Henry Richards, C.J.
1. This appeal relates to the right to possession of a very valuable estate in Mirzapur, referred to in the plaint as the Aghori-Barhar Raj. The last male owner was Raja Kesho Saran Shah. The Raja died on the 4th of March, 1871, leaving no issue, but a young Rani, Red Saran Kunwari, him surviving. The Rani lived until 1913, when she died. A glance at the pedigree filed with the plaint will show that the plaintiff is the eldest son of Babu Jagannath Prasad. This gentleman survived the late Raja but died before the Rani on the 14th of October, 1910. Defendant No. 1, Babu Baijnath Prasad, is the rival claimant to the raj. He was a brother, next in seniority to Babu Jagannath Prasad aforesaid, father of the plaintiff. Defendant No. 2 is a younger brother of defendant No. 1. In the plaint it is alleged that the Rani had made or attempted to make large gifts at the expense of the estate to one Pandit Banarsi Misir, a Brahman; that she had tried to get the consent of the plaintiff's father to her action; that the plaintiff had intervened to prevent his father consenting, and that thereupon the Rani turned her attention to the rival claimant and his brother defendant No. 2, with whom she was more successful. That the Rani did, make very extensive gifts to Banarsi is an admitted fact. Banarsi was made a defendant to the suits, though he is no party to the appeal. On the 4th of November, 1912, Rani Bed Saran executed a document purporting to be a codicil to a will executed by her on the 1st of March, 1910, whereby she had appointed the aforesaid Pandit Banarsi and others executors for the performance of her funeral ceremonies. The document recites that defendants 1 and 2 belong to the same gotra and will become owners of her husband's estate after her death. The lady then declares that these persons will be her successors: 'I direct that Babu Baijnath Prasad should occupy the gaddi of the estate and continue to maintain the other members of the family in accordance with the old usage. These persons even came to me...and in proof of faithfulness and obedience they have to-day under a deed of relinquishment admitted my powers to make waqf and to manage the waqf property and to make transfers under deeds of gift and to make gift and religious gift of cash and articles, etc., which I the executrix have done out of the profits arising from the property of my husband'. By a deed of even date defendants land 2 completely ratified all that the Rani had done: 'It is a matter of great pleasure to us that the said Rani Sahiba has used the said income for good and religious purposes which every Hindu widow is authorized to do Pandit Banarsi has been in the service of the said Rani since 1893. So far as we have come to know from inquiry as well as from the Rani and from our personal acquaintance we are fully satisfied that the Panditji is a very honest man'. It is to be hoped that defendants 1 and 2 meant all they said and that the Panditji was entitled to the high testimonial given him. A perusal of the document discloses not only the piety of the deceased Rani but also of defendants 1 and 2. It is perhaps open to the criticism that the executants protest too much. And there is a marked contrast between this document and a complaint addressed to the Collector on the 17th of June, 1896, by the father of the plaintiff and the two defendants (see A 407) in which they bitterly complained that the Rani is destroying and wasting the estate and has given Rs. 99,000 in cash besides other extravagant grants to the priest. It may well be doubted that defendants would have executed the deed of November, 1912, if defendant No. 1 believed that he was entitled to succeed to the gaddi on the death of the Rani. On the 4th of November, 1912, the Rani executed a desd of relinquishment in favour of Baijnath Prasad, defendant No. 1, who was declared owner of the gaddi. By way of proof of consent Bishnath Prasad executed the document. Mutation of names followed and defendant No. 1 got possession. On one issue in the case, viz., whether the estate is an impartible raj, the fact that Baijnath Prasad took it as a raj with the assent of his brother is not without some significance. In the codicil, of which of course defendants 1 and 2 were cognizant, Baijnath Prasad was ' to occupy the gaddi of the estate and continue to maintain the other members of the family in accordance with the old usage.'
2. I now proceed as shortly as possible to deal with the history of the family. The accuracy of the pedigree filed with the plaint has (save in one respect) not been contested. According to the pedigree Raja Adil Shah was succeeded by Raja Ran Bahadur Shah, the son of Babu Bhup Narain, brother of Raja Adil Shah. It was conceded at the hearing that the evidence showed that Ran Bahadur was adopted by Adil Shah and the successor was the adopted son. The family is beyond all question a very ancient one. There has always been a Raja installed in the gaddi in the usual way and the members of the junior branches are styled 'Babus,' the appropriate name for junior members of a Raja's family. The history of the family is referred to in many works, including that of Mr. Sherring (vide Hindoo Tribes and Castes, Volume I, pages 182-183). 'About the year 1744 A.D. Shambhu Shah, the then Raja of Aghori, was dispossessed of his domains by Raja Balwant Singh. During the insurrection of Chait Singh, Adil Shah, grandson of Shambhu Shah, just mentioned, attended on Warren Hastings and made himself so useful that the Governor General gave him a sanad restoring him to the zamindari of Aghori-Barhar. This was in October, 1781. A few days later (on 15th October, 1781), the Raja appears to have received a second sanad granting him an allowance of Rs. 8,001 in the form of an assignment of certain villages, and on this is based the right, which his descendant still enjoys, of holding free of revenue nearly the whole of Aghori pargana and certain villages in Barhar. On possession being taken of Kon by the Company the taluqa was one of the estates assigned to Adil as his tnalihana. It was managed till his death in 1794 by his brother Babu Rachpal. The latter then claimed to hold the taluqa, but on his death shortly afterwards (in 1796) Raja Ran Bahadur, the nephew and heir of Adil Shah, obtained possession. Aghori taluqa had a similar fiscal history. Both taluqas were in 1803 declared to be included in the jagir of the Raja.' The above is taken from a Government publication called 'A note on the tract of country south of the river Son by W. Crook, C.S., and G.R. Dampier, C.S.'
