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Raja Jaleshwari Pratap NaraIn Singh Vs. Pateshwari Baksh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All345
AppellantRaja Jaleshwari Pratap NaraIn Singh
RespondentPateshwari Baksh Singh and ors.
Excerpt:
- - is invested with all the virtues and is generous like ocean. asthana for the appellant argued that the holders of a grant could make a transfer and that such transfer would be perfectly valid during the period that the joint family of which the grantee was the founder remained and did not become extinct. that he who became a babu was the owner of what was allotted to him as his share as a babu and that the property in the possession of one who died without issue and without leaving any person to enjoy his estate devolved on the raja of the pargana. 360, line 21 is perfectly clear that the plaintiff's suit was barred by limitation with reference to the date of the settlement made by the collector. the lady died in 1812 and the suit was not brought until 1828, a period of 16 years.....bennet, j.1. this is a first appeal by the raja of basti against a decree dismissing his suit for possession of a large number of villages, 29 in one group and 47 in another. the appeal has taken a long time because in the original suit there were 1004 defendants and in the appeal there are 648 respondents. the plaint sets out that the plaintiff is the owner of raj basti which is a very old and impartible raj, and that the eldest son of the raj a succeeds to the gaddi and gets the entire raj and other sons who are called babus are entitled to maintenance only, and when they become separate from the raj they are given some property for their maintenance which is called babuai right; that the babu and his male descendants have a right to remain in possession thereof in order of succession,.....
Judgment:

Bennet, J.

1. This is a first appeal by the Raja of Basti against a decree dismissing his suit for possession of a large number of villages, 29 in one group and 47 in another. The appeal has taken a long time because in the original suit there were 1004 defendants and in the appeal there are 648 respondents. The plaint sets out that the plaintiff is the owner of Raj Basti which is a very old and impartible Raj, and that the eldest son of the Raj a succeeds to the gaddi and gets the entire Raj and other sons who are called Babus are entitled to maintenance only, and when they become separate from the Raj they are given some property for their maintenance which is called Babuai right; that the Babu and his male descendants have a right to remain in possession thereof in order of succession, but they cannot transfer it and that if any Babu or any male descendant in any branch dies as a member of the divided Hindu family without leaving any male issue, his Babuai property reverts to the Raj, but if he leaves a widow, she remains in possession for her life; that in accordance with this ancient custom a grant was given to Babu Sheo Narain Singh, younger son of Raja Jubraj Singh as Babuai right for his maintenance without any right of transfer under a 'birtpatra' dated Kuar Sudi 10, 225 Fasli (printed on p. 283); that Babu Sheo Narain Singh died in 1844 leaving a widow Dulhin Ganeshi Kuari and two sons Babu Bans Bahadur Singh and Babu Chatardhari Singh (father of defendant 1, Pateshri Bakhsh Singh who is still alive); that each son of the deceased got possession over half of the Babuai property without any right of transfer, but the name of their step-mother was also entered, although she never entered into possession of the property. Para. 7 sets out that Sheo Narain Singh and Bans Bahadur Singh

contrary to their right and power encumbered and transferred the Babuai property of considerable value in various ways and on different occasions.

2. Para. 8 sets out that while the family was separate, Babu Bans Bahadur Singh died (1900) without any male issue leaving his widow Dulhin Ramdei Kuari. According to the custom of the family, she became entitled to possession of the entire property as a life-tenant without any transfer, and she entered into possession of the property in list A. Dulhin Ramdei Kuari died on Katik Badi 9, 1328 Fasli (1921) and according to the old custom of the family the plaintiff became owner and entitled to possession of a moiety share in the Babuai property which had been granted to Sheo Narain Singh; that the defendants first party, the nephew and the sons of the daughter of Babu Bans Bahadur Singh alleged that they had a right to succeed to the said property. (They have not contested the case.) Defendants second, third and fourth parties are transferees. As regards defendants fifth party, it is stated that they are missing but made a party to remove legal defects and defendants sixth party are other persons of the Babu family of the plaintiff who denied the plaintiff's title. The relief asked for was for a decree for recovery of possession over the property. The transferee defendants entered defences denying that the document on which the plaintiff relied as the original grant of 1817 was a genuine document and denying that there was any such custom and making further pleas in regard to the confiscation of the estate during the mutiny.

