1. The suit out of which this First Appeal arises relates to the estate, known as Majhauli Raj. The pedigree which has been found as substantially correct and is not assailed by the parties in this appeal is annexed hereto.
2. Rani Shyam Sunder Kunwar, widow of Raja Kaushal Kishore Mall was admittedly in possession of the properties in suit till her death on 28th of July, 1937. On her death, possession was taken by Balbhaddar Mall, a descendant of Anand Mall's branch. Regular Suit No. 41 of 1940 which is the subject-matter of this appeal, was filed by Maharani Chandrika Prasad Kunwar, mother-in-law of Rani Shyam Sunder Kunwar, for possession with the allegation that she was the rightful heir and entitled to succeed. Regular Suit No. 33 of 1941 was filed by Pratap Kishore Mall for possession of the estate claiming himself as adopted son of Rani Shyam Sunder Kunwar. Both the suits were disposed of by one judgment. The claim of Pratap Kishore Mall as adopted son of Rani Shyam Sunder Kunwar was negatived by the trial Court and no appeal has been filed against the decree. During the pendency of regular suit No. 41 of 1940 Maharani Chandrika Prasad Kunwar died and was substituted by her daughter Rnni Girraj Prasad Kunwar. On the death of Rani Girraj Prasad Kunwar, the appellants who are the sons of Rani Girraj Prasad Kunwar were substituted as her heirs and lejral representatives. The suit related to the properties given in Schedules A, B, C, D, E, F, G, H, K, M, N, O, of the plaint. The suit of the plaintiff was dismissed in respect of properties given in Schedules A to H, but was decreed in respect of the house mentioned in Schedule K and the moveables mentioned in Schedules K, N and O. The moveables of Schedule O were limited to those which were in the safe custody of the Imperial Bank of India, Banaras and the articles of list 'N' was confined to list of articles given in Ext. A-94. The plaintiff and the defendants were to pay costs in the proportion of 1/15 and 14/15.
3. First Appeal No, 322 of 1946 is by the plaintiff appellants whereas FirstAppeal No. 289 of 1951 is by the defendant-appellants against the decree of the trial Court dated 12-12-1945.
4. The plaintiffs' case was that Raja Kaushal Kishore Mall, the last male holder belonged to Bissen Kshatriya family. It was alleged that the succession was governed by the Mitakshara School of Hindu Law but the females were not excluded from inheritance. Rani Bakt Kuer was said to have succeeded on the death of her husband Raja Bhim Mall and Rani Dilraj Kuer was said to have succeeded on the death of Raja Ajit Mall. It was further stated that sometime after 1210 Fasli while Raja Ajit Mall was in possession the entire property was confiscated by the East India Company for an act of rebellion and was settled with Rani Dilraj Kuer. The rule of male lineal succession, if any, therefore, came to an end with the confiscation of the estate. The list of the property which was said to have been resettled is given in Schedule 'A' to the plaint.
5. List B properties are said to have been held by Sarabjit Mall, a junior member of the family under a Babuai Grant. It is contended that the grant of Sarabjit Mall was never confiscated and even though his son Tej Mall succeeded to the Taluka of Majhauli, the grant continued to maintain its separate identity governed by the ordinary rules of. succession.
6. Properties of List C and onwards are claimed as subsequent acquisitions governed by the ordinary Hindu Law of succession. According to the plaintiff. Raja Tej Mall acquired properties mentioned ia Schedule 'C' by his own efforts and the properties mentioned in Schedule 'D' were granted by the British Government to Raja Udai Narain Mall under a Sanad dated July 10, 1868 in lieu of personal services. The properties in Schedule 'E' are those which were said to have been purchased or acquired by the said Raja with his own exertions. Schedule 'F' was in respect of malikana rights alleged to have been acquired by Raja Udai Narain Mall. On the death of Raja Udai Narain Mall, Raja Kaushal Kishore Prasad Mall succeeded and he acquired properties in Schedule 'G' Raja Kaushal Kishore Prasad Mall died leaving behind him surviving his two widows, Rani Shyam Sunder Prasad Kunwar and Rani Janki Prasad Kunwar and also his mother, Maharani Chandrika Prasad Kunwar. The properties mentioned in Schedule 'H' are said to have been acquired by Maharani Chandrika Prasad Kunwar out of her own personal funds which she gifted to Raja Kaushal Kishore Prasad Mall under two deeds of gifts dated 30th September, 1898 and 29th October, 1896. The properties mentioned in Schedule 'K' were said to have been acquired by Rani Shyam Sunder Kunwar and those of Schedule 'M' were the debts advanced by her out of her savings.
The deposits mentioned in Schedule 'N' and the moveables mentioned therein were alleged to belong to her. Rani Janki Kunwar died in 1917 and Rani Shyam Sunder Kunwar on July 28, 1937. Ornaments and articles given in Schedule 'O' were claimed as belongings of Rani Shyam Sunder Kunwar.