3. To avoid confusion it is necessary to keep separate the history of the family property and the history of the malikana grant of Rs. 8,001. The latter was undoubtedly originally a personal grant to Adil Shah for a temporary purpose. It is not quite accurate to say that 'villages were assigned' as the equivalent of this grant. It was the revenue of the villages, not the villages j themselves, which was assigned, and some if not most of the villages were already part of the family estates. The sanad relating to the zamindari given by Warren Hastings on the 9th of October, 1781, was in the following terms:
Be it known to Adil Shah, respectable zamindar of pargana Aghori, that on a petition having been made, it is known that the zamindari in the pargana aforesaid is his old ancestral property. Several years ago Raja Balwant Singh forcibly dispossessed him and brought it to his use. Therefore in lieu of former rights he should remain in proprietary possession of his share as heretofore. He should make arrangements as regards the cultivation of the land and population of the pargana aforesaid in accordance with the directions of the Revenue officers and Raja Mahip Narain Bahadur of high rank. He is insisted on doing as directed above.' According to Mr. Roberts' report Adil Shah recovered possession with the help of British soldiers in pursuance of this document. Warren Hastings, as already stated, also made a grant to Adil Shah of Rs. 8,001. It would appear that the origin of the grant of Rs. 8,001 was to compensate Adil Shah for not getting possession and actual enjoyment at once of the ancestral estate. The Raja, or perhaps I should say the family, is now in possession of the ancestral estate and they also enjoy the Rs. 8,001 malikana grant in perpetuity. The arrangement now is that they are charged with Government revenue on all the property including the property, the jama of which was assigned to meet the grant of Rs. 8,000, but they take credit for Rs. 8,000. Warren Hastings had entered into a treaty or arrangement with the Maharaja of Benares and subsequently difficulties presented themselves as to how faith could be kept with both the Raja of Benares and the Raja of Aghori, having regard to the fact that in a sense the property had belonged to both. This led to a good deal of complication and prevented temporarily the sanad of Warren Hastings being completely acted upon. In the end matters were adjusted, and the family are now and have for many years been in undisturbed possession. In this connection Regulation I and II of 1795 should be read and in particular the preamble to Regulation I and Clause XVII of Regulation II, Sub-clause (3), in which Adil Shah is referred to as the 'representative' of the Aghori Rajas. The conclusion I have arrived at is that from the time of Warren Hastings the family have been substantially in possession of the ancestral estate (they never in fact completely lost touch with it) and that, notwithstanding the various events that happened, the restoration of the property in justice and equity ought to be attributed to the sanad of the 9th of October, 1781, just as if the latter had been carried into full effect at the time. I have appended to my Judgment a short statement of the events which have happened. The first question is whether the estate is impartible. This is a question which their Lordships of the Privy Council say is to be decided on the facts of each case. No doubt the Government in making a grant of an estate can determine the nature of the grant, but I do not think, in the absence of specific terms in the grant, surrounding circumstances can or ought to be ignored. I will give an example. Suppose Government confiscated what was admittedly joint family property and suppose (in consequence of representations made by a member of the family to the effect that the confiscation, had been made by mistake or for insufficient reasons) the Government restored the property by making a fresh grant to the member without any special terms or conditions in the grant. I think that the property so restored would be joint Hindu property in the hands of the member of the family to whom the grant was made just as it would have been if there had been no confiscation. In the present case I think that the restoration of the property, notwithstanding what subsequently happened, must and ought to be referred to the action of Warren Hastings. If this view be correct, Regulation XLIV of 1795 (relied on by the defence) can have no application, because it refers to grants after 1797. It does not appear to me that Balwant Singh had lawful power to confiscate the estate, though the defence strongly contend that he had. Bearing in mind the terms of the document of 9th of October, 1781, bearing in mind the fact that four Rajas subsequently ascended the gaddi and bearing in mind the terms of the will of the Rani accepted by the defendant and his brother, I think that this estate must be deemed impartible: see Kachi Yuva Rangappa Kalakka Thola Udayar v. Kachi Kalyana Rangappa, Kalakka Thola Udayar (1905) I.L.R. 24 Mad. 562 affirmed by their Lordships in (1909) I.L.R. 28 Mad. 508.