3. A number of issues were framed and the Court below has found that the document on which the plaintiff relies for a grant was not proved to be genuine and that the custom by which the Babus had no right of transfer was not proved by the plaintiff and that the plaintiff had no right to resume possession. There are two main questions argued in appeal before us, firstly whether the document of the date corresponding to 20th October 1817 printed on p. 283 is a genuine document granting the estate by the then Raja of Basti to Sheo Narain Singh, and secondly whether a custom has been established by which the plaintiff is entitled to resume possession of the property named in the plaint under the circumstances which have arisen. We shall deal with both of these issues together as the different judgments and papers to which, we shall refer have been relied on by the appellant as establishing both these points. The document printed on page 283 is as follows:

From Sri Maharaj Dhiraj Jubraj Singh Devanang who by the grace of Sri Lakshmi Narain, etc. is invested with all the virtues and is generous like ocean. All the villages which have reverted from Babu Bhagwant Singh and Adhar Singh and are settled with Lal Sheo Bakhsh Singh have been given to Maharaj Kunwar Babu Sheo Narain Singh as 'birt' zamindari for his maintenance. They have been given along with water, wood, path and all the four boundaries. Lal Sheo Bakhsh Singh should deliver possession and obtain from the Babus a receipt. Should he (Babu) except cultivating the 'birt' land sell the Babuai property or transfer it in any other way, the sale or transfer shall, according to the old usage of the family, be held to be false and invalid. Hence this 'birt' zamindary 'patra' has been executed, dated Kuar Sudi 10th, 1225.

4. Now this document sets out that the grant is for maintenance and no reference is made to the heirs of Sheo Narain Singh and presumably the document would only entitle Sheo Narain Singh to retain the property for his own life. In this way, the document differs from the grants mentioned in para. 3 of the plaint which are for the Babus and their male descendants and the widow of the last male issue for her life. The document sets out that the grantee is not to sell the property or transfer it in any way and if there is a transfer, it shall be held to be false and invalid. This document sets up a bar to the right of transfer altogether. On the other hand Dr. Asthana for the appellant argued that the holders of a grant could make a transfer and that such transfer would be perfectly valid during the period that the joint family of which the grantee was the founder remained and did not become extinct. The case for the appellant therefore is based on a claim which is different from that set out in the grant for if the terms of the grant were to be applied as they stand in the grant, then obviously the rule of 12 years' limitation would bar the plaintiff from claiming back any property from persons to whom transfers have been made earlier than 12 years before the suit and the great majority of the transfers, if not all, took place earlier than 12 years from the date of the suit, the plaint being dated 10th January 1922.

5. Now although there have been a number of cases in Courts of law during the 19th century no mention is made on this document (Ex-1) dated 20th October 1817 in any of the judgments or documents of the 19th century. It is not until we come to Case No. 10 of 1900 in the Court of the District Judge of Gorakhpur that the document was produced for the first time and the document does not bear any endorsement of having been produced in a Court of law on an earlier date. On that occasion it was produced from the custody of Mt. Ramdei, the widow of Bans Bahadur Singh, and it is claimed that it is produced from proper custody and that as the document is more than 30 years 'old, therefore this Court should draw the presumption under Section 90, Evidence Act, that the document was duly executed. Such a presumption is not one which the Court must draw and the Court has a discretion in the matter. We shall trace the litigation from the time of the 19th century.

6. There is an earlier document printed on p. 257 of a date corresponding to the year 1729. That document purports to be a grant to certain Babus of the family but it merely states that the grant is made as 'birt' zamindari in lieu of their shares and no words of restriction of the right of transfer are contained in this document. Learned Counsel for: the appellant alluded to a document on pp. 270 and 271 which was an order by the Collector of Gorakhpur in regard to the settlement of 15 villages from the years 1216 to 1222 F. The date of the order is given on p. 269 as 15th April 1813. The order sets out that Sukhmangal Singh the son of Bans Bahadur Singh, had died, and Dulhin Jian Kunwari, his mother, was in possession of certain villages and she had died and an order of 12th September 1812 was issued to the kanungoes to report who was the heir of the deceased. Their report was that

the property of Rajas, the zamindars of this country, was held in this way that he who became a Raja was the owner of the entire estate; that he who became a Babu was the owner of what was allotted to him as his share as a Babu and that the property in the possession of one who died without issue and without leaving any person to enjoy his estate devolved on the Raja of the Pargana.

