Achal Ram vs Udai Partab Addiya Dat Singh

Barnes Peacock, J. 1. This was a suit brought by Udai Partab against Achal Ram, who was the husband of Brij Raj Kunwar, deceased, and who obtained possession of the estate in question upon the death of his wife. The Plaintiff alleged himself to be the heir of Pirthi Pal Singh, and in the action of ejectment it was necessary for him before he could turn out the Defendant to prove that he had a better title. He attempted in support of his title to shew that the estate was to descend according to the rules of lineal primo-1 geniture. If that rule prevailed he appears to have been the heir of Pirthi Pal Singh. A question was raised in the suit whether Pirthi Pal Singh had made a will; but it is unnecessary to decide that question, because, whether he made a will or not, or whether his daughter, Brij Raj Kunwar, the wife of the Defendant, took an absolute estate or not, is immaterial, if the Plaintiff fails to prove that he has a better title than the Defendant. It is necessary, therefore, for the Plaintiff to make out that the estate descended according to the rules of lineal primogeniture as distinguished from descent to a single heir amongst several in equal degree. 2. The estate in question was a taluk created by the Government of India after the confiscation of Oudh. Pirthi Pal Singh, upon whom it was conferred, died before Act I. of 1869 was passed; but the taluk was one in respect of which the Government of India laid down certain rules as to the title of the talukdars whom they had created and as to the mode of succession. The preamble of Act I. of 1869, intituled the Oudh Estates Act, is in these words:--"Whereas after the re-occupation of Oudh by the British Government in the year 1858, the proprietary right in divers estates in that province was under certain conditions conferred by the British Government upon certain talukdars and others: And whereas doubts may arise as to the nature of the rights of the said talukdars and others in such estates and as to the course of succession thereto: And whereas it is expedient to prevent such doubts and to regulate such course and to provide for such other matters connected therewith as are hereinafter mentioned, it is hereby enacted as follows." Among other enactments is Section 8, which provides that "Within six months after the passing of this Act the Chief Commissioner of Oudh, subject to such instructions as he may receive from the Governor General of India in Council, shall cause to be prepared six lists; namely, first, a list of all persons who are to be considered talukdars within the meaning of this Act." Pirthi Pal Singh, who had been allowed to contract for the revenue, and with whom a summary settlement had been made, was entered in the first of the lists as a talukdar; and he must therefore be deemed a talukdar within the meaning of the Act. He was also entered in the second of the lists, which is a list of the talukdars whose estates, according to the custom of the family on and before the 13th day of February, 1856, ordinarily devolved upon a single heir. Therefore the taluk must be considered as a taluk which ordinarily descended upon a single heir; but it omits altogether to state that that heir is to be ascertained by the rules of lineal primogeniture. The third list is "A list of the talukdars not included in the second of such lists to whom sunnuds or grants have been or may be given or made by the British Government up to the date fixed for the closing of such lists, declaring that the succession to the estates comprised in such sunnuds or grants shall thereafter be regulated by the rules of primogeniture." Pirthi Pal Singh was not entered in that list, and it is contended that because he was in the list of estates which ordinarily devolved upon a single heir it is to be presumed that the heir was to be ascertained according to the rules of lineal primogeniture. Their Lordships cannot concur in that contention. They are of opinion that when a talukdar''s name was entered in the second list and not in the third, the estate, although it is to descend to a single heir, is not to be considered as an estate passing according to the rules of lineal primogeniture. 3. Now the Plaintiff having to make out his title, the District Judge in the first Court found that the estate was to descend according to the rules of primogeniture, not saying lineal primogeniture. There was no evidence to shew that the estate had descended according to the rules of lineal primogeniture, even if such evidence could have got rid of the provisions of the Act. The Judicial Commissioner also found that the estate descended according to the rules of primogeniture, and it is said that there were two concurrent findings upon a question of fact; but when their Lordships come to examine the reasons and the grounds of the decision of the Judicial Commissioner, they find that he was in error. He says that there was a sunnud granted to Pirthi Pal Singh, according to which the estate was to pass according to the rules of primogeniture. He says:--In the present case the confiscation was admitted in favour of Bhaiya Pirthi Pal Singh, and the grant as by sunmid is to him and his heirs male according to the law of primogeniture; so that unless his daughter from some cause takes a full proprietary heritable estate, those entitled to succeed after her must be sought for amongst the heirs of Bhaiya Pirthi Pal Singh." Then he enters into the question whether the Plaintiff is the nearest heir according to the rules of lineal primogeniture. Both Courts appear to have failed with reference to the principle that a Plaintiff seeking to recover possession of an estate against a person who is in possession must recover upon the strength of his own title, and not upon the weakness of his adversary''s title. That is a principle of law, and a very essential principle to be acted upon. The Judicial Commissioner, after deciding that the male reversionary heirs of Pirthi Pal Singh were to come in, says:--"There remains the question as to whether the Plaintiff-Appellant, Bhaiya Udai Partab Singh, is such male reversionary heir, considering that, as stated in an early part of this judgment, according to ordinary Hindu law Harbhagat Singh was the nearest collateral heir male to Bhaiya Pirthi Pal Singh at his death, and failing him Jabraj Singh, Arjan Singh, and the sons of Harbhagat Singh would have precedence as collateral male heirs. Those named above are not parties to this litigation, and no right that they might have as against Udai Partab Singh would be prejudiced by a decree in his favour against Achal Ram, who is found to have no right or title at all in the taluka. And in one sense there is a community of interest in all the males of the Bhinga branch, that the Birwa Mahnoun estate should not pass to a stranger, to the prejudice of their reversionary rights to succeed the last male proprietor. In both these estates the succession is to be regulated by the rule of primogeniture; and Plaintiff-Appellant, as senior heir male of the Bhinga Bissin family, has succeeded to and is in full proprietary possession of that taluka. He may therefore well be held to be representative of the reversioners in his branch, and anyhow it does not lie in the mouth of Defendant-Respondent, who is found to have no legal warrant for his possession of the Birwa estate, to deny that the Plaintiff has a hens standi, on the ground that it may be that he may not afterwards be found to be the man among the reversioners whom he represents, who should succeed." In short, the Judicial Commissioner comes to the conclusion that, inasmuch as the Defendant is shewn to have no title according to his ruling, therefore he has no right to say that the Plaintiff is not entitled to succeed. He entirely reverses the rule on which actions to recover possession are founded; namely, that he who seeks to turn another out of possession must first prove that he has a better title. His judgment is consequently erroneous, and ought to be reversed. 4. It has been stated that the judgment obtained by the Plaintiff has been executed, and that the Defendant has been turned out of possession. There is no evidence to that effect; but if it is the case the Defendant ought to be restored to possession, and ought not by reason of his having been turned out under an erroneous judgment, to be placed in the position of having to seek to recover possession himself and to prove his title. 5. Their Lordships will humbly advise Her Majesty that the decree of the Judicial Commissioner be reversed, and the decree of the officiating District Judge affirmed; that the Respondent do pay the costs in the lower appellate Court; and that, if the Appellant has been put out of possession under the decree of the lower appellate Court, he be restored to possession. 6. The Respondent must pay the costs of this appeal.