N.R. Chatterjea, J.
1. This appeal and Appeal No. 59 arise out of a suit instituted by the plaintiffs as executors to the estate of one Kali Prosanna Ghosh for the partition of a property called Taraf Katia Nangla and for allotment of a one-third share thereof to the plaintiffs.
2. Taraf Katia Nangla, Touzi No. 1086 of the Khulna Collectorate, consists of 8 Mouzahs, one of which bears the name of Katia Nangla. It is situated in Pargana Sahas, and the revenue payable for it was included in the Dowl of Pargana Sahas at the time of the Decennial Settlement, but has all along been treated as a separate property and a separate Touzi number was given to it when the Cess Act came into force. The plaintiff claim title to one-third share of it in the following manner:
Pargana Sahas belonged to the Chanchra Raj family, and Raja Baroda Kant (the last Raja) left three sons, Jnanada Kant, Hemoda Kant and Manada Kant. Hemoda Kant Roy, one of the sons, spld his undivided one-third share of Zamindari Mahal Pargana Sahas, Touzi No. 1086 of the Khulna Collectorate, to Kali Prosanna Ghosh by a conveyance dated the 15th December 1892 'together with a like share of and in all and singular subordinate interests in the said Zamindari including the Ranian Britti 1,15,000.' At that time the life-estate in Taraf Katia Nangla was held by Rani Durga Sundari, the mother of Hemoda Kant, under a family arrangement, thq latter having a vested remainder in one-third share of the property. In the year 1901 Kali Prosanna Ghosh brought a suit for partition of Pargana Sahas including Mouza Katia Nangla. The case was amicably settled, and Pargana Sahas was partitioned; and it, was agreed in that suit that Taraf Katia Nangla would remain in the possession of the Rani during her lifetime and that it would be partitioned after her death.
3. Rani Durga Sundari died on the 28th December 1911 and the present suit was instituted on the 7th August 1912.
4. The plaint was originally one for partition with a Court-fee of Rs. 10 and was directed only against the defendants Nos. 1 toy 4, who are the representatives of the brothers of Hemoda Kant. The defendants Nos. 1 to 4 disclaimed all interests in the property, and stated that Taraf Katia Nangla was the Ranian Britti of the Ranis of the family. The defendants Nos. 6 to 9 (the Ranis) were thereupon added as parties. They pleaded that the Taraf was Rania Britti, that under a family custom the Ranis of the family successively are entitled to it, that the male members of the family have no right to the same, and that accordingly the plaintiff had acquired no title to it under the conveyance executed by Hemoda Kant. The latter (the defendant No. 5) was also made a party, and he pleaded that the claim set up by the defendants Nos. 6 to 9 that the property was held by Ranis in succession was false, that the property was obtained by his mother Rani Durga Sundari by gift from one Rani Kripamoyi (who held it in absolute right) and that on the death of Rani Durga Sundari he as her sole surviving son was entitled to the whole of the Taraf, bat that the plaintiff had not acquired any right to Katia Nangla under the conveyance executed by him in favour of Kali Prosanna Ghosh. The plaint was thereupon amended and the suit was converted into a title suit.
5. The Court below held that the defendants Nos. 6 to 9 had failed to prove the family custom set up by them, that He mod a Kant had a vested interest to the extent of one-third in it at the time of the sale of his share of Parganas Sahas, but that a third share in Mouza Katia Nangla only, and not in the whole Taraf Katia Nangla, passed under the conveyance executed by him in favour of Kali Prosanna Ghosh, and made a decree accordingly.
6. The defendants Nos. 6 to 9 have preferred Appeal No. 86 of 1915, and the plaintiffs have preferred Appeal No. 59 of 1915.
