N.R. Chatterjee, J.
1. This appeal arises out of a suit for recovery of possession of the Jheria Raj, an impartible estate on declaration of the plaintiff's right by inheritance thereto.
2. The last male owner was Raja Durga Prasad Singh and the 3 plaintiffs are his widows. Raja Durga Prasad was the grandson of Raja Udit, and the defendant Was the grandson of Nanda Kishore. Raja Udit, Nanda Kishore, and Brojo Lal were the sons of Raja Sangram.
3. The plaintiff's ease, shortly stated, was that Nanda Kishore and Brojo Lal (and their branches) were entirely separate in food, worship and estate from their elder brother, Raja Udit and his successors, that the Jheria estate thus being the separate estate of Raja Durga Prosad, the plaintiffs were (or the Plaintiff No. 1 as the senior widow was) entitled to it, and all the plaintiffs were entitled to the self-acquisitions of their husband, that the plaintiffs were victims of fraud and conspiracy, and that certain documents bantannamas and an am-muktearnamah, upon which a consent decree was passed, were obtained from them by the defendant by fraud and misrepresentation, the plaintiffs having had no independent' advice in the matter, and the decree and the documents, therefore, are not binding upon them.
4. The plaintiffs, accordingly, prayed for recovery of possession of the impartible estate and the self-acquisitions of their, husband, and for a declaration that the documents obtained from them were invalid, and for setting them aside, if necessary, that the properties left by the Raja might be ascertained after discovery made by the defendant, and also for mesne profits and other reliefs.
5. The defence, inter alia, was that according to the custom of the Jheria Raj family females were excluded from succession, that Nanda Kishore and Brojo Lal never separated from Raja Udit and his branch, that Raja Durga Prasad being aware that the plaintiff's had no claim upon the estate, made mokarari grants for life in favour of his wives, and executed a. Will by which he bequeathed a 10-annas share of the cash and jewellery to them, and made provision for their maintenance; that according to the rule of lineal primogeniture, which prevails in the family, the defendant representing the senior branch succeeded to the estate on the death of Raja Durga Prasad, that, there was no conspiracy or fraud and the bantannamas and am-muktearnamah were executed by the plaintiffs with full knowledge and having understood the terms thereof, that self-acquisitions were part of and go with the estate, and that the plaintiffs were not entitled to anything.
6. The plaintiffs in May 1919 amended the plaint by including certain properties both moveable and immovable, those of schedule kha being alleged to have been obtained by Raja Durga Prasad from Jaimangal and those of schedule kha being his self-acquisitions. The defendant put in an additional written statement with regard to the self-acquisitions,.
7. The learned Subordinate Judge held that Nanda Kishore and Brojo Lal and their branches were joint with Raja Udit and his successors, and that the plaintiffs were, therefore, not entitled to the estate.... He held, however, that the bantannamas and am-muktearnamah were not binding upon the plaintiffs, that certain properties moveable and immovable were the self-acquisitions of Raja, Durga Prasad and, accordingly, gave a decree for the same to the plaintiffs and dismissed the rest of the claim.
8. The plaintiffs have preferred Appeal, No. 194 of 1921 with respect to the, estate, and properties other than those allowed by the Courts below, and they claim that at any rate certain properties other than those allowed by the Court below should have been decreed as self-acquisitions. The defendant has appealed in No. 51 of 1922 with respect to the properties decreed to the plaintiffs and challenged the findings arrived at by the Court below against him.
9. It is admitted by both parties that they are governed by the Mitakshara School of Hindu Law and that the Jheria estate is, an impartible one the succession to which is governed by the rule of lineal primogeniture. A pedigree of the family herewith will show the names, of the: successive Rajas and, the members of the, family.
mohon Singh_____________________________________|______________________________| | |Jarabar Singh Prithwi Singh Sangram Singh(died 20 Magh 1220 B.S.=1-2-1814). died 1233 B.S.=1826) died 23-10-38.|1. Rani Saraswati Kumari (Suttee) =Rani Hira Kumari and others. |2. Rani Jhalo Kumari three Ranis. |3. Rani Saheba Kumari __________________________________________________|________________________|_____________________________________________| | | |1st. Kadam Kumari. 2nd. Magan Kumari 3rd. Gobinda Kumari 4th Tara Kumari| of Karangarh. of Gunduba.4th son-Churaman born 1834 | |died childless 1257 B.S.=1851. | 2nd son-Nanda Kishore______________________| Born 1833, died 1915._____________________________________| (See next page.)| |1st son-Udit Narain born, 1827 3rd son-Brojo Lal Singh, born 1834Court of Wards-1836 to 28-4-1847. =Purnima Kumaridied 20-5-1850 |___________|_____________=Nil Kumari (daughter | |of Kanhya Singh of Lalgarh) Kunjo Behari Singh Daughter| (Died 24 Chait = Hare Kissen Singh ThakurRaja Rash Behari 1305=6. 4. 1899 of MudroLal Singh, Married 3 wives:Born 18-11-1847 1. Sister of B. Chakradhar=3rd Aghran 1254 B.S. Singh of Joypur.Court of Wards-1850-1866 2. Sister of Satya NarainMajority 1866-19-6-1888 1866-19-6-1888 (died) Singh's father of_________|___________________ Bathanbari who died in 1895.| | |Golap Kumari Bhisan Kumari | 3. Married at Bothra(died 9th Aswin 1318 (daughter of Fateh | in 1895. This lady=26-9-1911) Narain Singh of | died in 1319 B.S.=1912.(Daughter of Dhanapat Chakai) ___|___________|_______________________Singh Thakur of Mudro.) | | | | || Son Daughter Son Son_________|_________ (See next page.) Pran married Jogananda Bhola| |Daughter Daughter Krisha to Indra (Fakan) Prasadmarried married =Sister of Narain married to (Kanti)to Jung to Sarada Plff. No. 2 Singh of Plff. No. 3'sBahadur Singh Narain Sinha 1313 B.S. Tundi. nephew's daughterof Jamtara. of Serampore 1906. in 1322 B.S.=1915.BHISAN KUMARI_________________________|_________________________| |Raja Jaimgal, Raja Durga PrasadBorn 3-11-72 Born Aswin, 1282Court of Wards =Sep. 1875.1888, Dec. 1893 Raja-1-9-1899Died-1-9-1899 Died-7-3-1916.Married Chatura |Kumari of Chowra. |__|________________________ || | |Daughter Daughter |Hem Kumari Kiran |married to Kumari |Tekait Dalip married to |N. Singh of Syam Sundar |Doranda in Singh, Raja of |1306 B.S. Pandara in |=1899. 1316 B.S. |Diragaman Diragaman |3-312 B.S. 1321 B.S. |||||________________________________________||Married 3 wives:-Proyag Kumari=of Nunjod.1300 B.S.-1893(Plff. No. 1.)2. Subhadra Kumari of Pahardaha1307 B.S.= 1901Plff. 2.)3. Hem Kumari of Nala1314 B.S.=1907Plff. No. 3)NANDA KISHORE|______________________________|____________________________________________| | || 2nd wife-A?ko (died 1893). 3rd wife-Janaki Kumari| _____________________________|_________________________ (Bahinga).| | | | | | ||Daughter Daughter Lal Abodh Daughter Krishna|=Joy N. Singh =Kali Behari Behari Janaki Prasad|of Pandra Prasad =Dharam died Kamarj married| Singh Kumari 1803 =Jagat Plff. No. 1's| of Bogiari Sister =Basanta Kumari, Narain sister in| of Nathu cousin of Singh of 1913.| Singh Nathu Singh Sambandhapur| of Kisgo of Kisgo 22-6-92| | | (Ex. G).| | || _______________________|_______ || | | || Janaki Prasad Shiva Prasad || Married at Bharkata (Dhiboo) || in 1903. Died 1317 B.S. Deft. || Widow died in 1911. || || |________| || || || ______|______________| | || Daughter Daughter| Purnima Kuloda__________ Kumari Kumari| =Krishna =son of Tekait| Prasad of of Chakai1st wife Narainpur. married in 1904.|DaughterBhagirathKumari=TekaitPitambarSinghGhati10. As stated, the plaintiffs' case was that they were separate from Raja Udit and his successors. Before going into the facts of the case, we shall consider what constitutes separation in an impartible estate.
11. What constitutes separation? So far as partible property is concerned, a definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation, but to have that effect the intention must be unequivocal and clearly expressed: see Pandit Suraj Narain v. Pandit Ikbal Narain [1912]35 All. 80. The intention to separate may be evinced either by explicit declaration or by conduct, and if it is an inference derivable from conduct it will be for the Court to determine whether it was unequivocal and explicit: see Girja Rai v. Sadashiv [1916] 43 Cal. 1031
12. With regard to impartible property, where it is not the self-acquired separate property of any member, but is the ancestral property of the family, what constitutes separation so far as the impartible estate is concerned? Is it separation in the general status of the family, or separation so far as the impartible estate itself is concerned? On behalf of the defendant, reference is made to the passage in the judgment in the Shivagunga case Katiama Nauchear v. Rajan of Shivagunga[1863] 9 M.I.A. 539 that the 'question whether the family were undivided or divided becomes immaterial.' But that is only where the property is self-acquired in which case, of course, the question of the general status is immaterial, because notwithstanding the undivided status of the family, self-acquired property will follow the course of succession to separate property. That, however, does not help us in determining what constitutes separation with respect to ancestral impartible property.
13. It is contended on behalf of the defendant that in the case of ancestral impartible property neither separation in mess and worship nor separation in estate with respect to partible properties constitutes separation so far as the impartible estate is concerned, so long as there is no renunciation on the part of the junior members of the right to maintenance and the contingent right of succession. Reliance is placed upon the case of Chowdhry Chini tamun Singh v. Mt. Nowlukho Konwar [1975] 1 Cal. 153.
14. In that case a family possessed certain partible property (Parmeswarpur) and an impartible estate Gangore. For four generations different descendants of the common ancestor on each occasion of the death of the recorded proprietor laid claim to a share in talook Gangore as appertaining to the family property. There was a suit in 1832 by some members in respect of the family properties, and the dispute was settled by certain deeds. A partition of Parmeswarpur was effected and Gangore was admitted to be an impartible estate to be held by a single member according to the family custom of lineal primogeniture, the junior members agreeing that they should have no claim or right in respect of Gangore. In 1852 again, and subsequently also, there was litigation ending in compromise. Upon the death of Ranjit Singh, the last holder in the senior line, leaving a widow a suit was brought by Chintamun Singh the descendant in the second line for the recovery not only of Gangore but also of Parmeswarpur. The main question for decision was whether by reason of the acts of the parties on the several occasions of the partial partition in 1832, and of the compromise in 1852 the plaintiff's father waived his right of succession. The High Court held that he did, but it was decided in the negative by the Judicial Committee. Their Lordships observed; There is nothing in the transaction which evinces any intention on the part of the junior members of the family to part with or transfer any right of contingent right of property which they might have; they only admitted that they had no claim to share in talook Gangore as coparceners.' It was found by the trial Court that Chintamun's family was entirely separate in business and estate see 2 I.A. 263. It was also found that Chintamun did not live in commensality with Ranjit, and that the property specified in the plaint (excepting Gangore) did not appertain to a joint undivided estate See Natukhee v. Chintamun [1873] 20 W.R. 247--per Morris. J.,
15. Great reliance is placed upon this case on behalf of the defendant as showing that, notwithstanding a complete separation in other respects, a family may continue joint with regard to the impartible estate unless the junior members give up their rights to it.
16. On the other hand, it is contended on behalf of the plaintiffs that the decision rested upon a custom of exclusion of females from succession because unless renunciation was proved, the widow had no right to succession even to the partible property Parmeswarpur notwithstanding separation in the family.
17. It is true that Chintamun Singh (the plaintiff) set up two customs, one of lineal primogeniture with respect to the impartible estate, and the other of female exclusion with regard to the partible as well as to the impartible property. The trial Court found that no custom of exclusion of females was proved, and that there was nothing to prevent the widow of Ranjit from taking his separate property, with the result that she got Parmeswarpur. It was only the widow who appealed with respect to Gangore. There was no cross-appeal by the plaintiff Chintamun. The finding of the trial Court that Ranjit was separate from Chintamun, and his widow was consequently entitled to succeed to his separate property, was therefore, not challenged on appeal. The High Court, accordingly, had to deal only with succession to the impartible estate Gangore. Phear, J., said, 'The first ques-which arises is--Was the plaintiff at the time of Ranjit's death joint with Ranjit in respect of his impartible property?' The learned Judge held that Gangore became the separate property of Ranjit by reason of the deeds of compromise, and as the custom restrictive of the widow's right to succeed her husband had not been made out by the evidence, it followed that the plaintiff failed to make out his right to Gangore as well as to the partible property Parmeswarpur. Chitamun's suit was accordingly dismissed entirely. On appeal, their Lordships stated 2 I.A. at 270: It is, how-ever, found as a fact and cannot be denied that there has been to some extent a separation of his family, and the question, therefore, is whether this particular property after the separation lost the character which it before possessed, and became subject to a different rule of succession.' Having found that by the deeds of compromise the junior members did not give up their contingent rights to Gangore, their Lordships held that it did not become the separate property of Ranjit, and relying upon the Shivagunga case [1863] 9 M.I.A. 539 observed that, whether the status of the family be joint or divided property which is joint will follow one, and property which is separate will follow another course of succession.'
18. The junior members of the family by an agreement may give up their rights to the impartible estate just as they may do with respect to partible property, and the High Court and the Judicial Committee considered whether they did give up their contingent rights (whatever they might be to Gangore). But the question does not appear to have been considered with reference to the custom of female exclusion as contended on behalf of the plaintiffs. The custom of female exclusion was not referred to in the judgment of the Judicial Committee at all, the custom referred to being the custom of impartibility and succession by a single member. The question considered by the Judicial Committee was whether the impartible estate Gangore had become the separate property of Chintamun which again depended upon the question whether the junior members had given up by the deeds of compromise their contingent rights to the impartible estate, because if they had, it would become the separate property of Ranjit in which case, Chintamun could not succeed notwithstanding the custom of succession by lineal primogeniture to the impartible estate. The custom of female exclusion with respect to separate property was found against the' plaintiff by the trial Court, and the High Court also found that no such custom was proved with respect to the impartible or partible property. Reference is made to a passage at page 264 where it is stated that the Subordinate Judge was of opinion that plaintiff had in reference to the taluk Gangore proved the custom, as alleged by him, and accordingly gave him a decree. But the custom alleged and found by the Subordinate Judge was that of succession by lineal primogeniture and not exclusion of females.
