Rana Sheonath Singh vs Badan Singh and others

Mr. Ameer Ali, J.

This is an appeal from a judgment and decree of the Court of the Judicial Commissioner of the Central Provinces bearing date the 19th of April, 1917, which, reversing the order of the District Judge of Nimar on the preliminary issue on which he had disposed of the suit, remanded the case for a further decision upon the merits. The present appeal to this Board is from that remand order. The facts of the suit have been set out at considerable length in the judgments of the two courts in India. Their Lordships are thus relieved of the necessity of dealing with them at any length.

The parties to the action, excepting the second plaintiff, are members of an old Rajpoot family settled in the District of Nimar for several centuries. Their possessions, which the Judicial Commissioners not without reason think must have been at one time considerable have now dwindled to two revenue-free or muafi villages, Nadia and Pangra, two revenue-paying or malguzari villages, Peplod and Jirvan, and certain zirat and sir lands. The plaintiff, Badan Singh, who is the younger brother of the principal and contesting defendant, Mahatab Singh, alleges that upon the death of their father, Umed Singh, in 1892, he along with Mahatab and another brother, Nirbhe Singh, who has since died, became entitled upon partition, as members of a joint Hindu family, each to a one-third share in the family property. He further alleged that his cause of action arose when he was ousted from joint possession in 1909, the defendant having turned him out of the family dwelling-house. He accordingly sued for a decree for partition and for possession of his share. The second plaintiff, who is the clerk of the pleader in the action and is admittedly financing the litigation, is the assignee from Badan Singh of a 4 anna share in the revenue-free villages, the most valuable part of the family property.

The suit was filed on the 20th September, 1910, and the sons of Nirbhe Singh were made parties as representing that branch of the family. The defendant, Mahatab, whilst admitting that the properties were ancestral, denied the right of the plaintiff to obtain a partition. He alleged that by the custom that had prevailed in the family from time immemorial, the property devolved on a single heir by the rule of lineal primogeniture, who alone was entitled to the gaddi and to the title of Rana which had existed in the family "from the time of Gourishah Badshah." He further alleged that by the custom of the family the junior members had a right only to maintenance and not to any share in the property. The principal controversy between the parties thus centred round this alleged custom, and the District Judge, among the points for determination, made this the first issue in the case. It is in these terms :-

"Is there any custom of primogeniture in the family of the plaintiff I and defendants, and is defendant I, for that reason, entitled to the whole of the family property to the exclusion of the plaintiff I ?"

The genealogical table on page 148 will explain the relative position of the parties and of the collaterals who have been examined in the case :-

A considerable body of evidence was produced on behalf of the defendant in support of the custom, and the District Judge examined it minutely in conjunction with the negative evidence on the plaintiff''s side. He dealt first with the oral testimony and then discussed with equal minuteness the documentary evidence, referring only to those, as he says, "on which the parties had relied when arguing the case".

The conclusions which he drew from the oral evidence-are expressed in the following words :-

"From the history of succession as shown by the oral evidence, it will be seen that the eldest son in each generation has succeeded to the gaddi and estate, while the younger members got land and pensions for maintenance. We find Hattesingh succeeding his elder brother Pitambarsingh, and his younger brothers and their sons remaining contented with maintenance. We next find Naharsingh, the eldest son, succeeding his father, Hattesingh, and his two younger brothers and their sons remaining contented with maintenance. We next find Umedsingh, the eldest son, succeeding his father, Naharsing, and his younger brother and his son remaining contented with maintenance. And it is many years after Defendant No. I succeeded his father that his younger brother has disputed the custom which has regulated the succession for so many years and for three previous generations. Why should the younger brothers of Hattesingh, Naharsingh and Umedsingh have remained contented with maintenance if there was no custom of primogeniture? They remained quiet and their descendants are not asserting any claim to a share because the former knew, and the latter know, that only the eldest son succeeds to the gaddi and the estate and the title of ''Rana.'' "

It is to be observed that the first plaintiff who started the case with the title of Rana attached to his name abandoned in the Court of the Judicial Commissioner any claim to the gaddi or to the title of Rana. The significance of this disclaimer does not appear to have been quite appreciated by the Appellate Court. It predicates the existence of a gaddi to which appears to be attached the title of Eana, dating its origin according to the defendant''s case, based on family tradition, to the Ghoree Kings who held Nimar in the 14th century.