7. We will first deal with the appeal of the defendants Nos. 6 to 9, viz., Appeal No. 59 of 1915.
8. The following genealogical table of the family will be useful in following the facts of the case:
RAJA SOKDEV ROY (DIED IN 1152)=Another wife =Rani Indra Nilmoni.|Raja Nilkant Roy (died in 1170)_________________|_____________________________________________________| |Raja Srikanto (died in 1209) Raja Gopinath= Rani Auuapurna (died in 1229) =Rani Rajeswari (died in 1244)|Banikant (died in 1224)= Rani Kripamoyi (died in 1286)|Raja Baroda Kaut= Mon Mohini, 1st wife =Durga Sundari, 2nd wife Chandra Mukhi, 3rd wife(died childless). | || || |______________________|________________ || | |Jnanada Kant Hemoda Kant, Manada Kant (died in 1298)= Bhubon Mohini defendant No. 5. = Rani Prorabati (died in 1305)| |Adopted son, Khiroda Kant, |= Konok Prova |defendant No. 8. |___________________|____________________________________________|_____________________________| | | |Satish Kant, Jyotish Kant, Khiroda Kant, Nripatesh Kantdefendant No. 2 defendant No. 3 defendant No. 1, defendant No. 4=AmbaIika, =Rani Bhibhabati, adopted by =Jyoti Rupa,defendant No. 6. defendant No. 7 Jnanada Kant, defendant No, 9.=Konok Provadefendant No. 8.
9. It is alleged by the defendants Nos. 6 to 9 that Raja Nil Kant executed a Sanad in favour of his step mother Rani Indra Nilmoni on the 16th Sravan 1160 B.S. (1753). The original Sanad is not forthcoming, but it is stated in a Rubakari of the Collector of Jessore, dated the 25th March 1816, that 'on reference to the Sanad ancLafter an enquiry it became clear that Raja Nil Kant had made a gift as Britti of 5,001 bighas in Mouza Katia Nangla and others 'together with other lands in other Mouzas to Rani Indra Nilmoni for her maintenance, that she was in possession thereof and that during her lifetime she made a gift of them to Rani Annapurna as a Youtuk Britti, The original Sanad, therefore, must have been produced before the Collector. The defendants have produced in this case a confirmatory Sanad said to have been granted by Raja Sri Kant Roy on the 4th February 1817 to his wife Annapurna and his brother's wife Rani Rajeswari (wife of Raja Gopinath), in which it is stated: 'My father the late Raja Nil Kant Roy gave Taraf Katia Nangla and others in Pargana Sahas to the late Rani Indra Nilmoni as Ranian Youtuk Britti for the performance of Bratas and other charitable and pious acts...confirming the aforesaid Britti the aforesaid Katia Nangla and others included within my Zemindari, Pargana Sahas is again granted to you as Youtuk Britti for your maintenance and performance of pious acts. You and the Ranis of the family shall remain in the enjoyment and possession of the aforesaid Britti and hold the same as Lakhiraj, You or thefuture Ranis shall not be entitled to make a sale, gift or heba of the aforesaid Britti and shall be entitled only to enjoy the profits thereof. I or my heirs shall have no claim to or concern with the aforesaid Britti, if I or they should at any time make any claim, it shall be futile and of no effect. To this effect I grant this Sanad in confirmation of the Ranian Youtuk Britti.'
10. The defendants have also produced a Taidad of the Bajeh lands belonging to Rani Annapurna filed in the Jessore Colleotorate in 1209 B.S. by one Ramdhin Singh, in which it is stated that Raja Nil Kant had granted a Britti tu Rani Indra Nilmoni of lands situated in Mouzah Katia Nangla and seven other Mouaahs (named) and so she made a gift of that Britti as Youtuk of Rani Annapurna. The date of the old Sanad bearing the signature of the Raja is given as 11th Bhadra 1160 B.S. and that of the Youtuk Britti as 25th Sravan 1187.
11. It appears that the said Ramdhin Singh obtained a mortgage, of about 3,867 bighas of land situated in Katia Nangla (referred to in the proceedings as purchase) from Rani Annapurna. On the death pi Ramdhin, his son Mohan Singh was in possession of the property and he made a gift of poitions of the same to his son-in-law and daughter's son, who were in possession when proceedings were started for resumption of the lands under Regulation XIX of 1793. The Collector of Jessore by his Rubakari, dated the 25th March 1816, referred to the Sanad dated the 16th Sravan 1160, and the facts stated above and came to the conclusion that the lands were actually the Youtuk Britti properties of Rani Annapurna, and that under the circumstances the Government had, no title to the lands mentioned in the Sanad.