4. We now come to another question. Assuming that the estate is impartible, who is entitled to the gaddi? Defendant No. 1 says that the Raja is he that is found nearest in blood to the late Raja and senior in birth at the date of the death of the Rani and that he fulfils these conditions. The plaintiff contends that the property has always been joint. That the Rani got possession after the death of her husband not as succeeding to separate estate in default of heirs but by virtue of custom and that the Raja must be found in the senior line and that he as the eldest son of Babu Jagannath (brother of defendant No. 1) should succeed. It may here be pointed out that the common ancestor of both claimants is Babu Rachpal, brother of Raja Adil Shah. It is admitted at the Bar that if the property is to be deemed joint in the hands of Raja Adil Shah after restoration and if the estate was impartible and if there was no separation during the time of Adil Shah or subsequently, the contention of the plaintiff is correct. It is, however, contended on behalf of the defendant that even on the assumption that the property is impartible it was only joint in the sense that it would descend to the heir of Adil as an impartible raj and that upon his death, or the death of his Rani the heir would be he who was nearest in blood, and if more than one, he who was senior in birth. Leaving out of consideration for a moment the fact that Raja Shambhu was the occupant of the gaddi of an impartible raj when he was dispossessed and treating the property for the moment as ordinary Hindu joint property, I think that there is every reason for holding that the property would have been still joint on its restoration. There would be a presumption that Adil Shah, Babu Bhup Narain and Babu Rachpal (common ancestors of the plaintiff and defendant) were joint. Raja Shambhu was, however, on the gaddi of an impartible raj. This brings me to the consideration of the constitution of a Hindu family where there is an impartible raj. The normal constitution of a Hindu family is that of union. Wherein does a Hindu family with its senior member sitting on the gaddi differ from an, ordinary Hindu family? What is the foundation of the difference? The answer seems to be this. In the case of an impartible raj, the estate is enjoyed by the whole family through the occupant of the gaddi with all the prestige incident thereto, the right to maintenance exists, but the members of the family have no legal right to partition. The provision of maintenance to the 'Babus' itself varies in different rajes. The 'izzat' of Babus belonging to such a family is by no means insignificant. The foundation of the distinction is custom. If this view be correct, the constitution of the family differs from an ordinary Hindu family so far as custom has modified it. The modification may no doubt be considerable and in a large raj like the present, very considerable, Authority in support of this view is not wanting. In the Shivagunga case (1863) 9 Moo. I.A. 543 (593) their Lordships of the Privy Council say: 'The zemindary is admitted to be in the nature of a principality--impartible and capable of enjoyment by only one member of the family at a time. But whatever suggestions of a special custom of descent may heretofore have been made (and there are traces of such in the proceedings), the rule of succession to it is now admitted to be that of the general Hindoo law prevalent in that part of India, with such qualifications only as flow from the. impartible character of the subject. Hence if the zemindar, at the time of his death, and his nephews were members of an undivided Hindoo family, and the zemindary, though impartible, was part of the common family property, one of the nephews was entitled to succeed to it on the death of his uncle. ' The Judgment in this case was delivered by Turner, L.J.
5. In Doorga Persad Singh v. Doorga Konwari (1878) I.L.R. 4 Calc. 190, their Lordships say (at page 201 of the Report): 'The impartiality of property does not destroy its nature as joint family property or render its the separate estate of the last holder so as to destroy the right of another member of the joint family to succeed to it upon his death in preference to those who would be his heirs if the property was separate. The rule upon this subject was stated in the Shivagunga case.' Their Lordships then proceed to quote from the Judgment in the Shivagunga case and say (at page 202) 'the same rule was laid down by their Lordships in a case which was decided on the 12th of February, in the present J year.' Their Lordships then quote from the case of Sivagnana Tevar v. Periasami (1878) I.L.R. 1 Mad. 312.
6. The same principle, it seems to me, was again laid down most emphatically in Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora (1870) 13 Moo. I.A. 333.
7. In Sartaj Kuari v. Deoraj Kuari (1881) I.L.R. 10 All. 272 the question was to the validity of certain alienations by the Raja in favour of his wife. It was contended by the family that not even the Raja could break up the impartible estate (a view very generally held by the courts in India). Their Lordships held otherwise, and distinguished the previous decisions I have quoted. In the present case, however, no such distinction can be made because the question is not the power of the Raja to alienate, but where we are to find the successor to the gaddi. The circumstances of the present case are very similar to those in Kachi Yuva Rangappa Kalakka Thola Udayar v. Kachi Kalyana Rangappa Kalakka Thola Udayar (1905) I.L.R. 24 Mad. 562 : (1909) I.L.R. 28 Mad. 508 and the very question was raised.
8. I next proceed to consider the question of separation. An ordinary Hindu family separates:
(1) When one or more members of the co-parcenary body assert his or their legal right to have the joint property partitioned, or
(2) They may agree to a partition.