Dealing with the documentary evidence on both sides, he considered it consistent only with one hypothesis, viz., the existence of the custom against partibility. He summed up his conclusion in the following words: "After a careful consideration of the evidence on both sides, I have no hesitation in finding the first issue in the affirmative." He accordingly dismissed the plaintiff''s suit.

On appeal the Judicial Commissioners have taken a different view. After analysing the evidence in great detail, they give their theory as to the status of this family.

They say, "We have summed up what we believe to be the history of the subject in our judgment in First Appeal No. 10 of 1911 already referred to," and then go on to observe :-

"Again, when the head of the family became the holder of a hereditary fiscal office, it was still necessary to apply a rule of primogeniture for succession to the office. But now the once ruler of the family had become merely the representative of the family for the management of such property and the receipts of such perquisite as attached to the hereditary office. Thereupon the ordinary Hindu law began to be reinstated, and junior members asserted themselves as share-holders. Still, while the ruling power recognised only the office-holder, the younger sons were still to some extent under his sway, and their shares at his disposal. But the recurring demand for shares, and the advance of socialism in the family, due to education and the evanescence of all real authority in the head, made permanent partitions of estate necessary. The subsistence which the younger brother once received as a favour from the lord of the manor, now became a share claimed by him as a right, ever increasing in quantum towards that equality which is favoured by the ordinary Hindu law from which only the particular circumstances had for a time diverted enjoyment of the family property." The particular litigation Appeal No. 11 of 1911 to which they refer related to the neighbouring estate of Bamgurh, where the head of the family or chief is styled Rao and not Rana as in the present case. This family is not pure Eajpoot, having intermarried in the long course of ages with the Bhils, the highest of the aboriginal races in that part of India. The family is thus called Bhilhalla. They also have a gaddi and from the public records produced in this case, particularly Captain Forsyth''s report and the Gazetteer of the Nimar District published under the authority of Government, it is clear that the two families of Bamgurh and of Peplod, with which the present case is concerned, are intimately associated. The chief of Bamgurh, it is stated, instals the Rana of Peplod on the gaddi and places the tika or mark of chiefship on his forehead. It may be mentioned by the way that the Peplod family belong to the Chohan clan of Rajpoots which played a distinguished part in the history of mediaeval India, and that the title of Rana is the same as that borne by the Maharaja of Odeypur who is styled Maharana. In early Mahommedan history he bore the title of Rana. In the Bamgurh ease, the identical question relating to the custom of impartibility was raised in the same form as here. The District Judge, a different officer from the Judge, in the present case, had found the issue in favour of the custom. The Court of the Judicial Commissioners composed of the same Judges who have decided the present case, proceeding on the theory already referred to, came to a different conclusion and held against the existence of the custom of impartibility in regard to the Bamgurh estate. On appeal to the Board, their Lordships in reversing the judgment of the Judicial Commissioners quoted the very passage referred to and observed as follows : "It is unnecessary to determine whether this reasoning would be sound as applied to any case. It is sufficient to say the facts which it assumes and upon which it is based do not exist in the present case." The decision of the Appellate Court makes it necessary to consider once more whether the reasoning in question applies to the facts of the case now before the Board. Having regard solely to the question relating to custom, it seems to their Lordships that two distinct periods of time should be kept in mind, viz., that before the establishment of British rule in this part of the country and that subsequent to its acquisition by the East India Company. The District of Nimar with the adjacent territories of such portion of it as belonged to Scindia, was taken over by the British between 1823 and 1825 for purposes of management. In 1844, says Mr. Morris, the Chief Commissioner of the Central Provinces in 1870, the sequestration was confirmed by the Treaty of Maharajpur. There was a settlement in 1856 for twenty years which was revised in 1866. In connection with this settlement the task of preparing a comprehensive record of the conditions prevailing in the District was entrusted to Capt. Forsyth. His report on the revenue settlement of Nimar embodies the result of a searching inquiry into the customs and traditions among the tribes and clans inhabiting the soil and the system of taxation and administration under the former rule. His account of the principal Bajpoot families of the District is not the least interesting feature of report.

