P.K. Tare, J.
1. This is a plaintiff's appeal, whose suit was dismissed by Shri V.S. Deshpande, First Civil Judge Class I, Khandwa, on 30-4-1952 in Civil Suit No. 18-A of 1951. The original plaintiff-appellant Rao Ranitsingh died and the present appellant Rao Motisingh has been substituted in his place. The original, defendant-respondent Thakur Narayansingh also died and the present respondents 1 (a) to 1 (e) were substituted in his place.
2. The appellant filed the suit, out of which the present appeal arises for possession of two Sir fields Khasra Nos. 91 and 133 and one Khudkast field namely, Khasra No. 69/1 of mouza Saktapur, as also for a declaration that the respondent is separate from the plaintiff with effect from 5-1-1951, and for a permanent injunction restraining the respondent from interfering with the plaintiff's management of the family estate, which he claimed to hold by right of primogeniture.
The defence was that the family was not governed by the rule of primogeniture and that the defendant as a member of the joint Hindu family was entitled to claim a share in the ancestral joint Family property. The only question involved in the present appeal is whether the parties are governed by the rule of primogeniture or the parties were members of joint Hindu family till 5-1-1951, when the plaintiff-appellant served a notice on the defendant-respondent effecting a notional partition.
3. The family of the parties is ancient and finds place in historical documents. There were previous litigations, which it would be necessary to examine, in order to determine the legal position of the parties.
4. The following is the genealogical tree. Thedefendant however, admitted the same from Pirthesingh downwards. In view of the fact that thefamily tree was proved in the earlier case, we hold that the whole of the genealogical tree is proved.
ORIGINAL ANCESTOR
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Rao Bhojrajji
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Rao Bhao Singhjji
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Rao Laghdir Singhji
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Rao Raj Singhji
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Rao Umed Singhji
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Rao Pirthe Singhji
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Rao Abhe Singhji
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Rao Kesar Singhji
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Rao Pirthe Singhji
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Bhagwant Singhji
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Rao Dongar Singhji
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Rao Pirthe Singh
Four from 1st wife | From 2nd wife From 3rd wife
__________________________________|_______________________________________________
| | | | | |
Nihalsingh Rao Mohansingh Dongorsingh Madrupsingh Bharatsingh Chatarsingh
_______|_________________________________
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Rao Ratansingh Thakur Naharsingh Rao Zalamsingh
| | _________________|____________
Doulatsingh | | |
(Left no issues) | Thakur Bhadursingh Bhagwantsingh
____________________|_________________________________
| | |
Thakur Salamsingh Rao Umedsingh Thakur Haresingh
| |
__________________|_____________ |
| | | ____|___________
Kunwar Gulabsingh Rao Bhairosingh Idarsingh | |
(deceased) | Tejsingh Lachmansingh
|
|
___________________________|____________________________________________
| | | | | | |
Rao Ranjitsingh Thakur Thakur Thakur Thakur Thakur Thakur Madan
(Plaff.) Dalipsingh Baktawar Benimadho Kesharsingh Nayan Singh Mohansingh
(d) Singh (d) Singh (d) (d) (d)
MADRUPSINGH
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________________________________|__________________________
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Thakur Partabsingh Hamirsingh Zalamsingh
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_______|____________ _____________________|___
| | | | |
Thakur Shersingh Nawalsingh Haresingh Kesarsingh Muguthsingh
CHATARSINGH
Four from senior wife | From junior wife
_________________________________|_______________________________________
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Thakur Kesarsingh Durjansingh Zorwarsingh Ajitsingh Kusalsingh Abhesingh
Bakhtawarsingh |
| _____________|_____________
Tumersingh | |
Jaswantsingh Lachhmisingh
The plaintiffs ancestors were Rajputs, who settled down in the district of Nimar some time during the advent of the Muslim rule. They are known as Bhilala family of Sailani and Bakhatgarh and belong to a sect of Rajputs called Baghels. The defendant-respondent denied the origin and the history of the family and also denied that it was governed by the rule of primogeniture.
On the other hand, he alleged that the general Hindu law governs inheritance and succession in the family. He further contended that even if the family be found to have followed the custom of primogeniture in some distant past, at the time when Mohansingh was alive, the family property was divided between him and his brothers Madrupsingh andChatarsingh, sons of Prithvisingh who were then alive.
He also averred that the political pension granted by the British Government was divided by the three sons of Prithvisingh and the political pension has always been enjoyed by all members of the family including widows, who were given a share according to their interest in the joint family. The defendant further denied that the members of the family were in possession of items of the family property as compassionate allowance and not by virtue of their own right as coparceners.
