Kanhaiya Lal, J.
1. The dispute in this appeal relates to certain house property situated at Allahabad. The owner of the property was Thakur Bajrang Bahadur Singh, who died on the 16th November, 1900, leaving two widows, Musammal Harnath Kuer and Musammat Sartaj Kuer and a daughter Musammat Bhagwat Partab Kuer He was the Taluqdar of the Baispur Estate in the Partabgarh District, Oudh; and besides the Baispur Estate and the house property in dispute, he owned some zemindari property in the Partabgarh District known as the Sarai Murar Singh or Ramnagar property some other zemindari property and an occupancy holding in the Allahabad District, known as the Bahdaul property, and a house in Partabgarh and another large bungalow in Allahabad.
2. On the death of Bajrang Bahadur Singh, the mutation of names was obtained in respect of the entire property situated in the Districts of Partabgarh and Allahabad by his senior widow, Musammat Harnath Kuer. Musammat Harnath Kuer built a new house on a portion of plot No. 130, situated in Colonelgunj, Allahabad, forming a part of the property left by her husband; and that house is also in dispute. Musammat Bhagwat Partab Kuer died on the 12th of May 1910 without leaving any issue. Musammat Harnath Kuer died on the 27th March 1914 and was succeeded by Musammat Sartaj Kuer, the junior widow, who died on the 15th June, 1916. On her death several claimants turned up to claim the Baispur Estate and the other properties left by Thakur Bajrang Bahadur Singh. One of those claimants was Alopi Din Singh, who professed to be the nearest reversionary heir and entitled as such to the estate and other property of the deceased under Section 23 of Act I of 1869, read with the Hindu Law. Another claimant was Har Baksh Singh, who based his title to the property on his being the senior male heir in the senior branch of the family to which Thakur Bajrang Bahadur Singh belonged, under Section 22 of Act I of 1869.
3. The Revenue Courts directed the mutation of names to be effected in favour of Har Baksh Singh in respect of the Baispur estate and in favour of Alopi Din Singh in respect of the zemindari property situated in the Partabgarh and Allahabad Districts and the cultivatory holding situated in the latter. The Municipal Board of Allahabad entered the name of Har Baksh Singh in respect of the lease-hold rights in the plots Nos. 130, 130A and 131 situated in Mohalla Colonelganj, Allahabad, on which the house property now in dispute stands.
4. The present suit was filed by Alopi Din Singh for the possession of the house property, standing in plots Nos. 130, 130A and 131 aforesaid, including the leasehold rights possessed by Thakur Bajrang Bahadur Singh in the above land, against Har Baksh Singh for a declaration that he was the owner of the said property as the nearest reversionary heir of Thakur Bajrang Bahadur Singh His allegation was that he was in actual possession of the said property and that the defendant wrongfully got his name entered in the Municipal registers and on the strength thereof was denying the right of the plaintiff and interfering with his possession.
5. The defendant denied that the plaintiff was in possession of the disputed property and claimed to be entitled to the same as the senior male heir of the senior branch of the family to which Thakur Bajrang Bahadur Singh belonged. He further pleaded that according to the custom of the family and clan to which Thakur Bajrang Bahadur Singh belonged, the entire property, whether ancestral or self-acquired, left by Thakur Bajrang Bahadur Singh, became a part of his estate and the heir to the estate was entitled to get the acquired property too. He also asserted that the house property in question had bean purchased by Thakur Bajrang Bahadur Singh on the 13th February 1890 from the income of the Baispur Estate for the benefit and perpetual use of the owner in possession of the Baispur Estate, and that it was treated as a part of the estate and became heritable as a taluqdari property. He also mentioned that the house standing on plot No. 130A was built by Musammat Harnath Kuer at a cost of Rs. 15,000 from the income of the Baispur Estate and that the said house must also be treated as an accretion to the Baispur Estate.
6. The Court below found that the house property in dispute had not been purchased or built with, the income of the Baispur Estate, that there was no satisfactory proof of a custom applicable to the family or clan to which Thakur Bajrang Bahadur Singh belonged, entitling the defendant to the non-taluqdari property left 'by the deceased; and that as the plaintiff was the nearst reversionary heir of Thakur Bajrang Bahadur Singh and in actual possesssion of the disputed property lay the receipt of rent from the tenants occupying the same, he was entitled to the declaration asked for.
7. The defendant challenges the correctness of those findings; and the main questions for consideration are whether the plaintiff is the nearest reversionary heir of Thakur Bajrang Bahadur Singh and is entitled as such to the property in dispute under Section 23 of Act I of 1869, or the Hindu Law, whether the said property had been purchased or built out of the savings or income of the Baispur Estate, and. had, by treatment or otherwise, become an accretion to or a part of that estate, and whether there was any custom in the family or clan lay which the self-acquired property of the deceased would devolve on the senior male member of the senior branch of the family along with the estate. It would also be necessary to consider whether the plaintiff was in possession of the disputed property on the date of the suit so as to become entitled to a declaratory relief.