12. Rani Annapurna (the widow of Raja Sri Kant) died in 1229, and it appears from a petition of her daughter-in-law Rani Kripamoyi (hereafter referred to) that she made a gift of the entire Britti Taraf Katia Nangla during her lifetime to Rani Kripamoyi. Raja Srikant's son Bani Kant died in 1224, leaving his widow Rani Kripamoyi and a minor son Raja Baroda Kant. Raja Baroda Kant's estate having fallen into arrears of Government revenue was taken charge of by the Court of Wards.
13. In the meantime the mortgage-debt due to Mohan Singh (son of Ramdhin Singh) was satisfied, and Mohan Singh by a petition to the Collector of Jessore, dated the 18th December 1822, stated that he had received the whole of the principal and interest, and prayed that the name of Rani Kripamoyi as the owner of the Youtuk Britti might be entered by expunging his name.
14. Rani Kripamoyi on the 9th March 1823 applied to the Collector of Jessore for registration of her name in respect of Youtuk Britti Katia Nangla as the mortgage had been paid off, but stated that the property night remain under the management of the Court of Wards until the money due from her son (Raja Baroda Kant) to Government was satisfied, when it would come back to her, and that an annual sum might be fixed for her personal expenses and religions rites, and this proposal was accepted and given effect to by the Collector as would appear from his Rubakari, dated the 22nd March 1823.
15. In 1823 the Government decided to restore the Pargana Sahas to the minor Raja (Baroda Kant) after a proper settlement shall have been made by the Collector and directed the Board of Revenue (by a letter. dated the 18th November 1823) to issue the necessary orders.
16. In the year 1837 one Ram Kissen Panda put in a Taidad in the Collectorate in respect of 6,121 bighas of lands in Katia Nangla and other Mouzahs claimihg the same under a gift from Rani Indra Nilmoni. The Collector thereupon started proceedings for assessment of revenue upon those lands under the provisions of Regulation II of 1819.
17. Rani Kripamoyi in her petition, dated the 4th August 1837, filed in the said proceedings stated that since a long time before the British Government the Ranis of Rajas have been in enjoyment and possession of the Ranian Brittis in many villages, especially in Taraf Katia Nangla, as revenue-free lands. The Ranis in former times had been in possession of the Brittis in view of maintenance of the Ranis, and they had been in the enjoyment of the profits. In this way the Britti having come down from one Rani to another it descended to the late Rani Annapurna, who made a gift of the entire Brit Taraf Katia Nangla and others to me as a Youtuk for my maintenance, and since then I have been holding that property as Youtuk property and I have been in undisputed enjoyment of the profits thereof. Neither the aforesaid Panda nor any other person has a single cotta of Lakhiraj land in the aforesaid Taraf.'
18. Raja Baroda Kact in his petition of the same date stated that in the year 1197, when a Decennial Settlement of the entire Zemindari was concluded with my grandfather the late Maharaj Sri Kant Roy, the entire Ranian Britti was resumed and being assessed with revenue was included in the Dowl of the Zamindari. Thereupon the late Raja paid the revenue of the resumed Brit along with the Zemindari and maintained the grant (Britti) to the Ranis Rajeswari and Annapurna as before for their maintenance. After their death my mother Srimati Rani (Kripamoyi) succeeded to the Brit (property) who defrayed the expenses of her maintenance out of it, and I have been paying the revenue of the entire property to Government. But they have not the power of making a sale or gift of that Brit. When the Ranian Britti was resumed by Government in the year' 1197 and assessed with revenue, and when the Ranis have not the power of making a sale or gift, how can it be possible that Rani Indra Nilmoni made a valid rent-free gift of the aforesaid 6,121 bighas of land to aforesaid Panda?'
19. The matter came up before the Special Deputy Collector and he held by his order, dated the 16th January 1838, that the lands in dispute were in fact the resumed lands of the Ranis, they having been resumed by the Government and their rents added to the entire Zemindari of the Raja at the time of the Decennial Settlement, that the lands had been granted away for maintenance of Rani Kripamoyi, that the claim of Ram Kissen Panda was false-and that the claim of the Government to resume the lands on the ground of the same being Lakhiraj was untenable. The order of the Special Deputy Collector was upheld by the Commissioner by his Rubakari, dated the 16th February 1839.
20. Rani Kripamoyi lived for a long time and appears to have been in possession of Katia Nangla as long as she was alive.