19. The case, therefore, is an authority for the proposition that, even though the general status of the family be divided, there may be jointness with respect to the impartible estate unless there is renunciation by the junior members.
20. If the property was not the separate property of Ranjit, but ancestral property of the family, the plaintiff would under the Mitakshara succeed in preference to the widow, provided the family was undivided. Evidently, notwithstanding the fact of the family being otherwise divided, it was not considered to be a divided family with regard to the impartible estate.
21. In Stree Rajah Yanumula v. Stree Rajah Yanumula [1870] 13 M.I.A. 333, the question at issue was whether the family of which the parties were members was an undivided or a divided Hindu family. The general status of the family was found to be undivided, and the Shivagunga case [1863] 9 M.I.A. 539, upon which reliance was placed (as showing that succession to an impartible estate follows the succession to a separate estate), was distinguished on the ground that in that case the estate was the self-acquired and separate property of Gowary Vallaba Taver, and that the decision assumes that if this had not been so, the decision would have been the other way.' Their Lordships held that the 'mere impartibility of the estate is not sufficient to make the succession to it follow the course of succession to separate estate' and considered the question 'Has it been shown that though the family was undivided, this estate was in fact the separate property of the plaintiff's husband'? and upon the evidence came to the conclusion that the estate was in its inception part of the common family property though impartible and therefore with certain modifications enjoyable by only one member of the family at the time,' and that it was not a separate property.
22. In Periasami v. Periasami [1878] 1 Mad. 312 an impartible zamindari, originally portion of the Shivagunga estate, having descended under the Mitakshara Law as joint ancestral estate to the eldest of three Hindu joint brothers was in 1829 by a deed of family arrangement transferred by him to the two younger brothers (one of whom died subsequently without issue), to be held by them with all its incidents of impartibility and peculiar course of descent, and it was held that as between the descendants of the grantor and the son of the surviving grantee, the zamindari was the separate property of the latter, and that on his death, his right passed to the widow notwithstanding the undivided status of the family according to the rule of succession affirmed in the Shivagunga case [1863] 9 M.I.A. 539.
23. It is to be observed that it was found that the family remained joint and undivided even after the agreement of 1829 and their Lordships held that on the death of Dhorai his rights passed to the widow notwithstanding the undivided status of the family.
24. The case was analogous to the Shivagunga case [1863] 9 M.I.A. 539 and followed it. In both the cases, the general status of the family was found to be undivided. In the Shivagunga case (3), the impartible estate was found to be the self-acquired property of Gowery Vallaba, hence the rule of succession to separate property was followed. In this case, Periasami v. Periasami [1878] 1 Mad. 312, the impartible estate by arrangement became the separate property of Muthusami, and stood on the same footing as self-acquired property, and the same rule of succession was followed. It was converse to the Gangore case [1975] 1 Cal. 153 in which the general status of the family was divided, but the impartible estate was held to be joint. It is, accordingly, contended for the defendant that succession to an impartible estate does not depend upon the general status of the family but upon the question whether there was jointness in respect of the particular property viz., the impartible estate itself.
25. It is to be observed, however, that in this case, Periasami v. Periasami [1878] 1 Mad. 312, there was no question of renunciation of any contingent right of succession by a junior member. Muttu who had present right to, and was in enjoyment of the impartible estate Pudamattoor, transferred his rights to it in favour of his younger brothers as he was going to get a larger estate (the Shivagunga estate). Pudamattoor being found to be the separate property of Muttusami would of course follow the course of succession to separate property as laid down in the Shivagunga case [1863] 9 M.I.A. 539.
26. In Yarlagadda v. Yarlagadda [1900] 24 Mad. 147, the suit was for maintenance by a junior member of the family (the younger brother of the holder of the impartible estate). There was a previous suit for partition of the entire family property. It was decreed, so far as the partible property was concerned, and the rest was held to be impartible. The suit for maintenance was defended by the zamindar on the ground inter alia that since the decree in the previous suit decided that the zamindari was impartible, he was no longer liable to maintain the plaintiff. The Judicial Committee held, agreeing with the High Court, [see Mallikarjuna v. Durga Prasada [1893] 17 Mad. 362, that, the 'family of the parties to the present action has not become a divided one in consequence of the proceedings in the previous suit to which reference has already been made. It is true that in that suit a decree was made for partition of a portion of the family property, but it was a very in-considerable portion, and had no relation whatever to the zemindari estate. As to the zemindari estate, this Board held that it was impartible and the consequence is that the plaintiff, the younger brothers of the zemindar, retain such right and interest in respect of maintenance as belong to the junior members of a raj or other impartible estate descendible to a single heir: see Sartaj Kuari v. Deoraj Kuari [1887] 10 All. 272.' The suit related to maintenance and not to succession and probably for that reason the words 'and possible rights of succession' [quoted from Sartaj Kuari's case [1887-88] 10 All. 272 in the judgment of the High Court were omitted from their Lordships' judgment. However that may be, the partition of the partible properties was held not to effect a severance of the family.
27. It is contended on behalf of the plaintiff's that the question whether the family was joint in food or worship was not raised nor gone into, that the only question considered was whether the partition of the partible property deprived the plaintiff of his right to maintenance. It is further contended that the right to maintenance does not depend upon jointness, as a separated member may get maintenance and that the question of the right to maintenance itself was not raised in the trial Court, but was raised for the first time on appeal. But the plaintiff alleged that the father died on 6th April 1875, that disputes arose and plaintiff lived apart from defendant from 1st May 1875 See Mallikarjuna v. Durga Prasada [1893] 17 Mad. 362 and in the judgment of the High Court it was stated: 'in this case it is admitted that the plaintiff has since the 1st May 1875 been living apart from the defendant, and has neither asked nor received maintenance except what he received under the order of the High Court pending the appeal to the Privy Council, that is, between December 1887 and July 1890' (see page 367). Admittedly, therefore, the family was divided in other respects, and the defendant pleaded that since the decree in the partition suit deciding that the zamindari was impartible he and the plaintiff has been divided in estate and that he was no longer liable to maintain him. But the Judicial Committee, as stated above, held that the family had not become a divided one in consequence of the partition, and that the junior members' right to maintenance was unaffected, which could be only on the footing that the; family was still joint with respect to the impartible estate from which it was claimed.
28. In Sri Raja Viravara v. Sri Raja Yiravara [1897] 20 Mad. 256 on the death of the zamindar his eldest son succeeded to the estate and his younger brother executed a document in the following terms: 'As we have both equally divided and taken all the cash, jewels and other (property) in the palace to which both of us are entitled, I bind myself not to claim (anything) from you at any time. I shall reside.in the village of Addapusila, which you were pleased to give me for my maintenance, and act according to your wishes' and by a second document stated: 'I or my heirs shall not at any time make any claims against you or your heirs in respect of property moveable or immovable, or in respect of (any) transaction. As our father put you in possession of the Belgaum zamindari, I or my heirs shall not make any claim against you or your heirs in 'respect of the said zamindari.'
29. The zamindari was not impartible, but their Lordships observed that 'as between the plaintiff and the defendant, the question whether the zamindari is partible is of no importance. Even if impartible it may still be part of the common family property and descendible as such, in which case the widow's estate of the plain' tiff would be excluded. The real question, therefore, is whether it has ceased to be part of the joint property of the family of the first zamindar or (in other words) whether there has been an effectual partition so as to alter the course of descent.' Referring to the two documents mentioned above, their Lordships observed: 'Their Lordships do not find any sufficient evidence in the arrangement made by these documents of an intention to take the estate out of the category of joint or common family property so as to make it descendible otherwise than according to the rules of law applicable to such property. The arrangement was quite consistent with the continuance of that legal character of the property. The elder brother was to enjoy the possession of the family estate, and the younger brother accepted the appropriated village for maintenance in satisfaction of such rights as he conceived he was entitled to. In the opinion of their Lordships, it was nothing more in substance than an arrangement for the mode of enjoyment of the family property which did not alter the course of descent.' So that the partition of the moveables, the residence in a separate village, and an agreement not to claim anything from the zamindar on receiving a village for his maintenance were held not to constitute separation.
30. In appears, therefore, that in the Gangore case [1975] 1 Cal. 153, in Yarlagadda v. Yarlagadda [1900] 24 Mad. 147 and Sri Raja Viravara v. Sri Raja Viravara [1897] 20 Mad. 256, notwithstanding partition of other properties and notwithstanding separation in other respects, the impartible estate was held to be undivided.
31. In some cases, however, there are observations to the effect that the succession to ancestral impartible estate depends upon the person being a member of an undivided Hindu family and the impartible property being common family property. In laying down the principles of succession in the Sivagunga case [1863] 9 M.I.A. 539, their Lordships observed that the succession of the nephews was dependent upon their being members of the undivided Hindu family, and the impartible property being part of the common family property. In Rajah Rup Singh v. Rani Baisni [1884] 7 All. 1, their Lordships observed that, according to the Mitakshara Law, the estate being ancestral and the family being undivided the plaintiff, as the nearest male heir to the deceased, was entitled to succeed in preference to the widow. Referring to the contention that the legal status of the family had been altered by reason of certain proceedings with reference to the maintenance annuity their Lordships observed that it did not in any manner alter the status of the plaintiff as a member of the joint family.
32. In Raja Yanumula v. Raja Yanumula [1870] 13 M.I.A. 333 their Lordships referred to the fact that general status of the family as an undivided family has been ascertained' by the Courts below, and proceeded to deal with the contention that an impartible estate must from its very nature be taken to be separate estate and governed by the rule of succession to a separate estate. In Maharani Hiranath v. Ram Narayan [1882] 9 B.L.R. 274, Couch, C.J., observed, 'In this case the estate was ancestral and the family undivided.'...' There is here an ancestral estate and an undivided family; for there is no proof that the family of Tej Singh had become divided,' and again where the property is ancestral and the family undivided. '
33. In Jogendra Bhupati v. Nityanund Mansingh [1890] 18 Cal. 151, the question related to the succession of an illegitimate son on the death of the legitimate son dying without leaving any male issue. It is not-clear whether the family was undivided, but their Lordships quoted with approval the observations of Nanabhai Haridas, J., in Sadu v. Baiza, [1878] 4 Bom. 37, which was a case of an undivided family property.
34. It is contended on behalf of the, plaintiffs that 'undivided family' means a family undivided with respect to the particular property, i.e., the impartible property itself. It is not clear that 'by undivided family' their Lordships: in these cases meant 'undivided' with reference only to the impartible property itself, and not to the general status of the family. In the case of Raja Yanumula [1870] 13 M.I.A. 333 the general status of family, was expressly referred to.
35. Then there are a number of cases which lay down that the rule of succession to partible property applies to impartible property also subject to such modification as naturally flow from the character of the property. In the Shivaganga case [1863] 9 M.I.A. 539. it was held that the rule of succession to an impartible estate was that of the general Hindu Law with such modifications only as flow from the impartible character of the subject. 'In Jogendra Bhupati's case [1890] 18 Cal. 151, their Lordships observed that the' rules which govern the succession to a partible estate are to be looted at, and therefore the question in this case is: What would be the right of succession, supposing instead of being an impartible estate it were a partible one. 'See also Muttuvaduganadha v. Periasami [1896] 19 Mad. 451, and Subramanya Pandya v. Siva Subramanya [1894] 17 Mad. 316, proved by the Judicial Committee in Parbati Kunwar v. Chandarpal Kunwar [1909] 31 All. 457.
36. Now the rule of succession to partible property under the Mitakshara ( except as to self-acquired separate property ) depends upon the general status of the family, and if the same rule of succession applies to impartible property it must be shown except in cases where the impartible estate is self-acquired property, that the family is an undivided one.
37. It is true that the observation in the above cases that the rule of succession to impartible property is the same as that which governs partible property merely refers to the mode of tracing the inheritance, i.e., selecting the successor. But the successor is to be selected among the members of an undivided family in the case of partible property. The question therefore comes back to the point, viz., whether the general status of the family, or only the impartible estate itself with reference to which the question of undivided family, is to be considered. And unless the question is to be considered with reference to the general status of the family, it follows that ancestral impartible estate must be treated as undivided so long as there is no renunciation by the junior member because from the very nature of the property it cannot be the subject of common enjoyment.
38. In two recent cases, viz., the Telwa case (Thakurani Tara Kumari v. Chaturbhuj) [1915] 42 Cal. 1179 and the Serampore case (Rani Jagadamba Kumari v. Wazir Narain A.I.R. 1923 P.O. 59, however, the Judicial Committee considered the question of jointness in food, worship and estate as determining the question of succession. In the first case, the holder of an impartible estate of a joint Hindu family descending by primogeniture subject to the making of maintenance grants to younger sons, made a mokarari grant to his younger brother for maintenance. The grantee built a separate house, divided from his brothers by a wall, established therein a Tulshi Pinda and Thakurbari and lived there separately from his brother. He defrayed the marriage expenses of his daughter by borrowing money, subsequently to the grant. It was held upon the facts that there had been a complete separation between the two brothers, and that the impartible estate consequently became separate property in which the plaintiff, the widow of the last holder was entitled to a widow's estate. As considerable reliance has been placed upon this case by the plaintiffs, it will be dealt with more fully later. We only wish to point out here that no question of renunciation by the younger brother of any contingent right of succession was gone into in any of the Courts, and the principle contended for by the defendant that notwithstanding separation in food, residence or worship, the impartible estate remains joint until there is renunciation by the younger members of their contingent right to succession was not referred to in the case.
39. In the Serampore case A.I.R. 1923 P.O. 59 also, no question of renunciation of any contingent right of succession was referred to. Their Lordships referring to the case of Girja Bai v. Sadashiv [1916] 43 Cal. 1031 and the Telwa case [1915] 42 Cal. 1179 observed that they are clear decisions that it is competent to a member of a joint family to separate himself from the family by a clear and unequivocal intimation of his intention to sever; but as in that case the person separating forfeits his chance of inheriting the whole of the estate by survivorship, it requires strong evidence to establish such separation. The latter case illustrates this. It was there found that the separation relied on was a complete separation in worship, in food, and in estate; and, further, there was good reason for the complete separation, and that consequently the requisite evidence was forthcoming. In this case these conditions are lacking, and their Lordships are unable to think that there has been any misapplication of the principles of law which regulate this question, and the findings of fact are sufficient to defeat the plaintiff's claim.'
40. In both these cases, therefore, the question 'of succession was considered with reference to the question of the general status of the family, viz., whether there was separation in mess, worship or estate. There was no partible property to be considered in either of the cases, but the principle enunciated in some of the earlier cases viz., that the family remained undivided with respect to the impartible estate notwithstanding separate residence and mess and notwithstanding partition of the partible property was not referred to.