8. The defendant has filed with his written statement a pedigree which, so far as it is material for the purposes of this suit, is fully corroborated by the evidence adduced.
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9. We have no hesitation, therefore, in finding that the plaintiff is the nearest reversionary heir of Thakur Bajrang Bahadur Singh, if Section 23 of Act I of. 1869 or the Hindu Law is applicable to the case.
10. The property now in dispute is not shown to have become an accretion to or formed a part of the Baispur Estate. The Baispur Estate was situated in Oudh and was held by Thakur Bajrang Bahadur Singh and was managed during his minority by the Court of Wards. While the Court of Wards was in possession of the estate, the zemindari property, known as the Sarai Marar Singh or Eamnagar property, was acquired by the Court of Wards for the benefit of the minor. Shortly after the release of the estate by the' Court of Wards, the Bahdaul villages are stated to have been purchased by Thakur Bajrang Bahadur Singh out of the savings said to have been made over to him, but there is no direct evidence produced on the point. The houses in dispute were purchased long afterwards for a consideration of Rs. 4,500 which according to the account books produced on behalf of the defendant, were paid from the tahvil or estate treasury in which the income derived from the estate and the Eamnagar and Bahdaul villages used to be kept Thakur Bajrang Bahadur Singh had an absolute right as much to the Baispur Estate as to the Ranmagar and Bahdaul villages which he had acquired, and as there was no person to whom he was liable to account for profits, it is but natural that he kept the income of all the different properties, which he owned at the time, together without any particular differentiation or distinction. But such a commingling of the income cannot necessarily imply that he intended to incorporate the villages which he had acquired into the estate and make them descendible as if they had been a part of, the estate, from the in come of which they are said to have been purchased.
11. An estate as defined by Section 2 of Act I of 1869 means the taluqa or immoveable property acquired or held by a taluqdar or grantee in the manner mentioned in Section 3, 4 or 5 of that Act. It includes certain estates not confiscated by the Government, others specifically granted by it, and those obtained under a taluqdari sanad granted after the 1st April 1858 and before the passing of the Act I of 1869, or held under a Summary Settlement made between the 1st day of April, 1858, and the 10th day of October, 1859, inclusive of any other property for which a decree may have been subsequently obtained at the First regular Settlement. By Section 32A, which was inserted by the Oudh Estates Amendment Act, 1910, a power is given to a taluqdar or grantee or his heir or legatee to declare that any immoveable property situated in the United Provinces, in which he has a separate permanent heritable and transferable right, shall be a part of his estate for the purposes of the Act, but that provision has no retrospective effect.
12. A taluqdar is defined as a person whose name is entered in the first of the lists mentioned in Section 8. Section 10 provides that no person shall be considered a tdluqdar or grantee within the meaning of that Act, if he is not named in such original and supplementary lists as have been prepared and notified under Section 8. It also requires that the Court shall take judicial notice of such lists and regard them as a conclusive evidence that the persons named therein are such taluqdars or grantees, that is to say, hold their estates under the tenures which the lists respectively ascribe to them.
13. It is contended on behalf of the plaintiff-respondent that it is impossible that an estate, so entered, could be enlarged by any process of purchase or acquisition of other property not subject to similar conditions, or by any act or volition of the taluqdar or grantee in regard to it except a declaration made under Section 7 or Section 32A of the Act, as amended by the U.P. Act III of 1910. Indeed, there was no provision before the above Amending Act was passed under which immoveable property subsequently acquired, otherwise than by a special grant of the British Government burdened with such conditions, could be made descendible as if it were a part of the estate.
14. The houses in question were obviously acquired from the joint income of the estate and the Sarai Ramnagar and Bahdaul properties, the collections made from which were kept together without any differentiation or distinction. But neither that fact nor the subsequent commingling of the income derived from these houses in the joint stock or the expenditure incurred over their repairs, reconstruction, or improvement therefrom is sufficient to impress that property with the character and the status which the law assigns to the estate as defined in Section 2 and the lists appended to Act I of 1869. In Maharajah Pertab Narain Singh v. Maharanee Subhao Kooer 4 I.A. 228 at p. 246 : 3 C. 626 : 1 C.L.R. 113 : 3 Sar P.C.J. 740 : 3 Suth. P.C.J. 458 : Rafique. And Jackson. P.C. No. 46 : 1 Ind. Jur. 679 : 1 Ind. Dec. (N.S.) 983 (P.C.), where a suit was brought for a declaration that the plaintiff was entitled to certain estate, the decree passed by their Lordships of the Privy Council provided that the declaration must be limited to the taluqa and what passes with it, and that if the last owner had personal or other property, not properly a parcel of the, taluqdari estate, that would seem to be descendible according to the ordinary law of succession. Their Lordships went on to add that the plaintiff would be entitled to succeed under Section 22 of Act I of 1869 as ab intesto to the taluqdari estate of the late proprietor, including whatever was descendible according to the provisions of the mid Statute. In Jagdish Bahadur v. Sheo Pertab Singh 23 A. 369 at p. 382 : 28 I.A. 100 : 5 C.W.N. 602 : M.L.J. 178 : 3 Bom. L.R. 298 : 8 Sar. P.C.J. 19 (P.C.) the moveable and immoveable property, held by the last female holder was treated as falling in the same category with the taluqa itself and governed by the same considerations as were applicable to the whole property, as if it were one corpus, because no differentiation between the two classes of properties was made in the plaint and no issue was directed to any distinction between them.
