1. This is an appeal from the judgment of the Additional Subordinate Judge of Bhagulpore, dated the 15th August 1908.
2. The plaintiff Ekradeswar Singh and Janeswar Singh were brothers. The defendant Musammat Janeswari Babuasin is the widow of Janeswar Singh. The plaintiff's case is that he and his brother Janeswar Singh inherited from their father Maharaj Kumar Babu Nitreswar Singh, the babuana granted to him, and also acquisitions out of the income of the said babuana properties, that their mother was given some properties called sohag properties at the time of her marriage which devolved upon them on her death, that the two brothers named above were minors and hence their properties during their minority were managed and looked after by the late Maharajah of Durbhanga Sir Luchmisswar Singh. It is further alleged that the plaintiff on attaining majority took over the management of the properties, both of himself and his brother's including the sohag properties which at the time belonged jointly to them that Janeswar Singh, the husband of the defendant afterwards attained majority, and in consequence of disagreement between them the two brothers separated and divided the properties including sohag, but without prejudice to their co-parcenary rights as junior members of the Darbhanga Raj family. The plaintiff further states that Babu Janeswar Singh died on the 18th April 1906, without any male issue, leaving only his brother the plaintiff and his widow the defendant, and that according to the kulachar or family custom observed in the Purbhanga Raj family and also in those of the branches thereof, the defendant had no right or title to the estate left by her husband, and the plaintiff as the surviving male heir in his own branch of the family of the Durbhanga Raj, is entitled to succeed to and to the possession of the estate left by the defendant's husband.
3. The kulachar is thus described by the plaintiff. That the Raj descends according to the Rule of lineal primogeniture to the eldest son of the last holder, while the other sons are given properties under the name of babuana grants for their maintenance and support, and that in the event of the last holder of the Raj dying without any male issue natural or adopted, his younger brother, and in the absence of a brother, his nearest agnate succeeds to the Raj, to the exclusion of widows and other females, that the babuana, properties although granted to a younger brother always stand in the name of the Maharajah Bahadur for the time being, he being recorded in the collectorate as the proprietor that the properties thus remain a part and parcel of the Raj that the Maharajah for the time being pays the Government revenue and other public demands with respect to the grant properties and he in his turn, realises the same from the grantee or his successor in the male line, and on extinction of heirs of the grantee in the male line, the properties under the grant and all acquisitions made from the income thereof revert to the Raj, that by virtue of the kulachar, in the event of the death of any male line of any babu to whom the babuana grant has been made, without any male issue natural or adopted, his nearest agnate from among the male descendants in the male line succeeds to the babuana grant,, with all accretions thereto.
4. With regard to sohag properties, it is alleged by the plaintiff that the rule of succession is the same as that of babuana, the villages granted to, the females of the Raj family descend to the males of their body in unbroken male line, and similarly on failure of male issue those villages revert to the Raj.
5. The defendant in her written statements admits that there is a custom in the Raj Reasut of Durbhanga with certain modifications. She says that there is a kulachar by which the holder of the Raj for the time being, may, by deed, assign the Raj to his eldest son, with provisions for his younger sons by babuana grants for the benefit of each of the younger sons and his family. She denies that there is any such custom governing the devolution of succession or inheritance to properties known as babuana. She also denies that the babuana properties are restricted to the male heirs of the grantee and asserts that there is no kulachar so far as babuana properties are concerned, that in case of intestacy the devolution of the babuana properties is governed by the Mithila School of Hindu Law and that the grantee of the babuana properties has full power of alienating those properties. It is further alleged by the defendant that Maharaj Kumar Babu Nitreswar Singh the father of the plaintiff and the defendant's husband made a will on. 31st, July 1883 by which he bequeathed all his properties to his two sons in equal shares and appointed the late Maharajah of Durbhanga, executor of that will; that the Maharajah took out probate of that will but the plaintiff on attaining majority took the management of his own share in his own hands, and he also managed the share of his younger brother Babu Janeswar Singh as manager appointed by the Maharajah, that the plaintiff managed the properties till her husband on attaining majority took possession of his own share, since when he was in separate and exclusive possession of that share, from the income of which he also acquired other properties; that subsequently to her husband's attaining majority, disputes arose between the two brothers which resulted in partition by metes and bounds of all the properties including sohag, and the joint estate was thenceforth pat an end to. She farther contends that the properties acquired either by her father-in-law Maharaj Kumar or her husband from the income of the babuana properties are not subject to any kulachar. There are other minor allegations made by the defendant which are not of any great importance so far as the present appeal is concerned.
6. The Subordinate Judge gave a decree to the plaintiff and hence the present appeal.
7. In the memorandum of appeal 29 grounds have been taken but the decision of the present appeal rests entirely on the question as to whether there is any kulachar which overrides the Hindu Law so far as devolution of babuana, and sohag properties and accretions thereto are concerned and also the question as to whether in case of complete separation between two brothers holding babuana and sohag properties, the devolution of their properties should be governed by the kulachar as alleged by the plaintiff or by the Hindu Law.
8. 'Custom' as used in the sense of a rule which in a particular District, class or family has from long usage obtained the force of law must be ancient, certain and reasonable, and being in derogation of the general rules of law, must be construed strictly Hur Purshad v. Sheo Dyal 3 I.A. 259 : 26 W.R. 55. It has been held in many cases that the custom must be ancient, continued, unaltered, uninterrupted, uniform, constant peaceable and acquiesced in, reasonable, certain, and definite, compulsory and not optional to every person to follow or not. In the case of Ramalakshmi Animal v. Sivananantha Perumal Sethurayer 17 W.R. 553 14 M.I.A. 570 : 12 B.L.R. 396 their Lordships of the Privy Council have held that it is the essence of special usages modifying the ordinary law of succession, that they should be ancient, and invariable, and that they should be established to be so by clear and unambiguous evidence. In order to establish a family custom at variance with the ordinary law of inheritance, it is necessary that it should be established by clear and positive evidence. To establish a kulachar or family custom of descent one at least of two things must be shown, either a clear, distinct and positive tradition in the family that the kulachar exists, or a long series of instances of anomalous inheritance from which the kulachar may be inferred Maharani Hira Nath Kuer v. Ram Narain Singh 9 B.L.R. 274, 294 : 17 W.R. 316. In the case of Sumrun Singh v. Khedun Singh 2 Sel. Rep. 116; new Edition 147 it was held that to legalise any deviation from the strict letter of the law, it is necessary that the usage should have been prevalent daring a long succession of ancestors, when it becomes known by the name of kulachar.'
