1. The property in suit is situated in the village of Amleshwar in the District of Broach. It consists of a whole bhag which belonged to one Morar Kalidas who died leaving no son, but a widow, Bai Suraj, a mother named Laxmi and a daughter named Manchha, defendant No. 1. The widow Bai Suraj remarried in 1905 and the mother Laxmi died in the year 1920. The mother Laxmi and defendant No. 1 lived together and enjoyed the property. Defendant No. 2 is the husband of defendant No. 1. The plaintiff has brought this suit to recover possession of the property in suit from the defendants on the ground of his being the nearest pitrai of Morar Kalidas and entitled to succeed to his estate as a reversioner on the death of the last female holder Bai Laxmi.
2. Though under Hindu law defendant No. 1, as the daughter of Morar Kalidas, would be the heir on the re-marriage of the widow Bai Suraj, it is urged on behalf of the plaintiff that according to the special custom of succession to bhag property the daughters and sisters are excluded from succession by male pitrais, and therefore the plaintiff is entitled to recover possession of the property.
3. The learned Subordinate Judge held that the plaintiff was the next reversionary heir of the deceased Morar Kalidas. He also found that the bhagdari custom of excluding daughters from inheritance in favour of pitrais was proved, and that the suit was within time and was not barred by adverse possession of the defendant. He, therefore, passed a decree in favour of the plaintiff for recovery of possession of the property with mesne profits.
4. It is urged on behalf of the appellant that the custom alleged by the plaintiff is wrongly held to be established by the learned Subordinate Judge, that there was adverse possession of defendant No. 1 as against Laxmi, the grandmother, who had a widow's interest, and therefore the adverse possession of defendant No. 1 barred the reversioner according to the decision of the Privy Council in Vaithialinga Mudaliar v. Srirangath Anni (1925) L.R. 62 IndAp 322 : 28 Bom. L.R. 173 and the decision of the Calcutta High Court in Aurabinda Nath Tagore v. Manorama Debi I.L.R. (1928) Cal. 903 Further, it is urged that as between the daughter and the grandmother the Hindu law of succession would apply, and that the cause of action for recovering possession of the property would accrue not from the death of Bai Laxmi in 1920 but from the date of the re-marriage of Bai Suraj in 1905.
5. I shall deal with the question relating to the custom set up by the plaintiff later on.
6. According to the alleged custom, females, i.e., daughters and sisters born in the family who take an absolute estate and go out of the family by marriage are excluded, but females who come in the family by marriage and take only widow's estate are not excluded so that the bhagdari estate remains in the family.
7. If the custom is established, as I am of opinion that it is established, the daughter is excluded altogether from succession, but Laxmi, the widow in the family, the grandmother of defendant No. 1, is not excluded, and the possession of defendant No. 1, even if it is adverse to the grandmother Laxmi, would not bar the revereioner. According to the decision in RunchordasVandrawandas v. Parvatibai the Article to be applied in such a case is Article 141 of the Indian Limitation Act, and the suit of the reversioner would not be barred till twelve years had elapsed since the death of the widow Laxmi which took place in 1920. This decision of the Privy Council is followed in a recent decision of their Lordships of the Privy Council in Jaggo Bai v. Utsava Lal : (1929)31BOMLR891 where it was held that where there has been no decree against a Hindu widow or other act in law in the widow's lifetime depriving the reversionary heir of the right to possession on the widow's death, the heir is entitled, after the widow's death, to rely upon Article 141 of the Indian Limitation Act for the purpose of the determination of the question whether the title is barred by lapse of time. The case of Vaithialinga Mudaliar v. Srirangath Anni has been distinguished on the ground that it illustrated the application of the rule in Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A. 539 where a decree founded upon adverse possession had been obtained against a Hindu widow in her lifetime, and their Lordships followed the decision in Runchordas Vandrawandas v. Parvatibai, and held that the decision in Vaithialinga'e case was not in conflict with the decision in Runchordas Vandrawandas v. Parvatibai, in which no decree had been obtained against the widow, nor had there been any other act in law in the lifetime of the widow destroying the heir's interest. In the present case also there is no act in law and no decree obtained against the widow destroying the right of the reversionary heir.