9. is the very essence of an impartible estate that there is no legal right to insist on partition, and it is somewhat difficult to understand how the members of a joint Hindu family in an impartible estate can agree to separate and the estate still remain impartible. If each member of the family, including the occupier of the gaddi, took his share of the estate it would almost seem as if the impartibility would cease with the partition. In Tara Kumari v. Chaturbhuj Narayan Singh (1915) I.L.R. 42 Calc. 1179 their Lordships held that there had been separation, but their Lordships do not appear to have held that the estate remained impartible after separation. In this case their Lordships decided the question of separation as a question of fact not of law. I will, however, assume that there can be such a separation. The question I conceive is one of fact. 'A fact is said to be proved when after considering the matters before it the court believes it to exist, or considers it so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists.' (Section 3, Indian Evidence Act). The question is did Adil Shah and his brothers separate or did the family subsequently separate? In my opinion there could have been no, separation unless there was an intention to separate. Such intention could be proved by direct evidence' or might be inferred from facts. There is no direct evidence. In a large impartible raj specific property is generally given to the junior members for their maintenance. In an impartible ray it would be practically impossible to manage otherwise. Sometimes this property is transferred by written instruments expressly for maintenance with the express condition that it should not be alienated. Sometimes the property is given in a much less definite way and there is always a tendency for the junior branches to treat the property as their own, to mortgage it and even to sell it. Their Lordships of the Privy Council do not appear to have considered it inconsistent with the impartibility of the raj that the Babus should hare the power of alienating the property assigned to them, Once their Lordships decided as they did in Sartaj Kuari v. Deoraj Kuari (1881) I.L.R. 10 All. 272 that the Raja could himself alienate, it followed that the Babus could do the same unless the grants to them were limited. In this raj sixteen taluqas have been assigned for the maintenance of the Babus. There is in the present case evidence that the descendants of Babu Rachpal partitioned between them the property they held. Assuming that they had a legal right to do this, I think it is by no means conclusive on the question as to whether the raj had ceased to be joint for the purpose of ascertaining who has now the right to sit on the. gaddi. The taluqa associated with the gaddi has never been partitioned. And the grants to the brothers of Adil Shah were in substance, though perhaps not in form, made by Adil Shah: see Bachoo Harkisondas v. Mankorebai (1904) I.L.R. 29 Bom. 51 (57). There is another fact relied on, namely, that Rani Bed Saran succeeded to her husband in 1871. It was (in the absence of custom) somewhat inconsistent with Raja Kesho Saran being joint with Babu Bindeswari Prasad, Babu Jagannath, Babu Baijnath and Babu Bishnath that the Rani should have succeeded. The Rani in a petition against the estate being taken over by the Court of Wards claimed to be the heir and alleged that her husband had given her authority to adopt a son. If the Raja had really made an oral will (which was not improbable) giving the Rani direction to take over the estate and adopt a son, it would explain why she was allowed to remain in possession, or her possession could be explained on the basis of custom, and there is evidence of such a custom. It is pleaded in the present case that the Rani succeeded on the basis of custom. In the case of Raja Rup Singh v. Rani Baisni (1884) I.L.R. All. 1, the question was whether the Rani was entitled by custom to the estate for her life. The case was decided by the High Court in 1880. Part of the evidence by which it was sought to prove that there was such a custom, was the fact that this very Rani Bed Saran had so succeeded to the gaddi of Aghori. It is quite possible if in 1871 the question had arisen whether there was a family custom and the Rani was claiming the estate on the basis of custom that she might have failed to discharge the onus just as the other Rani failed in the case reported in I.L.R. 7 All. page 1. In considering whether there is such a custom, the fact that the family allowed the Rani to succeed should not be left out of consideration with the rest of the evidence on the point such as it is.
10. His Lordship dealt with facts and circumstances which in his opinion proved that the family never separated or intended to separate and the property was not the self-acquired property of Adil Shah. He also held that Jagannath Singh was the preferential heir.
11. One more contention was put forward on behalf of the defence. It was argued that if the property was joint Rani Bed Saran had no right to possession and that if she had none the suit is barred by limitation. I have already pointed out that the Rani's possession could be legally explained on the basis of a will by her husband or on the basis of custom. I do not think under the circumstances the Rani's possession could be said to be adverse.
12. No argument was, nor do I think any argument could have been, addressed to us on the 21st ground of the memorandum of appeal.
13. It is not alleged in the memorandum of appeal that any distinction could be drawn between the property and the grant of Rs. 8,000. I do not think that any such distinction could have been made. The grant of Rs. 8,000 has been always enjoyed (save to the extent of Rs. 900 per annum) by the Raja and has been treated as part of the raj. No argument was addressed to us on the matter.
14. His Lordship appended to his Judgment a history of this grant and a supplementary statement as to the history of Rs. 900 part of Rs. 8,001.
Muhammad Rafiq, J.
15. I am of the same opinion as the learned Chief Justice and I give some of the reasons which have made me come to a finding adverse to the appellant. The dispute between the parties to this appeal relates to an ancient estate which at one time was a principality. The estate is known as Agori-Barhar and is situate to the south of the river 'Son' in the district of Mirzapur. His Lordship then recounted the history of the family up to the death of Raja Kesho Saran who died leaving him surviving a widow but no issue. Among the collaterals alive at the time of his death the nearest by blood relationship was Babu Bindeshwari Prasa d Singh and next to him in degree were the three sons of his elder brother, viz., Jagannath Prasad, Baijnath Prasad and Bishan Nath Prasad.