7. The defendant Balbhaddar Narain Mall contested the plaintiffs claim and contended that the Majhauli estate was an ancient impartible Raj governed by the rule of male lineal primogeniture. He also contended that the suit was barred by rule of estoppel and res judicata.
8. The plea of res judicata was raised on the basis of the finding of the Privy Council in regular Suit No. 21 of 1923 and rule of estoppel was pleaded on the basis of compromise entered into in regular Suit No. 20 of 1923. It was denied on behalf of the defendant that the females succeed to the estate. It was further alleged that Raia Tej Mall was duly adopted son of Raja Ajit Mall and that the allegation about the confiscation of the estate in Gorakhpur district was incorrect. The Rabuai grant of Sarabjit Mal was alleged to have reverted to the Majhauli Raj on the adoption of Raja Tej Mall by Raja Ajit Mall. The grant of properties of Schedule 'D' of the plaint was said to have been made to the Majhauli estate and not to Raja Udai Narain Mall personally. The properties of Schedule 'K' were also claimed as part of the estate properties. The rights of the plaintiffs to the moveables and debts were also denied.
9. It is not disputed that after the death of Raja Kaushal Kishore Prasad Mall, Rani Shyam Sunder Kunwar claimed possession of the estate and Balbhaddar Mall entered into an agreement with the financiers for filing a suit and transferring them four villages. Subsequently two suits were filed. Regular Suit No. 20 of 1923 was filed by the defendant Balbhaddar Mall for possession of the property and regular Suit No. 21 of 1923 was filed by the financiers for possession of the four villages alleged to have been transferred by Balbhaddar Mall. The two suits were defended by the Court of Wards representing Rani Shyam Sunder Kunwar. Regular Suit No. 21 of 1923 filed by the financiers went up to the Privy Council and it was held that the estate was an impartible one and that defendant No. 1 i.e., Balbhaddar Mall was the owner of the Raj. Regular Suit No. 20 of 1923 ended in a compromise under which Rani Shyam Sunder Kunwar was permitted to remain in possession for her life and the succession after her death was to continue according to the rule of male lineal primogeniture.
10. The trial Court held that the Maihauli estate was an impartible estate succeeded by a single heir and that the females never succeeded to the estate in their own right. It further held that the compromise between Balbhaddar Mall andRani Shyam Sunder Kunwar in regular suit No. 20 of 1923 would not be evidence ol separation of Raja Balbhaddar Mall from the branch of Kaushal Kishore's family. The possession of Rani Shyam Sunder Kunwar under the compromise was held to be with the consent of Raja Balbhaddar Mall. While considering the properties given in various Schedules, the trial Court held that the properties mentioned in the Schedules were incorporated with the parent Taluqa with the result that the succession to the said properties was also governed by the rule of male lineal primogeniture.
11. The question for determination would be whether the rule of male lineal primogeniture has been established or not and whether the females have succeeded to the Taluqa and whether the effect of the compromise decree passed in regular suit No. 20 of 1923 amounted to the recognition of female succession and separation of Balbhaddar Mall from the branch of Kaushal Kishore Mall. It would be relevant to mention that Balbhaddar Mall died during the pendency of the suit and respondents 1/1 to 1/6 have been substituted as heirs and legal representatives of deceased Balbhaddar Mall. The fact that the estate is an ancient and impartible estate cannot be denied. As far back as in the year 1805, on 8th of August, 1805 Babu Shamsher Mall had filed a suit for a declaration of his title to the possession of the entire Raj on the allegation that his father Babu Pratap Mall had been adopted by Rani Bakht Kunwar. The adoption of Shamsher Mall was denied by Raja Ajit Mall and on his death by Rani Dilraj Kunwar, his widow.
The suit of Babu Shamsher Mall failed, because according to the rule of law laid down by the Pandits and confirmed by Sadar Diwani Adalat, the adoption being without authority from husband was illegal and invalid. In the judgment of the Sadar Diwani Adalat, it was also laid down that the adoption of Tej Mal by Raja Ajit Mal was also invalid, because Tej Mal, the only son of Sarabjit Mal could not be given in adoption. From the judgment of the Sadar Diwani Adalat, it further appears that the annual produce of the Raj was estimated at Rs. 13,843/-. The judgment of the Sadar Diwani Adalat is reported in Raja Shamsher Mal v. Rani Dilraj Kunwar, 6 Indian Decisions old series at page 523. In Atkinson's book Statistical Descriptive and Historical Account of North Western Provinces of India Bissen house of Majhauli is described as the most important of the ruling families of Gorakhpur. The first seventy-nine generations had the title of Sen. The 80th Raja Nardeo Sen obtained for his bravery the title of Mal from one of the Delhi Emperors. Then followed twenty-three generations. Bhim Mal who reigned from 1311 to 1368 A.D. is said to have been arrested for arrears of revenue by Mubarak Khilji but later released.