It is not disputed that this particular family of Chohan Bajputs migrated from their original homes under the pressure of Mahomedan arms into what is now called the Central Provinces. They established themselves in the Nimar District where they have lived ever since, with the exception of one short vicissitude in the reign of Ala-ud-din Khilji towards the end of the 13th century. It may safely and reasonably be assumed that they carried with them to their new homes the customs and institutions to which they were subject in the land of their birth. Colonel Todd, who, for many years in the early part of the 19th century was Political Agent to the Governor-General in Rajputana, in his valuable work on the Rajputs, writes as follows :-

"It may be of use in future negotiations to explain the usages which govern the different States of Rajputana in respect to succession. The law of primogeniture prevails in all Rajpoot sovereignties; the inconclusive dicta of Manu on this as on many other points, are never appealed to by the Rajpoots of modern days; custom and precedent fix the right of succession to whether the gaddi of the State or to a fief in the eldest son . . . ." "Seniority is, in fact, a distinction pervading all ranks of life, whether in royal families or those of chieftains."*

* "The Annals and Antiquities of Rajasthan", Vol. II, p. 307

In this connection, Capt. Forsyth''s observations in his Report, para. 3, deserve notice :-

"The Rajpoots brought with them the institutions of their race. Each chief remained independent, if he could, or became the feudal vassal of a stronger, still the lord and master of his domain, but rendering military service for his fief. The succession to the gaddi throne was by primogeniture, but all descendants or cadets of the house were provided for by assignments from the productive lands of the chiefship, to be held also on tenure of military service; and so the subinfeudation proceeded, until the Rajpoots themselves began to till the land. Then personal military service became impossible except on rare occasions, and a rent in kind took its place as the condition of tenure. Still the land held by each cultivator was his property, subject to the payment of this rent. This is also shown by the terms of all early grants of arable lands by the Rajpoot princes as religious endowments, in which the rents only are assigned and the Crown tenants are enjoined to pay the same to the assignees."

This clearly was the custom which the Rajput settlers brought with them, and it remained intact throughout the Mahomedan rule. The historian, Ferishta, clearly indicates that until the close of the Ghori and Farukhi rule the feudal system among the chiefs of Nimar from whom the kings of those dynasties chiefly drew their armies, was fully maintained. This tract of country was incorporated in the dominions of Akbar about the end of the 16th century. His institutes and all the contemporaneous records show that beyond relieving the cultivating classes from the burdens to which they had been subjected under their former rulers, altering the assessment of rent and revenue to lighten its incidence, and improving the administration, he left untouched the domestic and internal institutions of the people, the chiefs as well as the masses. In his work on "The Highlands of Central India," Capt. Forsyth gives in a few graphic sentences the pith of Akbar''s policy :-

The impetus given to the development and civilisation of the dark regions of India by the wise rule of that greatest of eastern administrators can never be overrated. Before the absorption into his Empire of the minor Hindu and Mahommedan States, their history is one of a continuous lawlessness and strife and the further we investigate, the more certainly we perceive that political order, the supremacy of law, sound principles of taxation, a wise land system, and almost every art of civilised government owe their birth to this enlightened ruler. His treatment of these unsettled wilds and their people was marked with the same political wisdom. While, in the surrounding countries, which had already been in a measure reclaimed by Hindu races, he everywhere broke up the feudal system, under which strong government and permanent improvement were impossible, he asked no more from the chiefs of these waste regions than nominal submission to his Empire and the preservation of the peace of the realm. Those on his borders, he converted into a frontier police, and the rest he left to administer their country in their own fashion. Acknowledgment of his supremacy he insisted on, however, and in case of refusal, sent his generals and armies who very soon convinced the barbarous chiefs of their powerlessness in his hands. The influence of his power and splendour rapidly extended itself over even this remote region. The chiefs became courtiers, accepted with pride imperial favours and titles, and, in gome cases, were even converted to the fashionable faith of Islam."