41. In the present case, there was no renunciation (at any rate any express renunciation) by Nanda Kishore of his contingent right to succession, and if the case is to be decided upon the principle of renunciation, it would not be necessary to go into the question of the general status of the family. But having regard to the fact that the decisions are not uniform, and having regard to the two recent cases viz, the Telwa case [1915] 42 Cal. 1179 and the Serampore case A.I.R. 1923 P.O. 59 we think we should consider the evidence as to the general status of the family.
42. It is to be observed that the expressions such as 'common family property,' 'common family stock,' 'family property' joint family property, 'family property of a joint undivided family' occur in the Shivagunga case [1863] 9 M.I.A. 539 and subsequent cases. Now in what sense an impartible estate is the 'common family property'? Prom the very nature of an impartible estate it cannot be the subject of joint ownership. Joint enjoyment with a right to partition cannot exist in such an estate. Apart from the right of the junior members to maintenance which will be dealt with later, the junior members can have no present interest in the estate, they can only have a contingent right of succession.
43. In the case of Periaswami v. Periaswami [1878] 1 Mad. 312 their Lordships referring to the fact that Muttu who succeeded to the Pudamattoor estate on the death of his father Oya Taver as his eldest son, had brothers, observed that the' estate must be taken to have descended to Muttu as an ancestral estate. He would, therefore, necessarily be joint in that estate, so far as was consistent with its impartible character, with his two younger brothers, the latter taking such rights and interests in respect of maintenance and possible rights of succession as belong to the junior members of a joint Hindu family in the case of a Raj or other impartible estate descendible to a single heir. Hence there can be no doubt that the estate though impartible was up to the year 1829, in a sense the joint property of the joint family of the three brothers.'
44. In Naraganti v. Venkatachalapati [1880] 4 Mad. 250 it was held by Sir Charles Turner, C.J. and Muttusami Ayyar, J., that an impartible paleiyam governed by the rule of primogeniture, though possessed exclusively by one member of the family, is the joint property of the family, and in the event of a death passes by survivorship.
45. The learned Judges referred to the interests of the junior members of the family as 'coparcenery interest in the estate represented by their enjoyment of maintenance and possibility of succession' and observed: 'Where property is held in coparcenary by a joint Hindu family, there are ordinarily three rights vested in coparceners--the right of joint enjoyment, the right to call for partition, and the right to survivorship. Where impartible property is the subject of such ownership, the right of joint enjoyment and the right of partition as the right of an undivided coparcener are, from the nature of the property incapable of existence. But there being nothing in the nature of the property inconsistent with the rights of survivorship, it may be presumed that right remains. The right to call for partition altogether disappears--the right of joint enjoyment is superseded by a right of successive enjoyment,.... But where from the nature of the property possession is left with one coparcener, the others are not divested of co-ownership. Their necessary exclusion from possession imposes on the co-owner in possession two obligations to his coparceners in virtue of their co-ownership, the obligation to provide them with maintenance and the obligation to preserve the corpus of the estate.'
46. This case was approved by the Judicial Committee in several cases relating to succession, but the obligation to preserve the corpus of the estate (and the consequent restraint on alienation) is done away with by the decisions of the Judicial Committee in Sartaj Kuari's case [1887] 10 All. 272, and the first Pittapur case, Sri Raja Venkata Surya v. Court of Wards [1898] 22 Mad. 383. It is contended on behalf of the plaintiffs that the right of survivorship is affected by the said decisions and that the right to maintenance is also gone by reason of the decision in the second Pittapur case, Gangadhura Ramrao v. Raja of Pittapur [1918] 41 Mad. 778.
47. It is contended by the defendant that so long as a member gets maintenance he is joint if he does not give up the right of survivorship; that even if he does not get maintenance, but has not given up the right to it nor to survivorship, he must be held to be joint in the limited sense; and that mere separation in mess and worship is not enough though coupled with non-receipt of maintenance, unless explained, would be very good indication, but not conclusive, of separation in estate because a junior member may not need maintenance.
48. The questions of maintenance and succession will be dealt with later, but having regard to the state of the authorities, we think we should consider the evidence whether there was separation in food worship and estate.
49. Custom of exclusion of females.--Before dealing with the question of joint-ness, we shall consider a defence raised by the defendant in paragraph 1 of his written statement that 'according to the long standing family custom and usage of the Raj family of Jheria, no female has ever been or can be the heiress to the Raj estate of Jheria.' In the 4th and 8th paragraph four instances were set out. These four instances are said to have occurred on the death of Rajah Indra Singh. Raja Jharwar Singh, Raja Pirthi Singh and Raja Jaimangal Singh respectively, and in each of these cases the brother or cousin (as the case may be) succeeded to the exclusion of the widow.
50. Now, on the death of Raia Indra Singh, his cousin Jaswant killed his illegitimate son and got possession of the estate. Jaswant was succeeded by his son Mohan Singh. The latter had three sons Raja Jharwar, Raja Pirthi and Raja Sangram. These three brothers were joint in food, worship and estate, so also were Raja Jaimangal and his brother Durga Prasad the sons of Raja Rash Behari and the succession in each of these cases took place by survivorships according to the Mitakshara Law under which the widow would necessarily be excluded. There was no case of a Raja being a separated member in which alone the question of exclusion of the widow under a custom could arise. It appears from the judgment of the Court below that the defendant's counsel at the time of the opening stated a new point viz., that the custom of female exclusion was introduced from the Northwest (Rewa) whence the ancestors of the Rajas of Jheria are said to have come. There was no indication in the written statement of such a custom having been imported from Rewa by the ancestors of the Jheria Rajas and we think that the defendant should not have been allowed to raise such a custom when the plaintiffs had no opportunity of meeting it. The defendant relied upon the statements of certain persons in suits relating to other Raj estates and passages in judgments in those suits and certain other matters in support of the said custom. The learned Subordinate Judge has fully dealt with them. We will only discuss the contentions rewed in this Court with regard to his findings.
51. It is contended (a) relying on the cases of Abdul Hussen Khan v. Bibi Sona Dera [1917] 45 Cal. 415. that it ought not to be assumed that a custom fails because certain of the instances brought forward in its support may be referable to other causes than the custom relied upon. But the only custom set up in the pleadings was that of the Jheria Raj, and it is not in certain instances' but in every one of the instances of the alleged female exclusion that the succession took place according to the Mitakshara Law (b) That the custom of female exclusion having been pleaded though the origin of it was not set up, the defendant was entitled to rely upon the custom of Rewa, and reference is made to the Sahdeo Naradindeo v. Kusum Kumari A.I.R. 1923 P.C. 21. But the custom set up was that of the Jheria Raj, and the plaintiffs had no opportunity of meeting a custom of Rewa. (c) That the Court below should not have relied upon a number of instances in estates allied to the Jheria Raj estate but distinct from it in which females have succeeded and that such instances cannot prove abrogation of the custom in the Jheria family. But this contention assumes that there was a custom of the Jheria Raj family of which there is no evidence. Besides, the defendant also relied upon some instances in allied families. (d) That the Court below has wholly misunderstood the decision in Rao Kishore v. Mt. Gahenabai [1918] 15 N.L.R. 176. But the passage from that case relied upon by the defendant, viz.: 'such a custom (lineal primogeniture) may, if observed and acted upon, survive the primitive condition of things out of which it originally from the very necessity of the case sprung...' has no application to the present case. There is nothing to show that the ancestors of the Jheria Rajas had any such custom at Rewa which they brought with them. The Court below points out that 'there is no evidence worth the name that their remote ancestors ever exercised sovereign powers in Rajputana or anywhere else, nor is there anything to show that they came with sovereign powers to Palgunge and subsequently from Palgunge to Jheria. On the other hand, there is evidence to show that they were subordinate to the Rajah of Panchkote. (e) That no evidence is necessary beyond the fact that the family is a Baghela Rajput family. It is not shown, however, that all the Rajputs of Rewa to whatever clan they might belong had a custom of female exclusion, assuming that the ancestors of Jheria Raja were Baghela Rajputs of Rewa.
52. The learned Subordinate Judge has pointed out that in some cognate families, such as Nawagarh, females do succeed. He has fully dealt with the evidence, and we entirely agree with him in his reasons and his finding that females are not excluded by any family custom or usage from succession to the Jheria Raj.
53. It is said in the written statement that according to the custom of the Raj family if a Raja dies leaving more than one son, the eldest son gets the title of 'Tikait,' the second son gets the title of 'Kumar,' the third son gets the title of 'Thakur.' and the fourth, son gets the title of 'Noonoo' and if the Tikait after becoming Raja has no son, the future heir gets the title of 'Kumar.' It is said that the Jheria family has kept up these titles which shows that they have kept up the custom of Rewa. But there is nothing to show that, assuming their ancestors came from Rewa, they came from a family in which such titles were used. We do not think, that the use of such titles or the performance of 'Tika Pagree' or the fact that the residence is called a garh or that succession is governed by lineal primogeniture is of any help to the defendant in proving the new case of custom set up by him. The question of titles, however, has a bearing upon another part of the case which will be dealt with later.
54. Evidence.--The evidence adduced by the parties in this case is voluminous. The paper-books consist of 47 volumes. The trial in the Court of the Subordinate Judge lasted about five months, and the hearing of these appeals has occupied about three months.
55. The documentary evidence consists partly of ancient records, the decision of Courts in other cases and the correspondence and proceedings of the Court of Wards, under whose management the estate has from time to time passed. But the great volume of documentary evidence consists of the accounts of the estate. These for many years have been kept in great detail. The entries in them throw a good deal of light upon the doings of the family; and considerable reliance has been put upon them by both parties. The system in use was that every payment, however small, from the Raj treasury was vouched for on a small slip of paper which was known as a chutka. Every such payment was then entered in the rokar or day book and there after in the khatian (ledger) and other accounts. An enormous number of these chutkas and entries in the rokars have been exhibited.
56. The oral evidence consists of the depositions of witnesses examined on commission and those examined in Court. The examination of witnesses examined on commission was inordinately long. The Plaintiff No. 1 was examined and cross-examined at 110 sittings and her evidence has taken up one volume of the paper-books. The deposition of some other witnesses was also very long.
57. The Court below observed: 'At the outset I consider it necessary to state that the oral evidence on either side is not of much worth and cannot be relied upon unless corroborated by something more reliable. All the witnesses save and except Colonel Brown of Calcutta appear to me to be untruthful or biased. In deciding the ease, I shall rely mainly upon documentary evidence. I shall not rely upon oral evidence unless it is corroborated by documentary evidence or unless under the circumstances disclosed in the particular matter under investigation it seems to me to be natural and probable.' Learned Counsels on both sides have also mainly relied upon the documentary evidence books before us.
58. [His Lordship then dealt with account and proceeded]:
59. Onus of proof.--It is contended for the plaintiffs that as Nanda Kishore has separate residence and was in separate mess for more than 80 years before suit, the onus of proving that he was joint was upon the defendant and certain decisions were cited in support of the contention. We will refer to only some of them. In Bannoo v. Kashi Ram [1877] 3 Cal. 315 their Lordships observed that in the case of an ordinary Hindu family who are living together or who have their entire property in common, the presumption is that everything in the possession of any one member of the family belongs to the common stock. The onus of establishing the contrary rests on him who alleges separate property. But this presumption does not arise where it appears that there has been a division of the family property, and a separation in the family all the members of which are living separately. That case, however, related to partible property, and there was some sort of division of the ancestral estate, and all the members were living separately; the person who was alleged to be joint with the plaintiff was in possession of property ostensibly as his own at the time of his death, and the plaintiff set up jointness (converse to the present case). In the case of Obhoy Churn Ghose v. Gobind Chunder Dey [1882] 9 Cal. 237, where the defendant was in exclusive possession of a property for over 12 years and the plaintiff sought to recover his share on the ground that the ancestors were joint at one time, Garth, C.J., and Mitter, J., observed that a distant member of the family by proving that at some period, even 100 years before, their common ancestors were members of a joint family, could not throw the onus of proving that the property was not joint upon the defendants. On the other hand, in the case of Prit Koer v. Mahadeo Prosad [1894] 22 Cal. 85 where the plaintiff sought to recover property upon the ground that the property in dispute belonged to her father separately, their Lordships held that as the plaintiff's father and his brother were at one time joint in estate the onus was upon the plaintiff to prove separation.
60. Reference was made to the case of Jagun Kooer v. Rughoonundun Lall Shahoo [1868] 10 W.R. 148, where it was held that separation in food and residence raised a presumption of separation in estate. On the other hand, in Rewun Persad v. Mt. Radha [1846] 4 M.I.A. 137, it was held that a separation from commensality does not as a necessary consequence effect a division, or at least of the whole undivided property.
61. In Mussamat Anundee Koonwnr v. Khedoo Lal [1872] 14 M.I.A. 412, it was observed that 'the cesser of commensality is only material in so far as it removes or qualifies the presumptions which the Hindu Law might otherwise raise that an acquisition made in the name of an individual son of the family was made by the head of the family and as part of the family estate.'
62. In the case of Ram Pershad Singh v. Lakhpati Koer [1902] 30 Cal. 231, the High Court observed: 'It must be remembered that joint family worship is the pivot around which the life of a Hindu family turns.... If the conclusion on these two points viz., separation in mess and worship, on which we are in accord with the Subordinate Judge, be correct, it seems to us his view on the main question can scarcely (sic) considered to be well-founded.' On the other band, in Pandit Suraj Narain v. Pandit Ikbal [1912]35 All. 80, their Lordships held that a separation in mess and worship may be due to various causes and yet the family may continue to be joint in estate. It is to be observed that the decision of the Judicial Committee in Ham Pershad's case [1912]35 All. 80, did not proceed upon any presumption but upon evidence.
63. The cases cited relate to partible properties. But even in the case of partible properties, as pointed by the Judicial Committee in Pandit Suraj Narain's case [1912]35 All. 80, separation in mess and worship may be due to various causes and yet the family may continue to be joint. In the case of impartible estates, the junior members cannot insist upon joint residence and mess, and the fact, therefore, that such a member is residing or messing separately does not necessarily raise a presumption of separation though taken along with other facts it may do so. The question of onus of proof would depend upon how far the facts are admitted by each side. In the present case, the plaintiff's alleged in the Receiver application that Nanda Kishore separated in 1847. They are plaintiffs in ejectment, and in order to show their title they have to show that there was a complete separation by which the estate became the separate property of their husband. But the fact that Nanda Kishore and his branch were living separately for such a long time would have a bearing upon the question and the plaintiffs start with that fact in their favour, but that must be taken along with other facts proved or admitted. There is evidence on both sides to be considered and we, accordingly proceed to consider the evidence.