Bodh Mal is said to have succeeded in 1564. He was also arrested by Akbar for default of payment of revenue and converted to Muhammedanism and called Mohd. Salim. On his return he was refused entry in the family and therefore founded the town of Salempur on the opposite hank of the river Gandak. His son Bhawani Mal succeeded to the Majhauli Raj which in his minority was managed and looked after by his mother. Ajit Mal was Raja from 1753 to 1805. During this time British took over the District. Dilraj Kunwar administered the Raf till 1815. Then followed Tej Mal from 1815 to 1843 when Udain Narain Mal succeeded. By a career of extravagance and mismanagement he ruined his estate. Finally in 1870 the estate was put under the Court of Wards.
12. The history of the Majhauli Raf was written by Raja Kaushal Kishore Mall in the book form known as Bissen Bans Batika (Ext. 65). Raja Bodh Mall is shown as the 105th' successor to the estate. Bans Batika also corroborates the impartible nature of the estate. The impartible nature of the estate was also admitted in the written statement filed on behalf of Rani Shyam Sunder Kunwar by the Court of Wards in Suit No. 20 of 1923. It was expressly mentioned therein that the Majhauli estate is an ancient impartible Raj. The rule of succession only as set up by the plaintiff of that case, i.e., as set up by Balbhaddar Narain Mall was denied. The nature and incidents of an impartible estate have been laid down by their Lordships of the Supreme Court in Sri Rajah Velugoti Kumara Krishna Yachendra Varu v. Sri Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu : 3SCR88 , wherein it is laid down:--
'The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and have no right of partition having regard to the very nature or the estate that it is impartible. Secondly, they have no right to interdict alienations by the head of the family either for necessity or otherwise. . . ........ The right of junior members ofthe family for maintenance is governed by custom and is not based upon any joint right or interest in the property as co-owners. The income of the impartible estate is the individual income of the holder of the estate and is not the income of the joint family. An impartible estate, though it may be an ancestral joint family estate, is clothed with the incidents of self-acquired and separate property to that extent. The only vestige of the incidents of joint family property, which still attaches to the joint family impartible estate is the right of survivorship which, of course, is not inconsistent with the custom of impartibility. For the purpose of devolution of the property, the property is assumed to be joint family property and the only right which a member of the joint lamily acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself. The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put an end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate.'
13. After the above latest pronouncement of the Hon'ble Supreme Court, it is not necessary to examine the earlier cases on the above subject. Raja Kaushal Kishore Mall was admittedly the last male holder of the estate. For considering the right of succession it has to be examined if Balbhaddar Mall was a member of the Joint Hindu family on the death of Raja Kaushal Kishore Mall. Learned counsel for the appellant has contended that in earlier litigations the members of Anand Mall's branch did not claim the property by right of survivorship and the estate being succeeded by Rani Dilraj Kunwar, the plea of joint-ness by the members of Anand Mall's branch stood disproved. On the other hand learned counsel for the respondent has contended that in regular Suit No. 21 of 1923 which was filed by the financiers against Rani Shyam Sunder Kunwar after the death of Raja Kaushal Kishore Mall, the Privy Council held that there was no separation between Raja Kaushal Kishore Mall and Balbhaddar Mall. He also contends that Rani Bakht Kunwar was holding the property on behalf of Raja Bhim Mall and Rani Dilraj Kunwar was holding the estate on behalf of Raja Tej Mall who was said to have been adopted by Raja Ajit Mall.
The judgment of the High Court in Ram Sundar Mal v. Collector of Gorakhpur, AIR 19SO All 797 and of the Privy Council in Collector of Gorakhpur v. Ram Sunder Mal are relied upon to prove the jointness of Balbhaddar Mal with Kaushal Kishore Mall and are also relied upon in support of the plea of res judicata and estoppel.
14. The suit which was decided by their Lordships of the Privy Council in the year 1934 was filed by the financiers of Balbhaddar Mall. On the death of Raja Kaushal Kishore Mall, Balbhaddar Mall transferred four villages to the financiers for the purposes of raising money for filing the suit for possession against Rani Shyam Sunder Kunwar who had taken possession of the estate on the death of Raja Kaushal Kishore Mall. The suit was contested by the Court of Wards representing Rani Shyam Sunder Kunwar and by Rani Shyam Sunder Kunwar herself. It was pleaded in that suit by the defendant Rani Shyam Sunder Kunwar that she had a preferential right to succeed asagainst Balbhaddar Mall whose branch had separated long ago and any transfer of the Taluqa villages by Balbhaddar Mall to the financiers was invalid. The trial Court held that the two branches were not joint and, therefore, Rani Shyam Sunder Kunwar succeeded to the estate and Balbhaddar Mall had no right to transfer the villages belonging to the estate to the financiers. In appeal, a Bench of this Court held that mere separation in residence or remoteness of the common ancestor does not imply any intention on the part of junior members to give up their right of succession to the estate.