This policy of non-interference with the internal and domestic institutions of the chiefs and the people was wisely maintained throughout the Moghul rule and was hardly disturbed even in the Marhatta times. In tracts largely settled by new and industrious immigrants from other parts of India, he converted the feudal chief into a fiscal officer. Forsyth Report, para. 119 thus sums up the general result of Akbar''s policy :-

"The feudal domination of the lord of the tract, or tuppa, over all its villages was thus generally abolished; but in lieu of it the chiefs, besides retaining the headship, as Patels, of the villages actually in their own occupation, were further generally constituted the hereditary Zemindars, or fiscal officers, of their tracts vide para. 113 with huqs rights of considerable value in the shape of percentages of revenue collections and dues from the practisers of trades, etc."

Constant references will be found in the documentary evidence to the Perganah Zemindar of Peplod indicating his position in the fiscal system of the Moghuls.

Before coming to the modern history, so to speak, of the family, it may be useful to refer to some observations in the Nimar Gazetteer.

It first states that "the District contains a number of families of long standing, some of whom enjoyed important positions under native rule." It then goes onto say :- "So far as can be ascertained, succession goes by primogeniture in the families of the Mandlois of Khandwa, the Rana of Peplod, the Rao of Mandhata, the Thakur of Jeswari, the Thakur of Ghatakheri, the Rana of Punasa, the Thakur of Khandwa, the Mandloi of Beria and the Maslai-Bhamgarh and Selda families. On succession to the gaddi or headship of the house, representatives of these families are marked with a tika or badge on the forehead and sometimes presented with a sword, and the investiture may be carried out by custom by the head of another house. Thus the investiture of the Rana of Pepold is performed by the Rao of Bhamgarh. Rajput landholders usually have the title of Rana or Thakur, and Bhialas those of Rao Rawat."

This particular family is again referred to in paragraph 100 : "Among the Rajpoots the Chohan family of the Rana of Peplod is the most ancient, and the ancestors of the family are believed to have been at Asirgarh in the 12th century when it was sacked by Ala-ud-din Khilji. The family regularly resort to Asirgarh to pay their devotions to their tutelary goddess, Artapari, whose shrine is in the fort. Rana Mahatab Singh (the defendant in this action) is about 40 years old and has four villages of which two are held revenue-free."

These references seem sufficient to show that the custom which this family brought from its ancient home continued for a long course of ages. Is there anything to lead to the conclusion that it was at any time abandoned or interrupted and that the family has ceased to be under the custom ? One fact is obvious, that had the ordinary Hindu law prevailed in the family, it would long ago have merged in the general population, and there would have been no gaddi and no Rana. It is the custom and custom alone which seems to their Lordships to have kept it intact. The pedigree set out at the beginning of this judgment goes back to Jaswant Singh, who died somewhere in the forties and was succeeded on the gaddi by his eldest son, Pitambar Singh.

The defendant has, however, produced a genealogy which traces the family for twenty-four generations and is in accord with what Capt. Forsyth says in his Beport, para. 43. The correctness of this genealogy does not appear to have been disputed and it was admitted in evidence apparently without objection. Pitambar Singh had three brothers, Hate Singh, Ratan Singh and Kesre Singh.

In 1844 there seem to have been some differences among the brothers regarding their " watandari ", and "huqs". The matter appears to have been referred to the Political Agent, and at his instance or suggestion it was submitted to arbitration, when an arrangement was arrived at under which the four brothers divided the income arising from various sources and the zirat lands in some of the villages, leaving absolutely intact to Pitambar Singh the zirats and villages which are in the Pergunah and belong to the Raj. This arrangement is embodied in Ex. I D. 36, dated the 14th of August 1844. The ground on which these villages forming the principal landed property of the family was left in the hands of the eldest brother is sufficiently indicative of the character and right in which he took them. The three younger brothers claimed no share in them.