8. In Abinashchandra Ghosh v. Narahari Methar I.L.R. (1929) Cal. 289 the decision in the case of Aurabinda Nath Tagore v. Manorama Debi I.L.R. (1928) Cal, 903 was dissented from, and it was held that the adverse possession against the widow cannot be tacked to the adverse possession against the reversioner or his predecessor-in-title so as to extinguish his right, and that in a suit on behalf of the reversioner Article 141 of the Indian Limitation Act would apply. The same view was taken in the full bench decision of the Allahabad High Court in Bankey Lal v. Raghunath Sahai I.L.R. (1928) All. 188 and by this Court in Shankarbhai v. Bai Shiv : AIR1930Bom545 .
9. It appears on the facts of the present case that defendant No. 1 has not established that she had acquired any adverse possession against Laxmi. It appears that the property was in possession of Laxmi and defendant No. 1. The property was entered in Laxmi's name and Laxmi got it transferred to defendant No. 1 in 1911-12, Laxmi was in management and possession, and therefore no question of adverse possession would arise against Laxmi.
10. The contention on behalf of the appellant, that, as between the daughter and the grandmother, the Hindu law of succession would apply, is opposed to the decision of this Court in Bai Jivi v. BhavanParbhu (1894) P.J. 188 where the contest was between the daughters, the brother's widows, and the pitrais, and it was held that the widows of the brother of the deceased excluded the pitrais, and it was further held that there was no objection to female succession so long as it had not the effect of taking the property out of the bhagdar's family. It would, therefore, follow that Laxmi would be entitled to inherit the property if the custom set up by the plaintiff is proved, and that the plaintiff would not be entitled to recover possession of the property till the death of Bai Laxmi, which took place in the year 1920. According to the decision of Markby J. in Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee I.L.R. (1878) Cal. 327 by adverse possession is meant the possession by a person holding the land, on his own behalf, of some person other than the true owner, the true owner having a right to immediate possession. If the custom set up by the plaintiff is proved, the daughter defendant No. 1 would be excluded, but the plaintiff would not be entitled to immediate possession till the death of Bai Laxmi, and therefore, even if there had been adverse possession on the part of defendant No. 1, it would be of no avail as against the present plaintiff, because the present plaintiff was not entitled to immediate possession till the death of Bai Laxmi.
11. I think, therefore, that the lower Court is right in holding that the cause of action for recovering possession of the property by the plaintiff accrued on the death of Bai Laxmi in 1920 and that the present suit is within time.
12. With regard to the custom set up on behalf of the plaintiff, it appears that the custom was recognised in the year 1820 by Col, Monier Williams at page 33 of his Memoir of the District of Broach where he says:-'Daughters do not inherit Bhag lands. If he dies without a son the nephews or nearest male relations take the lands after the death of the widow or female heir;' In 1868 it was held by this Court in Bai Kheda v. Dasu Sale (1868) 5 B.H.C. 123 that the custom in the Broach District of male first cousins succeeding to property held on the bhagdari tenure in preference to daughters or sisters was applicable in a ease in which the bhagdars were Mahomodans. In Pranjivan Dayaramv. Bai Reva I.L.R. (1881) Bom. 482 it was held that the custom of excluding the daughters and sisters, if not universal, was at least so general in the Broach Collectorate that it should, in the case of any particular village, at any rate on evidence being given of its continuance in other similar adjacent villages, if not in the particular village itself (though it would always be more satisfactory if this could be done), be held still to survive, unless and until the opposite party proved the adoption of some other custom, or of the ordinary rules of inheritance in the particular village, or, failing such proof, the general prevalence of such rules or such opposing custom in other similar adjacent villages. The same view was taken in the case of Gemalsang Madhaosang v. Haribai Kabhai(1920) F.A. No. 169 of 1918, decided by Maolqod C.J. and Fawcetb J., on June 24, 1920 (Unrep).The custom was held established in the case of Bai Jivi v. Bhavan Parbhu. The custom, however, was held not to apply to a village which was not bhagdari in its inception but was made bhagdari for administrative purposes according to the decision in the case of Lalu Dayal v. Lalu Gopal : (1910)12BOMLR573 . In Motibhai v. Dahyabhai : (1931)33BOMLR1211 the finding of both the lower Courts was in favour of the custom set up on behalf of the plaintiff in the present case, and it was held in that case by the lower Courts that the custom was an incident peculiar to the nature of the land, that it was not confined to Hindus, that it extended even to Mahomedans and to other communities, that it was a peculiarity of the Bhagdari tenure, and that the custom applied not only to the family of the original bhagdar but also to others who became bhagdars by purchase or byadverse possession. In second appeal the finding was not assailed, and it was held that the person who acquired land of bhagdari tenure by adverse possession held the land subject to the incidents of that tenure including the incident of the custom set up on behalf of the plaintiff in the present case, and before the High Court no attempt was made on behalf of the appellant to challenge the custom held proved by both the lower Courts,
13. In addition to the reported decisions there are decisions of the High Court, Exhibits 20, 85 and 83, and decisions of the lower Courts in favour of such a custom in the Broach District, Exhibits 17,18, 19, 60, 79, 80, 81, 82,160 and 166.