It was also held that the mere existence of strained relations would also not tantamount to abandonment by the junior branch of their right of succession. The appeal was, therefore, allowed and the suit of the financiers decreed. An appeal against the judgment of the High Court was filed before the Privy Council. The Privy Council affirmed the finding on the question of joint family property and held that:
'In order to establish that impartible estate has ceased to be the joint family property for the purposes of succession it is necessary to prove an intention express or implied on behalf of the junior members of the family to give up their chance of succession to the impartible estate.'
15. The Privy Council, however, held that the sale deed was not duly registered and as such was of no value in respect of the interest taken by it with the result that the suit of the financiers stood dismissed.
16. The finding on the question of jointness between Raja Kaushal Kishore Mall and Balbhaddar Mall could not operate as res judicata for the following reasons.
(1) The suit having been dismissed ultimately on the ground of non-registration of sale deed, the finding about the jointness or otherwise of the junior member with the Raja was not called for and was, therefore, not directly and substantially in issue for the disposal of the case. It will also not operate as an estoppel. The estoppel is only a rule of evidence and stops a person to plead the contrary of a fact or stare of things which he has formerly asserted by words or conduct. Even if it is for a moment assumed that the judgment of the Privy Council operated as res judicata, it will not be of any material help to the parties because the rights and the status of the parties will have to be considered on the basis of the compromise that was entered into between Rani Shyam Sunder Kunwar and Balbhaddar Mall. As a matter of fact the compromise should be the sole determining factor of the nature of right between the parties. As stated earlier, simultaneous' ly with the suit of the financiers Balbhaddar Mall had also filed the title suit claiming possession of the property on the death of Raja Kaushal Kishore Mall. That regular suit resulted in a compromise decree. Thecompromise decree is Ext. 9 on record. The relevant portion of the compromise decree reads as under:--
'In the abovementioned case the parries have agreed to have the case decided according to the following terms:--
(1) The plaintiff abandons his claim to the possession of the Majhauli Raj estate, but he maintains that he is the next reversioner of the late Raja Kaushal Kishore Prasad Mal and is entitled to succeed to and get possession of the said estate on the death of Rani Shyam Sunder Kunwari. Both the parties admit that the said Rani is in possession of the Majhauli Raj estate as a Hindu widow for her life with limited powers, and that on her death the next re-versioner of the said Raja according to the rule of lineal primogeniture will succeed to and get possession of the Majhauli Raj estate situated in the United Provinces of Agra and Oudh and in the Province of Bihar. The defendants admit that the plaintiff is an agnate of the late Raja Kaushal Kishore Prasad Mal, and further agree that on the death of Rani Shyam Sunder Kunwar if the plaintiff, or in case he is not then alive, his eldest male lineal descendant according to the rule of lineal primogeniture satisfies the Court of Wards that he is the next reversioner and has a title preferential to others. The Majhauli estate will be released in his favour and he will be put in possession ol it, at that time the Court of Wards of the United Provinces and of Bihar are in charge of the estate.
(2) The plaintiff and, in case of his death, his eldest male lineal descendant according to the rule of lineal primogeniture will get Rs. 400/- per annum, in equal monthly instalments as an allowance from the estate. The defendant No. 1 will arrange for the education of the plaintiff's sons and will deduct a sum not exceeding Rs. 1,800/- per annum for this purpose.
(4) The parties shall bear their own costs. ......'
17. Both parties have tried to interpret the document in their own favour. According to the appellant, the document shows that Balbhaddar Narain Mall had separated from Raja Kaushal Kishore Mall and, therefore, Rani Shyam Sunder Kunwar's right to succession was recognised whereas according to the respondent, the compromise was arrived at without affecting the rule of male lineal primogeniture and only the right of possession of Balbhaddar Mall was deferred for the lifetime of Rani Shyam Sunder Kunwar. This compromise decree is dated 24th August, 1925. It cannot be disputed that on the date of the compromise in the year 1925, Girraj Kunwar or her sons who are the appellants were not heirs under the Hindu Jaw. Sister of the last male holder and sister's son were brought in as heirs by Hindu Law of Inheritance Amendment ActII of 1929. The intention of the parties to the compromise can be gathered by reading the whole compromise. Balbhaddar Mal only abandoned his right to possession but at the same time both parties recognised the rule of lineal primogeniture applicable to the estate.
Stress has been laid for succession on male lineal descendant according to the rule of lineal primogeniture. The history of the estate shows that daughters or daughter's sons have not succeeded to the estate and the estate has always descended to the nearest male descendant of the last holder. The possession of Rani Bakht Kunwar and Dilraj Kunwar could not be said to be independent in their own right. One was holding during the minority of Raja Bhim Mal and the other on behalf of Raja Tej Mall who was said to have been adopted by Raja Aiit Mall. Even though the adoption of Raja Tej Mall was held invalid, yet the property was held bv him either as the adopted son or as the next successor of Raja Ajit Mall. The compromise, therefore, does not go to show that the rule of succession recognised till the death of Raja Kaushal Kishore Mall was sought to be changed or that Bai-bhaddar Mall renounced or surrendered his right to succeed to the estate. In Chinnathayi v. Pandiaya Naicker : 1SCR241 , it was laid down that :--
'To establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate. In each case, it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant's branch in the estate was determined so that it became the separate property of the last holder's branch. The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property.'