5. The earliest reference that we and about the Bhilala family of Sailani is in the book 'Memoir of Central India Vol. I, 1st Edition' written by one Major General Sir John Malcolm. The author, in the said book, wrote all contemporary events of his days. At page 508 to 510, the said author ob-serves that certain Girasias or Girasiah chiefs were plundering Central India including the district of Nimar and they were collecting Tankha, a sort of cess or tax.
The said Girasiahs were Rajputs. At page 516, the author mentions that the Bhilala family of Sailani, whose heads were Madrupsingh and Bakhtawarsingh had extended their operations from Ujjain upto Burhanpur. Ultimately the rebels were brought under control by the British Government. In order to make them loyal subjects, the British Government settled their claims to Tankha with the governments of Scindia and Holkar, and guaranteed the payment of pensions promised by the Scindia and Holkar.
In the said report, the names of Madrupsingh, Chatarsingh and Rao Ratansingh are mentioned as the chiefs of Sailani and Bakhatgarh as the heads of their families. In May 1818 the said chiefs of Sailani and Bakhatgarh submitted to Sir John Malcolm, who took them in service on a monthly pay of Rs. 100/- each and their claims to Tankha upon the governments of Scindia and Holkar were settled at half that amount.
6. The next reference that is found about the family in a historical document is in Atchinson's 'Treaties, Engagements and Sanads'. In Part III at page 438, there is mention of the Sanad given by the then Officiating Political Agent of the Western Malwa in temporary charge of Nimar to the chiefs of Sailani and Bakhatgarh on 13-5-1820. This sanad was in favour of the three chiefs mentioned above as also another head of the family namely, Naharsingh and was in respect of the monthly pay and Tankha.
The names of these persons are again mentioned at page 460 of the said book, where it is stated that the sum of Rs. 400/- was still being paid by the British to the successors of the original grantees, including Naharsingh. Till the beginning of the 19th century, the British Government had no hold over the territory known as Nimar. They got the said territory from Scindia of Gwalior subsequently in the year 1824.
7. Then this family is further mentioned in the settlement reports compiled by Capt. II. C. Mackenzie dated 3-12-1864. Capt. Mackenzie, as the Settlement Officer, observed that several junior branches of the Bhilala families of Sailani and Bakhatgarh were in enjoyment of the pensions and allowances. The author of the report also states that the junior branches were enjoying the grants and allowances in their own rights as the heads of their respective families and not as a matter of charity from the eldest member of the family.
He also states that the heads of the families at that time did not dispute the right of the juniorbranches to enjoy the grants and allowances separately in their own rights. This observations of a Settlement Officer in respect of his contemporary events and state of affairs cannot lightly be ignored. Consequently Capt. Mackenzie recognised 78 heads of the junior branches, entitled to those allowances in their own rights.
In his tabular statement, the names of Umedsingh, Hatesingh, Shersingh, Tumersingh, Bahadursingh, Savaisingh and Udaisingh are mentioned under family No. 28 and it is mentioned that the largest share of the allowance was given to Rap Umed singh of Sailani. It appears that at the time when Capt. Mackenzie acted as a Settlement Officer, the then existing members of the Bhilala families of Sailani and Bakhatgarh were not observing the rule of primogeniture.
8. Next we come to the Settlement Report compiled by Forayth in the year 1869. The author mentions that the rule of primogeniture was prevalent amongst the Rajputs, who had settled in Nimar district. At page 43 of the said report there are observations, which would support the plaintiffs contention that the succession to the chietship of the territory of Sailani and Bakhatgarh was governed by the rule of primogeniture. But Capt Forayth in his report did not state anything as to whether the family was governed by the rule of primogeniture in the matter of family property also.
9. The next document that we come across is the Nimar District Gazetteer compiled in the year 1908. At page 46 of the said Gazetteer, there is mention of Bhilala chiefs of Sailani and Bakhatgarh, It is also mentioned that the chiefs were known as Raos. On the basis of the said historical documents, the plaintiff's contention partially supports his case that the family was governed by the rule of primogeniture.
But it is also evident from the said historical documents, that in practically half of the 19th century, the rule of primogeniture was not adhered to by the families of Sailani and Bakhatgarh. We have, therefore, no doubt in coming to the conclusion that the family was governed by the rule of primogeniture in the ancient times, but it appears the said rule was not adhered to in the 19th century for more generations than one.
Even the plaintiff-appellant in his affidavit dated 10-7-1951 given in answer to interrogatory No. 2 admitted the fact that from the time of Rao Mohansingh, junior members of the family were in enjoyment of the family property and that such junior members are in enjoyment of the family property even till today. Had the rule of primogeniture been adhered to by the family, Madrupsingh, Chatarsingh Ratansingh and other members of the junior branches of the family at various times would not have been in possession of the family property in their own right.
