1. The property in dispute is the taluk of Gaura, to which the Courts in Oudh have held the respondent to be entitled. The last holder was a lady named Achal Kunwar, widow of Bhopal Singh, who died in December 1858. She was recognised by the Government, and her title was established by sanad granted in July 1862. The taluk was entered in Lists I and II, as devolving on a single heir, and not in List III. She died in November 1887. The Collector placed the respondent in possession as being either heir or devisee; upon which the present suit was brought. It lies, therefore, upon the plaintiff, now appellant, to show that he has the better title.
2. He has attempted to do that in more than one way. He alleges that Achal Kunwar adopted his father Sheopal Singh; and from a document which will be examined presently it may be conjectured that she did at one time contemplate such an adoption; but no sufficient evidence was brought by the plaintiff to show that it was effected and both Courts have held that it was not. He further claimed to be the heir-at-law of Acha Kunwar, tracing his title through her husband Bhopal by lineal primogeniture; but as the taluk was entered in List II and not in List III, the single heir is, in the absence of any family custom to the contrary, to be ascertained by the rules of the Hindu Common Law; and the appellant is more remote in blood than the respondent. The only serious question raised at the Bar relates to the meaning of a document marked as Exhibit A2 which the appellant contends to have been a gift of the estate to his father Sheopal.
3. Before the issue of the sanad, enquiries, such as other cases have made familiar to us, were made by executive officers to ascertain the views of the Thakurain concerning the succession to her estate. After some uncertainties and vacillations, which the officers evidently attributed to intrigues in her household, but which are not now material to detail, the Thakurain's views were finally stated in a petition, dated 20th April 1862, marked A13. It runs as follows:
Your petitioner was much honoured by service on her of your order, dated 26th March 1862, inquiring as to the heir-apparent to the estate. Having been thus informed of the order, your petitioner begs to submit that since the petitioner is issueless, she appoints Sheopal Singh to be her heir. She shall be the proprietor during her life-time, and shall (herself) manage the estate affairs, and after her death, Sheopal Singh shall become the proprietor (malik) of the estate. Therefore during her life-time she declares Sheopal Singh to be her heir, and this application having been clearly worded is submitted by way of a deed of inheritance in order that it may be a sanad and be of use when required.
(Sd.) Achal Kunwar,
Talukdar of Gaura.
4. Exhibit A2 is a document, dated 21st April 1862, and purporting to be a letter from the Thakurain to Kamta, the father of Sheopal.
From Thakurain Achal Kunwar, to Srish Sri Maharaj Koer Kamta Parshad.
May you live long !
I (Thakurain Achal Kunwar) offer my blessing to you, and pray for the welfare of both sides. I request you to give Sheopal Singh (may he live long !) to me, please give him to me, be obedient to me, and carry out my orders till 1 live; during my life-time I will be the proprietor (Thakur). I make Sheopal Singh my heir and proprietor of this estate, land, debts, and wealth, after me. I invoke the Government, brotherhood, all good men, and spiritual guide. These shall punish me, if I act otherwise than in the manner described. I make Sheopal Singh (may he live long !) proprietor and landlord (Thakur) of this Raj the Gaura (estate) after me. The witnesses hereof are Binda Parshad, Kanungo; second witness, Majlis Rae, Kanungo; third witness, Thakur Bakhsh Singh of Sotha. Dated Baisakh Badi 7th, 1269 Fasli, 1919 Sambat.
(Sd.) Thakurain Achal Kunwar.
The sanad executed by me is correct.
(Seal of Thakurain
Achal Kunwar. )
5. It was put in by the plaintiff and admitted in evidence by the District. Judge. The Court of the Judicial Commissioner thought it not proved. Without discussing that point, the argument has proceeded here on the footing that the document is genuine.
6. What then is its effect? It would not suffice for the plaintiff to show that it is a testamentary instrument, because Sheopal died in 1867, and it could not take effect in his favour. The plaintiff, therefore, contends that it operated to transfer the estate, and that by it the Thakurain's absolute interest became an estate for life with remainder to Sheopal, or became burdened with a trust having the same effect.
7. This is not one of the cases in which a sanad has been obtained in consequence of some promise by the grantee. For all that appears the Government were quite indifferent as between Sheopal and other members of the family. The Thakurain's petition (A13) was not founded on any valuable consideration moving to her. In answer to an enquiry who was heir apparent to the estate, she says she appoints Sheopal to be her heir. Though she speaks of her petition as a sanad and a deed of inheritance, it is highly improbable that she had in her mind any idea so novel to her people as the idea of turning her inheritance into an estate for life with remainder to a collateral relative. Doubtless her idea was that she was simply pointing out who should take through her by inheritance; and if she had then died her nominee would have been quietly installed. These official inquiries as to successors had reference to the critical state of the country, and it was not their object to derogate from the hereditary transferable right which had been promised to the talukdars, and which was expressed in the sanad soon afterwards granted to this day.''
8. It seems to their Lordships that, apart from the idea of adoption which never bore fruit, the letter A2 is to the same effect with the declaration of the day before. In effect the Thakurain informs Kamta of her inclinations towards his son--a very natural thing for her to do, when, after some inconsistent expressions of view and some family controversy, she had finally made known her intentions to the Government. But there was no contract with Kamta and no consideration moving from him. The Officiating Judicial Commissioner expresses himself thus.
When it is said, 'I make Sheopal Singh the owner (or the owner and heir ) of this estate after my death,' the only reasonable interpretation to be put on the words is that the writer was appointing Sheopal Singh to be heir in succession to herself. To find in this plain language any intention on the writer's part to declare herself a mere trustee for her lifetime of the estate on behalf of Sheopal Singh would be impossible without putting on the words used an interpretation which would not only be unnatural and forced, but would certainly never have suggested itself to Mussammat Achal Kunwar. There can be no doubt that if it had been suggested to any one in Mussammat Achal Kunwar's position that such an interpretation could be put on the document, she would have repudiated it without hesitation. The necessity of dealing very cautiously with documents executed by ladies in this country and the danger of ascribing to their language any other meaning than that which they themselves would attach to them is obvious enough. Now, in this instance, we have undisputed evidence of Mussammat Achal Kunwar's wishes on this point only some 24 hours before this document is said to have been executed; and that too in a document which she placed in the hands of public officials as a final declaration of her wishes with regard to Sheopal Singh.
9. These remarks express also the view taken by the other Judges below, and as their Lordships concur in them, they must hold that the appeal is groundless, and should be dismissed. They will humbly advise Her Majesty in accordance with this opinion, and the appellant must pay the costs of this appeal.