18. Interpreting the deed on the basis of which abandonment of rights was sought, it was further laid down by their Lordships of the Supreme Court that:
It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed.'
19. The document sought to be Interpreted by their Lordships of the Supreme Court in the above said case was very much in line with the compro-mise of the present suit. The circumstances which were in contemplation of the parties could not be anything more than permitting the widow to remain in possession for her life and thereafter to continue the rule of succession that was followed till then. We are, therefore, of the opinion that the defendant Balbhaddar Mal and not the plaintiffs were the preferential heirs to succeed to the Taluaa of Majhauli.
20. Coming next to the various items, it has to be seen whether the properties given in various Schedules were part of the Majhauli estate and governed by the rule of male lineal primogeniture or not. The property of Schedule 'A' is not disputed. The plaintiffs claimed the property of the Schedule on the basis of inheritance and it being held that the rule of succession to the estate was of male lineal descendant, the plaintiffs will not be entitled to the property of Schedule 'A'.
21. Schedule 'B'. The property detailed in Schedule 'B' is of the nature of Babuana grant given to Babu Sarabjit Mall. Babu Sarabjit Mall was the first cousin of Raja Ajit Mall. Babu Tej Mall was Sarabjit Mall's son. Babu Tej Mall was alleged to have been adopted by Raja Ajit Mall. The adoption of Babu Tej Mall was held invalid on the ground that he being the only son of Sarabjit Mall could not be given in adoption to Raja Aiit Mall. Even if the adoption was invalid. Raja Tej Mall would have succeeded to Raja Ajit Mall. The Babuana grant is in the nature of maintenance granted to the junior member of the family and was succeeded by Tej Mall after the death of Sarabjit Mall. When Tej Mall succeeded to the estate, the grant held by him became part of the estate from which it was carved out. The inferior right of maintenance holder became merged in the superior right of the estate holder. It is not disputed that the grant reverts to the estate on the extinction of the line of maintenance holder. The line of maintenance holder became extinct when Tej Mall succeeded to Majhauli Raj. The succession to Schedule 'B' property, therefore, would be governed by the rule of parent estate i. e., the rule of male lineal primogeniture.
22. The income of an impartible estate being the personal income of the holder of the estate, any immoveable property acquired by a holder of an impartible estate could only be descendable by the rule of lineal primogeniture if the holder of the estate incorporates the property so acquired with that of the estate. The intention to incorporate may be express or implied. In Someshwari Prasad v. Maheshwari Prasad , it was laid down that a
'If any property acquired by the holder of an impartible estate is intentionally incorporated by him with the estate, it would not be governed by the ordinary rule of inheritance but would devolve on a single heir.'
23. It was also held in the above case that no question of intention to incorporate the villages with the ancestral estate could arise when the villages were acquired by the the Court of Wards on behalf of his ward. In Kamaya Nayakkar v. Viralakshmi Ammal : AIR1940Mad814 , it was laid down that 'the intention to incorporate can only be by the holder of the estate and not by a guardian and manager of the property on his behalf.' In Srimati Rani Parbati Kumari Debi v. Jagadis Chunder Dhabal, ((1902) 29 Ind App 82) (PC), the contest was with regard to succession to an ancestral impartible estate and four mouzas that were purchased on behalf of the last holder out of the savings of the estate. It was contended that the mouzas had been incorporated with the estate and, therefore, passed with the estate. It was in evidence of the parties that the funds were collected by the same servants and collection papers were kept with the papers of the estate. In dealing with this part of the case, their Lordships of the Privy Council held that the evidence of joint collection and maintenance of estate papers was not sufficient for holding that the Raja intended to incorporate the four mouzas with the ancestral estate for the purposes of his succession.
In the case of Janki Pershad Singh v. Dwarka Pershad Singh. ((1913) 40 Ind App 170) (PC), the plea of incorporation was rejected. It was held that the question whether properties acquired by an owner becomes part of the ancestral estate for the purposes of succession depends on his intention to incorporate the acquisitions with the original estate. In Rani Jagdamba Kumari v. Wazir Narain Singh. (50 Ind APP 1) : (AIR 1923 PC 59). the holder of the impartible estate had applied savings out of the income of impartible estate for purchasing immovable properties. The rent of the property was received by the Manager of the estate and treated in the books of estate as part of the estate. All that was done at the instance of the Raia. It was held by .their Lordships:
'That the property so acquired had not become part of the impartible estate but remained the separate property of the deceased holder.'
24. There is a distinction between the property acquired out of the income of the joint Hindu family property and the property acquired out of the income of the impartible estate. The income of A JOint Hindu property and any propertyacquired out of such income forms part of the family property and is impressed with the character of joint family property, whereas in the case of the income of an impartible estate the income being the absolute property of the owner, the property acquired out of the income remains the absolute property of the owner unless it is incorporated by the owner with the impartible estate.