21. In the abstract statement of the jamabandi of Pargana Sahas prepared by the Collector in 1232 (1826), apparently when the estate of the minor Raja was taken charge of by the Court of Wards, Katia Nangla was not included. The Rani, however, as we have seen, agreed that Katia Nangla should be in the possession of the Court of Wards so long as the debts of the minor Raja was not paid off. She asserted her right and possession before the Special Deputy Collector when Ram Kissen Panda set up a claim based upon the alleged gift from Rani Indra Nilnioni, and she was supported by her son Raja Baroda Kant and her right was recognised by the Special Deputy Collector and the Commissioner in 1838. The jama was baki papers (Exhibit D series), from 1279 to 1286, pattas granted by Rani Kripamoyi (Exhibit A series), kabuliyats (Exhibit E series), saltarnami nikash oama kharach (Exhibit C), rent receipts (Exhibit F series), counterfoil rent receipts (Exhibit H series) and decrees, show Rani Kripamoyi as being in possession of 'Youtuk Britti' or 'Ranian Britti' Katia Nangla.
22. There is one instance, however, which shows that Raja Baroda Kant asserted his right to a portion of Taraf Katia Nangla. It appears that one Dwarka Nath Bose claimed 45 bighas of lands as included within his Mahal Gandamaka in certain proceedings before the Deputy Collector in the year 1857, and Raja Baroda Kant claimed it and asserted his possession in it as being included in Mouza Sukdara (one of the Mouzas of Taraf Katia Nangla) within his Zemindari Pargana Sahas.'
23. He lost the case, and it does not appear that Rani Kripamoyi was any party to the proceedings.
24. Rani Kripamoyi made a gift of Katia Nangla to Rani Durga Sundari and the latter was in possession of the Taraf so long as she lived. There is a large number of documents showing her possession as not disputed.
25. After the death of Raja Baroda Kant, disputes arose between Manada Kant (the son by his third wife) and Jnanada Kant and Hemoda Kant, his sons by his wife Rani Durga Sundari. Rani Durga Sundari claimed Taraf Katia Nangla and certain other properties as her Ranian Britti, The dispute was settled by a release, dated the 17th February 1884, executed by her in favour of Manada Kant, whereby she gave up her claim to the properties other than Taraf Katia Nangla claimed by her. It was agreed that the three brothers would get the whole estate with the exception of Taraf Katia Nangla in equal shares, that Taraf Katia Nangla would remain with their consent in the possession and enjoyment of Rani Durga Sundari for her maintenance for life and for the performance of religious duties, and that the sons would not be able to claim Katia Nangla during her lifetime.
26. Subsequently Hemoda 'Kant sold his one-third share of the Pargana Sahas including the Ranian Britti in Katia Nangla' by a conveyance, dated the 15th December 1892, as stated above to Kali Prosanna Ghosh. On the 21st January 1901 Kali Prosanna Ghosh instituted a suit for partition of Pargana Sahas, in which he prayed that 'Mouza Katia Nangla may also be partitioned but to be held by Rani Durga Sundari during her life under the agreement.' Rani Durga Sundari and the representatives of Jnanada Kant and Manada Kant were parties defendants to that suit. The suit was amicably settled and Rani Durga Sundari filed a petition of compromise in which she stated that 'Taraf Katia Nangla' which was in her enjoyment and possession under the deed of release, dated the 17th February 1884, would remain in her possession and enjoyment in her life. On the 19th March 1905 a decree was passed by consent for partition of Touzi No. 186 (Pargana Sahas) and it was ordered that 'Taraf Katia Nangla included in Pargana Sahas at present held by Rani Durga Sundari in life-interest being now not to be partitioned be kept undivided, and the same be partitioned after her death.'
27. Rani Durga Sundari died on the 28th December 1911 and since her death the Ranis of the family, viz; the defendants Nos. 6 to 9, claim to be in possession of Taraf Katia Nangla. Their possession is not seriously disputed. The second issue in the case was : Are the Ranis mentioned in the written statement in possession of the whole or any part of the property?' And the learned Subordinate Judge says in his judgment that it (along with some others) had not been passed.