16. Bindeshri Prasad and Jagannath Prasad died in the life-time of the Rani. One of the sons of Jagannath Prasad, viz., Babu Tej Bali Singh, is the plaintiff in the present case, and the two brothers of Jagannath Prasad are the defendants, as also the sons of one of the two brothers. Bindeshri Prasad, it seems, took an objection to Rani Bed Saran Kunwar getting possession of the estate and claimed it for himself, but his objection was disallowed, vide Exhibit B12, page 80A of the Paper Book. She, however, entered into possession and held the estate till her death in March, 1913. During her life she gave considerable property to a Pandit of Benares called Banarsi Misir by lease, endowment and purchase in his name. On the 24th of May, 1909, she executed a will and appointed some persons as her executors and gave them her Stridhan, i.e., her personal property. On the 1st of March, 1910, she made a codicil in which she specified the property that was to go to one of the executors. On the 12th of January, 1912, she executed a further codicil by which she declared that Baijnath Prasad Singh and Bishnath Prasad Singh (defendants 1 and 2) were heirs to her late husband and that Baijnath should succeed to the gaddi. On the 1st of October, 1912, she executed a lease of 67 villages in favour of defendants 3 and 4. On the 4th of November, 1912, she executed a deed of relinquishment in favour of the first defendant of her rights in the estate. On her death in March, 1913, on a dispute between the plaintiff and the defendant No. 1 as to the possession of the estate the District Magistrate declared the latter to be in possession and directed the plaintiff to seek his remedy in a civil court. Thereupon on the 2nd of June, 1913, the suit out of which this appeal has arisen was brought by the plaintiff for a declaration of his title to and the possession of the raj of Aghori-Barhar. The plaint, after reciting the old history of the estate, goes on to say that the raj is impartible and that the succession to it is governed by the rule of lineal primogeniture according to the custom of the family. The younger members of the family are entitled to maintenance, and in case of the death of a Raja without issue, his senior widow, under a custom obtaining in the family, is entitled to hold the estate for her life, subject to the vested interest of the eldest member of the senior branch living at the time of the death of the last Raja to succeed after the widow. On the death of Raja Kesho Saran Shah in 1871, Babu Jagannath, Prasad Singh, father of the plaintiff, became entitled to the raj subject to the life estate of Rani Bed Saran Kunwar. In fact the late Raja on his death-bed, in conformity to the family custom, directed that his widow should hold the estate for her life and that after her death Jagannath Prasad should succeed to the raj. The latter was accordingly recognized as Tuvaraj i.e., the heir apparent. He died on the 14th of November, 1910, and the plaintiff, his eldest son, became entitled to the raj subject to the life estate of Rani Bed Saran Kunwar. She wanted plaintiff and his father to consent to the gifts and other alienations she had made to and in favour of Banarsi Misir, and even offered to relinquish the raj in their favour, but' they refused. She then approached the defendant No. 1 and got his consent to the benefits conferred by her on Banarsi Misir and in consideration of the compliance of the defendant No. 1 with her wishes, she first made a will and then executed a deed of relinquishment in his favour and a lease of 67 villages in favour of his sons. She had no right to make any of the transfers mentioned above nor could she dispose of the estate by will or deed of relinquishment. The plaintiff therefore sued to recover possession of the raj as also the property conveyed to Banarsi Misir by a declaration of his title as the lawful successor to Kesho Saran Singh by the rule of lineal primogeniture and by a declaration of the invalidity of the will of the 13th of January, 1912, the deed of relinquishment of the 4th of November, 1912, the lease of the 1st of October, 1912, and the alienation made in favour of Banarsi Misir. I need not refer to the defence of Banarsi Misir as the claim against him has been dismissed and no appeal has been preferred. Defendant No. 2 defended the suit on the ground that no cause of action was disclosed in the plaint against him and that he was not in possession of the estate. He asked for his costs. Defendants 3 and 4, the sons of defendant 1, set up the validity of the lease on the ground that it reserved a fair rent. The chief defendant who contested the suit was defendant 1. He denied that the raj was impartible or that the rule of succession by family custom or under the law governing the family was lineal primogeniture or that there was a family custom under which the senior widow of the last male-holder in case he died without leaving any issue got a life estate. He said that the estate was partible and had been divided prior and subsequent to 1745, and that whatever may have been its character perior to 1745, it was granted to Adil Shah for life and again to Ran Bahadur Shah by the East India Company as an ordinary zamindari. It was divided in Adil Shah's life-time between him and his brothers and again among the two sons of Ran Bahadur Shah. In any case the grants to Adil Shah and Ran Bahadur Shah would make the estate the self-acquired property of each in turn, in which case, whether the grant was of partible or impartible estate, the estate would under the Hindu law go to the nearest sapinda of Raja Kesho Saran, i.e., to defendant 1. Moreover, Rani Bed Saran Kunwar was in adverse possession for more than twelve years and hence defendant 1 would succeed to the estate both under the deed from her and as the nearest sapinda of her late husband. I would observe here that no separate defence was sot up as to the malikana.
17. The learned Judge of the lower court found on all the issues raised in the pleadings of defendants 1 to 9 against them and decreed the claim. They have in their appeal to this Court reiterated the pleas taken in their written statement in the lower court.
18. The main question in the appeal is who is the lawful successor of Kesho Saran, the last Raja? The reply to the question depends upon the decision of four matters, viz.-
(1) The character of the estate.
(2) The nature of the grant to Adil Shah and again to Ran Bahadur Shah.
(3) The status of the family at the time of the grant to Adil Shah and subsequently.
(4) Nature of Rani Bed Saran Kunwar's possession.
19. It is contended on behalf of the appellants that the estate was not impartible prior to 1745 nor was it granted to Adil Shah or Ran Bahadur as an impartible estate. The grant to Adil Shah was of mokarrari lease and to Ran Bahadur of an ordinary zamindari. The character of the estate prior to the grant to Adil Shah is only relevant to show the nature of the grant to him as in the sanad and other official documents it is stated that he is restored to his former rights and also to show the natural desire of Adil Shah and his descendants to retain and keep up the dignity of a raj. The official and other historical accounts of the district of Mirzapur agree in stating that the estate of Aghori-Barhaf was a principality up to the time of Raja Shambhu Shah, the grandfather of Adil Shah. The fact that the Chandel rajas of Aghori-Barhar were descended from the Chandel rajas of Mahoba would make the former adhere to the ancient custom of retaining the dignity of a raj in the family. But it is argued for the appellants that the estate was divided several times prior to 1745. The instance's relied upon are' the division of the estate between the two Chandel princes who usurped the raj on the death of Raja Maddan, the Kharwar chieftain, the partition of the estate by Oran Deo in his life-time between his two sons and subsequent assignment of small taluqas to different members of the family, as is evidenced by the pedigree filed by the plaintiff respondent. The pedigree is admitted by the appellants, with the exception of the remark against the names of the junior members of the family as 'guzaradars.' It is said that they were not 'guzaradars' but got the taluqas on separation. The division by the two Chandel princes on the usurpation of the estate cannot be said to have been a partition under the Hindu law. They had usurped the raj and had divided it among themselves each holding a separate raj. Nor can the division of the estate by Oran Deo among his two sons be said to prove the partibility of the estate in suit. Each of the estates created by Oran Deo as a matter of fact became a separate raj and has descended as such. The so-called subsequent divisions were not based on partition at all. The younger members of the family were granted villages as maintenance allowance from time to time; vide Mirzapur Gazetteer and the report of the tahsildar, in 1868, respondents. Paper Book p. 73, and Sherring's Hindu Castes and Tribes, p. 383. There is no evidence on behalf of the defendants appellants to show that the accounts given in the Gazetteer, or Sherring's book or the report of the tahsildar are incorrect. I am therefore of opinion that the estate in question was held as an impartible raj up to the time of the expulsion of Raja Shambhu Shah by Raja Balwant Singh of Benares in 1744-1745.
