HIRANATH KOER v. NARAYAN SING. 1872 upon a point of this kind, yet I cannot think that any local MAHARANI custom has been established with that clearness and definitiveness which would justify a departure from the ordinary rule of BABOO RAM inheritance. Between impartibility and the exclusion of females, there is no connection whatever; and it lies on the plaintiff therefore, to establish the exclusion upon which he relies, and this, I think, he has not done. I am not prepared to say that the investigation has been a satisfactory one; and, had the law allowed it, I should for my own part have been most anxious to have had a further inquiry. But that course has not been even suggested to us, and I do not think that, on our own motion, we have power to direct it. The case is very much in the same condition as that of Rai Manik Chand v. Madhoram (1), which was recently before the Privy Council. If the plaintiff has failed to lay before us the best evidence which might have been got, he alone will suffer. No other title ought in any way to be affected by this decision On the evidence before me, I think no custom, either family or local, to exclude females, has been established. I think, therefore, that the plaintiff has failed to make out his title, that the decision of the lower Court ought to be reversed, and his suit dismissed with costs in this Court and in the Court below. Of course, I express no sort of opinion whatever whether or no the defendant has proved her title to any part of the property. From the judgment of Jackson, J., which prevailed as that of the Senior Judge, the defendant appealed under cl. 15 of the Letters Patent of 1865. Mr. Money and Mr. Ghose (with them Baboo Hem Chandra Banerjee) for the appellant. Mr. Woodroffe (with him Baboos Annada Prasad Banerjee, Mahes Chandra Chowdhry, Rames Chandra Mitter, Abinash Chandra Banerjee, and Gopal Chandra Banerjee) for the respondent. (1) 3 B. L. R., P. C., 5. Mr. Money, for the appellant, took a preliminary objection, 1872 HIRANATH V. viz., that the suit had abated by reason of the plaintiff's death. MAHARANI His eldest son, who had been made a party in his place was not necessarily, on the death of his father, the heir to the original BABOO RAM Raja; the suit did not survive to him ;-see Act VIII of 1859, s. 100. [COUCH, C.J.-The objection had better be taken at the close of the argument.] The onus is on the plaintiff to prove the custom he alleges; but the only evidence he gave as to the exclusion of females from succession was that the widows of Lachminath and Shambunath did not succeed. The defendant, and not the plaintiff, is the heir according to the ordinary Mitakshara law. Jackson, J., and the Court of first instance erred in taking into consideration the customs of the old Ramghur family. Those customs cannot affect Tej Sing, who was a new man put in the place of Makund Sing; and no sanad was ever given to him under which the customs of the old family were continued. If, however, this view be incorrect, still as the plaintiff seeks to set up a kuláchár, or family custom, in opposition to the ordinary laws of inheritance, he must show that the custom has obtained in the family during a long succession of ancestors-Sumrun Singh v. Khedun Singh (1). It must be ancient, invariable, and established by clear and unambiguous evidence-Doe d. Jugomohun Roy v. Sreemutty Neemoo Dossee (2), Tara Chand v. Reeb Ram (3), Raja Koernarain Roy v. Dhorinidhur Roy (4), Baboo Gunesh Dutt Sing v. Maharaja Moheshur Singh (5). The evidence does not show that such a custom has prevailed in the Ramghur family. The learned counsel also referred to the following cases as to custom : Musst. Mahamaya Dibeh v. Goureekaunt Chowdhry (6), Russic Lal Bhunj v. Puresh Munnee (7), Ramgunga Deo v. Doorgamunee Jobraj (8), Kaleepershaud Roy v. Degumber Roy (9), Ranee Soomitra v. Ramgunga Manik (10), the (1) 2 Sel. Rep., 116. lakshmi Ammal v. Sivananantha Perumal (2) Clarke's Notes of Cases during Sethurayer, 7 Mad. Jur., 254. 1831 and 1832, p. 101. (3) 3 Mad. H. C. Rep., 50. (4) S. D. D. for 1858, p. 1132. (5) 6 Moo. I. A., 164. See also the decision of the Privy Council in Rama (6) 1 Sel. Rep., 236. (7) S. D. D. for 1847, p. 205. (8) 1 Sel. Rep., 270. (9) 2 Sel. Rep., 237. (10) 3 Sel. Rep., 40. NARAYAN 1872 HIRANATH KOER v. NARAYAN SING, Tipperah case-Neelkisto Deb Burmono v. Beer Chunder MAHARANI Thakoor (1), the Pachete case-Maharaja Gurunarain Deo v. Unund Lal Sing (2), the Chota Nagpore case-Thakoorai BABOO RAM Chutturdharee Singh v. Thakoorai Telukdharee Singh (3). Custom must relate to a particular class of property, not to all kinds of property in a district or division. The settlement paper of Chota Nagpore consists of six divisions, of which Ramghur is one. Markby, J., finds that it is a modern political division, and an appendix to the Fifth Report to Parliament shows that the ancient divisions were different (4). Custom can only apply within certain limits, or to a certain area. [Mr. Woodroffe.—The plaint gives as its local and geographical limit, that it was the custom of the family and of the highland country. MACPHERSON, J.