For a proper apprehension of the contentions in this case it is necessary to mention what these ''watandari" rights and "huqs" are. It has been from ancient times customary almost throughout India for the superior holder of the soil, whether he was a feudal ''baron,'' as Captain Forsyth calls these Rajpoot chiefs, or principal fiscal officer appointed by Government, to levy certain dues, the nature of which can be judged from the list in Ex. I. D. 36. In Bengal, these dues or cesses were called abwabs; in the Central Provinces and the Bombay Presidency, "huq", an Arabic word meaning "dues" or "right." Akbar appears to have reduced the capricious levy of these "dues," and regulated the system. These dues were made part of the emolument attached to the office, and as the office became hereditary, the representative of the family who took up the office took it with the obligation of using the perquisites for the maintenance of the family. The old Zemindars were placed in the same position. Again in the Deccan when the Zamindar was appointed as a fiscal officer, lands were granted to him by way of additional emolument under the name of watan, the income arising from such lands being called by the same name. Again as the office became hereditary, the lands came into the hands of the next holder with the same obligation. Captain Forsyth describes the origin of these watans in para 133.

It is contended in this ease that when the Zemindar of Peplod was deprived of his office, the custom of impartibility ceased to have operation. From Ex. I D. 36 it would appear that the family had some watan lands and the expression ''watan'' occurs at least in that document. It is to be observed that in 1866, as shown in Captain Forsyth''s order to which reference will be made later, there was no "watandar patel'''' in these Mouzahs. In other words there was no separate fiscal officer holding watan lands by virtue of his office. Thus the duty of realising the watan and huqs devolved on the Zemindar. Besides, the mere cessation of services to which watan lands are attached, which are by custom impartible, does not ordinarily destroy that custom. This view is in accord with the decision of the Bombay High Court in Ramrao v. Yeshvantrao, (1885) 10 Bom 327 where it was held that "discontinuance of services attached to an impartible watan does not alter the nature of the estate and make it partible." There is a further answer to the respondents'' contention : the present suit does not relate to watan or huqs; it is with respect to property declared in 1844 to belong to the Raj, which all the parties recognised to be an existing fact. The penultimate ol. (27) of Ex. I. D. 36 shows exactly the position of Pitambar in relation to the custom in dispute. As the holder of the Raj and the representative of the family, the duty is laid on him to defray the contingent village expenses such as "expenses for guests, charities, tika Dakhoda and other miscellaneous expenses" . It is stated significantly "the other three brothers have nothing to do with these things".

The report of the official deputed by the Political Agent to ascertain whether the differences between the brothers were settled, throws no further light on the controversy. The subsequent conduct of the parties to the arrangement leads irresistibly to the conclusion that the acquiescence of all Jaswant''s descendants until the present dispute, to the ancestral property being held by one member and he, the eldest in the direct male line, must have been due only to a long-established custom. Pitambar Singh died without leaving any male issue; he was succeeded on the gaddi and in the possession of the "Raj" estate by the next eldest brother, Hate Singh, and no question seems to have been raised by Ratan or Kesre. On this point the evidence of Ratan Singh''s son, Jit Singh, the eldest surviving male member, is most material. He states :-

"Rana Jaswant Singh was my grandfather. He had four sons, namely, Pitambar, Hatesingh, Kesre and my father in order of seniority. Jaswant Singh and Pitambar Singh died before I was born. I only saw Hate Singh, Kesre Singh and my father. Pitambar Singh had no issue. Hate Singh was on the gaddi and owner of all the estate when I came to remember anything. My father and Kesre Singh got no share in the estate, but only got maintenance allowance and land for cultivation. When the settlement was made by Government, my father and Kesre Singh each got Rs. 50 yearly pension, 30 bighas land for cultivation in Peplod, and a house for residence. The rest of the family estate went to the eldest branch, which was represented in my time by Hate Singh."