25. The incorporation of the said acquired property with the impartible estate has to be proved before the succession to the self acquired property can be claimed in accordance with the succession to the impartible estate.
26. Schedule 'C' -- Schedule C consists of eight villages in the District of Gorakh-pur. According to the appellant the villages of this Schedule were acquired by Raja Tej Mall whereas according to the respondent the villages were part of the parent Majhauli Raj. No direct evidence of acquisition of these villages by Raja Tej Mall is on record, on the other hand as remarked by the trial Court there is indication that these were ancestral villages. The Court below was, therefore, right in holding that the plaintiff appellant failed to prove that the villages of Schedule C were the acquisition of Raja Tej Mall.
27. Schedule 'D'. The list of villages given in Schedule 'D' was admittedly the subject of a grant from the Government to Raja Udai Narain Mall in recognition of his good services under a sanad dated 10th July, 1868 (Ext. 1). These villages were known as Illaqa Paina. Raia Udai Narain Mall had become indebted to various creditors. As he was in the good books of the British Government, the British Government wanted to help him and, therefore, advanced a sum of Rupees 8 lacs as loan to pay off the debts. A usufructuary mortgage was obtained of Raia Udai Narain Mall's property. The properties mortgaged included the villages granted to Udai Narain Mall under the sanad dated 10th of July 1868. Two factors have weighed with the trial Court in holding that this property was incorporated with the impartible estate:
(1) After the grant of these villages, the Raja did not give out any indication that these were not incorporated.
(2) The sanad property was included in the mortgage and if the sanad property was granted to Raja personally, it was not nesessary that his son should have joined.
28. None of the grounds on the basis of which the trial Court has assumed incorporation can be proof of incorporation. Exhibit 1, the grant clearly shows that it was a grant in lieu of his personal services. There is, therefore, no justification for assuming that the same was to help the Raja to wipe offhis debt. The law as laid down in the cases referred above is to the effect that incorporation has to be proved and not that the absence of incorporation would amount to incorporation of the estate with the impartible estate. The mortgage of the self-acquired property together with the impartible estate could not be deemed to be an intention of incorporation. Mortgaging the property is only giving the property in security for the amount of loan that is being advanced to the mortgagor. There is nothing in the mortgage deed which justifies an inference of incorporation. The management by the Court of Wards sometime after the Manager took charge of entire estate of the Raja as one entity also could not be deemed to be intention of incorporation, firstly because the intention of the Court of Wards would be of no avail to the respondents, secondly the Court of Wards had to take all the property of the Ward and taking charge of the entire property would not amount to an act of incorporation. The finding of the trial Court, therefore, on the incorporation of villages mentioned in Schedule 'D' is erroneous.
29. Schedule 'E'. The list of properties given in Schedule 'E' and onwards has also to be examined in the light of the observations and rule of law laid down in the aforesaid cases. On 26th of February 1890 (Ext. 58) Court of Wards representing the estate of Raia Udai Narain Mall purchased a house situate in the city of Gorakhpur from Babu Meghnath Ghosh. Another house adjacent to the house of Megh Nath Ghosh belonging to one Ram Prasad Lunia was purchased at an auction sale by Chandrika Prasad Kunwar, wife of Lal Kharag Bahadur Mall and on 29th October, 1896, it was gifted to Raja Kaushal Kishore Mall. The house purchased by Court of Wards representing the estate of Udai Narain Mall is shown as item 1 to Schedule E and the house gifted by Rani Chandrika Prasad Kunwar to Raia Kaushal Kishore Mall is Item 1 to Schedule H. The only circumstance on the basis of which this has been held by the trial Court to have been incorporated with the impartible estate is that the estate servants stayed in the Kothi when they came to Gorakhpur and that Raja Kaushal Kishore Mall never disclaimed that this Kothi or any other property was not part of the impartible estate. The trial Court has also been influenced by the fact that Raja Kaushal Kishore Mall did not make any gift or execute a will in respect of the acquired property.
The whole reasoning of the trial Court is erroneous. Incorporation had to be proved either by express or implied conduct of the parties. The house belonged to the Raja. The Raja and his servants were as of right entitled to stay and utilise the Kothi for their benefit. According to the trial Court, the correct interpretation of the doctrine of incorporation became generally known after the decision of the Privy Council in Shiba Prasad Singh's case and, therefore, the absence of an express declaration regarding incorporation was sufficient indication that the property stood incorporated in the impartible estate. This reasoning is also erroneous and in the absence of any express or implied indication of incorporation, the house could not be deemed to have been incorporated in the impartible estate. The house gifted to Kaushal Kishore Mall by Rani Chandrika Prasad Kunwar and mentioned at Item 1 to Schedule 'H' has been dealt with by the trial Court under issues 24 and 25. While the finding of the trial Court is that it would be the self-acquisition of the Raja unless it was incorporated with the impartible estate, the same has been treated as part of the impartible estate because according to the trial Court Raja Kaushal Kishore Mall was 20 or 21 years of age when his estate was released from the Court of Wards and he being under the influence of executive authorities, it was very probable that the properties were incorporated with the impartible Raj.