15. In Thakur Sheo Singh v. Rani Raghubans Kunwar 32 I.A. 203 : 27 A. 634 : 15 M.L.J. 352 : 8 O.C. 317 : 9 C.W.N. 1009 : 2 C.L.J. 194 (P.C.) where the original proprietor of the estate had died before Act I of 1869 came into force and had made a bequest by which he had devised his property in favour of his nephew to the exclusion of hi? brother, the father of the aforesaid nephew, and the said nephew had died childless after Act I of 1869 came into force, their Lordships of the Privy Council, applying the rule of primogeniture embodied in the sanad, granted a declaration that the entire taluqa as constituted at the date of the sanad with the accretions, if any, or properties appurtenant to the taluqa passed to the surviving brother of the last proprietor in preference to his widow. That decree led to an elaborate inquiry, the result of which is embodied in Rajindra Bahadur Singh v. Raghubans Kunivar 48 Ind. Cas. 213 : 40 A. 470 : 21 O.C. 106 : 24 M.L.T. 282 : 5 C.L.J. 401 : 8 L.W. 570 : (1918) M.W.N. 831 : 28 C.L.J. 456 : 23 C.W.N. 101 : 20 Bom. L.E. 1075 : 45 I.A. 134 (P.C.). The contention there was that the villages purchased with the income of the taluqa were accretions to the estate along with the house and certain moveable property left by the deceased. But their Lordships of the Privy Council repelled that contention in regard to such properties as had not been obtained in exchange for those included in the sanad, or had not been granted under conditions similar to those applicable to the estate; and some of the villages, which had been, purchased by the last holder after the sanad, were excluded.
16. The decisions in Thakur Ishri Singh v. Thakur Baldeo Singh 11 I.A. 135 : 10 C. 792 : 8 Ind. Jur. 331 : 4 Sar. P.C.J. 528 : Rafique and Jackson's P.C. No. 79 : 5 Ind. Dec. (N.S.) 531 (P.C.) and Murtaza Husain Khan v. Mohammad Yasin Ali Khan 36 Ind. Cas. 299 : 43 I.A. 269 : 20 M.L.T. 362 : 14 A.L.J. 1083 : 18 Bom. L.R. 884 : 31 M.L.J. 804 : 38 A. 552 : (1916) 2 M.W.N. 555 : 25 C.L.J. 1 : 19 O.C. 290 : 1 P.L.W. 122 : 21 C.W.N. 410 : 4 C.L.J. 8 : 4 L.W. 538 (P.C.) proceeded on the basis of a family custom as applicable to the subsequently acquired property and have no direct bearing on the present issue.
17. On the other hand, in Parbati Kumari Debi v. Jagadis Chander Dhobal 29 I.A. 82 : 29 C. 433 : 6 C.W.N. 490 : 4 Bom. L.K. 365 : 8 Sar. P.C.J. 205 (P.C.) where certain villages had been acquired by the Court of Wards on behalf of the proprietor out of the savings of the ancestral estate and the rents of the villages so acquired and of the ancestral estate were collected by the same servants and the collection papers kept with the papers of the parent estate, their Lordships of the Privy Council held that; on those meagre facts they would not be justified in holding that the Raja intended to incorporate the villages purchased out of the savings of the ancestral estate for the purpose of succession.
18. In Janki Prasad Singh v. Dwarka Prasad Singh 20 Ind. Cas. 73 : 40 I.A. 170 : 17 C.W.N. 1029 : 14 M.L.T. 110 : 25 M.L.J. 34 : (1913) M.W.N. 630 : 18 C.L.J. 200 : 11 A.L.J. 818 : 15 Bom. L.R. 853 : 16 O.C. 216 : 35 A. 391 (P.C.) their Lordships of the Privy Council pointed out that the question whether the properties acquired by an owner become a part of his impartible estate for the purpose of succession depended on his intention to incorporate the acquisition with, the original estate. But that intention can only be gathered in most cases from his declaration, conduct or treatment, or, in other words, from the mode of his dealing with the property or its income; and the mere fact that the purchase of the subsequently acquired property was made from the savings of the impartible estate cannot by itself be always regarded as sufficient proof of his intention to incorporate it. If a person is the absolute owner of the income derived from an impartible estate, it is open to him to spend that income in any way ho likes or to invest it in the acquisition of the other property. If he invests it in the acquisition of other property, the property so acquired partakes of the nature of the income which contributed to its acquisition and continues to be his self-acquired property in the same sense as the income of the impartiable estate, which is absolutely his. The mere fact that he keeps the income of such subsequently acquired property with the income of the impartible estate does not establish such incorporation as to make the subsequently acquired estate an accretion to or a part and parcel of the impartible estate for the purpose of its succession.