9. In the case of Neel Kisto Deb Burmona v. Beer Chunder Thakur 12 M.I.A. 523 : 12 W.R. 51 (P.C.) : 3 B.L.R. 13 (P.C.) their Lordships of the Privy Council at page 542 made the following observations: Where a custom is proved to exist it supersedes, the general law, which, however, still regulates all beyond the custom.' In the case of Ram Nunduti Singh v. Janki Koer 29 C. 828 (P.C.) : 7 C.W.N. 57 known as the Bethiha case it was held that there is no inconsistency between a custom of impartibility and the right of females to inherit; and the general law must prevail, unless it is proved that the custom extends to the exclusion of females and the onus of proving that they are excluded, lies on the party alleging it.
10. In the present case, the plaintiff claims the property of his deceased separate brother, Babu Janeswar Singh, by right of survivorship to the exclusion of his brother's widow, on the strength of the custom alleged. In accordance with the authorities just quoted above, it lies on the plaintiff to prove by satisfactory and unambiguous evidence that notwithstanding separation between two brothers holding properties in equal shares under a babuana grant inherited by them from their father, the original grantee, the widow of one of these brothers cannot inherit from her husband on the ground that a custom prevailing in the family supersedes the general Hindu Law.
11. In the light of the above authorities, we now direct our attention to the evidence on the record. The present contest is not between the Durbhanga Raj and the babuana grantee or his male descendant. Nitreswar was the grantee of the present babuana grant and his two sons, Ekradeshwar an Janeshwar, succeeded to the babuana, properties and 'also to the sohag properties granted to their mother. It is admitted that the two brothers, although joint at first, separated, and separately enjoyed the profits arising out of the babuana and the sohag properties in proportion to their respective interests. Janeshwar died without any male issue, and left a widow, who is the defendant in the present suit. Although the babuana and the sohag properties are off-shoots of the Durbhanga Raj; they are admittedly not impartible as the Raj itself is. The plaintiff avers that the Raj is impartible and is governed by the custom of primogeniture in the male line. The babuana and sohag properties are not either impartible or confined to the above description of primogeniture. These properties are governed by the Law of Succession under the general Hindu Law, but in accordance with the plaintiff's case, widows, even in the case of separation, do not succeed. It is alleged by the plaintiff that there is a custom in respect of babuana grants to the effect that the females do not succeed notwithstanding any separation among the male holders of the babuana family grant. The present Maharaja of Durbhanga Sir Rameswar Singh Bahadur is a witness in this case for the plaintiff. He was examined on commission and he was asked as to whether, he could give in the family of Babus any instance of a Babu dying leaving a widow and a separated brother, and the brother inheriting his property in preference to the widow. In answer to that question he says ' I know of no case in which there was a separated brother and a widow left by a Babu.
12. Babu Madhshwar Singh, who is a grandson of an uncle of the present Maharaja of Durbhanga, and who is also a Deputy Magistrate was asked in his examination as to whether he could give any such instance and in answer to this question he says I do not remember to have heard of any such instance occurring in the family.'
13. Babu Tulopati Singh who is a member of the Durbhanga Raj family, says that he does not know of any case of a separated brother in the babuana family dying leaving a widow and a separated brother.
14. Babu Buddreenath Jhah, who is also a member of the Raj family, is able to give only one instance of a holder of a babuana grant dying leaving a widow. It was the case of Babu Ghunpat alias Grhaneshwar. He says that this Babu died leaving a widow and joint brothers. His statement does not help the solution of the question involved in the present case. The present case is with regard to the right of the widow of a separated brother.
15. Babu Bankhaixdi Ojha who is also one of the younger members of the Raj family says I did not see any instance where a separated male descendant died, without male issue. I do not know who get the property on the happening of such a case.' And at another place in his evidence he says That there was no instance besides the case of Ganeshiam who died sonless the instance of a son of a grantee of babuana dying sonless.'
16. The above is the synopsis of the evidence of the plaintiff with regard to the case of a separated brother, holding a portion of the babuana grant. We have already shown on the strength of the authorities referred to above that in order that the general law of inheritance under the Hindu Law should be superseded by custom, it is necessary to show by certain and unambiguous evidence that a certain custom against the general law is pervailing and that instances are not wanting to prove the said custom. The plaintiff contends that a babuana grant never and under no circumstance descends to a female. Witnesses, who are admittedly members of the younger branches of the Darbhanga Raj and who are the most competent witnesses to depose to a custom in derogation of the general Hindu Law of inheritance have been examined in the case, but they failed to cite a single instance where in case of a separated brother dying without an issue but leaving a widow, his estate instead of being inherited by the widow, was inherited by Ms surviving separated brother. It is manifest from the evidence on the record that the babuana property remains in the grantee's family so long as there is a single male descendant in the male line surviving and on failure of such a descendant the babuana properties revert to the Raj. Instances have been given by the witnesses of such events happening. It is admitted by the plaintiff that although babuana properties are not descendable to any female or to any descendant through a female, the properties are not governed by the rule of primogeniture. No doubt Baboo Hem Kanto Ojha, witness No. 2 for the plaintiff says: That in case of one of the sons (of the grantee) dying sonless, leaving brothers, his properties would go to his brother if he leaves one surviving him.' A little further on this witness says: 'In case of the death of a descendant of the original grantee dying without leaving a son, his wife, daughter, or daughter's son does not get his property even if he lived separate from his gotias'. If this could be established by instances in the family, the present plaintiff would no doubt be entitled to inherit his brother's properties by right of survivorship and custom to the exclusion of latter's widow. It has already been observed above, that witnesses have not been able to give a single instance where a widow of a separated brother has been excluded from the inheritance by leaving a separated brother.
17. There is a case (Exhibit 28) in which members of a junior branch of the Darbhanga Raj families were parties. That case came up to the High Court Laliteswar Singh v. Bhabeswar Singh 35 C. 823 : 13 C.W.N. 690 : 9 C.L.J. 561 : 1 Ind. Cas. 812. This case may not be conclusive in regard to the present case, but the judgment is an exhibit on behalf of the plaintiff, and he relies upon it. In the judgment of this Court in the above case, there is the following observation:
The attribute of impartibility of the custom' of succession by primogeniture, which undoubtedly obtained with regard to the Raj itself, has arisen for a particular purpose, namely to keep the Raj in tact from generation to generation in the direct male line. This custom is well recognised, and has been accepted by the Courts. But for it, however, the family would be subject to the ordinary Mitakshara Law. Now the peculiar incedents of the tenure of the Raj itself do not, it is conceded, apply in their entirety to property granted to the younger members of the family who are styled, Baboos. The grant is one for maintenance and is irrevocable only so long as there are in existence, direct male descendants of the grantee, but on failure of them it reverts to the Raj. It is not subject to the rule of primogeniture but descends to all the male members of the grantee's line according to the ordinary rules of inheritance. The custom, therefore, which operates in the case of the Raj itself cannot be held to apply to a babuana grant without the requisite proof which is necessary in such cases.