7. Further, they reported that Raja Jubraj Singh, the eldest grandson of her own brother and the Raja of the Pargana, was proved to have a right as an heir. On p. 271, line 20 the conclusion of the Collector was

that Raja Jubraj Singh, the eldest grandson of the own brother of the said Dulhin and Raja of the pargana, had rightly been proved to have a right as her heir

and that settlement should be made with him, and if any person had a claim he should prefer it in the Civil Court. Now the person who had a claim was Chet Singh who in the pedigree on p. 36 filed with the plaint is shown to be the grandson of the brother of the husband of Dulhin Jian Kunwari and in fact one degree nearer in relationship than Raja Jubraj Singh who is the great grandson of another brother. On pp. 273 to 275 the Collector passed a further order in regard to another village which was revenue free stating:

According to the custom of this country no one other than the Raja of the pargana can inherit the estate of talukdars dying without issue.

8. On p. 355 and following pages there is the judgment of the Amin Sadar Adalat of Gorakhpur dated 12th June 1834 in a Case No. 6865 brought by B. Chet Singh against the Raja Sheo Baksh Singh and against Sheo Narain Singh to whom part of the property which had been originally held by Sheomangal Singh and hia mother Mt. Jian Kunwari had been granted by Raja Jubraj Singh. It was apparently in connexion with this undisputed litigation between Chet Singh and the Raja that the grant had been made to Sheo Narain Singh and if the document on page 283 were a genuine document, there would be some ground for supposing as has in fact been held by one Court that this document was prepared by the Raja with a view to establishing his claim against Chet Singh that the custom of the estate was that there should be a reversion under certain circumstances and no right of transfer. Now it should be noted that Chet Singh brought his suit on 19th August 1828 claiming 15 villages as mentioned on page 358 line 28 and on page 356 line 33 it is stated:

Up to this time the plaintiff is in possession and occupation of the remaining 64 villages forming a part of 75 villages, which were given to him by Dulhin Jian Kunwari.

9. The suit of Chet Singh was dismissed for a variety of reasons which are not very easy to follow, but the last reason on p. 360, line 21 is perfectly clear that the plaintiff's suit was barred by limitation with reference to the date of the settlement made by the Collector. The lady died in 1812 and the suit was not brought until 1828, a period of 16 years later, and accordingly the suit was clearly barred by limitation. It is to be noted however that Chet Singh was in possession of the greater number of villages of his grand uncle Kishun Singh, the father of Sukhmangal Singh. If the Raja had had a claim to the 102 1/2 villages mentioned on p. 355 line 40 as granted to Kishen Singh, then on the death of Mt. Jian Kunwari we would have expected that the Raja would have obtained the villages which had been the subject of the grant but apparently he did not. Further, we would have expected that in this judgment of 1834 there would be a reference to the document printed on p. 283 as constituting the right and title of defendant 2, Sheo Narain Singh, but there is no reference to any such document. There was an appeal to the Adar-us-Sudur and the appeal was allowed. This is mentioned on p. 372, line 30. A second appeal was then brought by the defendants the Raja and Sheo Narain in the Court of the District Judge on pages 369 to 374 and their appeal was allowed and the suit of Chet Singh was dismissed on the ground of limitation.

10. For appellant reference was made to certain settlements such as p. 309 to the settlement under the Act IX of 1833. That document merely stated that Sheo Narain Singh was in possession and paid revenue. In the same connexion on p. 389 there is an application of Rani Digambar Kunwari dated 28th June 1838 that as Raja Jubraj Singh had executed a deed known as 'birt patra' in favour of Sheo Narain Singh therefore the settlement from 1246, F. should be made with Sheo Narain Singh and certain villages are named. The settlement was made with Sheo Narain Singh; on p. 393 there is the agreement filed by Sheo Narain Singh agreeing to pay there venue. This agreement states in regard' to a village mauza Badokhar.