19. In Jagdamba Kumari v. Wazir Narain Singh 77 Ind. Cas. 1041 : 50 I.A. 1 : (1923) A.I.R. (P.C.) 59 : 44 M.L.J. 503 : 37 C.L.J. 287 : 32 M.L.T. 157 : 4 P.L.T. 319 : 25 Bom. L.R. 676 : 2 Pat. 319 : 18 L.W. 555 : 28 C.W.N. 98 : (1923) M.W.N. 460 (P.C) their Lordships of the Privy Council, referring to the purchase of certain properties acquired out of savings of the Sarampur Gaddi, observed:
Originally the estate was in debt, and as. there is no evidence of any acquisition of property from other sources, it follows that all the estate possessed by the Raja other than the impartible Raj was derived from the income of the Raj itself. In the end this income produced very considerable property. There were certain villages, certain mortgages, usufructuary and otherwise, sums due on bonds and decrees, Government promissory-notes to the extent of two lacs, and other moveable and immoveable properties. With the exception of the Government promissory-notes the whole of these have been awarded to the plaintiff upon the ground that they represented an accretion to the estate and descended with it. Their Lordships think that this conclusion is wrong, and that its error is due to the idea that the produce of the impartible estate naturally belongs to and forms an accretion to the original property. In fact, when the true position is considered, there is no accretion at all. The income when received is the absolute property of the owner of the in the estate. refers in no way from property that he might have gained by his own effort, or that had come to him in circumstances entirely disassociated from the Ownership of the Raj. It is a strong assumption to make that the income of the property of this nature is so affected by the source from which it came that it still retains its original character.
20. They pointed out the confusion which Was likely to result from the application of the doctrine appertaining to the incorporation of a separately acquired estate into the ordinary joint family property to the question of the incorporation of property subsequently purchased out of the income of an impartible estate, for in the former case the income equally with the corpus forms a part of the family property, and if the owner mixes his own moneys with, the moneys of the family, for example, by putting the whole into one account at the Bank or by treating them in his accounts as indistinguishable, his own earnings share with the property, with which they are mingled, the character of joint family property; but no such consideration necessarily apply to the income from impartible property.
21. The evidence adduced in the person case merely gees to show that the pro prietor of the Baispur Estate kept the in come of the zamindari property with the cleaved from the Baispur Estate in common treasury. The evidence of Muhanr: mad Yaqub, who used to write the accounts, shows that the income of all the three properties used to be written in one and the same account books; and the accounts produced show that the money required for the purchase of the house' property in dispute was paid out of the common treasury. Thakur Bajrang Bahadur Singh used to live in one of the houses purchased by him at Allahabad and died there. After his death Musammat liarnath Kuer, his senior widow, built a new house over a portion of plot No. 130 at a cost of Rs. 10,000 or Rs. 12,000 and that money too, according to the account, books for 1316 to 1319 F and the evidence of Muhammad Yaqub and Mata, Bhik, was paid out of the common treasury. It follows that the income derived from the rent of those houses, such as were not occupied by the proprietor or his widows, was deposited in and the expenses for their repairs and the ground rent and taxes payable for the said property were paid out of the common stock. These facts are not, however, inconsistent with an intention to keep the house property aforesaid separate from the parent estate for the purpose of succession. There is nothing to show that Thakur, Bajrang Bahadur Singh dealt with the house property in such a way as to make it a part and parcel of the Baispur Estate. He had another house in Partabgarh, which he had similarly purchased presumably out of the income or savings which he had at his disposal; and that house was held in a suit to which the present defendant-appellant was a party not to have been incorporated with the estate and to be descendible as if it were distinct from the Baispur Estate.
22. The Oudh Estates Act was intended to define the rights of taluqdars and others in certain estates in Oudh and to regulate the course of succession thereto; and Section 1, of that Act limits its operation to the estates therein referred to. Unless by an act of deliberate incorporation or declaration or other method recognised by law any property subsequently acquired becomes a part of the estate itself, the rule of succession prescribed by the Act cannot be applied to regulate its devolution. A transfer of such property, for instance, by a gift or bequest would not attract the provisions of Sections 16, 17 or 18 of Act I of 1869, as they stood before they were amended by the U.P. Act III of 1910, and unless a declaration is made in the manner required by Section 32 A, which was added by Section 20 of the Amending Act, the provisions of Sections 16 and. 18 would still be inapplicable to such property. If that is so, such a property cannot be incorporated with the estate for the purpose of succession, unless it was, prior to such acquisition, held under similar conditions or there is some act or declaration showing an unmistakable intention to incorporate it, and sufficient in law to make it descendible in the same manner as the estate. As pointed out by Chamier, C.J., whose observations were quoted with approval by their Lordships of the Privy Council in Rajindra Bahadur Singh v. Raghubans Kunwar 48 Ind. Cas. 213 : 470 : 21 O.C. 106 : 24 M.L.T. 282 : 5 O.L.J. 401 : 8 L.W. 570 : (1918) M.W.N. 831 : 28 C.L.J. 456 : 23 C.W.N. 101 : Bom. L.R. 1075 : 45 I.A. 134 (P.C.), it is a settled law that a subject cannot make his property descendible in a manner not recognised by the ordinary law; and it appears to follow that he cannot by express declaration, still less by mere volition, whether actual or presumed, subject the property acquired by him to a rule of succession applicable to the property which he had received by a grant to which certain conditions were attached. It is, moreover, doubtful how far Act I of 1869 can apply to the devolution of property situated outside Oudh except in the cases covered by Section 32A of Act I of 1869, as amended by the U. P. Act III of 1910. It is impossible, in these circumstances, to hold that the house property in dispute, was incorporated with the estate so as to be descendible according to the special rules of succession laid down in Act I of 1869.