28. The original Sanad of 1160 (1753) as already stated is not forthcoming, but having regard to the fact that it was produced before the Revenue Authorities a century ago (1816) [see Rubakari of Collector of Jessore, dated 25th March 1516 Exhibit 1(3)], there can be no doubt that there was such a Sanad. However, it is not set out in the Rubakar and all that appears is that there was a gift of 500 bighas of land in Katia Nangla by Raja Nil Kant to his stepmother Rani Indra Nilmoni for her maintenance.
29. The next grant set up by the defendants as stated above is that of Raja Sri Kant Roy, dated the 4th February 1797 (Exhibit M), in favour of his wife Rani Annapurna and his brother's wife Rani Rajeswari. The learned Subordinate Judge was of opinion that this document was not genuine. It is said that this was in the record room of the defendants and was accidentally found in 1317. The evidence on the point was not believed by the Court below, and we do not think that the evidence is convincing. The grant, however, is referred to in Exhibit C, which is said to have been found along with it. This Exhibit C is a registered document appertaining to Ranian Britti Mahal Taraf Katia Nangla and others belonging to Rajmata Rani Kripatnoyi,' purporting to have been prepared in the year 1284 B.S. It mentions (among various other documents) a Sanad confirming Ranian Youtuk Britti, dated the 25th of March 1203 B.S., granted by Raja Srikant Roy to Rani Annapurna and Rani Rajeswari.' The Taidad (Exhibit N-a) and the Exhibit C do not appear to have been challenged in the Court below, and the learned Subordinate Judge has not referred to Exhibit 0 at all in his judgment. So far back as the 4th August 1837 Raja Baroda Kant in his petition to the Special Deputy Collector stated that the late Raja maintained the grant (Britti) to the Ranis Rajeswari and Annapurna as before for their maintenance.' The Sanad of 1203 does not appear to have been produced before the authorities at the time. It may be (as suggested on behalf of the defendants) that as Raja Baroda Kant and Rani Kripatnoyi were resisting the claim of Ram Kissen Panda based upon an alleged gift by Rani Indra Nilmoni (who had got Taraf Katia Nangla under the Sanad of 1160 from Raja Nilkant), the confirmatory Sanad of 1203 was not of importance in these proceedings.
30. The learned Subordinate Judge was of opinion that the Sanad Of 1203 is consistent with other subsequent unimpeachable evidence. The Taidad of 1209 states that there was at first a gift of Taraf Katia Nangla to Rani Indra Nilmoni, and then that property was given to Rani Annapurna in 1187, whereas the Sanad of 1203 shows that the property was given to the two Ranis Annapurna and Rajeswari. The Collector's proceedings of 1816 also ihow the same thing. Then again Rani Annapurna alone mortgaged the property to Ramdhin Singh, and the petition of Mohan Singh also shows that Rani 'Annapurna alone was the owner. Rani Kripatnoyi also in her petition of 1229 also sets up the previous title of Annapurna alone. Rani Rajeswari did not object to the transfer of Katia Nangla by Annapurna to Ramdhin, nor does she appear to have dealt with the property in any way although she did not die until 1244. On the other hand Rani Rajeswari was dealing with certain other properties without any reference, to Rani Annapurna. An explanation was attempted on behalf of the Rani defendants based upon the fact that there were other properties besides Taraf Katia Nangla which were given as Ranian Britti to Rani Annapurna and Rani Rajeswari, and it was suggested that by some arrangement between themselves Rani Annapurna obtained Taraf Katia Nangla, and Rani Rajeswari got other properties, and that this would explain why the Ranis were dealing with certain properties without reference to each other. The Sanad of 1203 no doubt refers to the grant of, Taraf Katia Nangla 'and others' are also stated to be in Pargana Sahas. The properties dealt with by Rani Rajeswari do not appear to be situate in Pargana Sahas. That being so, the explanation is not satisfactory. Though the fact that Rani Rajeswari had some properties which she was dealing with as her Britti without reference to Rani Annapurna may suggest the possibility of other grants to the two Ranis and an agreement between them, there is no evidence to show that there was any other grant to the two Ranis. We need not, however, discuss the matter further, because, in our opinion, the genuineness of the Sanad of 1203 does not help the case of the Rani defendants. The learned Subordinate Judge was of opinion that 'if this document (Sanad of 1203) be a genuine one, then the contention of the Ranis is true.' But the Sanad states, 'yon and the Ranis of the family shall remain in the' enjoyment and possession of the aforesaid Uritti and hold the same as Lakhiraj, you or the future Ranis shall be entitled only to enjoy the profits thereof.' Now in so far as it lays down a rule of succession limited to the Ranis of the family, it is not valid. An agreement such as that laid down in the Sanad cannot alter the line of succession according to law. Its value as evidence of the family usage will be considered later on, and this brings us to the main question in the case, viz, whether any family custom or usage has been proved under which the Ranis are entitled to succeed to the Ranian Britti property Katia Nangla to the exclusion of persons who are entitled to succeed according to law.