18. The only instances which have been placed before us to show that a widow of separated brother has not succeeded to the estate of her husband are the cases of Musammats Bhubalata, Kalapati and Dhunalata. Bhoblata is the widow of Bhabani. it is said (vide evidence of Chaitnath Jha P. W. No. IV), that Bhabani was separate from his brothers but Bhabalata got only maintenance. Chaitnath Jha is the only witness who says so. He is the karpardaz of the plaintiff and hence an interested witness. This witness says that Bhabalata is alive. She has not been examined in this case to prove the above fact. Baboo Kalapat Singh, son of Dolepet Singh and grandson of Ramapat Singh left a widow named Kalapati. Dolepat and Dharampat were brothers. It is said that when Kalapat Singh died his widow Kalapati got only a maintenance while Kalapat's estate was divided equally among his four surviving brothers. The witness who says so, is Kalapati Singh a witness for the plaintiff. He also says that Kalapat's widow is still living and enjoying her maintenance. She has not been examined in this case. From an answer to a question put in re-examination of this witness it appears that Kalapat Singh was joint with his brothers up to his death. This witness was asked to state as to from, what time Musammat Kalapati began to live in separate mess from her husband's brother and the answer given by this witness is just after the death of her husband, i.e., after a few days.' It may be observed here that on the strength of Exhibit ZZ 4 it is attempted to show that Kalapat was separate from his brothers. This exhibit is an application for mutation of names filed by Kalapat in respect of mouza Dolha. The property therein described is ancestral. The share for which application was made, was for his specified share. In this connection Exhibits ZZ 10, ZZ 11, ZZ 15 and ZZ 16 have also been referred to for the same purpose. And in support of that contention we have been referred to the case of Hoolash Kooer v. Kasscu Proshad 7 C. 369 which was referred to in the case of Balkishon Das v. Ram Narain Sahu 30 C. 738 (P.C.) 7 C.W.N. 578 : 30 I.A. 103. In the first of these two cases it was held that registration of specified shares of each of the co-owners under the provisions of the Land Registration Act does not amount to a partition. It was also held that although there was registration of the co-owners with regard to their respective shares, they still lived joint. It is worthy of note that all the above Exhibits are dated same time or the other in 1877. The Land Registration Act came into force in 1876, 'and under Section 38 of the Act it was made incumbent on the proprietors and managers to make application for mutation of names and hence there was a rush made by the proprietors and managers for mutation and under Section 7 of the Act the character and extent of the interest of the applicants had to be mentioned. It is, therefore, we find that all these applications of mutation of names were made, soon after the passing of the Act. Apart from all this, we have clear statement made by Kalapati Singh as quoted above showing that Kalapati's widow separated from her husband's brother a few days after his death. In the Privy Council case above quoted their Lordships held that the effect of a certain deed of Ekrarnama was to cause a separation in estate and interest between all the co-parceners and the clause in that deed giving the parties the option of being joint or separate was not inconsistent with a separation in estate. In the present case there is nothing 'but bare application for mutation of names, soon after the Land Registration Act came into force. Kalapati Singh was also asked as to whether a widow of a brother who has effected a partition under a decree of the Court could succeed her husband's estate and in answer to this question he says that he could not give any answer to this question in the absence of any precedent.
19. Ghanalata is the widow of Baboo Ghanashyam Singh, who is the son of Dharampat Singh and the grandson of Rampat Singh. Ramapat had six sons and Dbarampat was one of them. Dharampat, therefore, succeeded to 1/6th of the in heritance left by his father, Ramapat. Dharampat died leaving a widow named Dharamlata and a son named Ghanashyam. Ghanshyam died in 1281 (1873) and his widow Ghanalata appears to have applied for registration of her name with regard to 1/6th share of mauza Dalha wherein she claimed to have inherited that share from her husband. This mauza Dalha is in pargana Pacbahi which is a babuana grant in favour of Ramapat, the grandfather of Ghanashyam. This mauza Dalha was a property acquired by Ramapat. Along with the babuana properties this mauza also descended to the six sons of Ramapat one of whom was Dharampat who got 1/6th of this property as his share which descended to his only son Ghanashyam. It appears from Exhibit ZZ 3 dated 18th September 1878, that a joint decree of the Registration Department was made in favour of Ghanalata and the other male descendant of Ramapat. It also appears from this decree that the applicants' names were entered according to the interest specified in a solenama. We do not know what the terms of the solenama were as it is not in the record. But we have a very important fact from this Exhibit ZZ 3 that Ghanalata's name was entered as an owner to the extent of her husband's 1/6th share. This was done in the presence of the agnates of Ghanashyam. It may be said that under various authorities two of which we have referred to above registration of names with regard to specific shares of co-owners does not necessarily indicate a partition in the sense of Hindu Law. If Ghanalata's husband had died joint with his brothers, Ghanalata would have been entitled to nothing but bare maintenance. But by the solenama it appears that she was allowed to get herself registered with regard to the extent of share of her deceased husband as one of the proprietors of this mauza, and this without any objection on the part of her husband's agnates. She appears to have remained in possession of her husband's share till her death. Eight or nine days before she died she is said to have executed an ekrarnama (Exhibit 7 dated the 30th July 1890). Under this ekrarnama Musammat Ghanalata, eight or nine days before her death gives up all her rights under the general Hindu Law as an heiress to her husband and accepts a custom under which she admits that although she was entitled only to maintenance, she was allowed to be in possession and enjoyment of the entire interest of her deceased husband in lieu of maintenance. This document was attested by Kamal Narain Jha and Digainbur Jha, who are the sons-in-law of Ghanalata. These two men are the fathers of Baidya Nath Jha and Damrunath Jha, the grandsons, by daughters of Ghanalata. Let us now see what was the consideration for this document which was altogether inconsistent with her previous allegations in her application for the registration of her name. We find the following passage in that ekrarnama: Therefore, I, the declarant, with the consent of the fathers of the said minors who are the natural guardians requested the said Bab us (here she mentions the names of the then agnates of Ghanashyam) to the effect that 400 bighas of land appertaining to the said pargana may be given to the said minors the sons of my daughters; and whereas you also have by sympathising with them for the helplessness of the said Babus (names the grandsons) being pleased to grant to them the produce of the said 400 bighas of land by the execution of a deed on the terms and the conditions that I, the declarant, shall withdraw the said petition of certificate for guardianship, that secondly to avoid any future dispute, I shall execute a deed of ekrarnama in favour of you all that I, the declarant, shall enjoy 1/6th of the entire proceeds of the pargana aforeasid by way of maintenance only, during, my life-time and that I shall have no sort of right left in respect thereof.' The terms of this elerarnama most clearly indicate that this lady a few days before her death was made to execute this document in order to secure to her daughter's sons a sure foothold over at least 400 bighas of lands. We do not consider this ekrarnama to be of any value.. This lady Ghanalata was in possession of the estate of her husband as having inherited it from him, for 16 years, when she executes this document a few days before her death, admitting a custom which altogether excludes her from inheriting her husband's estate and as a price of renunciation of her claims as the widow of a separated brothers, she makes the future of her grandsons by her daughters certain and safeguards them from any future complications as to their rights. In the case of Sam Kanta Das Mohapatra v. Chowdhuri Shamanand Das Pahraj Bidya Dhar Bhuiyan 9 C.L.J. 497 : 6 A.L.J. 364 : 13 C.W.N. 581 : 36 C. 590 : 19 M.L.J. 239 : 11 Bom. L.R. 530 : 1 nd. Cas. 754 it was held by their Lordships of the Privy Council that an admission in a deed of compromise which secures more than the maintenance allowance does not establish any custom. In the present case, if the widow Ghanalata had been entitled to nothing but maintenance, she would certainly have got very much less than the income of the inheritance left by her husband. But by the ekrarnama that she executed she admits to have received the whole inheritance of her husband for life-time in lieu of a bare maintenance allowance to which she would have been entitled if her husband's brother was joint with Ekradeshwar. When the statement was made by her admitting a custom on a compromise, the above authority of the Privy Council has full application, and we do not think, therefore, that her admission in the ekrarnamas establishes any custom. It must not be forgotten that she was a purdanahin lady, she had a few days to live before the execution of the ekrarnama, it is nowhere shown that her execution of this document was an intelligent execution, and there also appears a misstatement in this ekrarnama to the following effect :-''And whereas the said descendants of the said Maharaj Kumar Ramput Singh were not on account of mutual disagreement in a position to fix a monthly allowance in cash for my maintenance, befitting the position of my deceased husband.' Of this there is no evidence. On the contrary the decree in the Registration Department was passed on a solenama.