It is significant to note that at no time, the eldest member of the family protested against the enjoyment of considerable portions of the family property by the members of the junior branches. For the first time, the original appellant, Rao Ranjitsingh, raised his voice of protest by issuing the notice on the respondent
The original appellant Rao Ranjitsingh in his deposition as P.W. 5 admitted that his father was in possession of the villages Maslai, Sailani and Saktapur as also maufi lands in 14 other villages, while the branch of Madrupsingh was in possession of three villages namely, Bada-Kelwa, Indhavdi andBakhatgarh and that the branch of Chatarsingh was in possession of the village Chhota-Kelwa.
Admittedly the branches of Madrupsingh and Chatarsingh are junior branches not entitled to any property under the rule of primogeniture. They are admittedly in possession of the ancestral family property. Even Rao Ranjitsingh did not state that Madrupsingh and Chatarsingh had acquired the property by their own efforts. Even Major General Malcolm mentions these persons namely, Mohansingh, Ratansingh, Madrupsingh and Chatarsingh as heads of the family.
10. The extent of the property in possession of the junior branches does not indicate that the junior branches were in possession as a compassionate allowance granted by the eldest member of the family. On the other hand, it indicates that the junior branches were in possession of substantial portions of the family property, which could only be explained on the basis that the juniorbranches enjoyed the same in their own right.
In the case of Ramakanta Das v. Shamanand Das, ILR 36 Cal 590 (PC), their Lordships of the Privy Council held that where junior members o the family were found to be in possession of the property much in excess of the requirements of maintenance, the only conclusion that could be drawn would be that the family was not governed by primogeniture. Had the rule of primogeniture been consistently adhered to by the family of the present parties, the plaintiff could succeed, but in the present case, we have positive material as also the admissions made by the plaintiff, Rao Ranjitsingh, to indicate that the family has not been following the rule of primogeniture at least from the year 1824 onwards, when the British Government got the territory of Nimar from Scindia Government.
11. The case of Rao Kishore Singh v. Mt. Gahenabai, 15 Nag LR 176 : (AIR 1919 PC 100) cannot be of any assistance to the present appellant, inasmuch as the evidence about the enjoyment of the family property by the junior branches in that case, was isolated. Consequently their Lordships of the Privy Council held that there wasno sufficient material to indicate that the family had given up the rule of primogeniture. Their Lordships also observed that the head of a family by accepting a sanad from the Government, the terms of which were contrary to the ancient custom of primogeniture, could not be deemed to have given up the custom and in spite of a grant by way of maintenance to the junior members of the family, the head of the family could rely on the custom.
In the present case, however, there is no explanation by the plaintiff-appellant as to how the junior branches came to be in enjoyment of specific portions of the family property for a number of years extending over at feast 125 years prior to the date of the suit. Similarly for the same reason, the other case of Rana Sheonath Singh v. Badan Singh, 17 Nag LR 128: (AIR 1922 PC 146), cannot be of assistance to the appellant, as in the present case there has been an interruption in following the custom for the last 125 years.
12. In the case of Gamradhwaja Prasad v. Superundhwaja Prasad, ILR 23 All 37 (PC), their Lordships of the Privy Council held that the possession of a junior branch for some time could not be considered to be a departure from the rule of primogeniture, as in the troubled days of the 19th century, it was possible for a member of the junior branch to be in possession of the property by force. Consequently, their Lordships of the Privy Councilrefused to draw an inference about the junior branch being in possession in its own rights. But in the present case it was never the appellant'splea that the junior branches had taken possession by force at any time.
Such forcible possession could be possible in the troubled days of the 19th century. But since the advent of the British Government, the country started getting a time of comparative peace and the rule of law and order. The possession of the junior branches of the family in the beginning of the 20th century cannot be explained on the basis of any forcible possession. Consequently we have no alternative but to hold that the possession of the junior branch for this long period of 125 years has been in their own right and not as compassionate allowance in the nature of maintenance grant from the eldest member of the family.
13. The plaintiff-appellant's own father Rao Bhairosingh in his deposition as a witness in the former Privy Council case of 15 Nag LR 176: (AIR 1919 PC 100), admitted that Madrupsingh and Chatarsingh obtained properties by way of their share. The said testimony given in the previous case is admissible under Section 32(3) of the Indian Evidence Act. The said deposition is to be found in the paper book of the said case filed as Ex. P. 35 in the present appeal.
Rao Bhairosingh unambiguously admitted the fact of a partition of the family property during the time of Rao Mohansingh between Rao Mohansingh, Madrupsingh and Chatarsingh. The descendants of Madrupsingh and Chatarsingh are in possession of the properties, which according to the testimony of Rao Bhairosingh fell to the share of those junior branches. The said testimony of Rao Bhairosingh would amount to an admission under Section 21 of the Indian Evidence Act, as it was against Rao Bhairosingh's interest.