31. As already stated, Rani Indra Nilmoni first obtained the property under Sanad of 1160. She made a gift of it as Youtuk Britti to Rani Annapurna during her lifetime. This is clear from the Rnbakari, dated the 25th March 1816; and the Rubakari pf the Collector, dated the 22nd March 1823, states that Rani Annapurna filed a hebanama in respect of Taraf Katia Nangla. Then again it appears from the petition of Rani Kripamoyi, dated the 4th August 1837, that Rani Annapurna also made a gift of the Taraf to Rani Kripamoyi as Youtuk Britti. It is contended on behalf of the Ranis that the conveyance by one Rani in favour of another during her lifetime merely accelerated the succession, and reliance is placed upon the statement of Rani Kripamoyi in her petition, dated the 4th August 1837, that after the death of one Rani, another Rani succeeded to the right, of enjoyment for her maintenance. But as the Kulachar is based upon these instances, we cannot ignore the fact that there were conveyances by one Rani in favour of another. The right of Rani Durga Sundari to the property was disputed by her step-son Manada Kant, and the dispute was settled by the release executed by her, under which she was to enjoy the property only for her life.
32. It is to be observed that Rani Annapurna claimed the properties as her Youtuk Britti obtained by gift from Rani Indra Nilmoni. She mortgaged Katia Nangla to Ramdhin Singh, and Rani Kripamoyi treated the mortgage as valid. Had there been a family custom that each Rani was to hold only a life-estate, Rani Kripamoyi would have been entitled to succeed to the property on the death of Rani Annapurna without redeeming the mortgage. It is contended, on behalf of the Rani defendants that Rani Annapurna died in 1229 and Kripamoyi got the, property in the same year, and that the mortgage money had been satisfied, by the time Annapurna died, out of the profits of the property, and it was, therefore, unnecessary on the part of Rani Kripamoyi to embark on a litigation to show that Rani Kripamoyi had no right to mortgage the property. It appears, however, from the petition of Mohan Singh (the son of the mortgagee Ramdhin Singh), dated the 18th December 1822, that after the death of Rani Annapurna, the balance of the money due under the mortgage was received by him, and Kripamoyi in her petition, dated the 9th March 1823, stated that the mortgage was redeemed by the Government Rani Rajeswari also was dealing with her Ranian properties without reference to Rani Kripamoyi. By a Kobala, dated the 26th January 1810 (Exhibit 1-1), Rani Rajeswari transferred certain Mouaahs out of Taraf Madhu Khali by way of conditional sale for Rs. 10,501 in favour of Gouri Charan Ghose and others, and from the Rubakari of the Collectorate, dated January 1828, it appears that she applied to the Collector to pay off the mortgage on behalf of the minor Raja (whose estate was then under the Court of Wards), as there will be no heir to the said Milkiat except the said minor.' Then it-appears that with regard to another Britt property of Rani Rajeswari, which consisted of Tauper lands, Raja Bamda Kant on the 26th May 1911 claimed that he was entitled to it on her death, and prayed for settlement of the same with him. It is clear, therefore, that so far as Rajeswari's Britt properties were concerned, they came to be inherited by Raja Baroda Kant, and not by any Ranis of the family as laid down in the Sanad of 1203.
33. It is contended that the fact that the Ranis purported to transfer does not show that they had the power to do so, and that Hindu widows-often make alienations in excess of their powers. But in deciding the question of family usage the fact that the Ranis have dealt with the properties as if they were owners thereof, cannot be excluded from consideration.