20. There is no doubt that Ekradeshwar the plaintiff and Janeshwar the defendant's husband were separate, which is apparent from Exhibit 00 which is a letter from Ekradeshwar to Mr. Francis, Exhibit. 19 which is a judgment dated 28th February 1898, in a suit against Ekradeshwar for rendition of accounts, Exhibit L which is a plaint on behalf of Ekradeshwar for partition of estate between himself and his brother Janeshwar, the defendant's husband, Exhibit D which is a plaint dated 12th of November 1902 in a suit for partition instituted by Janeshwar the defendant's husband against Ekradeshwar the plaintiff, Exhibit Al which is a kabala (27th September 1901) executed by Ekradeshwar in favour of Janeshwar his brother and Exhibit B, which is a kdbala dated 24th July 1900 executed by Janeshwar in favour of Ekradeshwar. There are other documents also indicating separation between the two brothers.
21. We find that there is an ekrarnama Exhibit 10 executed by the agnates of Ghaneshyam dated 27th of January 1900, with regard to the estate left by Grhaneshyam. We find that there is a statement in this document which certainly is not true. It is stated there in that after Ghanalata's death Ghaneshyam's property came into the possession of the agnates of Ghaneshyam but as a matter of fact Dharmalata, the widowed mother of Ghaneshyam was in possession of his estate after Ghanalata (Exhibit 31 dated the 23rd June 1894).
22. Exhibit II is a petition of compromise dated 3rd of August 1899 filed in a suit in 1899 by Mussammat Dharmalata and others defendants in that suit. In this compromise petition also Dharamlata admits custom against any inheritance by a widow, a mother, a daughter, or by any heir through females. She has admitted in this Exhibit all the statement of the plaintiff of that case who is the present Maharaja of Darbhanga. With regard to this application Moulvi Syed Ahmad Hussain witness No. 2 for the plaintiff says that this petition of compromise was filed by his client Dharamalata on some arrangement arrived at, with respect to her maintenance. The above authority reported in Mam Kanta Das Mohapatra v. Chowdhuri Shanianand Das Paharaj Bidya Dhar Bhuiyan 9 C.L.J. 497 : 6 A.L.J. 364 : 13 C.W.N. 581 : 36 C. 590 : 19 M.L.J. 239 : 11 Bom. L.R. 530 : 1 nd. Cas. 754 excludes the admissions in the petition of compromise from any evidence as to the custom in question.
23. The properties granted under the babuana grant prevailing in the Darbhanga Raj family are, no doubt, alienable by the holders of the grant for the time being subject to the contingent interest of the Maharaja. It was so held in the case of the present Maharaja Rameswar Singh v. Jibender Singh 32 C. 683 : 9 C.W.N. 567 (Ex. 26). In the case of Laliteshwar Singh v. Bhabeswar Singh 35 C. 823 : 13 C.W.N. 690 : 9 C.L.J. 561 : 1 Ind. Cas. 812 (Ex. 28) it was held that the properties under a babuana grant are partable at the instance of a holder of the babuana grant. In the case of Ram Chandra Marwari v. Mudeshwar Singh 33 C. 1158 : 10 C.W.N. 978 (Ex. 27) it was held that a holder of a babuana property holds as a member of a joint family and that his share is liable to be sold in the execution of a decree. The above reported cases are Exhibits on behalf of the plaintiff in the present case, and they clearly show that babuana properties in the hands of younger branches of the Durbhanga Raj family have been treated as the holder's absolute property subject to the contingent interest of the Raj.
24. The deed of grant in favour of Babu Nitreshwar Singh has not been produced but we find from Exhibit WW, a sanad granted by Maharaja Rudra Singh to Maharaj Kumar Babu Moheshwar Singh, that dehat milkiat appertaining to pargana Nisankpur Karrah together with Dusturat was granted to Maharaj Kumar Nitreshwar father of the plaintiff and defendant's husband. We are not, therefore, in a position to ascertain the terms under which the grant was made to Nitreshwar. It is contended on behalf of the respondent that although the original grant to Nitreshwar is not on the record, but the terms under which the grant was made to Kitreshwar should be presumed to be the same as those contained in the other sanads which are on the record. There is no doubt that the terms in the sanads produced, in most clear terms indicate that the babuana, grant is not to revert to the Raj so long as there is even one male descendant of the original grantee in his direct male line. With regard to Purverishi properties, which are properties given to a daughter, the terms of the sanad enjoined that she is to enjoy the properties during her life-time and after her, her Puttra, puttradik, shall enjoy the proceeds thereof, and in the event of the said daughter dying without any male issue of her own womb, the property will revert to the Raj. It is alleged on behalf of the respondent that the same rule prevailed in the case of sohag properties, which are properties given to a daughter-in-law, at the time of her marriage. From the copies of sanads (Exhibits 20 A, 20 B, 20 C, 20 D and 20 E) it is clear that female children and daughter's son were excluded from, the inheritance of the babuana properties. The expression used in these sanads are auras puttra puttradik which means sons born of the loins. I take it to mean that so long as there is one descendant of this description, the properties granted are not to revert to the Raj. It is worthy of note that in the above sanads, a widow of a separated brother does not appear to have been excluded from inheriting her husband's estate as a widow. In none of these snaads, the case of such a widow seems to have been anticipated and defined.