64. [His Lordship then considered the evidence as to residence, mess, marriages, shradhas and khorposh grants, etc., and proceeded further]: There is no doubt that Nanda Kishore did assert rights in excess of what he had in the khorposh mouzahs. But that by itself would not show any intention to separate. In the Serampore case A.I.R. 1923 P.O. 59, the plaintiff asserted separate estate in the khorposh property, but the High Court held as the deed itself recited that it was a maintenance grant there was no repudiation of the interest of the Raja. 'The interest of the Raja would be by way of reversion, and the document expressly mentions that the property is khorposh, it expressly admits the possibility of a right of reversion by the Raja': (See judgment printed in Vol. D, pages 48, 57, 62, L 24-37, 63, L 45-47, 64, L 1-2). The judgment of the High Court was upheld on appeal. In the present case also it was expressly stated in the deed that properties dealt with were granted as khorposh.
65. In Sri Raja Viravara v. Sri Raja Viravara [1897] 20 Mad. 256, their Lordships observed: 'It is said that Janardan and his family have dealt with these villages in a manner inconsistent with their holding them for their maintenance only. Their Lordships express no opinion on the point, but even if they have exceeded their rights that will not alter the effect of what was done by the agreement of 1871.' We do not think, therefore, that the setting up of permanent rights in the khorposh mouzahs affected the position.
66. Separate estate of Nanda Kishore and Brojo Lal. Some of the mortgage bonds executed by Nanda Kishore show that he had separate properties which he dealt with as his own. In one of them '(Exhibit 57), dated the 26th February 1884 mouzah Urbhita is described as a mouzah 'purchased by my ancestors at auction sale'; mouzah Urbhita appears to be a chak included in Parashbenia. The mokarari right in Parashbenia was purchased by his mother Rani Tara Kumari and Gobinda Kumari in equal shares (see Exhibit 62) Only the proprietary right, i.e., the right to receive rent was granted as khorposh to Nanda Kishore and Brojo Lal. In certain land acquisition cases of the year 1911 it was held that there was no mokarari right, but in the suit for resumption of the khorposh mouzahs of Kunja Behari after his death by Raja Durga Prasad it was held that the mokarari interest and khorposh interests were separate and the latter only was resumed (Exhibit 72).
67. Then some lands in Belkanali in Nij Jheria and in mouzah Pandulia were mortgaged in the bonds (Exs. 41 and 59) and Exhibit 40. There is nothing to show that the Raj had any share in Belkanali or Pandulia, and they certainly do not form part of the khorposh mouzahs. Then again mouzah Am agora 'purchased at auction sale by my ancestor' was mortgaged (Exhibit 57). It is suggested by the defendant that the word ancestral might mean purchased by his mother. Ordinarily paitrick means paternal, but the mokarari right of Parashbenia, which was purchased by Rani Tara Kumari and Rani Gobinda Kumari, are also referred to as 'paitrick.' However that may be, there is no doubt that Nanda Kishore had separate properties of his own in which the Raj had no share and which was separately dealt with by him as his own.
68. It is contended that if the family remained joint, Parashbenia having been purchased by Tara Kumari, and Gobinda Kumari the latter's share would have descended both to Raja Udit and Brojo Lal.
69. On the other hand, it is said that the property was of inconsiderable value and the Raja did not trouble himself about it. But the income of the Raj at that time was about Rs. 17,000, and the property, therefore, was relatively substantial,
70. Brojo Lal similarly had some separate properties of his own. In the usufructuary mortgage executed by his son Kunjo Behari in favour of Durga Prasad (then Kumar) on the 29th July 1886 he mortgaged 'auction purchased' 8 annas share of Parashbenia, 8 annas of mouzah Angora, 8 annas of Ojhadih, the last having been purchased by Brojo Lal at an auction sale in 1854. It is to be noted that the mortgage was executed in favour of Kumar Durga Prasad Singh himself; mouzah Ojhadih was subsequently sold by Kunjo to one Joy Chandra Roy on the 7th July 1892. It appears, therefore, that both Nanda Kishore and Brojo Lal had separate properties. As already stated, the mokarari interest in Parashbenia was purchased by Ranis Tara Kumari and Gobinda Kumari in equal shares. But the other properties are described as ancestral which would ordinarily mean that they were purchased by Raja Sangram. If so, the plaintiffs' case would be stronger. But in any case there is no doubt that both Nanda Kishore and Brojo Lal had separate properties of their own which were dealt with by them without reference to each other and without reference to the Raj. Apart from the impartible estate (the Jheria Raj), therefore, both Nanda Kishore and Brojo Lal were to this extent separate in estate from Raja Udit and his successors. If, however, as held in the Gangore case [1975] 1 Cal. 153 and the two cases Yarlagadda v. Yarlagadda [1900] 24 Mad. 147 and Sri Raja Viravara v. Sri Raja Viravara [1897] 20 Mad. 256 a partition of partible properties does not effect a separation, the fact that Nanda Kishore had separate properties or that he dealt with them without reference to the Raj cannot having regard to the other circumstances of the case, effect a separation.
71. [His Lordship then discussed the evidence regarding personal expenses of Nanda Kishore and his family and proceeded.]:
72. Reference is made by the defendant to the garah book from which it appears that Rs. 15-14 was spent on account of the Janmastami festival in the Rajbati, and Rs. 4 as the expenses of Nanda Kishore on that occasion; and it is contended that the four rupees was part of his expenses at the Rajbati. A good deal of argument has been addressed to us with reference to this garah book, which was started by Raja Rash Behari after having attained majority in 1867. The book consists of loose sheets of paper and contains entries mostly relating to festivals and worship; lists of pronamis offered to the family and village deities; the clothes purchased for the Raja's family, as well as for Nanda Kishore's and Brojo Lal's on festive occasions 'such as Tij, Karma, Janmastami, Jita and also for the deities. The Court below found that there was a garah book started in 1867, but that the book produced by the defendant was not that book and the learned Subordinate Judge rejected it as not having been produced in proper time.
73. The defendant adduced evidence to show that clothes were purchased and pronamis were offered according to the list in the garah book and that it was signed by the Raja. It is pointed out that plaintiff's witness Hardyal admitted that the deities to whom pronamis were offered were exactly those entered in the list in the book; that it was sometimes taken to the Raja; and that there was a book similar to the one produced. Srihari, Gostha Behari and Ramdoyal on behalf of the defendant stated that the Raja offered pronamis to the gods and goddesses to the garah. That being so, it is argued there is no reason why the defendant should fabricate another book, and if the book is genuine, it should not be rejected by the Court simply because it was not produced in proper time. Reference is made to the case of Imambandi v. Mutsaddi [1918] 45 Cal. 878. Order 13, E. 1, of the Civil P.C. requires the parties or their pleaders to produce at the first hearing of the suit all the documentary evidence of every description in their possession or power on which they intend to rely. In the case referred to the Judicial Committee observed:' It does not exclude the discretion of the Court to receive any such documentary evidence at any sub' sequent stage.' But in that case the books had been filed previously in another Court, and when produced they were in fact received and ordered to be placed with the record and there was no objection to their reception on the ground of non-compliance with the provisions of the Code.
74. In the present case the genuineness of the garah book was challenged, and the Court below has rejected it not only on the ground of delay in production, but also because it was not satisfied as to the identity of the 'book produced. The reasons given by it are stated in its judgment and we are not disposed to differ. The Court below has a discretion in the matter. The order for filing documents was passed on the 20th August 1919 and the garah book was not produced in Court until 9th March 1921, though, even according to the defendant's witnesses, it was obtained by the pleaders Shib Dos Banerjee, Gour Krishna Mazumdar and Kali Pada Roy a few months after the date fixed for filing documents. Shib Das Banerjee was examined but no question was put to him on the point. The document is a very important one and the Court below was not satisfied with the explanation given by the defendant's counsel. The appellate Court should not interfere with the discretion of the Court below unless it has been capriciously exercised: see Biswanath v. Kalicharan [1918] 27 Cri.L.J. 119. We do not think that the discretion, has been capriciously exercised by the Court below in this case.
75. [His Lordship then dealt with the evidence of worship and proceeded]: The learned Subordinate Judge has not fully dealt with the evidence in connexion with the question of joint worship and there are certain errors in his findings on the points, (i) He assumed that it was not the case of any party now that Nilkantha Bashini is the goddess of the Jheria Raj family or that the statement in Exhibit J 22 (petition of the defendant to the Commissioner, dated the 19th October 1916) that Puranagarh is the seat of the family goddess Nilkantha Bashini therefore was not correct; (ii) on this erroneous assumption he did not attach any importance to the important admissions of the defendant in Exhibit J 22 and he ignored Exhibit 83 (the letter to the Jheria Board); (iii) he referred to a large number of entries as showing that Lakhi Janardan and the Siraghar were duly worshipped by Nanda Kishore's family whereas they do not show it; (iv) he has not considered the entries showing that some religious ceremonies were performed by Nanda Kishore's family at Puranagarh; (v) he does not consider the evidence on defendant's side which corroborates the plaintiffs' case as to the existence of a Siraghar in Puranagarh.
76. The conclusion we arrive at upon the question of worship may be summed up as follows:
(I) There is nothing to show that before Raja Udit attained majority there was joint worship with Nanda Kishore's branch or that any expenses in connexion with religious coremonies were paid by the Raj to Nanda Kishore's family. After the Raja attained majority he used to pay in addition to the khorposh grant and cash, expenses on occasions of death and religious festivals to Nanda Kishore's family.
(II) After Raja Udit's death, during the period of Raja Rash Behari and Raja Jaimangal cloths for the members of Nanda Kishore's family were purchased along with those of the members of the Raj family on occasions of religious festivals and distributed to the members of Nanda Kishore's family.
(III) During Raja Jaimangal's and Durga Prasad's time expenses in connexion with religious ceremonies were paid to members of Nanda Kishore's family. During the time of the latter the males as well as ladies of his family also joined in the religious ceremonies and festivities at the Rajbati on occasions of Janmastami, etc. (festivals in connexion with Lakhi Janardan),
(IV) Certain religious ceremonies such as Jita, Janmastami, Karma and Tij were performed by Nanda Kishore and the members of his family at Puranagarh, the expenses thereof being paid by the Raj.
(V) There were Tulshi Pinda and Siraghar at Puranagarh for the worship of Nanda Kishore's family but the existence of Salgram or other deities at Puranagarh is not proved.
(VI) Pipra Hari was the Bastu deity of Nanda Kishore at Puranagarh which was worshipped by him, and in this worship the Raj did not join. Bansbuda was the Bastu deity of the Raj.
(VII) Nilkantha Bashini was originally the deity of the family from which the Jheria Rajas sprang and had become in course of time a village deity. It was worshipped by both males and females of Nanda Kishore's family. The Jheria Rajas offered pujas in one month of the year, and on ceremonial occasions, such as marriage, births, illness, etc. Once a year, on the Bejoya Dasami day, the Raja goes in procession to bow to the deity and offer pronami to it.
(VIII) Lakhi Janardan was the deity of the Jheria Raj whose daily and occasional worship such as Rash, Dol, Rath, etc., were regularly carried on. There is no evidence that Nanda Kishore's family joined in the worship before Raja Durga Prasad's time though it is probable that being dependent members and getting clothes on occasions of religious festivals they would join in the festivities at the Rajbati. But there is, however, no definite or satisfactory evidence of this. During Raja Durga Prasad's time Nanda Kishore's family joined in the ceremonies and festivities.
(IX) Upanayana, marriages and births of some of the members of Nanda Kishore's family were celebrated at the' Rajbati and as a necessary consequence the religious portions of the ceremonies (including the Nandimukh Sradh) were performed at the Rajbati during the time of Raja Durga Prasad, only once during Rash Behari's time, and once during Raja Jaimangal's time; and on such occasions during Durga Prasad's time offerings were made to Lakhi Janardan, Nilkantha Bashini, Kutharighar and Siraghar by the Raj. There are, however, no entries to show that pujahs were offered by the Raj in the marriages of Pran Krishna, Krishna Prasad and Jagananda.
(X) The Sradh of Churaman (involving religious ceremonies) was performed by the Raj during Raja Udit's time and that of Brojo Lal during the time of Rash Behari--the Raj bearing the expenses.... During Raja Durga Prasad's time some Sradhs were performed at the Rajbati and if performed at Puranagarh it was done at the expense of the Raj.
(XI) So far as Brojo Lal's branch is concerned, he was joint in mess with the Raj till 1857 and must have been joint in worship. Kunjo also was for some time, at any rate, joint in mess during Rash Behari's time. His residence was within the Raja's garh; though separated by a wall, he was in charge of the Rashmancha and he must have joined the Raj in the worship of Lakhi Janardan all along down to the time of Raja Durga Prasad.
77. Separation.--Considerable reliance is placed by the defendant upon the treatment of Janaki Prasad and other members of Nanda Kishore's family by Raja Durga Prasad, as showing that such treatment was wholly inconsistent with Nanda Kishore being a separated member. On the other hand, it is contended by the plaintiffs that if there was an earlier separation during the time of Raja Udit the generous treatment of Nanda Kishore's branch by Raja Durga Prasad or even by Raja Jaimangal cannot affect the position, as there could not be any reunion. It is pointed out that Raja Durga Prasad believed that there was the custom of female exclusion; he despaired of having a son; he was very generous to all his relations and even to strangers; he liked Janaki Prasad and thought he would be his heir, and that this explains his generous treatment of Nanda Kishore's branch. It could not, however, affect the previous separation if it had taken place more than half a century before Durga Prasad became Raja. No doubt, if there was a complete separation during the time of the Raja Udit, any subsequent treatment by his successors cannot make Nanda Kishore's branch members of a joint family and there is some force in the explanation of the treatment by Raja Durga Prasad suggested by the plaintiffs referred to above. But such treatment might also be due to a consciousness on the part of the Rajas and particularly of Raja Durga Prasad of Nanda Kishore's branch being joint, and unless there was complete separation during the time of Raja Udit, the subsequent conduct of the successive Rajas and Nanda Kishore would be evidence on the question of jointness, and the whole evidence should be taken into consideration.