23. It, however, remains to consider how far the defendant-appellant has established a custom of the family or clan to which Thakur Bajrang Bahadur Singh and the parties belong, entitling him to inherit the property in dispute in preference to the plaintiff. The word 'laluqdar' as defined by Section 2 of Act I of 1869 means any person whose name is entered in the first of the lists appended to Act I of 1869. The name of Thakur Saltanat Bahadur Singh, the father of Bajrang Bahadur Singh, was entered at No. 167 in the list No. 1 and at No. 126 in the list No. 2 appended to Act I of 1869 in respect of the Baispur Estate. He was, therefore, a 'taluqdar' within the meaning of Section 8 and Section 22 of Act I of 1869. Thakur Saltanat Bahadur Singh died some time in 1861, i.e., before Act I of 1869 was passed, That fact is borne out by a narrative prepared by Mr. Walker, an. Extra Assistant Commissioner of Partabgarh, which is appended to the printed register of taluqdars kept in the office of the Deputy Commissioner of Partabgarh, which was summoned and examined by the Court below (Ex. 38). That narrative shows that Saltanat Bahadur Singh left at his death only one son, Bajrang Bahadur Singh, then a minor, and two marriageable daughters. Both under the Hindu Law and under Section 22 of Act I of 1869 subsequently enacted the heir of Saltanat Bahadur Singh was the same; and no question of diverting the succession from him by the application of Section 22 of Act I of 1869, as amended by Section 21 of the Oudh Estates Amendment Act to the estate of Saltanat Bahadur Singh could, therefore, arise.
24. Under Sections 8 and 10 of Act I of 1869 there is a conclusive presumption that the estate of Saltanat Bahadur Singh, according to the custom of the family on or before the 13th February, 1856, ordinarily devolved on a single heir. The provision as to conclusiveness contained in Section 10 cannot apply to property which is not an estate, but unless the family is known to possess different kinds, of properties held under diverse tenures, the existence of a custom in the, family and governing the devolution of the estate gives rise to a presumption, by no means cosclusive, that the entire family property devolves in one and the same manner, Saltanat Bahadur Singh had an, absolute right to the property, which he held at the time of his death; and Bajrang Bahadur Singh similarly possessed an absolute right to the property, which he had inherited from his father, and he had subsequently acquired. There is no evidence to show that the family custom, the existence of which received statutory affirmation in 1869, was confined in its operation to the estate, and was inapplicable to the property subsequently acquired; and as observed in Murtaza Husain Khan v. Mohammad Yasin Ali Khan 36 Ind. Cas. 299 : 43 I.A. 269 : 20 M.L.T. 362 : 14 A.L.J. 1083 : 18 Bom. L.R. 884 : 31 M.L.J. 804 : 38 A. 552 : (1916) 2 M.W.N. 555 : 25 C.L.J. 1 : 19 O.C. 290 : 1 P.L.W. 122 : 21 C.W.N. 410 : 4 O.L.J. 8 : 4 L.W. 538 (P.C.), the same custom of devolution would unless rebutted, be deemed to apply to the acquired property left by Bajrang Bahadur Singh at his death.
25. In Ibrahim Ali Khan v. Muhammad Ahsan Ullah 13 Ind. Cas. 695 : 39 I.A. 85 : 11 M.L.T. 225 : (1912) M.W.N. 316 : 50 P.W.R. 1912 : 15 C.L.J. 359 : 9 A.L.J. 390 : 14 Bom. L.R. 270 : 22 M.L.J. 478 : 16 C.W.N. 625 : 168 P.L.R. 1912 : 39 C. 711 (P.C.) a family custom applicable to an impartible estate was similarly applied to the property subsequently acquired by the holder of the estate. Where a family possesses ancestral property, governed by one rule of devolution, and a member of that family acquires other property by his personal exertions and without any detriment to the ancestral estate, different considerations may arise. But when, as in this case, the taluqdar holds an absolute estate in his own right and acquires property for his own use out of the income of that estate or otherwise, any custom relating to the devolution of the property in the family, unless it is limited in its application, would apply equally to the property inherited by him and that acquired by him in his own right.