25. It appears from Exhibit 21 A, which is a copy of a letter by Babu Raghunandan Singh to Narindra Singh in 1757 that in case of a failure of an auras (son of my own) not only the babuana property but also acquisitions revert to the Raj; but this happens only when there is an extinction of a male descendant in the direct male line. In the present case there is no such extinction and henca no question arises as to what should happen to the properties acquired from the income of the babuana properties.
26. The above sanads are in derogation of the law of inheritance under the Hindu Law. It was, therefore, necessary on the part of the respondent to have produced the sanad, original or copy, to show what the terms were under which grant was made to Nitreshwar Singh.
27. We do not think it necessary to discuss the incidents of purverishi and sohag grants as the fate of these grants is identical, according to the respondent's case with the original babuana grant,
28. An attack has been made by the appellant on the admissibility of the copies: of the different grants produced in the case. I do not think it necessary to discuss their admissibility inasmuch as I think that the onus of proving that a widow of a separated brother does not succeed, according to the custom prevailing in the younger branch of the Raj family, has not been discharged by the plaintiff. In the case of Sivanananja Perurnal Sethurayar v. Muttu Ramalinga Sethurayar 3 M.H.C.R. 75 at p. 77 it was held that what the law requires _ before an alleged custom can receive the recognition of the Court, and so acquire legal force, is satisfactory proof of usage, so long and invariably acted upon in practice, as to show that it has, by common consent, been submitted to as the established governing rule of the particular, family, class, or district of the country, and the course of practice, upon which the custom rests, must not be left in doubt, but be proved to certainty.' This decision of the Madras High Court was affirmed on appeal; Ramalakshmi Ammal v. Sivananuntha Perumal Sethurayar 17 W.R. 553 14 M.I.A. 570 : 12 B.L.R. 396 and the Judicial Committee observed: ''Their Lordships are fully sensible of the importance and Justice of giving effect to long established usages existing in particular districts and families in India, but it is of the essence of its special usages modifying the ordinary Law of Succession, that they should be ancient and invariable; and it is further essential that they should be established to be so, by clear and unambiguous, evidence. It is only by means of such evidence, that the' Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone, their legal title to recognition depends'. In the light of the above authorities it is. clear that in order to prove a custom to. exclude a widow of a separated brother, the evidence should be clear and unambiguous, instead of that, what we find is that not a single instance has been successfully established that a widow of a separated brother has been excluded from succeeding her deceased husband's estate.
29. The onus being on the plaintiff we do not think it necessary to discuss the oral evidence on behalf of the defendant at any length. They prove that there is no kulachar with regard to the babuana properties which would exclude a widow of a separated brother from inheriting the estate of her husband.
30. In the above circumstances we are of opinion that the plaintiff has totally failed in discharging the onus that was on him, and we, therefore, think that the judgment of the Subordinate Judge is not correct. We, therefore, set aside this judgment and decreo of the lower Court and dismiss the plaintiff's suit with costs by decreeing the present appeal.
31. The point arising in this suit is a small one which has been obscured rather than illuminated by the volume of the evidence, oral and documentary, adduced on one side and on the other. It is not necessary, however, to deal with the whole of the evidence, some of which, indeed, is of doubtful admissibility. The suit relates to the custom affecting babuana grants in the family of which the head is the Maharaja of Durbhanga. Now these babuana grants are in the nature of maintenance grant made by the Maharaja for the time being to his younger sons or in some cases to his brothers. It appears that the grants usually consists of one pargana. They are rendered necessary because the estate, like other large estates, held by great landlords is impartible and descends to a single male heir. Baboo Gunesh Butt Singh v. Maharaja Moheshur Singh 6 M.I.A. 164. In the case cited, the Privy Council held that a usage was proved beyond all controversy according to which the reigning Raja has the power of abdicating, and by deed assigning the Raj in favour of his eldest son or next immediate male heir' (p. 193), and they upheld a deed, dated the 18th June 1807, assigning the Raj to an eldest son and referring to the parganas granted as provision for the younger sons or balus. I observe that as regards those grants to younger sons the deed merely declares that they had already been made (p. 179), but no earlier documentary evidence of the grants is mentioned. As to the nature of babuana grants they are distinguished by their Lordships from absolute grants in the following way (p. 197) :-'Where an estate is granted to a younger son as a Babu allowance, he continues to pay the rent and assessment to the Raja, the property is never separated from the zemindari at all. The cases, therefore, of absolute grants, and of grants by way of Babu allowance are essentially different in their nature.'
32. Further light is thrown on the nature of babuana grants by a series of recent cases. In Maharaja Rameswar Singh v. Jibender Singh 32 C. 683 : 9 C.W.N. 567 babuana property is described as property granted to the junior male members of the Raj family to be enjoyed by them in lieu of money maintenance, but subject to the proprietary rights of the grantor. 'It is further apparent,' it is added, that the grantee is bound to pay to the Maharajah the Government revenue, which the latter pays into the collectorate and that this obligation can be enforced by suit.' The precise point decided in the case is stated in the passage following the words last quoted. The learned Judges say ' such being the nature of babuana property, we see no reason to refuse the recognition of a right to alienate that property, subsisting in the holder, subject only to the contingent interest of the Maharajah, the contingency being remote in a country where the line of male descendants can be reinforced by the practice of adoption.'
33. This view of the alienability of babuana property was followed in Ham Chandra Marwari v. Mudeshwar Singh 33 C. 1158 : 10 C.W.N. 978 where it was also held that such property did not lose its ancestral character in the bonds of a descendant of the grantee because it had been granted to the latter and his direct male line.
34. The last two cases were explained and developed in the case of Laliteswar Singh v. Bhabeswar Singh 35 C. 823 : 13 C.W.N. 690 : 9 C.L.J. 561 : 1 Ind. Cas. 812 where a babuana grant is described by Brett, J., as 'a grant made to a junior member of the family and to his descendants in the male line for their maintenance' with the condition as Chitty, J., adds that on failure of male heirs in such line the property should revert to the Raj.' The learned Judges rejected the contention which had been urged before them that the peculiar incidents attaching by custom to the Raj itself attached also in some degree to property granted out of it as babuana, and in dealing with this contention Chitty, J., observed: The grant is one for maintenance. It is not subject to the rule of primogeniture, but descends to all the male members of the grantee's line according to the ordinary rules of inheritance. The custom, therefore, which operates in the case of the Raj itself cannot be held to apply to a babuana grant, without the requisite proof which is necessary in such cases.' It was held as stated in the headnote that the grant of ancestral property as babuana does not change the ancestral character of the property, or turn it into self-acquired property in the hands of the grantee or his direct male descendants, that the original grantee has no power to dispose of the property by will, and that the other members of the family have those rights in it which they can claim under the Mitahshara Law, viz., the right to restrain alienation, except in cases of legal necessity, and the right to claim partition.
