1. The controversy here, so far as we are now concerned with it, turns upon the question of the right of succession to one Nagar Valabh, and the relation between the parties is shown in the following table :-
First wife = Valabh = Second wife | |Kuverji Nagar = Benji| |Dayal Bai Batan| |Lalu (plaintiff) Nagji
2. The plaintiff sued for a declaration that a deed of mortgage executed in 1857 by Bai Benji in favour of a deceased uncle of the defendants was null and void. He prayed for recovery of possession of the mortgaged property and offered to redeem the mortgage if it should be held to be good in law. He alleged that the property originally belonged to Nagar Valabh and consisted of Bhag aid Gamotia lands and houses and Gabhan building sites. He claimed to be Nagar's heir in preference to Bai Ratan's son, Nagji, on the ground of a special custom applicable to Bhagdari villages in the District, that is, the Broach District, under which custom he, as a pitrai male relative of Nagar, was entitled to succeed to the exclusion of the daughter's son. The mortgage and the relation between the parties were admitted by the defendants, who, however, resisted the claim upon several grounds; of these the only pleas now pertinent were a denial that the special custom alleged in fact prevailed in the village, Bholav, and a denial that the custom, even if proved otherwise, could be held applicable to Bholav in the special circumstances in which that village acquired its Bhagdari character. This latter point was found in the defendants' favour by the learned Subordinate Judge, who accordingly dismissed the suit. Upon the former point the Subordinate Judge came to the conclusion, though not without some hesitation, that, except for the particular circumstances in which Bholav became a Bhagdari village, it would have been proper to apply to it the special custom upon which the plaintiff relied.
3. From this dismissal of his suit the plaintiff now appeals, and during the course of the argument we intimated to his counsel, Mr. Setalvad, that we desired to hear him only on the question whether the alleged custom was proved and was applicable to Bholav, as we were disposed to think that upon this point the lower Court's decision was right. Having taken time to consider our judgment, we are still of the same opinion.
4. It is admitted that no instance of the observance of the special custom has ever occurred in Bholav itself, but the plaintiff contends that the evidence of its prevalence in certain adjacent villages is, under the authority of previous cases decided by this Court, sufficient to compel its application to Bholav. The defendants reply that Bholav is not such a Bhagdari village as was contemplated in the earlier decisions, and that no valid ground exists for overriding the general law of the parties in this case. It seems to us, as it seemed to the learned Subordinate Judge who has discussed the question with great care that the defendants' contention must prevail. The cases on which the plaintiff relies are Bai Kheda v. Dasu Sale (1868) 4 Bom. H.C. 123 and Pranjivan Dayaram v. Bai Reva ILR (1881) 5 Bom. 462, and these cases do, no doubt, go so far as to lay down that there would usually be a presumption in favour of the custom in the case of an ordinary Bhagdari village in the Broach District. But the judgments show that this decision was mainly based upon certain passages in Colonel Monier Williams's ' Memoir of the Zilla of Baroche,' published in 1820, where that officer, as the result of his inquiries into the then prevailing customs of Bhagdars, says: ' Daughters do not inherit the lands. If the Bhagdar dies without a son, the nephew or nearest male relations take the lands after the death of the widow.' Thus the only villages which were in the contemplation of the Courts when the cases cited were decided '. were those Bhagdari villages in which, so far back as 1820, the Bhagdari tenure and the special custom were found existing as immemorial usages. That being so, the decisions have, we think, no relevance to the village of Bholav. For Exhibits 157, 195, 299 and 300 prove that it was not till 1833 or thereabouts that Bholav became a Bhagdari village, and the conversion amounted to nothing more than a change of tenure, effected by the Government on the application of Nagar and his brother for the more convenient ascertainment and recovery of their several liabilities to the Government. Prior to this executive order altering the tenure on which the village lands were held, there can, we think, be no doubt that the village was an ordinary vighotia or rayatwari village; the presumption in favour of that view would be almost overwhelming, and it is further supported by direct evidence appearing in the Exhibits to which we have referred. In these circumstances we can attach no importance to the neutral fact that certain lands are designated as gamotia in the documents of 1833. We are satisfied that the Judge below was right in holding that, prior to 1833, Bholav was an ordinary vighotia village, and that the change of tenure occurred in 1833 in the circumstances we have mentioned. But that change, imposed on the village ab extra for mere administrative convenience, cannot be held to have carried with it the abrogation of the ordinary principles of Hindu Law by which the parties were governed before 1833; in other words, the change was never intended, and did not operate, to upset the existing law of succession so as to confer on agnates thenceforth rights which they had never possessed and to deprive daughters and their sons of rights which till then they had always enjoyed. No such view receives any countenance from the Bhagdari Act, which was enacted for wholly different purposes, and no such effect can be imputed to the orders of the Government sanctioning the change of tenure. It may be observed further that no opportunity or occasion has arisen in Bholav for any departure from the ordinary Hindu Law; for that law governed in 1833 when the Bhagdari system was applied, and Nagar's widow, Benji, survived till 1902.
5. For these reasons we agree with the Judge below in thinking that the special custom set up by the plaintiff has no application to this village.
6. In this view of the case it becomes unnecessary to consider whether the custom ought to be held proved if Bholav were a ancient Bhagdari village so as to fall within the description in Colonel Monier Williams's Memoir. And any discussion of this question would, we think, be unprofitable, since it could proceed only on the assumption that the status of this village is precisely what we find it not to be. Having regard to the history of the introduction of the Bhagdari system in 1833, we have no hesitation in finding that the evidence as to the prevalence of the custom in ancient Bhagdari villages in the vicinity affords no good ground for supposing that the custom ever existed in Bholav.
7. We affirm the lower Court's decree and dismiss this appeal with costs.