-The appendix to the Fifth Report (4) states that Ramghur forms part of the highland district. Is not that sufficient?] Mr. Blochman proves that formerly these lands were a portion of the old Kokra country (5); at the present day some of them lie in zilla Bhagulpur, and others in zilla Monghyr. In the case of the Chakaye Mehal, which is situated in zilla Monghyr, a woman succeeded her son-Tikait Durga Prasad Sing v. Mussamat Durga Kunwari (6). There is a material (5) Asiatic Society's Proceedings, zilla Monghyr. Her title is a very Part I, No. 2, p. 111. (6) Before Mr. Justice Norman and plain one. Tikait Futteh Narayan Sing died on the 14th of Chaitra 1270, leaving three widows, Lallit Kunwari, Narayan Kunwari, and Durga Kunwari. Durga Kunwari, the plaintiff, was pregnant at the time of her husband's death, and in the month of Sraban 1270, gave birth to a son, Gurda Narayan, who lived till Chaitra 1272. On the death of Gurda Narayan, who, of course, on his birth, succeeded to * Regular Appeal, No. 133 of 1869, from a decree of the Subordinate Judge of Bhaugulpore, dated the 23rd March, 1869. difference between a raj and a mere zemindari (1). a zemindari and not an ancient raj; the title of raja was first con the property in the entire mehal Chakaye as heir of his father, the plaintiff, as his mother and heiress, became entitled to the entirety of the mehal. She has been kept, or been put out of possession of two-thirds, by the other two widows of her husband, with one of whom at least, Lallit Kunwari, the appellant, Durga Prasad Sing, who is the third defendant in this case, appears to have colluded. Durga Prasad Sing stands to the late proprietor Gurda Narayan, in the relation of great grandfather's brother's great grandson, and it may be that, after the death of the plaintiff, he will be entitled as next heir to the property; to which, according to ordinary Hindu law, the plaintiff is entitled as mother and heiress of Gurda Narayan during her lifetime. By his written statement, the appellant, Durda Prasad Sing, first of all set up that the plaintiff was not in possession even of the one-third share which she does not claim. He goes on to say that the plaintiff was not entitled to the estate which had belonged to her son, because the widows and minor son lived in commensality and as a joint family with him; that the entire property was ancestral; and that under the Mitakshara, after the death of the plaintiff's husband and of her son, he, Durga Prasad, was entitled to the ancestral estate. Next he sets up a title that he, Durga Prasad, with the consent of the three wives of Fatteh Narayan, being rightfully entitled, was installed as rightful heir by being marked with the tika in 1274. Further, he says that the plaintiff had gone away from her husband's house with one Ahlad Panday, and was living an unchaste life. We proceed to consider the four defences which he sets up. He does not attempt to show that the plaintiff was not in possession of one-third of the property. As to the second, the Sub-Judge finds that the parties were not in possession of the estate as a joint family estate. In fact, it is clearly proved that this ghatwali estate descended from the father to the eldest son, and was not held jointly, the younger sons having allowances made to them. Therefore, the second ground utterly fails. As to the third ground, Durga Prasad Sing attempted to give evidence that there is a family custom or kuláchár, by which, in this family, females were excluded from inheritance. He did not make any averment to that effect in his written statement, and therefore did not, perhaps would not, pledge himself to it on oath or solemn affirmation. He did not give the plaintiff any warning that she would have to meet any such case. No issue was raised on it, and down to the time when he examined his witnesses, and even in his written grounds of appeal before us, there is no statement of the particulars of this custom or kuláchár, the existence of which he now suggests. He does not even aver in his written grounds of appeal that such a custom is proved. We think that it would be a great injustice to the plaintiff to raise that issue now, and to allow the defendant to come in upon an allegation as to the truth of which he has never pledged himself, and which the plaintiff has had no opportunity of meeting. We therefore decline to go into the question whether, upon the evidence as it stands, there is any proof of the existence of any such custom as that now alleged by the vakeel of the defendant Durga Prasad. It is said that the plaintiff's witnesses admit the existence of a custom to exclude females. The only statement to which the learned vakeel for the defendant can point, as in any degree substantiating that contention, is the statement of Alam (1) 3 Harrington's Analysis, p. 329. MAHARANI V. BABOO RAM 1872 ferred on the owners by the British Government. They must be regarded simply as zemindars. [Mr. Woodroffe.—Both the Judges below are agreed that this is a raj, and, therefore, it is not BAROO RAM open to Mr. Money to argue that it is a zemindari-Roy Nandi MAHARANI NARAYAN SING. pat Mahata v. Urquhart (1), and Shahzadi Hajra Begum v. Khaja Hossein Ali Khan (2). COUCH, C.J.-I agree with the decision in the latter case, viz., that no point can be argued on appeal which was not argued before the Division Bench; but in Roy Nandipat Mahata v. Urquhart (1), Norman, J., appears to have misunderstood the ruling in Shahzadi Hajra Begum v. Khaja Hossein Ali Khan (2) when he held that, where two Judges comprising a Division Bench agree in their finding, the High Court has no power in an appeal under cl. 15 of the Letters Patent to question that finding. Mr. Money must show that the question was raised in the Court below.] (It appeared that the question had been raised, and Mr. Money continued):There is nothing in the nature of a zemindar's duties incompatible with female succession. A female may hold a ghatwali tenure-Musst. Kustooree Koomaree v. Monohur Deo (3), which was a case from this particular district. Harrington speaks of primogeniture and impartibility (4); but he never mentions female exclusion. Mr. Ghose on the same side.-The petition of Ramnath contains no allusion to any local custom. The family usage of affixing the tilak on the forehead of the raja-elect is alone referred to, and this usage is also mentioned in certain proceedings of the Chand, one of the plaintiff's witnesses, The charge that the plaintiff has been We think that the suit has been very properly decreed. We think it is evi dent that the defence set up is a mere fraudulent contrivance and a reckless attempt on the part of Durga Prasad Sing, a possible future heir, to defeat the rights of the plaintiff, whose title as heiress of her son is clear. We dismiss the appeal with costs. (1) 4 B. L. R., A. C., 181. (3) W. R., from Jany. to July 1864, p. 39. (4) 1 Harrington's Analysis, p. 194. |