20. The next point for consideration is what was the nature of the estate granted to Adil Shah? Was he granted an ordinary zamindari and was the grant personal to him so as to make the estate his self-acquired property? The language of the sanad of the 9th of October, 1781, shows that Adil Shah was given the same estate as was held by his grandfather Shambhu Shah.
21. His Lordship after discussing the terms of the grant and other circumstance of the family proceeded.
22. The whole history of the estate from 1781 to 1845 to be found in the Government records and correspondence militates against the contention of the appellants that the grant to Adil Shah or Ran Bahadur was personal and therefore the estate conferred on them was their self-acquired property.
23. For the appellants reference has been made to the following cases: Sri Raja Satrucharla Jagannadha Razu v. Sri Raja Satrucharla Ramabhadra Razu (1891) I.L.R. 14 Mad. 237, Venkatarayadu v. Venkataramayya (1891) I.L.R. 15 Mad. 284, Venkata Narasimha Appa Row v. Parthasarathy Appa Row (1913) L.R. 41 I.A. 51, Brij Indar Bahadur Singh v. Ranee Janki Koer (1877) L.R. 5 I.A. 1.
24. None of these cases in my opinion lays down that a fresh grant in all circumstances renders the property of the grantee his self-acquired property.
24. The first case related to the zamindari of Merangi in Madras. The contention was that the zamindari was impartible prior to its incorporation in another zamindari and its grant by the British Government did not render it partible. It was held that, even if the zamindari was impartible prior to its inclusion in the Vizianagram zamindari, the subsequent dealings with the (Merangi) zamindari, the nature and the terms of the grants under which it was held after 1802 and other evidence showed that it was now partible. In the present case the terms of the sanads of the 9th of October, 1781, and of 1794, their official interpretation soon after and the dealings with the estate by Adil Shah and Ran Bahadur Shah show that the grant was not personal and that the estate in their hands did not become their self-acquired property. In the second case, the one reported in I.L.R. 15 Madras, page 284, it was held- on the evidence and the circumstances of the case that the grant by the Government to Venkata Narasiah was not a grant to the undivided family of which he was a member but to him personally. The third case, that of Venkata Row, was-also decided' on the facts proved in it and the construction of a sanad granted under Regulation XXV. It in no way helps the appellants.
25. The last case, that of Brij Indar Bahadur, was also decided with reference to the language of the sanad granted to Kablas Koer, mother of Janki Koer and the facts and circumstances which led to the grant of the sanad. Moreover, the provisions of Act I of 1861 (Local Law applicable to Oudh) were also considered as affecting the rights of the parties. The decision of that case has no bearing on the present case. All that can be said on the authorities relied upon for the appellants is that each case should be decided on its facts and circumstances. The intention of the grantor, the language of the grant, the surrounding circumstances and the dealings with the estate have to be considered in determining the nature of the grant. In the present case all these considerations negative the contention of the defendants appellants. Another argument which has been urged with great force is that, had the estate not been the self-acquired property of Adil Shah, the widow of the last Raja would not have been allowed to succeed to her husband. I shall discuss the question of her succession presently, but, even if her succession is inexplicable on any other ground, that fact alone would not, in the face of other evidence, prove conclusively that the property in suit was the self-acquired property of Adil Shah.