The question of incorporation could not be decided on the probability assumed by the trial Court. The finding of the trial Court, therefore, about the house situate in the city of Gorakhpur and detailed at Item 1 to Schedule E and Item 1 to Schedule H is erroneous.
30. The second item of Schedule E is village Moglaha. The written statement claims it to have been acquired by Raja Udai Narain Mall. The trial Court has held that because it was one of the villages which was mortgaged to the Government under the mortgage bond of September 1, 1870, therefore it should be deemed to have been incorporated in the impartible Raj. We have already held earlier that mortgage of the separate property along with the impartible Raj could not be an inference of incorporation. This village too, therefore, could not be deemed to have been incorporated with the impartible Raj. With regard to Items 3, 4, 6, 7, 8, 9, 10, 11, 12, 21, 22, 23, 24, 26 and 27 of Schedule E, there being no proof of self-acquisition, the question of incorporation did not arise and the trial Court was right in holding that the same shall be treated as part of the impartible estate.
31. Next comes the eight villages of Items 13 to 20 of Schedule E. The villages were admittedly gifted to Raja Udai Narain Mall under the deed of giftdated 10th May, 1869 (Ext. 3). According to the finding of the trial Court, these villages at one time belonged to Majhauli impartible estate and they came back in possession of the Raj in 1869 by virtue of a Sift. The gift not being challenged as fictitious, the nature of this property could not be other than that of the self-acquired property of the Raja and simply because these villages were mortgaged to the Government for the advancement of the loan of Rupees eight lacs or at one time formed part of the estate, it cannot be said that these were treated as incorporated with the impartible estate. With respect to other items of this Schedule, there is no satisfactory evidence that they were acquired by Raja Udai Narain Mall and, therefore, the question of incorporation did not arise. The finding. therefore, of trial Court in respect of the aforesaid eight villages Items 13 to 20 is erroneous in law.
32. Schedule 'F' -- Schedule 'F' of the plaint is in respect of Malikana rights acquired by Raja Udai Narain Mall. None of the counsel appearing for the parties have been able to state if any compensation rolls have been prepared in respect of the Malikana rights. Malikana rights are superior rights and are in the nature of an allowance for the proprietary rights. It has not been satisfactorily proved that these Malikana rights were the self-acquired rights of Raja Udai Narain Mall. According to the finding of the trial Court, these Malikana rights have been in the family of Raja Udai Narain Mall from the earlier times and were not new acquisitions. Learned counsel for the appellant has not been able to show that these were any independent rights acquired by Udai Narain Mall. The finding of the trial Court, therefore, in respect of Schedule !F' does not call for any interference.
Schedules 'G' and 'H'
33. Next comes the question with regard to the properties detailed in Schedules 'G' and 'H'. These have been dealt with by the trial Court under Issues 24 & 25. Items Nos. 1 to 13 of Schedule 'G' is the list of villages which were collectively known as Narharpur estate. These villages were purchased under the sale deed dated 20th March, 1906 (Ext. 62) from Rani Jagarnath Kunwar. Rani Jagarnath Kunwar was indebted to various creditors and some of her property was attached and sold by the decree-holders for a meagre sum. In order to get the sale set aside any pay off the creditors, she sold her estate to Raja Kaushal Kishore Mall keeping for herself a maintenance of Rs. 60/-per month. It cannot, therefore, be disputed that this was the self acquired property of Raja Kaushal Kishore Mall. The only circumstance on the basis of which this has been held to have beenincorporated with the impartible estate is that Raja Kaushal Kishore Mall was an ambitious Raja and had ambition to restore the old glory of Majhauli impartible Raj as it was before the time of Raja Udai Narain Mall. The witnesses produced in support of the incorporation are the following:
1. Hafiz Abdul Rashid Khan (D. W. 32).
2. Uttam Chand (D. W. 37).
3. Brij Kishore Prasad (D. W. 72).
4. S.P. Sanyal (D. W. 80).
34. Hafiz Abdul Rashid Khan (p. W. 32) was a Munsarim and for sometime the Mukhtarani of Raja Kaushal Kishore Mall. All that he has said is that the Raja used to say that his estate was riot a very large one and that he wanted to increase the extent of his estate. Neither the occasion is stated nor is there anything in his statement to the effect that the intention of the Raja was to incorporate the self-acquired property with the impartible estate. There is nothing in his evidence that the Raja actually after acquiring the Narharpur estate expressed any intention of incorporation.
35. The evidence of Uttam Chand (D. W. 37) has rightly been discarded on the ground that he was in the employ of Balbhaddar Mal, defendant No. 1.