78. No inference of intention to separate can be drawn from the fact that a separate cash allowance was fixed for Tara Kumari and Nanda Kishoro by the Court of Wards as a cash allowance was also fixed in the case at the minor Raja himself for maintenance, and it is to be noted that Rani Tara Kumari agreed to take the allowance through Rani Kadam Kumari and not direct from the Court of Wards. The separate residence commenced from 1836 when Tara Kumari came away from the Rajbati, but Nanda Kishore was then an infant of two and a half years and no intention to separate can, of course, be attributed to him. It is contended, however, that after he attained majority he did not repudiate the acts of his mother, but acted upon them. He asked for a khorposh grant of mouzahs, and two and a half mouzahs were granted. But the grant was not asked for nor made with a view to separate (he was already living separately at Puranagarh) and no inference can be drawn from the khorposh grant, in favour of a case of separation, as a similar grant was made to Brojo Lal who admittedly lived in commensality with Raja Udit so long as the latter was alive, and even after his death with his widow until 1857. There was no ill-feeling between Raja Udit after he attained majority and Nanda Kishore or his family. It is to be observed that even at the time of the khorposh grant made by Raja Udit in 1817, Nanda Kishore was only about 14.
79. Confining our attention to the period of Raja Udit alone, the following facts may be taken to be established: (a) separat residence of Tara Kumari and Magan Kumari at Puranagarh notwithstanding the repeated requests of Rani Kadam Kumari to live in the Rajbati, but Puranagarh belonged to the Raj, and the expenses of repairs were paid by the Raj; (b) separate messing; (c) clothes once given by the Court of Wards to members of Nanda Kishore's branch along with other members of the family including the minor Raja; (d) maintenance (including the cost of clothes) paid in cash not as a matter of charity but as a matter of obligation until Raja Udit attained majority when he granted khorposh mouzahs; (e) expenses of marriage, death and religious festivals paid by the Raj; (f) no evidence of joint worship; (g) Nanda Kishore had some separate properties.
80. So far as Raja Udit's period is concerned, the question of jointness would depend upon whether Nanda Kishore can be said to have been completely separated though in receipt of maintenance and the extraordinary expenses. This leads us to the question of the right to maintenance, and the effect of receipt of maintenance as bearing upon the question of jointness.
81. Maintenance.--In an ordinary joint Mifcakshara family the junior members have an interest accruing by birth in ancestral property, and such interest carries with it a right to maintenance until partition is effected. Such a right is a real right and can be enforced against a stranger. In an impartible estate, however, the junior members do not acquire an interest by birth' There being no joint ownership in the sense of joint enjoyment with a right to partition, the question is--has a junior member any right to maintenance; and if so, whether under the law or under custom?
82. In cases prior to Sanaj Kuari [1887-88] 10 All. 272 it was held that he has such a right. In Naragunty v. Vengama [1861] 9 M.I.A. 66 Lord Kings-down observed: 'that a Polliam is in the nature of a Raj. It may belong to an undivided family, but it is not the subject of partition; it can be held by only one member of the family at a time who is styled the Polligar, the other members of the family being entitled to maintenance or allowance out of the estate.' In Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee [1867] 12 M.I.A. 1, Sir Jamas W. Colvile said that the Hunsapore Estate was an 'impartible Raj and by family custom descended on the death of each successive Raja to his eldest male heir according to the rule of primogeniture who took the whole subject to the obligation of making to the minor members of the family certain allowance by way of maintenance.'
83. In Stree Rajah Yanumula v. Stree Rajah Yanumula [1870] 13 M.I.A. 333 their Lordships sbserved with reference to grants of portion of the impartible estate 'these grants by way of maintenance are in the ordinary course of what is done by a person in the enjoyment of a Raj or impartible estate in favour of the junior members of the family, who, but for the impartibility of the estate, would be coparceners with him.'
84. In Periasami v. Periasami [1878] 1 Mad. 312 Sir James Colvile spoke of such rights and interests in respect of maintenance and possible rights of succession as belong to the junior members of a joint Hindu family in the case of a Raj or other impartible estate descendible to a single heir.
85. In Sartaj Kuari's case [1887] 10 All. 272 the High Court said that 'the contingency of survivorship remains along with the right to maintenance in a sufficiently substantial form to preserve for them a kind of dormant ownership.'
86. It appears, therefore, that before Sartaj Kuari's case [1887] 10 All. 272 the junior members' right to maintenance from an impartible estate was recognized, and such right seems to have been based upon the very nature of an impartible estate, viz., that one person was to hold the estate and the others were entitled only to maintenance.
87. But after it was laid down in Sartaj Kuari's case [1887] 10 All. 272 and in the 1st Pittapur: case [1898] 22 Mad. 383 that there is no coparcenary in an impartible estate, the right of the junior members to maintenance under the law was expressly negatived in two cases.
88. In Rama Rao v. Rajah of Pittapur [1918] 41 Mad. 778 (the 2nd Pittapur case), it was held that apart from custom and certain relationship to the holder of an impartible estate, the junior members of the family have no right to maintenance out of it. After referring to a passage in Mayne's Hindu Law, viz.,' Those who could be entitled to share in the bulk of the property are entitled to have all their necessary expenses paid out of its income,' their Lordships observed (page 153).' it follows that the right to maintenance, so far as founded on or inseparable from the right of coparcenary begins, where coparcenary begins and ceases where coparcenary ceases,' and after referring to certain exceptions (eases of disqualified persons, and cases of personal relationship their Lords hips observed (page 154): An impartible zamindary is the creature of custom and it is of its essence that no coparcanary exists. This being so, the basis of the claim is gone, inasmuch as it is founded on the consideration that the plaintiff is a person who, if the were not impartible would be entitled as of right to maintenance.'
89. In that case the claim for maintenance was sought to be enforced against the estate in the hands of the donee (the respondent) who had got the estate under a Will from the late Raja; no custom was alleged, nor was any claim based on personal relationship. In the next case, the Joypore case(Vikrama Deo v. Pattamihadevi [1919] 42 Mad. 589, however the claim was not against a donee, but by a son of the brother of the Maharaja against the son of the Maharaja (the holder of the estate) and their Lordships followed the above decision [in the 2nd Pittapur case] [1918] 41 Mad. 778 that apart from custom and certain near relationship to the holder, the junior members of the family of a zemindar entitled to an impartible zamindari have no right to maintenance out of it, and remanded the case for an enquiry into the question of custom of maintenance. These two eases, therefore, laid down that there was no right of junior members to maintenance apart from custom.
90. The 2nd Pittapur case [1918] 41 Mad. 778, however, was considered by their Lordships in Baijnath Prashad v. Tejbali [1921] 43 All. 228 and Lord Dunedin observed as follows; 'It must be always remembered that the claim for maintenance as put forward was made not against the head of the family of which the claimant was a member, but against the donee who on the claimant's own allegations was a stranger to the family. It obviously could not, therefore, succeed unless it was of the nature of a real right. Now it could only be of the nature of a real right, no proceedings having taken place before the estate got into the hands of the donee, if the maker of the claim had before that event been a person who was in some way an actual co-owner of the estate, and any observations which go to the question of maintenance apart from the question of real rights may be treated as obiter dicta. The decision, therefore, was the logical outcome of the decision in the Satraj Kuari's case [1887] 10 All. 272.
91. It is contended on behalf of the defendant that Lord Dunedin who delivered the judgment in the 2nd Pittapur case [1912]35 All. 80 himself treated the 'observations which go to the question of maintenance apart from the question of real right' as obiter dicta, with the result that the rule laid down in that case with respect to the right to maintenance (apart from the question of real right) is no longer law. It is true, the ground upon which the 2nd Pittapur case [1918] 41 Mad. 778 was distinguished in Baijnath's case [1921] 43 All. 228 viz. that the claim in the former was against a stranger (the donee) does not apply to the Joypur case [1919] 42 Mad. 589 (Vikram Deo v. Vikram Deo) where it was made against the head of the family. The Joypur case [1919] 42 Mad. 589 was cited in argument in Baijnath Prasad's case [1921] 43 All. 228 but it is not referred to in the judgment. But the Joypur case [1919] 42 Mad. 589 merely followed the 2nd Pittapur case [1918] 41 Mad. 778.
92. In Baijnath's case [1921] 43 All. 228 the question related to succession to an impartible estate and not to maintenance of junior members, but the question of maintenance which was decided in the 2nd Pittapur case [1918] 41 Mad. 778 had to be considered in Baijnath's case [1921] 43 All. 228 because some of the principles upon which the question of maintenance was decided, stood in the way of deciding the question of succession.
93. Now in Baijnath's case [1921] 43 All. 228 Lord Dunedin pointed out that as no proceedings had taken place before the estate got into the hands of the donee (in the 2nd Pittapur case [1918] 41 Mad. 778 the claim for maintenance could only be of the nature of a real right if the maker of the claim had before that event been a person who was in some way an 'actual co-owner of the estate.' The observations apart from those which go to show that the junior member is not an actual co-owner of the estate (in which case his right would have been a real right) are obiter dicta; in other words, those observations which go beyond what was necessary to show that a junior member is not an actual co-owner of the estate and was accordingly not entitled to enforce his right against a stranger were not necessary for the decision of the case. The counsel for the plaintiffs contends that what was said on subjects other than real right refers to observations in connexion with the right of persons entitled to maintenance under special texts or because of personal disqualification. But these were not the only observations which were obiter dicta. There were other observations in the 2nd Pittapur case [1918] 41 Mad. 778 to the effect that the right to maintenance so far as founded on or inseparable from the right of coparcenary, begins where coparcenary begins and ceases where coparcenary ceases.' Those and similar observations were not necessary for the decision of the case; and Lord Dunedin in Baijnath's case [1921] 43 All. 228 while reviewing the decisions was pointing out that they recognized a right of survivorship in the junior members in an impartible estate, and accordingly said that the observations in the 2nd Pittapur case [1918] 41 Mad. 778 apart from the question of real right may be treated as obiter dicta. It is to be noticed that if a junior member has no right to maintenance, it could not be made a real right by any proceedings. It seems, therefore, though it cannot be said to be absolutely clear, that the rule laid down in the 2nd Pittapur case [1918] 41 Mad. 778 as to there being no right of maintenance in an impartible estate (apart from custom and apart from special texts and personal disqualification) has been modified in Baijnath's case [1921] 43 All. 228.
94. Reliance was placed on behalf of the plaintiffs upon certain decisions in support of the contention that even separated members may get maintenance, and that the receipt of maintenance, therefore, does not show jointness. The first case is the Udayar-Palayam case (Kachi Yura v. Kachi Kalyana) [1901] 24 Mad. 562 where the suit was by a descendant of the third son of the Istemrar zemindar for partition of the estate (alleging that it was partible) and, in the alternative, for possession of the estate if it was found to be impartible, and as a further alternative for maintenance. There had been previous suits for maintenance by other persons in the plaintiffs' branch of the family which were decreed or compromised. The defendant pleaded that the estate was impartible and the junior members were entitled to and were getting maintenance. The trial Court held that it was partible property and overruled the plea of limitation on the ground that the other members by receipt of maintenance were participating in the property, on which the High Court held that the property was impartible and allowed maintenance to the plaintiff. On appeal, the Judicial Committee upheld the decree of the High Court, see The Udayar-Palayam case Kachi Kaliyan v. Kachi Yura [1905] 28 Mad. 508. The plaintiffs relied upon the fact stated in the judgment of the trial Court (39) viz., 'It does not appear that plaintiffs' father lived with the family of the zemindar at any time.' But that the fact of separation in living did not affect the question of succession would appear from the next sentence viz., 'Istemrar zemindar's successor Muthu was living separately in Srirangam before he succeeded to the zemindary,' and the High Court in dealing with the question of nearness of blood as determining the order of succession observed 'in an undivided family like the present, nearness of blood is immaterial.' So notwithstanding the face that the plaintiff or his father lived separately, and that there was constant litigation with the zamindar, the family was still considered as undivided, and the case therefore cannot be treated as one in which a separated member got maintenance.
95. In Himmatsingh v. Ganpatsingh [1875] 12 B.H.C. 9 it was held that a suit for maintenance out of ancestral estate by a Hindu son lies against his father where the property in the hands of the latter is impartible. The son was disowned by the father but was held to be legitimate. The case was followed in Ramchandra v. Sakharam [1877] 2 Bom. 346 (one of the Judges with great reluctance) where the father was in enjoyment of a political pension which was held to be impartible. In that case the son was turned out, not separated.
96. It may be pointed out that the High Court did not in the first case discuss the question of maintenance, as the defendant did not dispute the plaintiff's right to maintenance. The fact is that before the 2nd Pittapur case [1918] 41 Mad. 778 no one questioned the right of junior members to maintenance in an impartible estate.
97. But even assuming that the junior members have no right to maintenance under the law, we have to consider the question of their right to it under custom. That they may have such right under custom is recognized in numerous eases, and in the 2nd Pittapur case [1918] 41 Mad. 778 itself. In that case, Lord Dunedin observed at page 154: 'Just as the impartibility is the creature of custom, so custom may and does affirm a right to maintenance in certain members of the family. No attempt has been, as already stated, made by the plaintiff to prove any special custom in this zamindari. That by itself in the case of some claims would not be fatal. When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case. In the matter in hand their Lordships do not doubt that the right of sons to maintenance in an impartible zamindari has been so often recognized that it could not be necessary to prove the custom in each case. It is this which will explain the reference to rights of maintenance in cases decided subsequent to the decision in the case of Sartaj Kuari v. Deoraj Kuari [1887] 10 All. 272. In Yarlagadda v. Yaralgadda [1900] 24 Mad. 147, the judgment says: 'As to the zamindari estate the Board held that it was impartible and the consequence is that the plaintiffs, as the younger brothers of the zamindar, retain such right and interest in respect of maintenance as belong to the junior members of a Raj or other impartible estate descendible to a single heir.' But their Lordships may agree here with what was said by the Court in the case of Nilmoni Singh Deo v. Hingoo Lall Singh Deo [1879] 5 Cal. 256, 'We can find no invariable or certain custom that any below the first generation from the last Raja can claim maintenance as of right.
98. In the case before us it is not disputed, and in fact it is proved, that Nanda Kishore and Brojo Lal (the brothers of Raja Udit) and their descendants have been getting maintenance in cash or by grants of land all along. On behalf of the plaintiffs, it is contended that they got maintenance under a family custom. On behalf of the defendants it is contended that even if it is under a custom it does not affect their right to it.
99. It is true that once it is held that the holder of an impartible estate can give away the estate by transfer inter vivos or by a testamentary disposition, he can destroy any right of maintenance which the junior members may have unless it is made a real right. But the same may be said of the right of succession. That, however, by itself would be no ground for holding that the junior members have no right of succession. The question of the right to maintenance or to succession would have to be considered only in cases where the estate has not been given away to a stranger and is vested in a member of the family according to the law of succession.... If a junior member's right to maintenance is based upon law, there would be no difficulty in holding that their receipt of maintenance shows jointness, because that is the only way in which he can participate in the family property (the impartible estate). But assuming that a junior member has no right to maintenance under the law, the point for consideration is whether his right to it under custom is any indication of jointness.
