the Court. Moreover, he left no near heir, and consequently the Ranis came to possession; but the case of your petitioner is different, for he is full brother, lived in the same house, and ate at the same table with the Maharaja, and received by the Maharaja's own hands the mark of tilak. The rest of the petition is taken up with again denying the Maharani's complaints of ill-treatment, and offering to allow her a suitable maintenance. The Deputy Commissioner decided the case in favor of the 1872 plaintiff, and gave him a decree for possession of the zemindari MAHARANI of Ramghur and of Gaddi Khurkhur and all the other lands that formed the subject of the suit. HIRANATH KOER v. BABOO RAM On appeal to the High Court, the case was heard before L. S. Jackson and Markby, JJ., who differed in opinion. Their Lordships gave the following judgments: JACKSON, J. (after briefly stating the facts, continued):-Iu determining this appeal there are two considerations, which it seems to me important to keep in view. The first is that, although in point of form Ram Narayan is plaintiff and the Rani defendant, yet in fact both stand upon the same ground as claimants of an estate which is in the custody of the Court of Wards, and, therefore, the burthen of proof does not lie on the one side more than the other. The second is that the Rani does not, any more than her antagonist, claim the property under the strict provisions of the Hindu law, but that both parties, while referring severally to the Shastras (see the plaint and written statements respectively), also appealed to the custom which regulates the devolution of this raj, and this, I think it abundantly clear for other reasons, must be the basis of our decision. The plaintiff of course more emphatically relies on this custom or kuláchár, but the defendant also gives her own version of it so as to show her own right, and to exclude the plaintiff. But what seems to me decisive on this point is the judgment of the Sudder Court in 1813 between the ancestor of Ram Narayan and the Maharaja of that time, in Koonwur Bodh Singhv. Seonath Singh (1). The opinion of the Court, which disposed of the suit, was in these terms:-" Adverting, however, to the extent and situation of the estate, to the zemindar possessing the title of Raja, and to his maintaining a sort of feudal establishment of troops and dependent jagirdars, the Court coull entertain little doubt that it was not a common estate divisible by the laws of inheritance." It does not precisely appear whether the Sudder Dewanny Adawlut concurred in, or dissented from, the view taken by the Provincial Court in that case, namely, that Regulation X of 1800 did not apply to the estate (1) 2 Sel. Rep., 92. 1872 MAHARANI KOER v. NARAYAN SING. (I should have been inclined to think that it did), but the question does not seem to be of much importance, for the custom abolished by Regulation XI of 1793, and partially restored by the later law, is that of non-partition, and that alone. Nor, BABOO RAM I think, is it material to inquire whether, as stated by Baboo Shama Charan Sirkar (1), the effect of the Vyavashtá and the judgment, in the case of Esshanchund Rai v. Esshorchund Rai (2), is to clothe huge zemindaries with the attributes of principalities. The term raj and the title Raja, as used in modern times, do undoubtedly occasion a certain amount of confusion. A pretty clear account will be found in the answers to a series of questions on the rights and privileges of landholders given by Gholam Hossein Khan, author of Siar-ool Mooktakhireen and the Roy Royan, printed in Harrington's Analysis, Vol. III, pages 314 to 356; see especially the answers to Question 31; and the case of Raja Tej Sing (there called Tauj Sing) is expressly mentioned by Gholam Hossein Khan, who (in answer to Question 30) calls him the zemindar of Ramghur. The true question, therefore, in this case seems to be whether the custom of the Ramghur zemindari or raj, as deposed to by persons acquainted with it, as known to the public functionaries of the district, as recognized by the family itself, and as established by precedents, favors the succession of the male line, or of the widow and mother. The question has been a little complicated by a shifting or widening of the issue (I am not sure which), so as to include a local custom; but it seems to me that, as far as the plaintiff is concerned, this amounts to nothing more than his seeking to strengthen his evidence as to kuláchár or custom in his own family, by showing that a similar custom prevailed in families of the same or nearly the same rank in the vicinity. If we look at it in this point of view, we are, I think, relieved from certain difficulties as to the kind of proof required as to the precise allegation of the plaintiff. In this way also we are less embarrassed by abstract questions of Hindu law, and we also conform to the injunctions of Menu, Book viii, v. 41, where he prescribes enquiry into the "rules of certain families (1) Vyavashta Darpana by Shama Charan Sirkar, p. 19, foot-note, 2nd edit. (2) 1 Sel. Rep., 2. |