On Hate Singh''s death, in 1855, his eldest son, Nahar Singh, succeeded to the gaddi. Nahar Singh was alive when Captain Forsyth was carrying out his settlement. In his report he refers to Nahar in these terms :- "Others (of the Chohans who had escaped the sword of Ala-ud-din Khilji) are said by tradition to have returned to the Asir hills and to have founded the family of which Rana Nahar Singh, Zamindar of Peplod Pergunah, is the representative." The significance of the word "representative" can hardly be overlooked. Nahar died in 1869, and besides two sons, Umed Singh and Hamir Singh, left two brothers, Sabal Singh and Amar Singh. Of them Jit Singh says as follows :-

"On Nahar Singh''s death his eldest son, Umed Singh, got the gaddi and estate. Umed Singh died in Sarnbat 1948. Sabal Singh and Amar Singh made no dispute about their shares either with Nahar Singh or with Umed Singh. They lived joint with both of them up to the time of Umed Singh s succession; about a year after Umed Singh''s succession, his uncles separated from him. When Sabal Singh and Amar Singh separated from Umed Singh they got 15 bighas land at Peplod for cultivation. They laid no claim for a share." Jit Singh''s evidence regarding the fact that his father had no share in the estate but only possessed a field or zirat land is corroborated by the schedule attached to the Sanad granted to him (Ratan) in 1865 which only mentions a field of 36 bighas and confirms him in its possession as "freehold inam". In the same year a Sanad was granted to Nahar, in the schedule to which the two muafi villages are mentioned as his "Jageer" Mouzahs. The Sanad is in common form, but the powers it gives to the grantee are of wide character, on its face inconsistent with the right of any co-sharer.

Nahar Singh had obtained in 1856 a settlement of the revenue directly with him in respect of the two revenue-paying villages of Peplod and Jirwan. When a new settlement was set on foot in 1866, his application for a renewal of the settlement was opposed by an outsider who, or whose ancestors, had farmed the land years before. The settlement officer dismissed the latter''s claim ''and conferred the whole proprietary right in Mouzah Peplod on the present holder, Rana Nahar Singh". Among the grounds on which he made the settlement were that he was "Pergunah Zemindar" and that there was no "Watundar Patel" (fiscal officer in the village); the same was done in the case of Jirwan. In this instance, the settlement officer described the position of Nahar Singh in terms which should not be passed unnoticed. After stating that there is no "Watundar patel in the Mouzah" he goes on to say :-

"The present holder holds the position of pergunah Zemindar, and is the chief man in the pergunah and an Honorary Magistrate. I consider the facts of his being in possession for the past 10 years with 10 more of his lease to run and his being descended from Rana Jaswant Singh, who held the Mouzah before the claimant''s family had anything to do with it coupled with his hereditary position in the pergunah, to give him superior claim."

Nahar Singh died in 1869 and was succeeded by his eldest Son, Umed Singh. On Umed''s death, in 1892, the property attached to the gaddi came into the possession of the defendant, Mahatab Singh, and his name was accordingly entered in the revenue records without any objection on the part of any member of the family. Soon after Umed''s death there arose differences between Mahatab and his uncle, Hamir Singh, regarding the latter''s maintenance; the dispute was referred to arbitration, the chief arbitrator being the Rao of Bhamgarh. The award bears date the 9th of August, 1892, there is no trace in the reference to arbitration or in the award that there was any claim on the part of Hamir Singh to a share in the property. On Hamir Singh''s death his sons endeavoured to enforce by a suit the provisions of the award against Mahatab, but it was finally held that the rights created thereunder were personal to Hamir Singh.

The respondents refer to certain statements of Umed and Mahatab inconsistent with the continued existence of the custom alleged by the defendant. Their Lordships agree with the Appellate Court in not attaching too much weight to statements made under dubious reasons. Some stress was also laid on Captain Machenzie''s Report. With respect to this document their Lordships wish to associate themselves with the remarks of the Board in the Bamgarh case.

Their Lordships have carefully reviewed the evidence furnished by the ancient traditions of the family and their recent history, and are forced to dissent from the theory on which the Judicial Commissioners base their decision. That theory proceeds on a priori reasoning of a speculative character. The judgment omits from consideration in the appraisement of the case the existence of the family as an entity through so many centuries which could only survive destruction and disintegration with the help of such a family custom. The traditions relating to its continued observance, without dispute until Badan Singh came under the influence of his co-plaintiff, are consistent with the proved facts. Their Lordships are of opinion that the judgment and decree under appeal should be reversed and the order of the District Judge restored with costs here and in the Appellate Court in India. And their Lordships will humbly advise His Majesty accordingly.