26. In Achal Ram v. Udai Partab Addiya Dal 11 I.A. 51 : 10 C. 511 : 8 Ind. Jur. 272 : 4 Sar. P.C.J. 507 : Raflque and Jackson's P.C. No. 77 : 5 Ind. Dec. (N.S.) 342 (P.C.) a custom of impartibility applicable to the estate was applied to the property subsequently acquired and in Parbati Kunwar v. Chandarpal Kunwar 4 Ind. Cas. 25 : 36 I.A. 125 : 10 C.L.J. 216 : 13 C.W.N. 1073 : 6 A.L.J. 767 : 11 Bom. L.R. 890 : 12 O.C. 304 : 31 A. 457 : 19 M.L.J. 606 (P.C.) a family custom excluding daughters from inheritance from an impartible estate was similarly applied in regard to the devolution of an estate belonging to the same family which was partible.
27. The defendant has, however, given no evidence to show what the special incidents of that custom were. The custom was one of single heir descent: and whether Bajrang Bahadur Singh inherited the estate under the Hindu Law or under Act I of 1869, it descended, on his death, according to the custom of single heir descent, obtaining in the family, on his senior widow, and after her, on his junior widow; and the person who would be entitled to the property on the death of the latter would be the person who would be the nearest heir under the ordinary law. As pointed out in Achal Ram v. Udai Partab Addiya Dat 11 I.A. 51 : 10 C. 511 : 8 Ind. Jur. 272 : 4 Sar. P.C.J. 507 : Raflque and Jackson's P.C. No. 77 : 5 Ind. Dec. (N.S.) 342 (P.C.) and Narindar Bahadur Singh v. Achal Ram 20 C. 649 : 20 I.A. 77 : 6 Sar. P.C.J. 310 : 17 Ind. Jur. 319 : Raflque and Jackson's P.C. No. 128 : 10 Ind. Dec. (N.S.) 438 (P.C.) where according to the family custom the estate descends to a single heir, there is no necessary presumption that it descends by the rule of primogeniture, and if the heir according to the lineal primogeniture is more remote in degree from the ancestor than other persons, who may be collaterals coming within the line of heirship, then in the absence of any proof to the contrary, nearness of degree prevails over directness of line. The plaintiff being the nearest reversionary heir of Bajrang Bahadur Singh is, therefore, entitled to the disputed property in preference to the defendant both under Section 23 of Act I of 1869 and under the Hindu Law.
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28. The appeal, therefore, fails and is hereby dimissed with costs including fees in this Court on the higher scale.
29. The suit out of which this appeal has arisen was instituted by one Babu Alopi Din Singh, the father of the present respondents, against the a appellant to obtain a declaration of title with respect to certain house property situate in the town of Allahabad.
30. It is common ground that the last male owner of the property was one Babu Bajrang Bahadur Singh. He died sometime in 1900 and was succeeded by, one after the other, his two widows. The junior of the two widows, Musammat Sartaj Kunwar, died in 1916 and thereupon the question as to the succession to the property arose. Babu Bajrang Singh owned, among other properties, a taluqa known as Baispur in the District of Partabgarh in the Province of Oudh. That taluqdari property is in the possession of the defendant-appellant. The plaintiff claimed as the nearest male agnate of Bajrang Bahadur Singh. The defendant claims that the right of succession is governed by Act I of 1869 (governing the succession to taluqdari estate, and he, as the eldest son in the eldest line, is entitled to succeed. The appellant denied that the plaintiff was in possession of the property and contended that by a family custom the property acquired by the talqudar (it being common ground that the property in suit was purchased by Bajrang Bahadur Singh) and other taluqdars of the same clan, passed to the person succeeding to the taluqdari estate and that, in any case, the property in suit became incorporated with the taluqdari property of Baispur.
31. The learned Subordinate Judge found that the plaintiff was the nearest male agnate, that he was in possession, that the custom alleged by the defendant-appellant was not proved and that Act I of 1869 did not govern the precession to the present property. He did not come to any definite finding as to whether the property in suit had been incorporated or not with the estate in Oudh. He accordingly decreed the suit.
31. In appeal the following points have been urged and require consideration:
(1) Whether the plaintiff was in possession of the property in suit at the date of it?
(2) Whether the plaintiff was the nearest agnate to Bajrang Bahadur Singh at the date of the death of Sartaj Kunwar?
(3) Whether by any family custom property acquired by a taluqdar on the Soam Bansi clan passed to the person who inherited the taluqa itself?
(4) Whether the property in suit had been incorporated in and had become an accretion to the estate Baispur?
32. As a second string to their bow the respondent have contended, for the first time in this Court, that even, if the property in suit be taken to have become a part of the talnqdari Estate of Baispur, the succession to the entire Estate of Baispur would be governed, in the circumstances of the case, not by Act 1 of 1869 but by the ordinary Hindu Law. In view of this new contention, the following point also requires determination, namely, whether in case the property in suit be found to be an accertion to the Estate of Baispur, the succession would be governed by the ordinary Hindu Law in preference to Act of 1869.