26. The next point to be discussed is the status of the family. The defendants appellants say that there is no evidence that the estate was joint at the time of Shambhu Shah or that Adil Shah was joint with his brothers. In fact, they say, that the circumstances disclosed by evidence go to show that the family was neither joint before the confiscation of the estate in 1744-1745, nor at the time of restoration in 1781 nor afterwards. Prior to the confiscation, during the time of Shambhu Shah, other members of the family, his own brothers included, were living separately and had separate taluqas in their possession over which they had disposing power and which were divisible and were divided among their descendants. After the restoration, Adil Shah gave his two brothers, Bhup Narainand Rachpal, separate taluqas who lived on their estates. Adil Shah mortgaged some of his property to Rachpal. He also gave the latter Rs. 900 per annum out of the malikana, which is still enjoyed by the family of Rachpal, The holders of the said taluqas cannot be said to be 'guzaradare.' A 'guzara ' is not alienable and a guzaradar must pay his revenue to the parent estate and not directly to the Government. Besides, if the family were joint, plaintiff's father should have claimed the succession on the death of Kesho Saran. In his application to the Government officers on the death of Kesho Saran plaintiffs father made no allegation of joint family and his right to succeed. It will be apparent from the argument for the appellants that the contention is based on the character of the ' guzaras' in the estate in suit, the mortgage by Adil Shah to Rachpal, the succession of Rani Bed Saran Kunwar and the silence of plaintiffs father and his omission to press his claim as the next successor. The fact that the guzaradars of Aghori-Barhar have disposing power over their 'guzaras,' or that the guzara villages are divisible and are divided among their descendants, or that the ' guzaradars' pay revenue directly to the Government, does not change the character of their tenure or prove that they have separated from the family. A 'guzara ' is held on the terms it is granted, or the custom of the family. In the family of the parties to this appeal it appears that the 'guzaradars' have the power of disposition and division and pay revenue direct to the Government. These incidents of the guzara are due either to the custom of the family, as deposed to by witnesses for the plaintiff, or considerations of convenience. The mortgage by Adil Shah to Rachpal would not necessarily show that the two were separated. Add Shah, as owner of an impartible estate, could dispose of it as he liked. If he could transfer it what did it matter to him to whom he mortgaged a part of it. The succession of Rani Bed Saran Kunwar and the silence of plaintiffs father are, no doubt, circumstances which require consideration, and I shall refer to them when dealing with the possession of Rani Bed Saran Kunwar. They are, however, by themselves not sufficient to prove that Adil Shah was separated from his brothers. As against the considerations advanced on behalf of the defendants appellants we have to take into account some other facts which militate against the theory of partition. First is the presumption of 'Hindu law in favour of jointness and especially in the case of brothers. Then we have the fact of the reversion to the parent estate of four of the Babuana taluqas on the extinction of the lines of four guzaradars. The said four talukas were Kharawan, Kolwa or Rajpur, Tendhua and Bhanawal. Again, on the death of Bhup Narain, the second brother of Adil Shah, his taluqa, if the family was separate, ought to have been divided between Ran Bahadur and Rachpal, for Ran Bahadur had been adopted by Adil Shah and could not claim the whole taluqa as the son of his natural father. But Bhup Narain's taluqa reverted to the raj. In his plaint in 1822, Ran Bahadur distinctly stated that Rachpal was given the taluqa of Bishrekhi, now called Jamgaon, as maintenance. The descendants of Rachpal made the same allegation and the court found it to be true. Had the family been separate, Rachpal's descendants, the ancestors of defendant 1, would have pleaded that Bishrekhi was obtained on partition. In the litigation of 1793 relating to the taluqa of Mukarsam Khas neither party pleaded that Babu Deo Dat had got the taluqa by partition. The common case was that he had got it for maintenance. The learned advocate for the appellants relies on the case of Tara Kumari v. Chaturbhuj Narayan Singh (1915) I.L.R. 42 Calc. 1179 in support of his contention that when some portion of the estate is given to a member of the family who goes away and takes up his residence in another house separate from that of the Raja that amounts to separation. In the present case Rachpal and his descendants have lived in Bishrekhi and therefore he says they have been separate from Adil Shah and his descendants. I think that the case of Tara Kumari was decided on its particular facts and lays down no general principle. In a large estate and a numerous family it is the rule rather than the exception that the junior members of the family are given villages for their maintenance where they go and live for convenience and management. I find that the family was not separate either before or after Adil Shah got the estate.
27. The fourth point for consideration is the nature of the possession of Rani Bed Saran Kunwar. The case for the plaintiff is that under a custom obtaining in the family the senior widow of the last male-holder, in case of his leaving no issue, gets a life estate of a Hindu widow and Rani Bed Saran Kunwar succeeded as such. Oral evidence has been given on behalf of the plaintiff in support of the alleged custom. The defendants -appellants object to it and I think there is force in their objection that the said evidence is not sufficient in law to prove the custom set up. There are no valid instances given or proved. But it appears to me that the silence of the defendants 1 and 2 and of the father of the plaintiff and the absence of any objection on their behalf to Rani Bed Saran Kunwar taking possession of the estate are explicable either on the existence of the alleged custom or their belief in the existence of such a custom or their respect for the wishes of Raja Kesho Saran, as stated in the plaint and by the Rani in several of her documents, or the desire to maintain the rank and position of the Rani as the widow of the head of the family.