The said village is my ancestral zamindari property and settlement therefore has been made with me under Act IX of 1833 as zamindar.

11. Now these words indicate that Sheo Narain Singh considered himself as holding, full zamindari rights and not that he was a person holding the village without any right of transfer. The next document on which reliance is placed is printed on p. 411 and is of a date corresponding to the year 1848. This was executed by the same Chet Singh who had brought the shit in 1828 and he stated as follows:

The ilaka held by Dulhin Jian Kunwari, heir of Babu Adhar Singh deceased, will go to the Raja. Somehow or other I have come in possession thereof. Now I of my free will and consent and while in a sound state of mind execute a document in respect of my property as well as in respect of the property which I have given to Dulhin Bup Kunwari, that is, the entire property whether held, jointly or separately and whether held or revenue paying, in favour of Maharaj Dhiraj Raja Indar Dawan Singh Dewanam on condition that so long as I and Dulhin Gulab Kunwari and Rup Kunwari are alive we will be in possession thereof, but when. I and the aforesaid Dulhins die, the entire ilaka, that is, the villages, in whatever tappas they may be, will all go to the Raja and the Raja will take possession thereof. I have therefore executed this document in order that it may be of use when needed. Dated Chait Badi 2nd, 1255 Fasli.

12. Now this document is a transfer to the Raja after the death of Chet Singh and his two widows Dulhin Gulab Kunwari and Rup Kunwari. We do not think that this can be taken as an admission of the right of reversion to the Raja but it is a document like a will purporting to give the Raja the property on the death of the holder and the widows.

13. The next document in historical order is the judgment of the High Court at Allahabad in F.A. No. 58 of 1879, a judgment dated 20th May 1880, printed on pp. 489 and 490. This judgment sets out that Sheo Narain Singh died in 1843 leaving his widow Dulhin Ganesh Kunwari and under her guardianship two miner sons, by another deceased wife, Chaturdhari Singh and Mahesh Bahadur Singh, that the names of all three were substituted in the proprietary registers and that the estate was confiscated in 1858 on account of the rebellious conduct of the sons. A moiety was afterwards released and restored to the widow on her application by the Government. The question arose between the plaintiff who was a creditor and Chaturdhari Singh, Bansbahadur Singh and Mt. Rani Bhagwant Raj Kunwari as to the effect of the orders of confiscation and the High Court held that on the death of Sheo Narain Singh his estate under the Hindu Law devolved on his sons and his widow was only entitled to maintenance. If at the time of confiscation she was in possession of a portion the reasonable presumption was that she was in possession in lieu of maintenance, that the release of that portion from confiscation by Government must be taken in the absence of proof to the contrary to have recognized the right by which she was in possession and not to have conferred on her any new right, and that the reversionary rights of the sons of Sheo Narain were not affected. We have examined the documents on the record and find that the confiscation was sanctioned by the Commissioner and afterwards an application was made by the widow in regard to her half share and a vernacular document was issued from the office of the Collector to the Tahsildar paying that the confiscation would not apply to the eight annas share for which the widow was entered. Apparently therefore no question of a re-grant arose.

14. The next document on p. 491 shows that after the death of the widow Bans Bahadur Singh stated that he and his brother held the property, four annas share each which they received as reversioners, separately and they cultivated their sir separately. It is mainly on this pleading that the lower Court has come to the conclusion that there was a separation between the sons of Sheo Narain Singh in regard to this property, Bans Bahadur and Chaturdhari Singh, and we think that that conclusion is correct. On p. 577 and following pages there is the judgment of the District Judge of Gorakhpur dated 14th May 1900 in Civil Suit No. 100 of 1900 brought by the Raja of Basti against Rudra Narain Singh and Patandin. In this case the plaintiff sued to recover immovable property alienated by the first defendant to the second defendant. The Raja set out in para. (b):

That in the Raj a custom prevails that in lieu of maintenance a portion of the property is given to the Babus as 'haq Babuai' and that in case of the Babu dying childless, then after his and his widow's death property reverts to the Raj.