35. As to the Hindu Law applicable, I need only add that in Tirhoot the Mitalcshara gives place in same particulars to other authorities and the system as a whole (which includes the greater part of the Mitahshara Law) is known as the Mithila Law. The only difference between the two systems (if they are to be treated as separate systems) which has been disclosed in the course of the present case is that the Mithila Law permits of adoption in a form not common elsewhere.
36. Such being the general nature of babuana property, the precise point for determination in the present suit, so far as the property in dispute is babuana property, may be stated as follows. The property is part of a babuana grant which descended to two brothers, Ekradeshwar Singh and Ganeswar Singh, from their father Nitreshwar Singh to whom the original grant was made by Maharaja Rudra Singh (vide sanad of 7th Phalgun kadi 1257/3rd February 1850 Partition of the property took place between the two brothers and thereafter on the 18th April 1906 Janeshwar Singh died leaving a a widow. The question is whether under the law of the country or the custom of the family the widow or the surviving brother is the heir of the half share of the property held by the deceased brother.
37. To my mind the question on the evidence admits only of an answer in favour of the widow and I shall briefly indicate the reasons which appear to support that conclusion.
38. The reported cases on the subject of the nature of customary law, especially in regard to the force and extent of an alleged custom and the quality of the evidence required to establish it, are now very numerous, and are cited in all the text books. A custom must be strictly proved by clear and unambiguous evidence, and as regards, its extent, I need only refer to the dictum of the Privy Council in the case of Neel Kisto Deb Burmano 12 M.I.A. 523 : 12 W.R. 51 (P.C.) : 3 B.L.R. 13 (P.C.), that 'where a custom is proved to exist, it supersedes the general law, which, however, still regulates all beyond the custom.' In other words, every separate departure from the ordinary law must be supported by clear and distinct evidence of a binding custom.
39. In regard to the manner in which babuana property descends; there are two possible alternatives to be considered. Before stating them, however, it should be said that I assume for the purposes of the argument, first, that the grant in the present case to Babu Nitreshwar Singh was well made as a babuana grant. The parties do not dispute the fact that a grant of the property was made, but for the defendant some criticism has been directed to the fact that the sanad of 1850, refers to a previous grant of the property and no evidence of such a grant has been produced. As to this, if need be, i.e., if it be the case that the grant was not effectually made before the sanad was executed and if that be at all material, I should be prepared to hold that the grant was given effect to by the sanad and that for that purpose the sanad may be considered as a testamentary instrument authorized both as to form and substance by the custom of the family (see on this point the evidence of the present Maharaja in this suit near the beginning of his cross-examination). But it is, I think, sufficient to say that the grant has always been held by Nitreshwar and his sons as a babuana grant. I further assume that the grant devolved upon the two brothers, not by the instrument dated the 31st July 1883, purporting to be the will of their father, but in the usual course apart from the will. To this point I shall avert again later. Finally, it is common ground that a grant of property as babuana is in terms a grant purporting to operate, subject to the conditions above indicated, in favour of the grantee and his descendants in the male line. But nevertheless the grant once made, it may descend either under the ordinary law, or by virtue of the grant and under the custom, and these are the two alternatives for consideration. These alternatives may be further explained as follows. So long as the family of the grantee continues a joint family, no difficulty arises, the devolution of the property whether it is regulated by the ordinary law or by custom is the same, subject in either case to an admitted custom under which there is a reversion (or possibility of reverter) of the interest granted in favour of the Raj in case there is a total failure of male heirs in the male line. The grant or custom may, therefore, contemplate the grantee and his descendants as a continuing joint family and so far as it deals with descent, may be a mere reflection of the ordinary law. In this case in stating the custom, emphasis should be laid not upon the mode of descent, but upon the fact that the property is never entirely separated from the Raj domains, the Raj continuing to be the nominal proprietor, and retaining, moreover, a reversionary interest. On the other hand the custom may not only include these incidents, but may also govern the mode of descent. The plaintiff contends that the original babuana grant is itself, by reason of its limitations, and without proof of any further custom than that attaching to the grant in its origin, sufficient, even in the circumstances of this case, to entitle him to priority over the defendant, and this position has to be examined.
40. If babuana grants descend under the ordinary law, then it is clear that a partition of a babuana property between brothers having taken place under the ordinary law, if one of the brothers dies, his widow must be preferred (in respect of his share) to the surviving brothers in default of a special custom, duly proved, under which, in supersession of the ordinary law, the rights of the latter are superior to those of the former. Ex-hypothesi, the custom attaching to the grant in its origin merely indicates the interest retained by the Raj.
41. If appeal is made to custom as prescribing the work of descent, the matter is not quite so simple. But the appeal must be to a custom attaching to the babuana grant in its origin, as a grant to the grantee and his descendants in the male line. Ex hypothesi the brothers took in the first' instance under the grant. The property granted, however, is as we have seen, partible, and subject to the ordinary law alienable. No body denies that when it passes out of the family it becomes subject to the ordinary law of succession (excepting always the reversionary right of the Raj). I can see no reason why partition should have a radically different effect Cf. Tekaet Doorga Pershad Singh v. Tehactnee Doorga Kooeree 20. W.R. 154. The same result may be arrived at by reflecting that apart from the babuana grant the brothers were. co-parceners under the ordinary law and there is' no reason (apart from a proved custom) why they should not be co-parceners in respect of property coming to them by custom as well as in respect of property coming to them under the ordinary law.
42. The partition, to sum up, whether the property descended under the ordinary law or under the custom, brought the share of each brother in relation to the other under the dominion of the ordinary law, the result being similar to the result of alienation to a third person. Each brother on partition obtained his due share of the grant, his due proportion of the estate provided for his maintenance and his rights as heir of the body of the grantee are con centrated in the share allotted to him. As regards the remaining share, his rights under the custom are spent. If one brother dies and leaves a son, the son would, undoubtedly, take the whole of his father's, share to the exclusion of the uncle. So if a brother dies leaving a widow, the widow will take unless the surviving brother can prove a special custom in his favour, over and above the custom to which he owes the separate share which he has already obtained. He cannot take his brother's share by survivorship under the ordinary law and cannot take at all except by custom or by some proved incident of a custom. It is here that the principle must be borne in mind that while a custom may, I suppose have its necessary implications, the existence of one custom cannot be deduced from the existence of another by a mere process of reasoning. Each alleged custom and each alleged separate incident of a custom mast be proved to exist as customary law. An admitted custom or a proved custom cannot be the source of a new system created from it by mere inference or by mere analogy. As appears to be the law in England 'a custom cannot be extended by construction' and 'customs are not to be enlarged beyond the usage' vide Denn L. Goodwin v. Spray 1 T.R. 466 : 1 R.R. 250 and Muggleton v. Burnett 2 H. & N.653, cited by Dr. Rash Behari Ghose at the Bar. The reason for the rule is clear. A custom in its essence is an arbitrary rule of limited scope, and in matters of custom, there can be no guide except custom, subject to certain restrictions, there is nothing to prevent any particular custom at any particular point taking an unexpected and unforeseen turn, and, therefore, an alleged custom can only be followed and adopted up to the point at which it is proved by evidence to extend and no further. The ordinary law in the words of the Privy Council regulates all beyond the custom.'