34. It is contended on behalf of the plaintiffs that the rule of succession set up is based upon a grant and not upon a Kulachar or family usage. The defendant Jyotish Kant in the 19th paragraph of his written statement stated that Taraf Katia Nangla constitutes the Ranian Britti created by a valid grant.' Further on he says that the properties have, all along been held uninterruptedly by the respective Ranis as of right' and according to the long established family usage' and custom of the country prevalent among specially respectable families.' So that it was based upon grant, Kulachar and also Desachar. In the written statement of the Rani defendants they set up the original grant of 1160 to Rani Indra Nilmoni, and the confirmation of the grant in 1203 by Raj Sri Kant and also set up the long standing and uninterrupted usage and family custom in the Raj family, as being held? by the Ranis in succession, each Rani having only a life-interest without having any right to make any sort of gift, etc.'
35. As observed above, the grant, in so far as it lays down a rule of succession, is absolutely void as it prescribes a rule of succession unknown to Hindu Law. It is also void as it purports to create successive life-estates in favour of unborn persons, the estate itself being undisposed of. Even if the rule of succession laid down in the Sanad of 1203 has actually been followed, it cannot be treated as binding upon the family unless it has ripened into a family custom.
36. It is contended on behalf of the Ranis that ever since 1160 B.S., for more than a) century and a half, the Ranis of the family have been successively in possession of the property as Ranian Britti and there is no evidence to show that any Raja was in possession of it.
37. But in order to establish a custom it must be shown that the custom has existed from time immemorial and where the custom set up is peculiar only to a single family, the rule is mere strictly enforced than ever. It is true that a family custom of proved antiquity is entitled to be recognized by the Counts, irrespective of position and rank of the family, and the Chanchara Raj family appears from Hunter's Statistical Account of Jessore to be an ancient family of position and importance.
38. It is contender on behalf of the plaintiffs that no question of immemorial usage can possibly arise when the origin of the alleged usage is known. In the present case the custom is said to have originated with the grant in 1160. Assuming that there can be a valid custom where the origin is known, it must be shown that there has been a long line of succession in accordance with the usage. In Sumrun Singh v. Khedun Singh 2 Sel. Rep. 147 : 6 Ind. Dec. (O.S.) 470 the Sudder Diwahy Adaulat, after taking the opinion of Pandits, held that in order to legalize any deviation from the strict letter of the law, it is necessary that the usage should have been prevalent during a long succession of ancestors hi the family when it becomes known by the name of Kulachar, and in that case only two instances having been adduced in support of the Kulachar Set up in that case, the Court held that it was not sufficient; see also Pertaub Deb v. Sarrwp Deb Raikut 2 Sel. Rep. 321 : 6 Ind. Dec. (O.S.) 602. In the case of Ramlakshmi Ammal v. Sivanartha Perumal Sethurayar I.A. Sup. Vol. 1 at p. 3 : 17 W.R. 552 : 12 B.L.R. 396 : 2 Suth. P.C.J. 603 : 3 Sar. P.C.J. 108 : 14 M.I.A. 570 : 20 E.R. 898 their Lordships of 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, but it is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable, and...should be established to be so by clear and unambiguous evidence; for 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.' It is contended on behalf of the defendants that in this country a custom would be valid if in existence from before the year 1793, and reliance is placed upon the observations of Sir Charles Grey, C.J., in an early case referred to in Banerjee's Stridhan, page 234, and it is pointed out that in the case of Garuradhwaja Prasad v. Superundhwaja Prasad 27 I.A. 238 : 23 A. 37 : 10 M.L.J. 267 : 5 C.W.N. 33 : 2 Bom. L.R. 831 : 7 Sar. P.C.J. 724 (P.C.), the existence of a family custom for 80 years was held to be sufficient. Although there may be no definite rule in Hindu Law as to how old a custom must be in order that it may have the force of law, in the present case (as will be presently shown) there does not appear to have been succession according to any family usage from before the year 1793.
39. In the case reported as Garuradhwaja Prasad v. Superundhwaja Prasad 27 I.A. 238 : 23 A. 37 : 10 M.L.J. 267 : 5 C.W.N. 33 : 2 Bom. L.R. 831 : 7 Sar. P.C.J. 724 (P.C.) there was evidence of a family custom (succession by primogeniture) for 80 years, and the family belonged to a group of families in which the custom had been in existence from time immemorial, and it was held under the circumstances that the family custom had been proved.
