Niamat Ullah, President
1. The property in dispute in this appeal belonged to one Sohna who died in Sambat year 1973 leaving a widow Mt. Niranjano in whose favour mutation of names was effected as his heir and successor. In 1982 mutation of names was effected in favour of the appellant Rassia as the adopted son of Sohna. Mt. Niranjano died on the 6th Katik 1988 and the appellant continued in possession. It was not till 6th Katik 2000 that the suit which has given rise to this appeal was instituted by the respondents who claimed title to the estate of Sohna on the basis of Ailan No. 23 promulgated by His Highness on 12th Har 1985. They claimed to be the coaharers in the village and as such entitled to the estate of Schna who had died 'isaueless'. The Ailan which is in Urdu proclaimed that on the occasion of the Coronation ceremony of his Highness he was pleased to declare, inter alia, that if in a joint Khata an owner, Malguzar or Assami or an occupancy tenant dies 'issueless' (ludhvald) his interest would devolve on his coaharers. In a later clause the Ailan declares that if in a Bhaichara Mahal an owner, Malguzar or Assami dies 'issueless' (ludhvald) then instead of his estate becoming subject to the law of escheat would devolve upon the cosharers of the entire Mahal, the same being treated as Shamilat Deh. The appellant Rassia contested the suit claiming to have been adopted by Sohna and also denying the right of the plaintiff's to succeed to the estate of Sohna who was in no way related to them. It is not disputed that the plaintiffs belong to different families and indeed to different castes and that they have no right to succeed to the estate of Sohana under the ordinary law of inheritance applicable to him. In substance they claimed by right of escheat which accrued to His Highness who by his Ailan, already referred to, waived it in favour of the cosharers, in this case the plaintiffs.
2. The Ailan has been reproduced in the Standing Order No. 23 of the Revenue Department Rule 63, which is in English. The Marginal note appended to this rule is 'Lawaris Holding' and Sub-rules 1, 2 & 3 run as follows:
(1) The heirs of an Owner, Malguzar, Assami are those recognised by law or custom; the heirs of an occupancy tenant are those specified in Sections 67 and 68 of the Tenancy Regulation (No: II of 1980).
(2) The share of any owner, Malguzar, Assami or occupancy tenant holding directly under the State in a joint holding who dies without heirs, shall devolve upon the surviving share-holders in that holding in accordance with their shares.
(3) The land of any owner, Malguzar, Assami in a Bhaichara estate, who dies heirless, shall become Shamilat-i-Deh and not Galwand; for the purpose of this rule a Bhaichara estate includes all estates in which possession is the measure of right whether the tenure therein is that of owner, Malguzar or Assami.
3. It will be observed that in this rule the equivalent of Lawalad (Issueless) is not used. It uses the expression 'without heirs' and is undoubtedly more in accord with the intention underlying the Ailan.
4. The learned Advocate for the plaintiffs-respondents argued that the Ailan itself being clear its incorrect rendering in the Standing Order 23 should not be allowed to override the Ailan itself. Accordingly the learned Advocate insists that Sohna having died without natural issues the plaintiff's are entitled to succeed in terms of the Ailan on the finding arrived at by the High Court that the appellant Rassia has not been proved to be the adopted son of Sohna. The literal interpretation of the word 'Lawadai' in the Ailan will lead to such anomalies and absurdities as could hardly have been intended by His Highness, For instance, if a cosharer dies leaving a widow but no issue, a case of escheat would on that interpretation arise and the widow would, stand excluded. Similarly where a cosharer dies leaving a brother but no issue, the brother who is not a cosharer, would stand excluded by cosharers belonging to different castes or communities. That the word lawalad is not to be interpreted in the literal sense is borne out by what is clearly stated in Sub-rule (3) which provides that in a Bhaichara Mahal if an owner dies issueless his share instead of going by escheat will form part of the Shamilati Deh. It is clear to the Board that the word 'lawalad' has been used loosely in the Ailan and the intention was, as has been brought out in the English rendering given in the Standing Order No. 3 Rule 63, that where under the law of inheritance a case of escheat arises His Highness will forego the right thus accruing to him in favour of the entire body of cosharers. It was an act of grace to commemorate the happy occasion of his Coronation and it could not have been intention of His Highness to deprive any one who but for the Ailan, would have been entitled to inherit.
5. In this view the plaintiffs were bound to prove that Sohna died not only without leaving no issue but further that he left no heir under the Hindu law so that a case of escheat arose on the death of his widow Mt. Niranjano. The plaintiffs alleged in paras. 2 and 3 of their plaint that Sohna died without leaving any issue. Evidently they adopted the language of the Ailan. The defendant-appellant however pointed out in the corresponding paragraphs of his written statement that the term 'Issueless' means lawaris and that the plaintiff cannot succeed unless a case of escheat is established. He thus puts the plaintiffs to prove a case of escheat. The learned Advocate for the respondents complained that if this is the correct interpretation of the Ailan they were misled by the language therein employed and that they have not had sufficient opportunity to prove that Sohna left no possible heirs. The Board thinks that the issue framed in the case was sufficiently comprehensive to put the plaintiffs to prove a case of escheat as insisted by the defendant.
6. The second issue runs thus : 'Have the plaintiffs a right of action
7. The 3rd issue is 'In the case the issue No. 2 is proved is the defendant a legally adopted son of Sohna and how does it affect the suit ?'
8. In these circumstances it will not be just and proper to remand the case so as to afford a fresh opportunity to the plaintiffs-respondents.
9. The learned Advocate for the plaintiffs-respondents then urges that the evidence already on the record establishes a case of escheat. The Board was taken through the evidence of the witnesses examined on either side and find that there is not the slightest evidence to suggest that Sohna left no relations who may fall in the category of Sapindas or Bandhus. It is not beyond the range of possibility that distant relations of Sohna who can claim as Sapindas or Bandhus are alive. It is settled law that in cases of escheat the Crown must establish, at least prima facie, that no nearer heir is in existence. In Girdhari Lall v. Bengal Government, 12 Moo Ind. App. 448 at p. 469. Their Lordships observed: 'The Government could only recover by the strength of their own title. Accordingly, it lay upon the plaintiff to prove, at least prima facie, that Woopendro Chunder Roy died without heirs; and, on the other hand, the appellant was entitled to defend his possession not only by proof of his own title but by setting up any jus tertii that might exist.'
10. The appellant did set up his own title as an adopted son. The trial Court on a consideration of the entire evidence and circumstances of the case upheld his plea. The High Court, on the other hand, took a different view. The Board has been addressed by Counsel on both sides on this aspect of the case and are not disposed to differ from the High Court. The fact, however, remains that the plaintiffs-respondents failed to discharge the initial burden which rested on them to prove that Sona died without leaving any heirs. They cannot be permitted to throw the burden on the defendants to prove from the start that besides himself such and such other heirs were in existence.
11. It appears that when mutation of names was effected in favour of the defendants in 1983 some cosharer applied to the Government impugning the adoption and an inquiry was directed. Many of the present plaintiffs were examined as witnesses and affirmed the adoption which they now deny. The defendants' name continued to be recorded and the present suit was brought on the last day of limitation. While these facts are not without their significance the High Court has relied upon other features of the case and held that the defendant was adopted not by Sohna but possibly by hia widow. This finding would have been decisive of the case in favour of the plaintiffs if they had established by prima facie evidence that Sohna left no heirs. As already stated this has not been done and the plaintiffs' claim cannot succeed.
12. In the result the Board humbly advises His Highness to allow this appeal, reverse the decree of the High Court and restore that of the Court of first instance but, in all the circumstances of the case, to direct that the parties bear their own costs throughout.