43. The conclusion at which I have so far arrived that the plaintiff can only succeed by proving a special custom or incident of a custom, whether his original rights before the partition be founded upon the ordinary law or on custom, is supported by the difficulty in which the plaintiff evidently found himself on account of the partition having taken place. He is driven in paragraph 16 of the plaint into alleging a new kind of partition, for which I think there is no foundation in fact or in law. He says that he and his brother separated and divided amongst themselves the major portion of the aforesaid properties and sohag property merely for the sake of convenience and undisturbed enjoyment of usufruct without prejudice to their co-parcenary rights as junior members of the Raj Darbhanga family, but they being of junior branch of the Darbhanga Raj family, their status as co-parceners in the Darbhanga Raj family did not come to an end, nor did such portion in any way affect or alter the nature and incidents of their tenure of the said grant.' It is true of course that the partition did not deprive the brothers of their general co-parcenary rights as members of the Raj family, so far as these rights can be described as co-parcenary. They did not in other words cease, owing to the partition, to be members of the family. But the partition crystallized their particular co-parcenary rights as brothers by separating the individual rights of one brother from those of the other and putting an end to the joint status which previously existed. The fact that they were once coparceners under the ordinary law entitled them to partition the property which had come to them (whether under the ordinary law or by custom) and the partition had the effect of a partition under the ordinary law. If the plaintiff relies upon a special mode of partition, he must prove its existence as part of the custom. He would find that a difficult task in the present case, because there is nothing in the proceeding relating to the partition to differentiate it from an ordinary partition of joint property between Hindu brothers. I may refer to what the learned Subordinate Judge says in this subject in dealing with issue No. 3 of the issues framed by him.
44. If the foregoing be correct it is unnecessary to deal with Dr. Rash Behari Ghose's ingenious argument founded in the cases of Jatindra Mohan Tagore v. Janendra Mohan Tagore Sup. I.A. 47 : 18 W.R. 359 : 9 B.L.R. 377 and Sri Balusu Guruliugaswami v. Sri Balusu Ramalakshmamma 22 M. 398 : 21 A. 460 : 26 I.A. 113 that the Maharajas of Darbhanga have been in the habit of making babuana grants limited to the grantee and his male descendants in the male line under a mistaken notion that they have a right under the ordinary law to alter the course of devolution prescribed by that law. I quite agree that if the plaintiff and his brother took the property originally by virtue of Maharaja Rudra Singh's grant as a grant (apart from custom) the plaintiff's case must fail. Either the grant was void in its inception or limitations in consistent with the ordinary law must be eluminated. But as I have said it is unnecessary to deal with this aspect of the case and indeed regard being had to decided cases and to the prevalence of grants for maintenance regulated as to some of their indicants by custom, the contention comes somewhat late in the day. In the present case, for instance, the reversionary right of the Raj in respect of a babuana grant must, I think, be at the least assumed, and it may be added that I see no reason to doubt that babuana grants are, in that respect, and it may be in others, controlled by custom, the custom or customs consisting in implications (proved to be such) of the term babuana. The controversy, therefore, turns on the extent of the custom and the character of its incidents with reference to the evidence adduced in the case, and the real issue is whether the particular incident contended for by the plaintiff is established by that evidence.
45. I assumed above that the property devolved upon the two brothers in the usual course and not under the so-called will of their father. It was agreed at the Bar on behalf of the appellant that that document was nothing more or less than a will and that Ekradeswar elected to take his share of the property not in the ordinary course of descent but under the will. In the view I take of the case, it is unnecessary to deal with these arguments. I may add, however, as to the former argument that like the sanad of a dying Maharaja the document in question may be regarded as being partly of a testamentary character and partly in the nature of a dying manifesto, expressive of the maker's mere wishes or declaratory of the state of things, which will arise upon his death. If that is so the document would have apart from the question of election no material bearing upon the case in this connection Tara Chand v. Reeb Ram 3 Mad. H.C.R. 50 at p. 55. As to the argument founded on the doctrine of election, that aspect of the matter does not appear to have been presented to the lower Court, and in any case, as I have said, the subject need not be pursued.
46. Before turning to the evidence, I should like to say that the case of the widow must be considered as quite distinct from the case of daughters and daughter's sons. Reference may be made in regard to this point to paragraph 561 of Mayne's Hindu Law and to page 462 of Golap Chandra Shastri's Hindu Law, Edition of 1906, where the learned author says: 'The Patra Pautradih grants in Chota Nagpur appear to have orginated in maintenance grants to junior members; they are enjoyed by the grantees and their male descendants in the male line and their widows. They do not pass by inheritance to daughters or to any heir belonging to a different Gotra or family.' Thakoor Jeetnath Sahee Deo v. Lokenath Sahee Deo 19 W.R. 239. It is clear that considerations applicable to the widow need not be identical with those applicable to the daughter and her sons, and that the scope of the custom may well be sufficient to exclude the latter without being sufficient to exclude the former.
47. The distinction adverted to in the foregoing paragraph was neglected by the learned Subordinate Judge and his reasoning is largely vitiated thereby. He has treated instances of the exclusion of daughters and daughter's sons as though they proved the plaintiff's case and he appears also to have attached a disproportionate weight to instances in which babuana property has reverted to the Raj over the head of a widow because there was a total failure of male heirs. Instances of these kinds are of very little (if any) assistance to the plaintiff. The custom to the extent to which they go may be taken for granted for the purposes of this case.
48. As regards the evidence, the plaintiff produced a variety of documents to all of which I do not propose to refer. I may mention however, five copies of old sanads Exbts. 20 (a), 20 (6), 20 (c), 20 (d), and 20 (e). The original sanads, I understand, are in existence in the archives of the family and there was some discussion whether these uncertified copies were admissible in evidence and whether the provisions of Section 90 of the Indian Evidence Act, were in the circumstances applicable. If the copies are admissible at all they are admissible as secondary evidence of the contents of the originals. The plaintiff made at any rate some attempts to obtain the originals and the learned Sub-Judge seems to have thought that the admission of secondary evidence was justifiable in the circumstances. Moreover, if the originals are in existence, it was open to the defendant to call for them if she doubted the accuracy of the copies produced by the plaintiff. In substance, therefore, there appears to me to be little force in the objection taken to these copies: and I think that it is unnecessary to consider the legal point which arises as to the applicability of the presumptions allowed by Section 90 of the Evidence Act: because in my opinion even if the copies are admitted as true copies of genuine originals they do not materially assist the plaintiff. The grants evidenced by the sanads are babuana grants or grants made to a bibu and are described as auras putra pourtadi by which I understand that the grants purport to be limited to the grantee and his male descendants in the male line. It has already been taken for granted that all babuana grants purport to be so limited. There is one sanad, however, and that not the earliest, a sanad of the year 1739 in which the description is coupled with an explanation according to which widows would not be necessarily excluded from inheriting. The sanad appears to define the term auras putra poutradi as excluding female children and daughter's sons' but does not mention widows. In my opinion, therefore, these sanads from assisting the plaintiff rather tell against him.