40. The only case in which a family custom of succession from mother-in-law to daughter-in-law was set up, was in the case of Prince Mahomed Buktyar Shah v. Rant Bhojamarti 2 C.L.J. 20 and it was held not to be proved.
41. In the present case Rani Indra Nilmoni obtained the property under an express grant. Ranis Annapurna and Rajeswari also had a Sanad (though a confirmatory Sanad) assuming the same to be genuine, and there was a gift by Rani Indra Nilmoni during her lifetime to Rani Annapurna. The Sanad of 1203 does not refer to any family custom. It merely recites the grant of Taraf Katia Nangla and others in Pargana Sahas as Ranian Youtuk Britti to Rani Indra Nilmoni and states that the Taraf Katia Nangla and others is again granted to Ranis Rajeswari and Annapurna as Youtuk Britti and lays down the line of succession as to future Ranis. No question can, therefore, arise of any family custom up to the time when Rani Annapurna got the property. Rani Annapurna admittedly made a gift of the property to Rani Kripamoyi during her lifetime, and it was during the time of Rani Kripamoyi, when Ram Kissen Panda claimed the property under an alleged gift from Rani Indra Nilmoni, that the custom was set up for the first time. It is said that it was the first occasion on which it was necessary to set it up. But had there been a family custom as described in the petition of Rani Kripamoyi, dated the 4th August 1837, viz., that since a long time before the British Government the Ranis. of the family had been in enjoyment, and possession of the Ranian Britti, and that after the death of one Rani another succeeded to the rights, it would have been mentioned in the Sanad of 1203, granted by Raja Sri Kant.
42. In the proceedings which took place in 1837, Rani Kripamoyi, after reciting the custom as stated above, said that the property descended to Rani Annapurna who made a gift of it to her as a Youtuk and since then she had been holding the property as Youtuka, property. Raja Baroda Kant by his petition of the same date stated that his mother succeeded to the Britti property. The suggestion is that the gif by one Rani during her lifetime to another merely accelerated the succession. But the custom set up in the petition of Rani Annapurna was that after the death of one Rani another succeeded to the rights.' Without attaching, however, any importance to these distinctions, the only instance of succession which can possibly be relied upon on behalf of the defendants is that of Rani Kripamoyi. Leaving aside the fact that there was a gift to her by Rani Annapurna during her lifetime, can it be said that Rani Kripamoyi suooeeded under any family custom? There was no case of succession according to family custom before she succeeded; and there could not be any family custom between the date of grant to Rani Annapurna in 1203 and the succession of Rani Kripamoyi. In any case one instance of succession cannot establish a family usage. We have not referred to the oral evidence because it is not of any value, and in any case does not prove anything more than what appears from the documentary evidence.
43. After the death of Raja Baroda Kant, Rani Durga Sundari's right to the Ranian Britti was challenged by her step-son Manada Kant, and the dispute was settled between her and the son, by giving to Rani Durga Sundari only an estate for life, and in the suit for partition brought by Kali Prosanna Ghose it was expressly agreed upon by Rani Durga Sundari and the representatives of Jnanada and Manada that Taraf Katia Nangla would be partitioned after her death. It is true that the Rani defendants were no parties to these suits. But the husbands (of some of the defendants), who in the present suit say that the ladies of the family succeed to the Ranian Britti under a family usage, were parties, and Bhuban Mohini the widow of Jnanada Kant was also a party to the partition suit. Bhuban Mohini would have been entitled to succeed under the alleged custom on the death of Rani Durga Sundari, but she along with the husbands of some of the present Kani defendants agreed to the arrangement. A decree was passed by consent and the property was dealt with in a manner which is inconsistent with the existence of the family usage set up.
44. It is to be observed that no definite rule of succession is prescribed by the Kulaohar. The Ranis of the family are to succeed according to the Kulchar, but whether the daughters-in law alone or grand-daughters-in-law also are to succeed, is not clear. In the present case the Rani defendants are all grand-daughters in-law of Rani Durga Sundari. Then again it is not stated what would happen, if a Raja becomes widower and (here is no dowager Rani, or daughter-in-law or grand-daughter-in-law and the Raja subsequently marries a second time. On the whole we are of opinion that the special family usage set up by the defendants has not been established, and the appeal must, therefore, be dismissed with costs.
45. I agree.