14. According to the decision in Pranjivan Dayaram v. Bai Reva the onus would, therefore, be on the defendants to prove that such a custom did not exist in the Amleshwar village. The learned Subordinate Judge in his very careful judgment has dealt with all the instances relied on on behalf of the plaintiff and also on behalf of the defendants and has appended a schedule to his judgment of the instances, in which male agnates have inherited the property in preference to daughters and sisters or their descendants.
15. With regard to the instances appearing in evidence on behalf of the defendants, the learned Judge has not accepted those instances on the grounds, first, that the depositions on behalf of the defendants were vague, and that in the instances where the daugthers were said to have inherited the property, the existence of the pitrais was not clearly established; secondly, the statements of the witnesses were not corroborated by other reliable evidence ; and, thirdly, it was not shown that there was any contest in any of thecases and the dispute went to the Court and the daughters or sisters got the property by virtue of the decision in their favour.
16. On behalf of the appellants several instances were discussed before us and reliance has been placed specifically on four instances in the list produced before us, namely, instances Nos. 2, 3, 7 and 8. With regard to instance No. 2 from the evidence of Exhibits 38, 137 and 49 it does not appear that the existence of the pitrais is sufficiently established. For, according to the evidence of Naranbhai, Exhibit 137, it appears that the information which he obtained was from his wife who is not examined in the ease. The hearsay evidence, therefore, of Naranbhai cannot be accepted. Instance No. 3 relied on on behalf of the appellant is not in point, as it appears from the evidence of Naranbhai, Exhibit 137, that the daughter excluded not only the pitrais but also the widow of the deceased and his adopted son. It is not a case where a daughter inherited the property in competition with the agnates, but it appears that the daughter trespassed upon the paternal estate even to the exclusion of the admitted heirs, namely, the widow and the adopted son. The next instance relied on on behalf of the appellant is instance No. 7 in which it is said that Hariganga, the daughter, inherited the property of Natha Gabal in preference to the pitrais. It appears from the will, Exhibit 127, which is proved by the attesting witness Nathubhai, Ex. 124, that Hariganga got the property not by inheritance but by bequest. The will of Nathabhai gives the property to Hariganga's son and Hariganga is appointed as the guardian of the grandson of Natha Gabal. The instance, therefore, relied on on behalf of the appellant is not in point. The only instance which to my mind appears to be an instance against the custom alleged on behalf of the plaintiff is instance No. 8, where Manchhi, daughter of Narsi Bhagwan, succeeded to the property notwithstanding the existence of the pitrais. The respondent's counsel was not able to point out any circumstance which would throw doubt on this instance. Though the instance No. 8 on behalf of the appellants at first sight appears to be an instance against the custom set up on behalf of the plaintiff, it depends merely on the uncorroborated statement of Nathubhai, Exhibit 124, But it appears from the cross-examination of Nathubhai, that ha admitted that the custom of inheritance with regard to bhag land was the same as regards bhag properties of other villages and other communities, and that he did not know of any case of such inheritance which was litigated in the Courts. It appears, however, from paragraph 15 of the evidence of Tribhuvan Kalian, defendant No. 2, Exhibit 113, that his case was that the daughters inherited the father's property in all bhagdari villages in the District of Broach irrespective of caste, and he did not allege any special custom with regard to his village Amleshwar. It appears clear from the several authorities to which I have referred that in the Broach District the custom set up by the plaintiff is clearly established, and that the onus is on the person who alleges that in a particular village the custom does not exist. Having regard to forty-three instances proved on behalf of the plaintiff including some from the village of Amleshwar, I think that defendant No. 1 has not discharged the onus.