49. The old letters of which Exhibits 21 (a) and 21 (b) are copies appear to refer to cases in which the original grantees of babuana grants died, without leaving male issue.
50. Then as to the case of Ghanalata, I entirely agree with my learned brother that the result of the evidence is to show clearly that she did in fact succeed to the property of her deceased husband in preference to her husband's brothers, from whom her husband had separated, the property having been at one time part of a babuana grant. The case, the details of which I need not repeat, is clearly in favour of the defendant. It is in her favour both as showing the partibility of babuana property (see the evidence of the present Maharaja in this suit in his cross-examination) and as showing the widow's right to succeed her husband in circumstances such as we have here.
51. For the respondent some reference was made to the cases of Bhabalata and Kalapati. I am not satisfied that the evidence shows that those cases are in point. Bhabalata's case is mentioned in the deposition of Chaitnath Jha plaintiff's harpardaz. We have, I think, his word for it that, her husband Bhabani at the date of his death was separate from his brother. That lady is alive. She has not been examined either in Court or on Commission. Similarly in regard to Kalapati's case the witness Tulapat Singh says :-' Kalapat Singh died more than 20 years ago. His widow is still living and gets maintenance. This maintenance was fixed just after his death. There was no registered document about the matter I believe. She is living separately in the same compound with her husband's brother. She does not mess jointly with them.' But further questioned as to when Kalapati began to live in separate mess from her husband's brothers, he answers: 'just after the death of her husband, that is after a few days.' This lady also is alive and was not examined. The witness Kalapati who speaks about her says that the present case is without precedent. He does not know where the property ought to go in a case like the present because 'in the absence of any precedents' 'it is a purely legal question.' The distinction he attempts to draw between a partition between two or more brothers declared and decreed by the Courts and a partition otherwise effected appears to be meaningless.
52. Then the plaintiff relied upon statements made by late Maharaja Sir Lachmeswar Singh on the 14th March 1897 in the course of his deposition in the Bittiah Raj case Ram Nandan Singh v. Janki Koer 29 C. 828 (P.C.) : 7 C.W.N. 57 a case which I may observe in passing in its general aspect both as regards the conclusion arrived at and the reasoning upon which the conclusion is vested, is in favour of the defendant (see the judgment of the High Court at pp. 840 to 842 and the judgment of the Privy Council at pp. 852, 853). In my opinion the Maharaja's deposition was not admissible in evidence in the present case under the terms of Section 13 of the Evidence Act. But apart from that objection its weight as evidence is inconsiderable because the mind of the Maharaja was not directed to the precise state of things which arises here and the words used appear to exclude that state of things from their scope. What he was thinking of was the possibility of women succeeding to an inpartible Raj. No doubt he said 'A widow would not succeed to a babuana, grant in my family.' But he adds in the same breath. 'There has never been any partition or separation in my family since we acquired the Raj so far as I know.' It is sought to confine this last statement to the Raj itself. But the words are general in their character and the deposition must, if admitted at all, be read as a whole.
53. Then there are two depositions of the present Maharaja, his deposition in the pro-sent suit and his deposition in a previous case, the date of the last being the 28th August 1892. On the latter date he was asked the following question. Have the widows and the daughter's any right to the properties granted by way of maintenance to the Babus from the Raj-Reasut of Durbhanga? 'His answer was: 'In the family of the Raj Reasut of Durbhanga the widow and daughter of the deceased do not inherit from the deceased.' That statement was made before the Maharaja succeeded to the Raj and of the Ghanalata's death and must be considered with reference to all that had occurred in Ghanalata's case. Moreover, the Maharaja's views appear to have since undergone a change. In the present suit, his attention being drawn to the statement I have just quoted, he said: I have no recollection of what I said but acted, as I have already said, on the information given to me by my brother.' Shortly afterwards he says :-' I know of no litigation between a brother and a widow of a deceased brother.' He had said before : I know of no case in which there was a separated brother and a widow left by a Babu' and I believe that the present case is the, only instance in which a Babu has died leaving his separated brother and his widow.' In fact the impression left on the mind by the oral evidence in this case can only be that the point which arises is (apart, I suppose from Ghanalata's case) one of first impression.
54. The learned Subordinate Judge has attached some importance to the plaint (Ex. 1) filed on behalf of the Maharaja in suit No. 30 of 1899 before one of the Subordinate Judges at Mozafferpore. It may be observed that the plaint was not signed by the Maharaja himself, but by his attorney, Chunder Sekhar Bose and that the Raj was pecuniarily interested in the result of the suit. As regards the position which bad been held by Ghanalata, there is an admission in paragraph 8 favourable to the case for the present defendant and the case ended in a compromise (Ex. 2) which, in my opinion, for reasons already indicated by my learned brother, proves nothing.
55. The petition filed on behalf of the Maharaja in another suit on the 18th May 1906, is also referred to by the Subordinate Judge. That again is not signed by the Maharaja but by his Assistant Manager Mr. Lloyd. A statement in such a petition may represent opinion, perhaps hastily framed, at the time it was made. But in the present case we have the evidence of the Maharaja himself and it is not necessary to go further for his views.
56. As to the deposition of the late Babu Loke Nath Misser (dated 5th September 1892 Ex. 24) in a previous case, it must be considered along with the Maharaja's deposition of 28th August 1892. It is open to the observation already made as to the latter, namely that it must be considered with reference to all that had taken place in Ghanalata's case.
57. The evidence of Babu Preo Nath Banerjee a witness for the defendant which the Subordinate Judge says supports the case for the plaintiff, appears to me to be of a purely negative character. He does not appear to have heard of Ghanalata's case, but he says ho had never come across any instance of a widow succeeding to babuar-a property.
58. In my opinion, the plaintiff has entirely failed to prove any custom entitling him to succeed to the babuana property left by his deceased brother.
59. The property in dispute known as sohag (a grant made to the wife of a Babu at the time of marriage) is similar in its nature and incidents to babuana property and is governed by similar considerations. If the widow is entitled to the babuana and sohag properties there can be no question as to her title to acquisition made by her husband out of the income of those properties. In the result I concur with my learned brother in the order which he proposes to make in these appeals.