15. On page 588 line 9 the Court found:

The plaintiff has failed to prove that the Raj is an impartible Raj, or that limited estates are granted for maintenance to the younger members of the family as alleged.

16. That case concerned the estate which had been claimed by Chet Singh and in regard to which he had executed a 'supurdnama' in 1848. On p. 587 from line 32 onwards, the District Judge referred to a document which purports to be a 'birt patra' executed in the Fasli year 1225 (1818) as having been produced. This is the document on p. 283 of the present case. The District Judge points out that Sheo Narain Singh in his 'razinama farkhati' merely spoke of the villages as having been given to him and that his sons Bans Bahadur Singh on 1st March 1892 had made a deposition to the same effect, that the 'birt patra' though purporting to be more than 80 years old had never been produced in any Court and that no publicity of any kind was proved in regard to it, that he was not satisfied that it was a genuine document and he did not give any credence to its contents.

17. Now an appeal was brought in the High Court F.A. No. 265 of 1900 and the judgment dated 21st March 1904 is printed from p. 617 onwards. At p. 623, line 30 this 'birt patra' of 20th October 1817 is set, out and the Court pointed out that it had the appearance of an ancient and genuine document the ink being apparently of pure carbon such as was in use formerly unlike the ink of modern days which acts chemically on the paper and is' indelible, that on examining the document with a magnifying glass the learned Judges discovered an impressed stamp such as was used many years ago and they were able to discover the words 'stamp eight annas and the word 'hasht anna,' that only on careful scrutiny was the stamp discovered and none of the parties in the lower Court had noted its existence, and that the Judges were satisfied that the document was a genuine document. Now we have also examined this document and we find as regards the point about the ink that the ink appears to us to be ordinary country ink which is in use largely in this country at the present day. The ink is extremely fresh for a document which is more than a century old. We noted not only the impressed stamp mentioned by the Bench of this Court in the judgment of 21st March 1904 but we also noted another impressed stamp at the bottom of the document bearing the words 'treasury' which had not been noted.

18. In addition to the words mentioned 'stamp eight annas' and 'hasht anna' we note the words at the top of the stamp 'stamp' and at the bottom 'office,' so that this document had apparently been stamped with the stamp of the stamp office and the stamp below is of the Treasury. There is a similarity of the impressed stamp with the stamp of eight annas appearing on another document. But the numerous other documents which have been produced in the case are documents on a very different kind of paper, that is a specially manufactured paper with a water mark. Now Ex. 1 is a piece of paper of the variety known as 'badami,' that is, a thin brown paper, and apparently at the period in question documents which were stamped by the stamp office were stamped on paper sufficiently strong to reproduce what was stamped clearly. The 'badami' strong paper does not reproduce the stamp in the same clear manner as the proper paper of the other documents on the record. There is no doubt that it is a perfectly easy matter for any one to manufacture a stamp which will give an impression similar to the impression on these old documents. The use of badami paper therefore appears to us to be a highly suspicious circumstance. We consider also that the fact that the document Ex. 1 would naturally have been produced in the litigation of 1834 and any subsequent litigation and had not been produced as it bears no endorsement of production, is a fact which we should take into account and this fact is not mentioned in the judgment of 21st March 1904.

19. Another matter which has been pointed out by learned Counsel for the respondents is that on page 283 the 'birt patra' states 'All the villages which have reverted from Babu Bhagwan Singh and Adhar Singh.' Now no villages reverted from B. Bhagwan Singh. The pedigree on p. 36 shows B. Bhagwan Singh as having a brother Audant Singh who had a son whose name is omitted, Ranjit Singh, who had son Baijnath Singh. In the supplementary paper book p. 1 there is a judgment of 29th December 1837 by the Munsif in the case of Baijnath Singh v. Raja Sheo Bakhsh Singh and B. Sheo Narain Singh, claiming possession over 33 villages in tappa Hardi. On p. 3 line 30 it is stated that the plaintiff's father, that is Ranjit Singh, executed a sale deed of Taluqa Hardi on Phagun Sudi 11, 1211 F. to the defendants' father and that the defendants' father had been in possession of those villages. This was found proved by the Munsif on page 7, line 34 that on the allegation of the plaintiff himself it was proved that one sale deed was executed of all the 72 villages. This sale deed was in the year 1211 F. corresponding to 1805 A.D. It is not possible therefore that in a genuine document of 20th October 1817 Raja Jubraj Singh would have forgotten that he had acquired these villages by purchase from Ranjit Singh and he would not have alluded to these villages as villages which had reverted from B. Bhagwan Singh, the uncle of Ranjit Singh.