100. An impartible estate is a creature of custom, and the right of junior members to maintenance is also under the same custom. Now, custom has origin in an agreement by which the members agree that one of them (the eldest) in certain order of succession should hold the estate, the other members being entitled to maintenance. In Rao Kishore Singh v. Mt. Gahenbhai [1918] 15 N.L.R. 176, Lord Atkinson observed:--'No doubt one of the ways in which impartible estates may originate is by independent Chiefs or feudatories exercising autocratic powers, being gradually in course of time reduced by a paramount power to the positions of ordinary zamindars, but these impartible estates may also owe their origin to family arrangements followed up in practice for many generations, whereby it was originally agreed that the family property should be impartible and be held and managed for the benefit of the whole family by a single member at a time in a certain order of succession' the other members being entitled to maintenance only, without any power of interference with the management.'
101. There is nothing to show that the Jheria Rajas were independent Chiefs or feudatories exercising autocratic powers, at any time. Although the Chiefs in the jungle mahals before the British Government exercised semi-sovereign powers, there is evidence that the Raja of Jheria was subordinate to the Raja of Pachete, the principal zamindar in Manbhum. The latter portions of the observations referred to above would therefore apply to an impartible estate like the Jheria estate.
102. An impartible estate is by its very nature incapable of common enjoyment or being the subject of co-ownership and in that sense, of course, there can be no jointness in estate. But the receipt of maintenance (whether under the law or under custom) may in the absence of other circumstances be the only mode in which jointness in estate (in a limited sense and in so far as is consistent with an impartible estate) may be kept up in an impartible estate.
103. It is difficult to see, how-else the junior members can in some cases keep up jointness in an impartible estate. The junior members cannot compel the holder of the estate for the time being to allow them to reside with him in the same mess and worship which might be inconvenient to both parties, and if the junior members are separate in mess and worship while connexion with the estate is kept up by receipt of maintenance, the question arises whether in the absence of other circumstances, the mere fact of separate mess or worship would constitute such a separation as would bar their right to succession. In the first Pittapur case [1898] 22 Mad. 383 the adopted son quarrelled with the Raja and ceased to reside with him. The Raja gave him some moveables and money for the expenses of his marriage and Rs. 2000 per month for his maintenance. That evidently was not considered to constitute separation, because, if it was, it would have been unnecessary to consider the question whether the Raja had power to make a testamentary disposition of the estate, or to refer to Sartaj Kuari's case [1887] 10 All. 272. It was no doubt held that the coparcenary between the Raja and the adopted son was 'not admitted but the contrary is held.' That meant (as observed in Pratap Chandra v. Jagadish Chandra : AIR1925Cal116 that by reason of the decision in Sartaj Kuari's case [1887] 10 All. 272 the coparcenary (which under the Mitakshara Law is created by birth) did not exist as a matter of law between the Raja and the adopted son.
104. In the judgment of the High Court in Mohesh Chunder Dhal v. Satraghan Dhal [1902] 29 Cal. 343 Ghose and Gordon, JJ., observed as follows:--'Although Kamala Kant when he succeeded to the Jambuni Raj practically separated from the Ghatsila branch of the family, yet as a matter of law, he and his son Nityananda still continued to be joint with the Rajas of that branch. The fact that after he succeeded to the Jambuni estate he continued to hold four mouzahs on allotment of maintenance, that on his death two of them were possessed by his son Nityananda and two by his son Mangobinda and also that on the demise of Nityananda one of these mouzahs passed to his son Jagjiban and two others were assigned to him for maintenance by Earn Chandra III in 1884, are all inconsistent with the supposition that the Jambuni branch had separated in estate from the Ghatsila branch.' The question, however, was not seriously pressed in the High Court by the defendant, and the question was not raised at all before the Judicial Committee and therefore not considered by it.
105. In the case of Harpal Singh v. Lekkraj Kunwar [1908] 30 All. 406 where a number of villages were appropriated for the maintenance of the junior members of the family (some of which were sold and the members of the family had therefore ex-proprietary rights therein) the Allahabad High Court (Stanley, C.J., and Banerji, J.) held that 'the members of the family are therefore still joint in estate though they are separate in food and worship. Whatever be the rights of the family in these villages, they form part of the estate and if the junior branches become extinct will revert to the head of the family.' The case went up to the Privy Council, but this portion of the judgment was not referred to, though the judgment was generally upheld [see Thakurain Lekhraj Kunwar v. Thakur Harpal [1911] 34 All. 65
106. In the judgment of the High Court in the case of Protap Chandra v. Jagadish Chandra : AIR1925Cal116 (a case relating to the Dhalbhum estate now pending in appeal before the Judicial Committee) it was observed 'according to custom the members of the joint family not only got maintenance, but education and marriage expenses' also, so that there was actual enjoyment by the members of the family so far as was consistent with the impartibility of the estate,' and a distinction was drawn between 'jointness in fact' and 'coparcenary in law' (see page 339). But the case related to succession, and not to maintenance. It was found by the trial Court that the defendant was joint in estate with the Raja, the defendant did not press his objections to the finding and there was ample evidence in support of it.
107. The question has never been specifically raised nor decided by the Judicial Committee.
108. The plaintiffs strongly rely upon the Telwa case [Thakurani Tara Kumari v. Chaturbhuj Narain [1915] 42 Cal. 1179]. There are some points of similarity between that case and the present, but there are some important points of difference also. In the Telwa case [1915] 42 Cal. 1179 as well as in the present, there was separate residence and mess. But the separation in those respects in the Telwa case [1915] 42 Cal. 1179 took place under circumstances different from those in the present. In that case it was found that Bhupat was a man of licentious habits, who made himself a nuisance to his brother Ranjit and created a scandal by introducing mistresses into the family dwelling house, and it was in consequence of this that Ranjit executed the maintenance grant to enable him to start a separate establishment. Bhupat thereupon himself built a separate house in Tulshi Pinda and a separate Thakurbati. The separation took place at the time the khorposh grant was made (in 1879) and the subsequent conduct was relied upon as evidence of separation. In the present case, it is true, Rani Tara Kumari refused to return to the Rajbati notwithstanding the repeated requests of Rani Kadam Kumari, and lived separately at Puranagarh all along. But Rani Tara Kumari or Nanda Kishore did not build any separate house, Puranagarah was the old family residence: it belonged to the Raj, the cost of repairs was borne by the Raj (except on one occasion) and if any house was built it was at the expense of the Raj. In the Telwa case [1915] 42 Cal. 1179, there was a perpetual mokarari grant--a grant in excess of the usual maintenance grant (for life) to junior members and the grant appears to have been made by Ranjit who was displeased with the conduct of Bhupat and with a view to separate him. In the present case Nanda Kishore also set up a perpetual mokarari grant, but it was found by the Courts to be a grant for life, only Nanda Kishore was getting maintenance allowance in cash from 1837 and Raja Udit made a khorposh grant of mouzahs instead of the cash allowance, in 1850. It was not made with a view to separate Nanda Kishore, because he was separate in mess and residence from 1837. In impartible estates junior members get maintenance, but they are ordinarily grants for life. It was held in Rameshar Bakhsh v. Arjun Singh [1900] 23 All. 194 that when a grant for maintenance is made to a junior member of a joint family it is prima facie the intention that the gift should be for life. In Beni Pershad Koeri v. Dudh Nath Roy [1899] 27 Cal. 156 a grant 'in lieu of maintenance' was held to be prima facie resumable on the death of the grantor. In Tituram v. Cohen [1905] 33 Cal. 203 in which the khorposh grant to Nanda Kishore was considered, the grant was held by the High Court and the trial Court at the most to be for the life of the grantee, and the Judicial Committee (page 217) agreed in the conclusion. If, therefore, the grant is perpetual it is in excess of their rights and may indicate an intention to separate the junior member from the family. An impartible Raj may not be partitioned, but a portion of the estate may be given by the owner of the impartible Raj to a junior member in consideration of his giving up all his rights whatever they may be, and evidently the mokarari grant to Bhupat by Ranjit which was made in order that he might start a separate establishment was so considered in the Telwa case [1915] 42 Cal. 1179, as there could be no separation in estate in any other sense, there being nothing to show that there was any property other than the impartible estate. On the other hand, a khorposh grant may be made to a junior member in recognition of his right to maintenance (whether under the law or under a custom) as a member of the family and in such a case it cannot be said that there is complete separation.
109. Bhupat built a Tulshi Pinda and a separate Thakurbari. In the present case the Tulshi Pinda existed at Puranagrah from before, presumably from the time of the ancestor of Raja Sangram, and the Siraghar probably existed from before as it is not proved that Nanda Kishore built any Thakurbati, though it was the plaintiffs' case that he did so. Bhupat in his written statement alleged that 'besides the khorposh grant out of the joint property the junior members were entitled to obtain the expenses of marriage, Sradh and other similar ceremonies and all other necessary expenses from the income of the said property in the hands of the holder of the estate for the time being.' It was found, however, on 'incontestable evidence' that he did not get any, and that the expenses of the marriage (of his grand daughter) were defrayed by Bhupat by borrowing money and not by Ranjit. The observation that 'the defendant's written statement having regard to his evidence and to the findings of the Court below was instructive' shows that importance was attached by their Lordships to the said circumstance. In the present ease, so far as the documentary evidence is obtainable, Nanda Khhore's family used to get extraordinary expenses, such as on occasions of births, deaths and marriages (some of them being celebrated at the Rajbati), and during Raja Durga Prasad's time they used to get other expenses also. It may be that Nanda Kishore got the extraordinary expenses under a custom, and it does not appear whether there was any such custom proved in the Telwa case [1915] 42 Cal. 1179. But the fact remains that the defendant in the Telwa case [1915] 42 Cal. 1179 set up a practice and failed to show that he got any extraordinary expenses. In the present case Nanda Kishore's family did get such expenses.
110. In the Telwa case [1915] 42 Cal. 1179 the defendant Chaturbhuj (son of Bhupat) in a criminal case asserted that he was separate' from Ranjit. That statement was no doubt made in 1905 long after the mokarari patta which was granted in 1879, but the statement was used to support the (separation in 1879.
111. In the present case Nanda Kishore referred to 'my garh' or 'separate garb,' and used other similar expressions, but they had reference only to separate residence. As for the statement by Nanda Kishore and Abodh Behary in the mortgage bond, dated the 1st April 1891, that Tisra and Golokdihi were granted by the Jheria Raj family' we have already dealt with it.
112. The Judicial Committee observed in the Teliva case [1915] 42 Cal. 1179 that the only issue in the case was one of fact, namely, the issue as to whether Ranjit and Bhupat separated. Upon the facts of the case the High Court came to the conclusion that there was no complete separation; the Judicial Committee on the other hand held that there was complete separation, in food, worship and estate. No new rule of law was laid down in that case and we think that the present case is distinguishable from it in its facts. In the Serampore case A.I.R. 1923 P.O. 59 also there was a mokarari grant of a village by way of maintenance' and the Court found upon the evidence that there was no separation in food, worship or estate. It is contended on behalf of the plaintiff that if enjoyment of maintenance was sufficient to constitute jointness, it would have been unnecessary to go into the question of jointness in mess and worship. That is so, and it cannot be affirmed that the mere receipt of maintenance in all circumstances is sufficient to constitute jointness. But in the absence of other circumstances going to show separation, the receipt of maintenance indicates jointness. Whether it does so or not would depend upon the circumstances of each case.
113. It is contended, however, on behalf of the plaintiff that under the family custom of the Jheria Raj not only Brojo Lal's and Nanda Kishore's branches but persons who were admittedly not members of the joint family and distant relations also used to get maintenance.
114. Reference was made on behalf of the plaintiffs to the list of khorposhdars annexed to the report of Poresh Ghose (Manager under the Court of Wards), dated the 21st February 1869. That document was produced by the defendant in order to meet the case made in the plaint that neither Nanda Kishore nor Brojo Lal's branches ever got any help from the Raj, but the plaintiffs rely upon it to show that besides Nanda Kishore and Kunjo Behari (son of Brojo Lal), under the family custom, separated members and distant relations also got khorposh moir zahs. The list shows that certain persons, Guru Prasad Singh, Dhan Singh. Ramsingh, and Mani Nath Singh also had koorposh mouzahs.
115. We are, however, unable to hold that separated members of the Jheria family got khorposh under a family custom for the following reasons: In the first place, the custom was not set up in the pleadings (nor even in the grounds of appeal to this Court), and the Court, therefore, had no opportunity of investigating who those persons (Dhan Singh Babu and others) were, and under what circumstances and by whom the grants ware made. It is true that a few questions were put to Rani Chatura Kumari about some khorposhdars, but no custom was set up, nor was any issue raised with regard to it. Poresh Ghose, on being cross-examined by the defendant, stated that he did not know where those persons lived or when the khorpash grants were made, but that he entered those grants in the 'scheme prepared by him' depending upon the report which the Raja's mother caused to be given by the officers of the estate. Their names do not appear in the pedigree and there is nothing to show how they were related to the Jheria Rajas; the only thing appearing in the evidence is that they were distant relations (see Ex. L 19), and used to come to Jheria on ceremonial occasions. One of them, Guru Prasad, appears from the deposition of Raja Rash Behari (in the Pandra case) not to belong to the Jheria but to the Pandra family, and he could not possibly belong to the Jheria family as marriage is permissible between him and the Jheria family. Another khorposhdar was Mani Nath Singh of Gundabar, and it appears from the cross-examination of Rani Chatura Kumari, that Bara Kumar's maternal uncle's house is at Gundabar. In the next place, their names appear for the first time in 1889. We do not find any mention of them in the papers of the Court of Wards during the minority of Udit or Rash Behari, which indicates that the grants were made subsequently, after Rash Behari became the Raja, and he might have made them to distant relations as he was entitled to grant to any person he liked. Such grants may be made to any relation by a Raja; for instance, some one connected with the family of his father-in-law or his maternal uncle, or even to illegitimate children. The grant of khorposh to such persons would not affect grants made to members of the family, as a grant of maintenance may be made as a matter of grace and not in recognition of any right to it.
116. Thirdly, there is nothing to show that the khorposh grants to Dhan Singh Babu and others were made under any family custom. The custom referred to in cases relating to impartible estates is only the custom of the junior members of the family within certain degrees getting maintenance, and the mere fact that some Raja made khorposh grants to distant relations or even to separated members by way of charity cannot affect the position of a khorposhdar such as Nanda Kishore or Brojo Lal who were entitled as of right to maintenance from their elder brother Raja Ddit upon whom the ancestral estate had devolved.