28. As to the belief of the family in the existence of the custom in question, in addition to the conduct of the defendants 1 and 2 and plaintiff's father, we have the evidence of the Rajas of Basti and Gidour who were connected with the family of Aghori-Barhar and who swear to the custom. The belief does not seem to be of recent growth. It was entertained as long ago as 1828. Rani Jai Chand Kunwar, the widow of Raja Makardhuj Shah, in her application of the 18th of August, 1828, refers to the custom in question. But apart from custom or the belief in it the oral will of Raja Kesho Saran, alleged by Rani Bed Saran Kunwar on more than one occasion and admitted by the plaintiff in his plaint and deposed to by some of his witnesses, would give the Rani the right to hold the estate for her life. I think that the weight of evidence is in favour of the oral will of Raja Kesho Saran Shah whose wishes were respected by plaintiff's father and defendants 1 and 2 giving the estate to his Rani for her life. I do not at the same time believe the story of the plaintiff that the Raja on his death-bed nominated plaintiff's father as 'Yuvaraj.' The possession of Rani Bed Saran Kunwar was not therefore adverse. Moreover, if it be said that the alleged oral will of Kesho Saran is not proved and that the Rani held the estate without any right we have to see whether she became the absolute proprietor of the estate and thus the claim of the plaintiff is not sustainable. She admittedly held the estate as a Hindu widow. She says so in her will, her deed of relinquishment, her petitions to Government and the Government officials, and the defendants 1 and 2 treated her as such. Her possession as a Hindu widow does not make her absolute proprietor of the estate. Had the plaintiff or his father sought to eject her after she had been in possession for 12 years, he would have failed as she could claim to remain in possession as a Hindu widow for her life. It cannot, therefore, be said that because she admittedly held the estate as a Hindu widow the rule of succession to the estate has been altered by that fact. Had she been in possession as an absolute owner, then no doubt the rule of succession would have been affected. The only result of her possession as a Hindu widow has been to interpose the period of her life between the death of her husband and the succession to the collateral entitled to succeed. Now that the four points, on the decision of which, as I have said in the earlier part of this judgement, depends the reply to the main question raised in the appeal, have been determined--what is the answer--who is entitled to the estate? My answer is--the plaintiff. It has been held that the rules of succession which govern the devolution of a partible estate apply to an impartible one also, 'with such qualifications only as flow from the impartible character of the subject.' This was first laid down by their Lordships of the Privy Council in the Shiva-gunga case and has been followed since--vide Katama Natchiar v. The Raja of Shivagunga (1863) 9 Moo. I.A. 543. The principal qualification imposed by the impartible character of an estate is that a single person from amongst the heirs should succeed and hold the estate, that is, the succession is governed by the rule of primogeniture though not necessarily lineal primogeniture. The choice of the single heir depends on several considerations--whether the succession is governed by the Mitakshara or some other system of Hindu law; whether the estate was self-acquired or ancestral, and whether the family was joint or separate In the present case the parties are admittedly subject to the Mitakshara, and I have held that the estate in the hands of Adil Shah was impartible and ancestral and not divisible and self-acquired and that he was joint with his brothers. In view of my findings on the character of the property and the grant to Adil Shah and the status of the family and the fact that the parties are subject to the law of the Mitakshara--the choice must fall on the nearest co-parcener of the senior line--in the absence of any special family custom of descent. The rule of succession in such a case as the present was first enunciated in the case of Naraganti Achammagaru v. Venkatachalapati Nayanivaru (1881) I.L.R. 4 Mad. 250. It was laid down in that case that 'when impartible property passes by survivorship from one line to another it devolves not necessarily on the co-parcener nearest in blood but on the nearest co-parcener of the senior line.' This principle was adopted in subsequent cases and was approved of by their Lordships of the Privy Council in the case of Kaohi Kaliyana Rangappa Thola Udayar v. Kachi Yuva Rangappa Thola Udayar (1909) I.L.R. 28 Mad. 508. In the present case the plaintiff is the nearest co-pareengr of the senior line, while defendant 1 is the co-parcener nearest in blood. The plaintiff therefore has the preference over defendants 1 and 2, and I hold accordingly.
29. I should also mention that the plaintiff in his plaint had stated that under a family custom the succession to the estate was governed by the rule of lineal primogeniture. He gave evidence in support of his allegation. If the right of the plaintiff to succeed depended on the alleged custom, I would have felt considerable hesitation, in view of the evidence in the case, in holding that he had proved his allegation of custom. In fact the question was not approached from that point of view by either side in argument. Each party claimed to be entitled to the estate under the law, resting his claim on the character of the estate, the nature of the grant, the status of the family and the character of Rani Bed Saran's possession. I would also like to note that the learned Counsel for the defendants appellants frankly admitted during the course of his argument that if the estate is held to be impartible and in the hands of Adil Shah to be both impartible and ancestral and the family joint, the plaintiff must succeed. One other point remains to be considered, viz., the objection of the defendants appellants to the decree of the lower court with regard to the movables. No list of movables was given in the plaint and no evidence was produced to prove any in the possession of the defendants appellants. The learned Judge of the lower court has directed that the defendants appellants should make a discovery of the movables and give an account. The direction by the learned Judge is obviously erroneous. In my opinion the decree as to the movables is bad in law and must be set aside.
30. Before concluding my Judgment I would like to say a few words about the claim to the malikana. I have already mentioned, when reciting the pleas of the parties, that no separate defence was set up with regard to the malikana. In the grounds of appeal to this Court no objection is taken especially with regard to the decree of the lower court about the malikana. But I do not wish to rest my decision on the omission of the defence, for it might be said on their behalf that if the argument of a personal, grant to Adil Shah or Ran Bahadur does not apply with regard to the estate, it does certainly apply to the malikana. The reason of the grant of the malikana and its subsequent history have been given by me in the earlier part of this judgement. The malikana was no doubt personal to Adil Shab, and the whole of it would, have been resumed but for the guarantee given by the Resident to the creditor of Adil Shah. The re-grant to Ran Bahadur was made on his representation that his estate had been over-assessed and he was getting into financial difficulties frequently. His representation may have been right or wrong, but it was in the belief that his estate had been over-assessed that the grant was made, and not only for his life but permanently. It therefore follows that the grant of malikana was made to enable the holder of the estate to pay his revenue punctually and to maintain the position and dignity of his rank. The malikana must therefore go with the estate. I would therefore dismiss the appeal and uphold the decree of the lower court, but with this modification that the decree with regard to the movables should be limited to the list given by the defendant 1 in his written statement at pages 29 and 30 of the Paper Book.
31. The order of the Court is that the decree of the court below is set aside with regard to movable property save to the extent of the movable properties mentioned at pages 29 and 30 of the Paper Book. In all other respects the appeal is dismissed with costs.