20. It is also pointed out that the birt-patra refers to the 'reversion from Adhar Singh.' Now actually Adhar Singh was succeeded by his son Sukhmangal Singh and after the death of Sukhmangal Singh his mother Mt. Jian Kunwari held the property for her life and it was on her death that there was the reversion. For these reasons we consider that the plaintiff has failed to prove that this is a genuine document. As regards the custom the High Court did not decide that point as it held that the supurdnama of Chet Singh was a genuine document and conveyed title to the Raja but the High Court did not reverse the finding of the trial Court that the plaintiff had failed to prove the custom.

21. The next case is suit No. 303 of 1904, a judgment by the Civil Judge of Gorakhpur dated 5th December 1905 printed on pages 637 onwards. In this case the Raja of Basti sued a number of persons who were transferees from defendant 1 Ram Bakhsh Singh, whom the Raja alleged had no right to the property which he took possession of on the death of Basant Kunwari, the widow of a Babu Amar Singh. The custom was set out in para. 4 as follows:

If any Babu to whom Babuai property is given or his male descendant on whom the Babuai property or any portion of it has descended dies without a mala issue and in a state of separation then his property devolves on his widow or widows as life-tenants and on her or their death it reverts to the Kaj. The Babu and his widow have a limited interest in the Babuai property and have no right of transfer. Their right is limited to enjoying the property in lieu of maintenance.

22. Basant Kunwari had died on 28th November 1892 and the suit was brought within the period of limitation from that date. On p. 642 the plaintiff is quoted as stating, line 30:

The original grantees or their male heirs can transfer but these transfers can be set aside at the option of the Raj on the extinction of the line. These transfers can be set aside subject to the bar of 12 years' limitation.

23. Further

If a separated Babu dies leaving a father or mother, the father and mother will succeed in the absence of a widow and children. I cannot tell if grand parents are entitled to succession.

24. The learned civil Judge pointed out that the plaintiff was unable to say what the exact custom was, that in the plaint he had stated that the Babus had no right of transfer but in his deposition he admitted their right to transfer, and that the Babuai property is entirely cut off from the parent estate and the Babus enjoy the absolute right of ownership in respect of the property given to them. We find the same confusion in the present suit as the present plaint sets out that there is no right of transfer and on the other hand Dr. Asthana on behalf of the appellant contends that what he meant was that there was a right of transfer which would be valid provided that some member of the joint family was still alive and that the right to avoid the transfer would only arise on the extinction of the joint family. That is quite a different proposition from stating that there is no right of transfer. The distinction can best be realised by comparing a grant of life-estate which would entitle the grantee to transfer for the period of his life and the grant of a life-estate specifying that there is no power of transfer in which case the grantee would not be entitled to transfer even for the period of his life. Both in the grant of 1817 set up by the plaintiff and in the plaint the plaintiff sets out that there is no right of transfer. If those words were to have the meaning usually assigned to them then in our opinion the transfers alleged by the plaintiff would be invalid from the moment the transfer is made and the plaintiff's case as put forward in the plaint and in the birt-patra is not at all the same case as has been put forward by Dr. Asthana in appeal. The learned civil Judge of Gorakhpur in his judgment of 5th December 1905 further considered the birt-patra of 1817 and came to the conclusion:

The sole object of Raja Jubraj Singh by executing this birt-patra was to create evidence for himself and his heirs, he having been directed to go to the Civil Court for establishment of his right to the villages left by Jian Kunwari.