117. Lastly, there is a statement in the Court of Wards' papers (Ex. P., dated the 4th March 1861) in connexion with the Sradh of Brojo Lal, that the zamindar of Jheria is bound by family custom to pay any extraordinary sum incurred by khorposhdars. It does not appear that in 1861 Dhan Singh and others wore in enjoyment of the khorposh grants. But assuming they were, there is no evidence that they were ever granted any extraordinary sums incurred by them the occasion of birth, death or marriage (which were granted to Nanda Kishore's and Brojo Lal's branches on numerous occasions), and that shows that Dhan Singh and other khorposhdars were not members of the family or khorposhdars in the sense in which the expression was applicable to Nanda Kishore or Brojo Lal. The mere fact that certain mouzahs were given to them (Dhan Singh and others, by way of khorposh grants therefore does not show that they were entitled to maintenance as a member of the Jheria family or under any custom.
118. It is contended on behalf of the plaintiffs that custom varies in different families as to the persons entitled to maintenance: in some only the sons, in others descendants down to the 3rd generation; in some the grant enures only for the lifetime of the donor or the donee or both; in others it descends to male descendants, so that in each family the question is whether a particular person falls within the limits of relationship to which the right is confined. In the case of babuana grants, the descendants get it from generation to generation. That may be so; but in all cases of khorposh grants, there is always the possibility of a reversion to the parent estate on the extinction of heirs of the grantee, and so far as babuana grants are concerned, they are made under a special family custom.
119. The plaintiffs also referred to the case of Nilmony Singh Deo v. Hingoo Ball Singh [1879] 5 Cal. 256, in which it was held that in the case of the impartible Raj of Pachete, there is no law or custom under which anyone not being a son or daughter of a deceased Raja can claim of right either maintenance or a grant in lieu of maintenance from the person in possession for the time being of the Raj. That case was relied upon by Lord Dunedin in the 2nd Pittapur case [1918] 41 Mad. 778 in support of the view that only the son is entitled to maintenance. The Pachete estate, however, is governed by the Dayabhaga. See Nilmony Singh Deo v. Baneshur [1878] 1 Gal. 91 where it is stated that 'this family is absolutely governed by the Dayabhaga.' It is unnecessary, however, in the present case to discuss the question considered in the 2nd Pittapur case [1916] 43 Cal. 1031 as to how far the descendants are entitled to maintenance because Nanda Kishore Was the son of Raja Sangram Singh and the brother of Raja Udit, and Nanda Kishore died in 1915, only one year before the death of Raja Durga Prasad, with whom he was admittedly in commensality at any rate for some time before his death. He was, therefore, entitled to maintenance in any case.
120. For all these reasons, we are unable to hold that the plaintiffs have proved any custom under which separated members of the Jheria Raj family are entitled to get maintenance from the estate.
121. The question, therefore, is whether the receipt of maintenance under the circumstances of the present case shows jointness.
122. As already stated, Nanda Kishore was residing separately but at Puranagarh belonging to the Raj, the costs of repairs of houses being paid by the Raj. He was messing separately, but that was in consequence of his residing in a separate house at Puranagarh. He, however, received his maintenance and clothes from the Raj and expenses of occasions of marriage, deaths and religious festivals from the Raj. It cannot be said therefore that he was completely separate in food from the Raj. Raja Udit made the khorposh grant not with a view to separate him, because he was already living separately, but in lieu of the maintenance paid in cash. All these he got not by way of charity, but as of right and we have found that no custom has been proved of a person not a member of the family being entitled to extraordinary expenses.
123. In these circumstances, we are unable to hold that there was complete separation during the time of Raja Udit.
124. It is true as pointed out in Moolji v. Gokuldas [1883] 8 Bom. 154, that even in the case of a separated family, blood relationship within certain degrees imposes a moral though not a legal duty towards indigent relatives. The support on a liberal scale of poor relations and even the payment of the expenses of their marriage ceremonies are not in themselves, without other evidence, proof of a joint family. In Deoki Singh v. ML Anupa 10 C.W.N. 338, their Lordships held that the payment of maintenance and expenses of marriage and other ceremonies are not inconsistent with the position of a separated member and that they are natural and probable. But apart from the fact that those cases related to partible estates, these considerations do not apply to the present case as Nanda Kishore did not get such expenses as a matter of social obligation but as of right.
125. And having regard to the subsequent treatment by the successors of Raja Udit--the facts that besides granting maintenance and expenses of religious festivals some marriages and sradhs in the junior branches were celebrated by the Raj as a family concern even during the time of Raja Rash Behari and Jaimangal (which is all that a junior member can expect in an impartible estate) not to speak of the time of Raja Durga Prasad who treated the members of the junior branches as members of the same family, it seems that a living connexion was kept up between the Raj and Nanda Kishore's and Brojo Lal's branches. We have not come across any case in which it has been held that in such circumstances there was complete separation so as to bar the contingent right of succession of a junior member to an impartible estate. [His Lordship considered the evidence about Will, bantannama and khorposh deeds and held that they were not binding on the plaintiffs and then proceed]:
126. It is contended that no witness has said that the Raja had sufficient testamentary capacity at the time of execution, and certain authorities have been cited to show that it is necessary to prove it, even where the Will is sought to be used only for a limited purpose. But ordinarily the execution of a Will by a competent testator raises the presumption that he knew and approved of the contents of the Will, if nothing appears to the contrary; and in the present case the testamentary capacity was not challenged. No objection on the point was taken in the Court below, nor in the grounds of appeal to this Court.
127. It is pointed out that one of the witnesses to the Will viz., Charu Chandra Chatterjee, stated that he did not get his fees as the Raja died immediately after. The Will was executed on the 27th August 1915, and he died on the 7th March 1916. It is accordingly suggested that the Will must have been prepared shortly after his death. But Charu Chandra in the next sentence corrected himself and said that the Raja got ill immediately afterwards, and so fie did not get his fees, and having regard to the fact that a draft was sent to Sir Rash Behary and his advice was taken and alterations were suggested by him, that subsequently two fresh drafts were made by Lalit Kishore, and the Raja survived the execution by about 8 months, we do not think that there is any force in the plaintiffs' contention.
128. It is contended by the plaintiffs that although the Will may be genuine, it can be used for a collateral purpose only, and not for proving the dispositions made by it, as no probate has been taken of it from the Probate Court, and it is pointed out that the defendant himself' at one time was disputing the Will.
129. Having found that there was no complete separation it is unnecessary to discuss the arguments based upon the Will as to whether the defendant was joint with Raja Durga Frasad. But this question as well as some other questions are discussed by us in detail as they have been argued before us.
130. The provisions of the Will are relied upon by the defendant for showing that Raja Durga Prasad expected that his Ranis would not, but that some one else would, succeed him, and that he in this belief made a disposition of only a 10 annas share of the jewellery, cash, etc., and provided for their maintenance.
131. It is contended by the plaintiffs that the Will cannot be looked at for such purposes, because that would be referring to the dispositions made by it.
132. Under Section 187 of the Probate Act (Succession Act 10 of 1865) the Will cannot be used for establishing any right as executor or legatee. In the present case the defendant is not seeking to establish any such right, but relies upon the Will only to show what the intention of the Raja was with regard to his estate. But assuming that the Will is admissible in evidence, what does it prove? It is pointed out that the bequest of only a ten annas share of the jewellery and cash etc., to the Ranis, and the provision that the remaining 6 annas would form part of the zamindari and would go to his successor, and specially the charge upon the estate for the maintenance of the Ranis, is inexplicable had the Raja any idea that the Ranis would succeed him. This is a legitimate inference from the provisions of the Will, but it does not necessarily follow, as contended for by the defendant, that it was due to the idea on the part of the Raja that the defendant Siva Prasad was joint with him.
133. It appears that Raja Durga Prasad was under the impression that females could not succeed. He told Kirti Bakshi that females did not succeed in Jheria. Not only Raja, but the officers of the estate, Kirti the Bakshi and other Amlas, were of induced opinion, and that might have induced him to make the Will in that manner In spite of the advice of Sir Ra sh Behary to which reference has been made, the Raja did not make any disposition of his estate. He followed the advice of Sir Rash Behary only with regard to cash, notes, etc. The only thing he did was to give a 10 annas share of the jewellery etc. to the Ranis and to provide for their maintenance. This shows that his only object was to provide for the Ranis who he believed were excluded, and as regards the estate (and the remaining 6 annas share of the jewellery etc.) he allowed the law to take its own course. The draft Will sent to Sir Rash Behary, as already stated, has not been produced, but his letter to Mr. Smith (Exhibit M 28) would be inexplicable if he was told that the defendant or any one else was joint with the Raja, and there is no statement in any of the drafts or in the Will that the defendant was joint with him.
134. It appears that after the death of Janaki Prasad, Golap Chandra Sarkar, an eminent Hindu lawyer, was consulted by the Raja. The opinion of Golap Sarkar was found in one of the boxes when Mr. Luby went to Jheria after the death of Durga Prasad. It is said to have been filed in the case for mutation of names in the Collectorate by the defendant which (it is contended) shows that the opinion was favourable to the defendant. It has not been produced. We do not know what facts were stated in the case for opinion nor what his opinion was. In these circumstances, it is useless to speculate as to what Golap Sarkar had in his mind when he gave his opinion.
135. Reference is made to the evidence of Dr. Brown who came to Jheria to treat Raja Durga Prasad for impotency. He stated that on his last visit in April, 1915, the Raja pointed out Siva Prasad as his distant relation who would be his successor in case of his not having a son. Objection is taken to its admissibility in evidence as it does not come under any of the clauses of Section 32 of the Evidence Act, not being a statement as to relationship. The defendant relies upon the case Of Lloyd v. Powell [1914] A.C. 733. But that was a case under the Workmen's Compensation Act, under which compensation is pay/able to a dependant of the deceased and the question was whether it was the intention of the deceased to fulfil his duties as a father. It was found that the deceased would have brought up the child and supported him, and his state of mind was therefore relevant. But in the present ease, the state of mind of Raja Durga Prasad cannot be said to be relevant. We do not think, therefore, that the decision applies to the statements of Dr. Brown. But even if admissible in evidence, the statement by Raja Durga Prasad that the defendant would be his heir does not necessarily show that the defendant was joint because if the Raja believed in female exclusion he might have thought that Siva Prosad would be his heir. The Raja had some mistaken notions about the incidents of the Raj. In the Luchmipore case A.I.R. 1923 P.C. 21 he deposed that there could he no adoption, but the Court held the contrary. He was under the impression that females could not succeed--he said so to Kirti Bakshi. It appears from Sir Rash Behary's letter that the Raja was under the impression that he had no power of alienation. In these circumstances, no clear inference can be drawn that defendant was joint with him from his statement to Dr. Brown that the defendant would be his successor. For the same reason the passage cited from Phipson on Evidence, 6th Edition, page 63, does not help the defendant. Besides, there was no statement about jointness, and Durga Prasad's treatment of Janaki and the members of Nanda 'Kishore's family might be explained by his belief that females were excluded from succession, and in any case would not affect the question of an earlier separation if any.
136. We are, accordingly, of opinion that the drafts and the Will do not contain any clear statement that the defendant was joint with the Raja. The estate and the 6 annas of the jewellery, cash, etc., were to go to the person who would succeed him (according to law) and it is accordingly, contended by the plaintiffs that had Siva Prosad been intended to be the successor there is no reason why his name should not have been mentioned in the Will. An explanation was given by defendant's witness Kirti Chandra Baksshi, viz., that the Raja did not mention the name, because Pran Krishna, Krishna Prasad and Jagananda were related by marriage to one or other of three Ranis, and if he had named the heir, each of the Ranis would press the claim of her relation and there would be trouble. But Siva Prosad was not married to any relation of the Ranis, and if there was Golap Sarkar's opinion that he would be the successor according to law and custom, we do not see that there was any difficulty in the way of the Raja's naming him as his successor. [His Lordship then explained some facts about the time of Durga Prasad's death and proceeded].
137. Mr. Smith admits that the safes were not opened till the mutation case was over. The plaintiff alleged that there were 8 safes. The defendant admitted that there were five. Only one safe containing Rs. 96,700 odd, was opened in the presence of Mr. Luby; the other safes, as stated above, were not opened, but were sealed and left in the custody of Mr. Smith. All the safes were not shown to Mr. Luby. But although the other safes were supposed to be sealed and in the custody of Mr. Smith, he admits that the defendant was spending money. He says that the Sradh expenses of Raja Durga Prasad (and the 'Tika Pugree' expenses) were met from the cash in hand under the order of the defendant. All these would no doubt create an impression that the Government was supporting the defendant. The defendant then was the absolute master of the situation. In those circumstances we do not think that any person, far less ignorant purdanashin ladies like the Ranis, would have ventured to raise any claim to the Raj or even to the self-acquisitions. And how could any person venture to raise any claim? Raja Durga Prasad had treated Janaki Prasad, and Siva Prosad also, as members of his family.... The papers upon which the plaintiffs rely to show separation, dating so far back as 1837, could not have been collected at the time. The documents for the defendant with all his resources, were being collected, according to Lalit Kishore, even when the written statement was being drafted. The questions of succession and self-acquisition involve many difficult questions of law and fact which have been argued before us by eminent counsel on both sides for over 3 months. How was it possible for the Ranis to set up any claim then to the succession or even to the self-acquisitions, specially when-everybody said that there was a will bequeathing the estate to the defendant? That explains why there was no opposition to the 'Tika Pugree' of the defendant by the Ranis or their relations or by the Rajas and zamindars who assembled on the occasion of 'Tika Pugree.' The plaintiffs made a faint attempt to show that some objection was raised by the Raja of Tundi, but the story has been rightly rejected by the Court below as false. In the then state of things, no objection could have been raised to the succession of the defendant, and it seems that it was only after Kedar Banerji, one of the officers of the estate turned hostile to the defendant that there was any idea of setting up a claim to the Raj or to the self-acquisitions. It appears that the Plaintiff No. 1 borrowed money from the defendant and all the Ram's paid to him the rents of the mokarari tenures which they got from Raja Durga Prasad, which could be only on the footing that the defendant had succeeded to the Raj.
138. There is, however, no question of estoppel, and the issue on the point was given up by the defendant in the Court below. The attitude of the Ranis is explained by the circumstances referred to above, and we do not attach any weight to the contention based upon the fact that the Ranis did not set up any claim before the suit was instituted.