17. It is urged on behalf of the appellant that though the special custom of exclusion of the daughters be held proved in this particular village, there are instances which show that there is variation of the custom in this respect that the sisters and the daughters get a life estate though not an absolute estate either by way of maintenance or by agreement with the pitrais. But such variation of the custom was not set up by the defendants in the written statement, no issue was raised in the lower Court, and we cannot allow the defendants to make out a new case in appeal different from that made in the lower Court.
18. We think, therefore, on the evidence that the custom has been satisfactorily established not only in the other villages in the Broach District but in the village Amleshwar in which the property in suit is situate.
19. The last question urged on behalf of the defendants is that the lower Court erred in awarding mesne profits at Rs. 400 a year, and it is urged that the rent-notes which are on the record of the suit do not establish that the mesne profits of the land in suit amount to Rs. 400 a year. Our attention has been drawn by the advocate on behalf of the respondent that the defendant has produced in this case kabulayats with Exhibit 13. Those kabulayats were passed on June 22, 1911, and leaving aside the two kabulayats, Exhibits 13/3, and 13/5, relating to survey Nos. 479 and S03, the cash rent amounts to Rs. 412. The assessment of all the lands is mentioned to us to amount to Rs. 105, the acreage being thirty-one acres. In the two rent notes, Exhibits 13/3 and 13/5, the stipulation was for payment of half the income as rent. The assessment with regard to the lands survey Nos. 479 and 303 amounts to Rs. 22-10-0. Deducting the amount of Rs. 22-10-0 from Rs. 105, we get an income of Ra 412-0-0 for land carrying assessment of Ra 82-6-0. It appears, therefore, that the rent is roughly speaking about five times the assessment. The half share with regard to the two lands, survey Nos. 479 and 303, would, on that basis, come to Rs. 110 which would be more than the assessment of Rs. 105, even if the amount of assessment was to be paid by the landlord. We think, therefore, that having regard to the rent-notes produced by the defendant in this suit, the mesne profits cannot be less than Ra. 400.
20. We think, therefore, that on the whole the decision of the lower Court is right and this appeal must be dismissed with costs.
21. I agree. The industry of the learned First Class Subordinate Judge has made our task easy as it has made the task of the learned Counsel for the appellant difficult. The learned First Class Subordinate Judge writes:-
The plaintiff was obliged in this case to bring evidence in support of the custom, and be has done it so thoroughly that very considerable time of this Court has been spent in recording the oral evidence. But the Court has been sustained in its patience by the hope that the labour and time involved in this will not have been ill spent if it leads the High Court, if this case goes before their Lordships, to pronounce in favour of the custom in a way that would relieve future parties relying on the custom from the onerous necessity of proving that custom by affirmative evidence in each case.
22. Now, this custom was noted by Col. Monier Williams about one-hundred years ago and it has been proved in cases which have come to this Court, the earliest casa being Bai Kheda v. Dasu Sale (1868) 5 B.H.C. 123 It has been proved also in cases which have not come before it, and I think that at this stage it would be very surprising to find a village in the Broach District in which the custom did not prevail. In the unreported case ofGemalsang Madhaosang v. Haribai Kabhai (1920) F.A. No. 169 of 1918, decided byMacleod C.J. and Fawcet J., on June 24, 1920 (Unrep). their Lordships cited the case of Pranjivan Dayaramv. Bai Reva I.L.R. (1881) Bom. 482 In that case it was recognised that the custom was not then universal but was at any rate general in the Broach Collectorate, and it was then decided that in the case of any particular village, at any rate on evidence being given of its continuance in other similar adjacent villages, it should be held to obtain unless the opposite party proved the adoption of some other custom or of the ordinary rules of inheritance, Now, after reading the judgment of the learned Subordinate Judge in this case and going through all the cases which have been submitted to us by the learned Counsel, I am of opinion that the time has come when it can be safely said that the onus of proof rests on the party which denies the existence of this special custom in any village in the Broach Collectorate.
23. The only other remark I would like to make is on the point of limitation. It is urged by the learned Counsel for the appellant that the appellant BaiManchhi was in adverse possession of the land in suit against her grandmother. But, apart from the law on the point, it is clear on the facts that there could have been no adverse possession. When her father died Bai Manchhi was two or three years old and when her mother re-married not more than a year older. She then went to her grandmother who managed her property as her guardian, and in these circumstances, it is impossible to say that up to the time when she came to years of discretion she can have had any adverse possession. There is no evidence, therefore, that she had adverse possession.
24. I agree with my learned brother that this appeal must be dismissed.