25. And he held that the custom set up by the plaintiff had not been established and the suit of the plaintiff was therefore dismissed. An appeal was brought by the Raja F.A. 67 of 1906 printed on page 23 and following pages in the supplementary record. The Appellate Court remanded various issues one of which was 'Did Amarsingh die united with or separate from his brothers', Amar Singh having, been the person who was the husband of Basant Kunwari? The finding was that Amar Singh died joint with his brothers. The High Court therefore held that the plaintiff's right of reversioner had not arisen on his own custom and the appeal therefore was dismissed. On page 27 it was stated that the Court said nothing as to the other issues raised in the suit. That is in both these cases where the trial Courts have held that the custom was not proved the High Court has dismissed the suit of the plaintiff for other reasons. Now for a third time a trial Court has held that the custom set up by the plaintiff is not proved.

26. Learned Counsel for the appellant took us over the oral evidence beginning with page 158 and ending with page 205. The evidence of a number of witnesses who were Rajas of other Kshatriya impartible estates was taken on commission and it is a remarkable fact that in the case of the evidence on commission taken for the plain, tiff the plaintiff did not ask any question as to the power of transfer of the holders of Babuai or Babuani grants for maintenance. Consequently none of these witnesses made any statement on the point that there was no power of transfer. Again in the case of oral witnesses practically no witnesses made any statement on this point. It is only in the case of one witness Sarju Prasad Singh, a Babu of the Basti Raj, on page 192 at line 10, that this statement was made:

The Babus have a right to enjoy the property themselves or to let others enjoy it during their lifetime. They have no right to sell it permanently.... The Babus cannot even mortgage the property to perform the marriage of their daughters.

27. The latter statement therefore indicates that there is no right of transfer at all even for a temporary mortgage. Various witnesses such as Sumeshar Singh on page 205 stated that the Babus have no right to sell the property, but they do not state what happens if a sale is made. The oral evidence is mostly on the subject of reversion and the right of the Raja to take the property on reversion if there is a failure of the line of the grantees. There is no doubt that a Raja has such a right of reversion, over property in possession of the deceased. The particular variety of the right set up by the appellant however is not established by his witnesses, that is, that if there is a separation among the descendants of a grantee there would be a right of reversion on the failure of any line of the person who had separated. Learned Counsel also alluded to two rulings. One of these is Someshwari Prasad Narain Deo v. Mahadeshwari Prasad Narain Deo and learned Counsel claimed that on p. 334, Col. 2, a rule had been laid down which was to apply to all impartible Rajs. The quotation is:

It is common ground that a village granted to a junior member in lieu of maintenance is resumable on failure of his male line, but until that event takes place, the grantor has no interest in the property. The grantee is the absolute owner thereof, and has an unrestricted power of transfer If a transfer is made the transferee holds the property as a full proprietor, and the grantor has no right to interfere with him until the extinction of the male line of the grantee. When that incident takes place, the tenure of the grantee comas to an end, and the property reverts to the grantor.

28. We are of opinion that the words 'it is common ground' indicate that these propositions were rules which the parties to that case admitted prevailed in the particular estate in question, the Dhanwar Estate in Bihar, and their Lordships of the Privy Council did not purport to lay down any general rule for all impartible estates. The matter was one of little importance in the case in question as it was a case where the Raja had purchased at an auction sale property sold in a Civil Court decree against a Babu. Reference was also made to Udai Pratap Nath v. Jagat Mohan Nath (1928) 15 AIR Pat 66 for a proposition at p. 652:

Again if the khorposh grant should be alienated the transferee would take subject to defeasance on failure of the direct line of the original khorposhdar.

29. This remark was by way of an obiter dictum as the case did not depend on this point but was in regard to whether mineral rights do or do not pass by implication in a grant for maintenance. We consider that there is nothing in either of these two rulings to support the case for the plaintiff as a general proposition. In each Raj the question of the terms of maintenance grants is a matter for proof of the terms of the grant and of the custom of the Raj. We have held that the alleged grant has not been proved to be genuine by the plaintiff. As regards custom the evidence for custom must be substantial and we consider that the evidence produced by the plaintiff falls far short of the necessary evidence required to prove the custom. Moreover the plaintiff himself has been varying the terms of the custom in his plaint and in the arguments put forward by learned Counsel in appeal on his behalf. A custom must be certain and it is quite clear that the custom has not been clearly formulated and consistently formulated by the plaintiff himself. We consider that the plaintiff has failed to prove his case and we dismiss this appeal with costs.


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