33. The case has been very ably argued on both sides and much time has been devoted to the consideration of the facts and the points of law involved.
34. On the first point, namely whether the plaintiff was in possession at be date of the suit, it appears to me that the evidence is overwhelming and is conclusive.
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35. Point No. 2. This point is also very clear. The appellant filed a pedigree of the family. It appears that the plaintiff contended himself with filing a short pedigree showing his connection with the deceased.
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35. I agree with the Court below that the plaintiff has established his relationship as alleged by him in the plaint.
36. The third point (as set forth above) that requires determination is whether there is any custom by which the property in suit may be regarded as a part of the Baispur taluqa estate. At the outset I may point out that the custom as propounded, in para. 11 of the written statement, at page 4 of the printed record is a very wide one. It is said that the custom obtained not only in the family but also in the entire clan and among all the taluqdars of Oudh, specially those in the District of Partabgarh. If such a custom existed, it would be easy to prove because the range from which instances could be quoted would be very wide. But evidence on the point consists of the statements of only three witnesses, namely Babuain Sartaj Kan war, Raja Partab Bahadur Singh and Raghunandan Singh. The evidence of these witnesses is entirely vague and unsatisfactory and it would be sheer waste of time to seriously discuss it. Agreeing with the Court below I hold that this custom has not been established.
37. In support of the plea that the property in suit has been incorporated into and has become a part of the Estate of Baispur, the learned Counsel for the appellant has relied on certain rulings of the Privy Council as establishing the proposition that if any such accretion or incorporation could be proved, the succession to the accreted property would be governed by the same rule of law as the main estate itself. The learned Counsel, however, admitted that no case would be cited by him in which it had ever been held by their Lordships of the Privy Council that a property subsequently acquired by a taluqdar had been treated as an accretion and the succession to that accreted property had been held to follow the estate. It appears to me that there is an essential difference between accretion to an estate, the succession to which is governed by pure custom, and property which may have been acquired by a taluqdar out of his savings from the taluqdari estate. Speaking broadly, where property is acquired out of the income of an impartible estate governed by a custom as regards succession and the acquired property is allowed to merge in the main property with a view to its passing to the heir to the main estate, the accreted property is governed by the custom. But where by Statute special rule of succession is enacted with respect to a particular-property, it would appear to me that unless there is an express statutory sanction for it, it is not open to the owner of the property to add to it other properties so that the succession to the added property may also be governed by the Statute aforesaid. The reason is clear. In the former case it is a custom which governs the entire estate and the properties which constitute the estate may increase or decrease. But where the law imposes particular rules of succession as opposed to the ordinary rule of succession with respect to a certain property, that rule of succession can govern that property alone. It is not in the power of a subject of the Crown to alter the law of the land as to succession even by purporting to add property to his original estate.
38. There is only one case which has been cited on the point and it related to a property succession to which was governed by the terms of a sanad or written grant. It was held that only the properties which were the subject-matter of the grant could be governed by the terms of the grant and any property that was acquired by the grantee out of the income of the granted property could not be made subject to the terms of the grant. This principle, in my opinion, applies to all taluqdari properties, the succession to which is governed by the special Statute of law enacted in Section 22 of Act I of 1869.
39. The case mentioned is that of Tiajendra Bahadur Singh v. Raghubans Kunwxir 48 Ind. Cas. 213 : 40 A. 470 : 21 O.C. 106 : 24 M.L.T. 282 : 5 O.L.J. 401 : 8 L.W. 570 : (1918) M.W.N. 831 : 28 C.L.J. 456 ; 23 C.W.N. 101 : 20 Bom. L.R. 1075 : 45 I.A. 134 (P.C.).
40. The view that has been urged for the respondents and which has found acceptance with me is corroborated by the fact that the Legislature thought it necessary, to enact a special rule of law as regards properties other than the taluqdari property--the succession to which was originally governed by Act I of 1869. By the amending Act. III of 1910 a section was added, to the original Act as Section 32A. It authorised any taluqdar or his grantee or heir or legatee by a registered instrument to be executed in a certain manner to declare that any property owned by him and situate within the United Provinces, other than his taluqdari property, shall become a part of his estate. It is significant that this enabling clause limits the situation of the property to be so added to the estate. The clause does not permit any property situated outside the United Provinces to be made a part of the taluqdari estate.
41. The view taken by me is further strengthened by the fact that the language of the preamble indicates that the Government wanted to enact rules with respect to certain specified properties situate within Oudh. The properties with respect to which the rules were to apply were so described as to be confined within the limits of Oudh.