36. Brij Kishore Prasad (D. W. 72) has stated that Raja Kaushal Kishore Mall had said that he wanted to improve the estate and that as there was no forest in his estate by the purchase of the forest he would have some place for 'Shikar'. In his statement also there is no evidence of any affirmative expression by the Raja that the estate purchased by him was being incorporated with the impartible estate.
37. S.P. Sanyal (D. W. 80) has also stated about the wish of the Raja to improve the estate, start hospitals and do other things for the benefit of the tenancy. None of the witnesses, therefore, have stated anything about incorporation of Narharpur estate with the impartible estate. The sale deed in favour of the Raja Kaushal Kishore Mall in respect of Narharpur estate further shows that along with the acquisition of the tile to Narharpur estate obligations were also taken by the Raja for the maintenance of a temple at Ajodhya and payment of Rs. 60/- per month to the vendor Rani Jagarnath Kunwar. The other evidence which bas been relied in support of the incorporation is to the effect that sweet was distributed when the Narharpur estate was purchased by the Raia and that common accounts and common servants were kept of the impartible and other acquired property.
38. As stated above, the circumstance that the accounts of both types of the properties were kept together, could not be an intention of incorporation. In order to prove that the Raja incorporated the villages purchased subsequently, definite evidence of incorporation was essential or an express conduct showing incorporation was proved. The Raja obviously was owner of all the properties and it was not incumbent on him to keep two distinct and separate set of accounts for two types of properties or keep separate servants for managing the two types of properties. Negative evidence could not be proof of positive conduct. Something positive had to be proved to prove incorporation. The finding of the trial Court, therefore, with respect to the Narharpur estate suffers from an error of law. With respect to other items of this Schedule, the learned counsel for the appellant has not been able to show that the finding suffers from' any error of fact or law.
39. Item 1 of Schedule 'H' has already been dealt earlier. It is part of the house now situate in the city of Gorakhpur. It was obtained by Kaushal Kishore Mall under a deed of gift and there is nothing on record to show that this house was ever incorporated with the impartible Raj.
40. The village Bolaon, Barpaliya, and Behari Buzurg were subject of gift Raja Kaushal Kishore Prasad Mall during his minority when his entire estate was under the management of the Court of Wards. There is no evidence on record that these villages were ever incorporated with the impartible estate. All that the trial Court says is that these villages were in the family in the time of Raja Ajit Mall and, therefore, it is extremely probable that the Raja after attaining majority would have keenly desired that they should have remained as part of impartible estate and because Court of Wards treated the properties in the hands of its ward as one entity, therefore incorporation was proved. Firstly the Court of Wards had no power to incorporate these villages with the impartible estate; secondly, in the absence of any express or implied intention of the Raja Kaushal Kishore Mall on his attaining majority, it could not be presumed or guessed that the same must have been incorporated with the impartible Raj. As regards the remaining villages of this Schedule, there is no evidence that they were acquired by Raja Kaushal Kishore Mall as alleged. The learned counsel for the appellant has also not been able to satisfy how the finding of fact in respect of those villages is wrong.
41. First Civil Appeal No. 289 of 1951 is by the heirs of Balbhaddar Mal and is in respect of moveable and otheritems of properties which were decreed by the trial Court. The learned counsel for the respondent has not been able to satisfy how moveable properties could be the subject of incorporation and in what respect the finding of the trial Court is vitiated by an error of fact or law.
42. The result, therefore, is that First Civil Appeal No. 322 of 1946 is partly allowed and the decree of the trial Court in respect of the following items is modified:
(a) with respect to villages under Schedule 'D',
(b) with respect to the house given at Item 1 of Schedule 'H'. situate in the city of Gorakhpur and with respect to Item 2, village Moglaha,
(c) Eight villages described under Items 13 to 20 of Schedule 'E',
(d) villages described under Items I to 13 of Schedule 'G' and known as Narharpur Estate,
(e) villages Belon, Barpaliya and Behari Buzurg of Schedule 'H'.
And thus the suit of the plaintiff shall stand decreed for a declaration of title to the house mentioned in Schedule 'K' Item No. 1, for relief (b) and (c) claimed by them with this modification that the moveables mentioned in Gaznafar Ali's list, Ext. A-94 (in suit No. 33 of 1941) will be substituted for the list given after the first items Nos. 1 to 5 in Schedule 'K'. The moveables in Schedule 'O' will be limited to those in the safe custody of the Imperial Bank of India, Banaras, and with respect to villages under Schedule 'D', with respect to house given at Item 1 of Schedule 'H' situate in the city of Gorakhpur, which includes land shown at Item 1 of Schedule 'E' and with respect to Item No, 2 village Moglaha, eight villages described under Item Nos. 13 to 20 of Schedule 'E', villages described under Items 1 to 13 of Schedule 'G' and known as Narharpur Estate, villages Belon, Barpaliya and Behari Buzurg of Schedule H. First Civil Appeal No. 289 of 1951 shall stand dismissed. In the circumstances of the case costs throughout shall be on parties.