Consequently the plaintiff-appellant cannot get over the testimony of his own father, which is admissible not only as a statement of a deceased person, but also, as an admission of the deceased ancestor of the family. The statement of Rao Bhairosingh goes further and proves that even females of the family were holding parts of the family properties. The name of Mst. Pyaribai and Mst. Saharbahu are mentioned.
Even if the possession of the junior male members of the family might be explainable on the basis of forcible possession, the possession of the females cannot be explained except on the basis that they succeeded to the interest of their husbands, as it is no party's case that they were given the property in lieu of maintenance. The possession of the female members of the family is in contradiction of the rule of primogeniture.
Moreover, in view of the other evidence about the possession of Rantansingh, Madrupsingh, Chatarsingh and Mohansingh in their own right negatives that rule. All these facts definitely prove a departure from the custom for the last 125 years. The only conclusion that can be drawn under the circumstances is that the family, although originally governed by the rule of primogeniture, had during the last 125 years departed from the said custom and adopted the general Hindu law in regard to inheritance.
More significant is the admission of Rao Ranjitsingh, the original plaintiff-appellant, who was examined as P.W. 5. In his testimony, he admitted that there is a branch of his family, which is senior to his own branch. The question arises, us to how, Rao Ranjitsingh being a member ofthe junior branch came in possession of the property, unless there was a partition in the family at some point of time. He also admitted that his father had purchased the village Kanakgarh.
The village Kanakgarh belonged to the family and was in possession of a junior branch of the family. If the family was governed by the rule of primogeniture, the village should have reverted to the senior branch of Rao Ranjitsingh. In that case Rao Ranjitsingh's father, Rao Bhairosingh would not have been required to purchase the village from a member of the junior branch. It appears that the rule of primogeniture was confined to the action of ascending the chiefship, which was a matter of honour and dignity alone.
So far as the family property was concerned, the parties definitely departed from the rule of primogeniture and adopted the rule of the general Hindu law. There are other documents, namely Ex. D. 2 and Ex. D. 9 dated 22-8-1882 and dated Posh 30, Samyat 1842 to indicate family partition of those dates. In view of all this material, the plaintiff's contention that he was entitled to all the family property by the rule of primogeniture has no force.
14. The learned counsel for the appellant invited our attention to the defence pleas and urged that the respondent never pleaded a case of abandonment of the custom and that what was denied was the existence of the custom. Reliance was placed on the case of Maroti v. Radhabai, ILR (1944) Nag 796: (AIR 1945 Nag 60), wherein Bose J. (as he then was) held a plea of denial of the facturn of adoption did not amount to a plea of a denial of the validity or legality of the adoption.
In our opinion, however, the pleas raised in paras 2 (a) to 2 (i) of the written statement, deny the existence of the custom and further assert that from the time of Mohansingh, Madrupsingh and Chatarsingh, the property has always been divided as joint Hindu family property. This clearly amounts to an averment of an abandonment of the custom, even if the custom be proved to have existed prior to Pirthesingh, the father of the three brothers mentioned. The word abandonment may not have been used in the pleas raised, but the averments cannot be interpreted to mean anything else except an abandonment.
15. The learned counsel for the appellant next urged, that even if it be held that the appellant is not entitled to any relief on the rule of primogeniture, yet as manager of the joint Hindu family, he would be entitled to claim possession against a coparcener, who had no right to be in exclusive possession of any items of the joint family property. The learned counsel invited our attention to the case of Baldeo Das v. Shamlal ILR 1 All 77 and Bhaskari Kasavarayudu v. Bhaskaram Chalapatirayudu, ILR 31 Mad 318. The appellant's case as laid in the plaint, however, was not of dispossession by the respondent at any time.
It is not pleaded as to when and how the respondent came in possession of the suit fields. The appellant merely claimed a declaration that the family is governed by the rule of primogeniture and an injunction restraining the respondent from interfering with the appellant's management of the family property and possession of Kh. Nos. 133 and 91 (both sir) and Kh. No. 69/1 (khudkast). The appellant further pleaded that the parties were joint till 5-1-1951, when he served the notice about severance. Therefore, we are of the opinion that the appellant cannot claim possession on any grounds not urged in the plaint.
16. In the view that we have taken, it is not necessary to consider whether the rule of primo-geniture offends any Article of the Constitution. It, however, appears that under Article 372, the law in force would include any well established custom having the force of law. In that view, the rule of primogeniture would continue to be in force until abrogated by an Act of Parliament.
17. The result is that the appeal fails and is dismissed with costs. Hearing fee Rs. 100/- ifcertified.