42. In the absence of any direct ruling of the Privy Council that it is possible for a. taluqdar to add to his taluqdari property a property succession to which would be governed by the same rules as govern the taluqa itself, I am of opinion that it is not open to do so to a taluqdar. This point was directly answered, as I answer it, by two eminent Judges of the Judicial Commissioner's Court, namely Mr. (afterwards Sir) Sunder Lal and Mr. (afterwards Sir Theodore Caro) Piggott in the case of Janki Prasad Singh v. Dwarka Prasad Singh 9 Ind. Cas. 83. This case went before their Lordships of the Privy Council, but there was no pronouncement on the question whether the self-acquired property of a taluqdar would be governed by the same rules of succession as the taluqdari property itself Janki Pershad Singh v. Dwarka Pershad Singh 20 Ind. Cas. 73 : 40 I.A. 170 : 17 C.W.N. 1029 : 14 M.L.T. 110 : 25 M.L.J. 34 : (1913) M.W.N. 630 : 18 C.L.J. 200 : 11 A.L.J. 818 : 15 Bom. L.R. 853 : 16 O.C. 216 : 35 A. 391 (P.C.).
43. Coming to the question of fact, namely, whether on the evidence it should be held or not that the property in suit was incorporated with the taluqdari property, I am emphatically of opinion that the evidence does not justify any answer in, the affirmative.
44. The evidence on the point consists of certain extracts from account books. These show that the consideration for the sale-deed was taken out from the treasury at Baispur, that the income from the property in suit, namely, rents, were entered in the account books of the Baispur Estate and expenditure for the repairs or addition to the buildings were met out of the fund kept at Baispur. It has been urged that this is conclusive evidence showing that there was a complete commingling of the: incomes from the properties at Baispur and at Allahabad and that, therefore, it must follow as a matter of law that Bajrang Bahadur Singh had decided that the property in suit should form a part of his estate at Baispur and should descend to the same heir of his as the Baispur Estate.
45. The income from the Baispur Estate was the absolute property of Bajrang Bahadur Singh and it was entirely at his disposal. He was the absolute owner of his nontaluqdari properties, including the property in Suit, and the income from those non taluqdari properties would also be entirely at his disposal. Under the circumstances I do not see how he could act otherwise than he did in the matter of keeping the accounts and putting the incomes together and spending monies out of the common stock for the improvement of any such properties belonging to him. Bajrang Bahadur Singh was not accountable to anybody for the incomes of the estate of these properties and it was, as I have stated, no interest of his to duplicate or triplicate the accounts or to keep separate sets of servants for collection of rents and incomes from separate properties and for their supervision. I fail to see the how a natural and only possible conduct open to Bajrang Bahadur Singh can be construed as evidencing an intention on his part that his self-acquired properties should go along with his taluqdari properties for succession. It is difficult to get an authority on matters of evidence which may be of any use. But unfortunately for the appellant there is one and it entirely demolishes his case. In the case of Jagdamba Kuviari v. Wazir Narain Singh 77 Ind. Cas. 1041 : 50 I.A. 1 : (1923) A.I.R. (P.C.) 59 : 44 M.L.J. 503 : 37 C.L.J. 287 : 32 M.L.T. 157 : 4 P.L.T. 319 : 25 Bom. L.R. 676 : 2 Pat. 319 : 18 L.W. 555 : 28 C.W.N. 98 : (1923) M.W.N. 460 (P.C.) a dispute arose as to succession to an impartible estate known as Serampur Raj. The last owner of the property was one Raja Saroda Narain. The plaintiff in the suit was his widow and the defendant was the late Raja's undivided cousin. By custom, the Serampur Estate was impartible and went to a single male owner. It was held under the circumstances that the main estate was bound to go to the defendant, the parties being subject to Mitakshara Law. But there was considerable amount of zamindari and moveable property which had been acquired out of the income of the main estate by Saroda Narain. It was found, to quote the words of the Counsel for the respondent in the case, that 'the collections were made by one set of servants and the entries were made in one set of books.' Both the Courts in India had found from this fact that there was an intention of incorporation on the part of the late Raja Saroda Narain, of the zemklari properties with the main estate. Their Lardships of the Privy Council quite in their judgment the statement of the Manager--the statement which was supposed to have been made in the interest of the respondent--and came to the Conclusion that that evidence did not justify an inference of any intention of incorporation. After this pronouncement of opinion it is impossible for the appellant to contend suoessfully. that the property in suit has become an accretion to the Baispur Estate and it must go to the party who should succeed to the latter.
46. This contention, therefore, fails.
47. In view of my finding on point No. 4 it seems to be needless to discuss whether in the circumstances of the present case the succession to the Baispur Estate would be governed by the Hindu Law or by Act I of 1869. It was stated at the Bar that the respondents, contemplated a litigation with the appellant for the Baispur Estate. In view of this proposed litigation, it is all the more desirable to a void any pronouncement of opinion an any matter, the decision of which is not an absolute necessity for the disposal of the present appeal. I, therefore, decline to express any view on the fifth point raised.
48. In view of my finding, the present appeal should fail and I would dismiss it.
49. The appeal is dismissed with costs including fees in this Court on the higher scale.