139. Succession--The principles relating to the succession to impartible estates were laid down in the Shivaganga case [1863] 9 M.I.A. 539, the leading case on the point. In that case the zamindari was conferred by the Government upon one Gowery Vallaba Taver after the death of the widow of the last holder without issue, the estate having escheated to the Government. Oya Taver, the elder brother of Gowery Vallaba, lived at a different place, Padamatdor. Upon the death of Gowery Vallaba suits were instituted by his widows and daughters against the son of Oya Taver who had obtained possession of the estate. Their Lordships, after stating that the zamindari was admitted to be in the nature of a principality-impartible, and capable of enjoyment by only one member of the family at a time, and that the rule of succession to it was admitted to be that of the general Hindu Law prevalent in that part of India With 'such qualifications only as flow from the impartible character of the subject' held as follows:
(I) If the zamindar at the time of his death and his nephews were members of an undivided Hindu family and the zamindari though impartible was part of the common family property one of the nephews was entitled to succeed to it on the death of his uncle.
(II) If the zamindar at the time of his death was separate in estate from his brother's family the zamindari would pass to his widows and failing his widows to a daughter or her descendant, preferably to the nephews following the course of succession which the law prescribes for separate estate.
(III) If the zamindar was generally undivided in estate with his brother's family; but the zamindari of Shivaganga was his self-acquired and separate property it was descendible like his separate estate to his widows and daughters and their issue, preferably to his nephews, though the latter as coparceners would be entitled to his share in the undivided property.
(IV) In this view (that is in the last case) the question whether the family were undivided or divided becomes immaterial. The material question of fact would be whether the zamindari was to be treated as self-acquired separate property or as part of the-common family stock.
(V) The law of succession follows the nature of the property, and of the interest in it.
140. The rule that property which is joint will follow one, and property which is self-acquired or separate will follow another course of succession, laid down in the above case is well established, and has been followed in other eases; for instance see Chowdhry Chintamun's case [1975] 1 Cal. 153. This is the rule applying both to partible and impartible property under the Mitakshara Law. There is no difficulty therefore where the property is self-acquired.
141. The question whether succession to ancestral impartible estate is governed by the principle of survivorship was considered in the case of Baijnath Prasad v. Tej Bali Singh [1921] 43 All. 228 where Lord Dunidin exhaustively reviewed the authorities on the point. It is therefore unnecessary to discuss them in connexion with the question of succession. With regard to the decisions before the case of Sartaj Kuari [1887] 10 All. 272 his Lordship came to the following conclusion: 'Up to this point with the single exception of the Tipperath case Neel Kisto v. Beer Chunder [1869] 12 M.L.A. 523 which as stated was not under the Mitakshara Law, is all one way and seem to affirm these propositions: (I) the fact that a Raj is impartible does not make it separate or self-acquired property; (II) a Raj, though impartible, may in fact be self-acquired or it may be family property of a joint undivided family; (III) if it is the latter, succession will be regulated according to the rule, which obtains in an undivided joint family, so far as the selection of the person entitled to succeed is concerned, i.e., that the person will be designated by survivorship, although then, according to the custom of impartibility, he will hold the Raj without the others sharing it,'
142. Then came the case of Sartaj Kuari [1887] 10 All. 272 'which introduces a different line of thought.' The question in that case was whether the holder of an impartible Raj could alienate without necessity. The High Court at Allahabad held that he could not. The learned Judges said 'It must be conceded that the complete rights of ordinary coparcenership in the other members of the family to the extent of joint enjoyment and the capacity to demand partition, is merged in, or, perhaps to use a more correct term, subordinated to the title of the individual member to the incumbency, of the estate, but the contingency of survivorship remains along with the right to maintenance in a sufficiently substantial form to preserve for them a kind of dormant ownership.' The Judicial. Committee reversed that decision. Sir Richard Couch observed: 'Though an impartible estate may be for some purposes spoken of as joint family property, the coparcenary in it, which under the Mitakshara Law is created by birth, does not exist'...'the reason for restraint upon alienation under the Law of Mitakshara is inconsistent with the custom of impartibility and succession according to primogeniture'...'The property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is, in their Lordships' opinion, so connected with the right to a partition, that it does not exist where there is no right to it.... By the; custom or usage the eldest son succeeds to the whole estate on the death of the father, as he would if the property Were held in severalty. It is difficult to reconcile this mode of succession with the rights of a joint family and to hold that there is joint ownership which is a restraint upon alienation.'
143. The decision in Sartaj Kuari's case [1887] 10 All. 272 was followed in the first Pittapur case [1898] 22 Mad. 383 which related to the case of an alienation of an impartible estate by Will. The learned Advocate-General challenged the correctness of these two decisions, and contended that the holder of an impartible estate has no power of alienation at his will, But the decisions are binding upon us, and the question is no longer res integra as was pointed Lout in the Dhalbhum case : AIR1925Cal116 which is now pending before the Judicial Committee. The actual point decided in those two cases does not arise in the present.
144. The principle of the decisions in Sartaj Kuari's case [1887] 10 All. 272 and the Pittapur case [1898] 22 Mad. 383 was sought to be applied to the case of succession on Baijnath's case [1921] 43 All. 228. Lord Dunedin pointed out that Sir Richard Couch in Sartaj Kuari's case [1887] 10 All. 272 did not intend that his judgment should have any such effect, and that 'what was decided was that in an impartible Raj there was no restriction on the power of alienation by the member of the family who was on the gadi and was in possession, in respect that there was no such right of co-ownership-in the other members as to give them a title to prevent such alienation. The right of the other members that was being considered was a presently existing right. The chance which each member might have of a succession emerging in his favour way obviously outside the sphere of enquiry. The conclusion arrived at was: 'Their' Lordships are therefore of opinion that their zamindari being the ancestral property of the joint family, though impartible, the successor falls to be designated according to the ordinary rule of the Mitakshara Law.'
145. It is contended on behalf of the plaintiffs that Lord Dunedin merely said that the successor falls to be designated by survivorship or 'judged by survivorship' which goes to show that the principle of survivorship is to be resorted to only for the purpose of selecting the successor and not that there is a right of survivorship. It is urged that in an impartible estate the right of survivorship of the junior member is only a notional one. It is difficult to reconcile the two principles, viz., non-existence of coparcenary and the right of survivorship, But as pointed out in a recent Madras case, however unreal such right be for the purposes of actual ownership of the estate itself and preventing alienation, it is still a real right and gives a right of succession by survivorship. The successor is to be selected from a class each of whom must have a right of survivorship. Then the observations throughout the judgment in Baijnaih's case [1921] 43 All. 228 were directed to show that the decisions both before and after Sartaj Kuari's case [1887] 10 All. 272 established the rule of succession by survivorship, and that the cases of Sartaj Kuari [1887] 10 All. 272 and the Pittapur case [1898] 22 Mad. 383 did not touch that question. His Lordship in reviewing' the cases after Sartaj Kuari [1887] 10 All. 272 pointed out that in Jogendra Bhupati's case [1890] 18 Cal. 151 Sir Richard Couch himself stated that in 'considering who is to succeed on the death of the Raja, the rules which govern the succession to a partible estate are to be looked at, and therefore the question in the case is: What would be the right of succession, supposing instead of being an imparitable estate it were a partible one? and observed: 'This passage is absolutely conclusive as to Sir Richard Couch's view. The other parties to the judgment were Lord Watson and Sir Barnes Peacock.' His Lordship referred to the observation of Lord Davey in Raja Viravara v. Raja Viravara [1897] 20 Mad. 256, 'That even if impartible, it may still be part of the common family property...and the real question is whether it ceased to be part of the joint property of the family,' to the observation of Lord Davey upon a question which incidentally arose in connexion with the state of affairs in the old family of the Bettiah Raj in the first Bettiah case, Ram Nundan v. Janki Koer [1902] 29 Cal. 828, that 'Raj Kissen was joint in estate with his brother and therefore was entitled to succeed him in the family property by survivorship,' to a passage in Kulchi Kalujana v. Kachi Yuva [1905] 28 Mad. 508 that: 'It was settled in accordance with a ruling of this Board that when impartible property passes by survivorship...' and to the fact that Lord Hobhouse in Muttuvaduganadha v. Periasami [1896] 19 Mad. 451 had approved of the decision of Muttusami Ayar, J. who held that survivorship governed the principle of succession. Reference was also made to the observations of Lord Collins in Parbari v. Chandarpal [1909] 31 All. 457. viz.' The first principle is that a rule of decision in regard to succession to impartible property is to be found in the Mitakshara Law applicable to partible property, subject to such modifications as naturally flow from the character of the property as an impartible estate. The second principle is that the only modification which impartibility suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law.... We have first to ascertain the class, and we have next to select the single heir, applying the special rule.' And he then went on to cite Sir Richard Couch in the passage already cited in Jagendra Bhupati's case [1890] 18 Cal. 151.
146. Lord Dunedin then observed 'It will be apparent from this long line of authorities that there are under the Mitakshara only two possible lines of devolution and that the only test to be applied is: Was there community or was there separation? Reading the judgment as a whole it appears that in their Lordships' view, the rule of survivorship applies to succession in ancestral impartible estates.
147. We have found that Nanda Kishore's branch was not completely separated from the Raj. The defendant, therefore, was entitled to succeed to the Jheria impartible estate.
148. We have referred to the bantannamas and khorposh deeds executed by the plaintiffs. They are relied upon by the defendant as binding upon the plaintiffs. [His Lordship then considered the evidence as to the bantannama and khorposh deeds and continued:]
149. It is contended on behalf of the defendant that nothing turns upon the am-mukhtearnama, and that in any case the plaintiffs cannot set up the invalidity of the document, and at the same time hold the defendant as their agent. It is said that it is not necessary for the defendant to rely upon it. No evidence was adduced that it was explained to the ladies and the defendant did not rely upon it. If the plaintiffs want to treat it as an effective document they must take the consequences. It recites the bantannama, the arrangement arrived at between the parties and the bank suit itself and if it is an effective document, the Ranis are fixed with the knowledge of all those matters. On the other hand, if it is not a valid document, the plaintiffs cannot hold the defendant as their agent. They cannot treat it as binding for one purpose, and not binding for other purposes: they cannot approbate and reprobate. But the execution of the document was admitted in the plaint, though it was alleged not to be binding, because, no one explained to them their 'real drift, scope and effect.' It is true the plaintiffs repudiate it altogether, but, as a matter of fact, the defendant as an am-mukhtear of the Ranis did collect rents of their mokarari properties through Behari Lal, an agent appointed by him under the powers conferred upon him. As a general power-of-attorney, it was acted upon by the defendant. The defendant in paragraph 40 of his written statement expressly admits that he was acting as the am-mukhtear of the Ranis. It is not binding upon the Ranis with reference to the suit against the bank, as there is no evidence that their attention was pointedly drawn to it, or that the scope and effect of it was explained to them. The document may therefore be valid as a general Power of Attorney with regard to the general management of the estate of the Ranis and yet not be binding so for as the recitals contained in it are concerned nor fix them with knowledge thereof. The argument on behalf of the defendant particularly is that if the am-mukhtearnama is not a binding document, it should be ignored for all purposes. But what was the position with reference to the suit against the bank? Siva Prosad brings a suit against the Bank, refers to the bantanama which he knew or should have known was hot binding upon the Ranis, does get the summons served upon them, takes a general power from them, and acts upon it so far as the general management of the Ranis' estate is concerned, judges for himself whether an independent adviser should be consulted, asks the High Court to act upon the return of service of summons upon the Ranis without disclosing the fact that he is constituted attorney and holds general power-of-attorney under which he had power and it was his duty to protect the interest of the Ranis in the suit against the bank, and gets a decree for the entire amount against the bank (though even according to the bantannama, the Ranis are to get a ten annas share thereof) and now pleads that the decree is binding upon the Ranis because the Ranis now repudiate the general power. In these circumstances, the subsequent repudiation of the power by the Ranis did not absolve the defendant from doing his duty as their agent. Mere non service of summons in ordinary cases may not be sufficient to constitute fraud, but the non service, in the present case taken together with the circumstances stated above, we think, constitutes fraud.
150. It is contended on behalf of the defendant that it is a new ground of fraud based upon the am mukhtearnama which is set up in this Court, that it was not only not alleged in the pleadings but the plaintiffs repudiated the am-mukhteainama. But the plaintiffs challenged the decree as fraudulent, and although it is not open to the plaintiffs to set up a new ground of fraud, they are entitled to show upon the facts admitted in the pleadings that there was fraud. As stated above, the defendant in the 40th paragraph of his written statement expressly set up the am mukhtearnama and admitted that he was acting as the am-mukhtear of the Ranis. We do not see why the plaintiffs should not be allowed to use that admission along with other circumstances as showing that the decree was fraudulent.
151. It is contended that there was nothing wrong in defendant's taking the am-mukhtearnama, because, one of the objects was to use it in the bank suit to expedite its hearing which was stated in the document itself and if effect was to be given to the bantannama there was no harm in the defendant's arming himself with authority to appear for the Ranis, but that he did not appear because the Bank was not prepared to recognize him by virtue of the bantannama or even the order in mutation case, and the position would not be improved by defendant's appearing for the Ranis, as the bank would not be satisfied without a decree of the Court in the presence of all parties, and it was, therefore, that steps were taken for service of summons upon the Ranis, But if that was so, why was the am-mukhtearnama taken so far as the bank suit was concerned? Apart from that, there might have been some force in the argument had the summons been properly served upon the Ranis. But he neither got the summons properly served nor took steps to have the Ranis represented in the suit. We do not think, therefore, that the defendant's contention has any force.
152. The High Court, before passing a decree, must have found that there was proper service of summons, but the Court would not be in a position to know whether the peon's report and the identifier's affidavit were true or false, and would act upon them. It is the case of the defendant that the suit against the bank was a friendly one and the Ranis were as anxious, if not more, to have the suit decreed. If so, it is difficult to see why the Ranis should refuse to accept the summons. If the Ranis had fully understood the bantannama and the am-mukhtearnama and had agreed to the arrangement set up by the defendant, there is no reason why they should refuse to accept summons in the suit brought for the very purpose of carrying out the arrangement. It is suggested that many people refuse to accept summons. But the Ranis, according to the defendant, were anxious to get the money in the bank. Apart from that, if the Ranis had agreed to the arrangement, would not Siva Prosad at once go to the Ranis, who were residing in the Rajbati and ask them to accept service of summons, and tell them that unless they did so, there would be delay in getting the money from the bank? For all these reasons, we are of opinion that the Ranis had no knowledge of the suit and the decree was fraudulent.
153. It is contended that even if the decree Was obtained by fraud, it is binding upon the plaintiff's, as they had taken no steps to have it set aside in the regular way. But if the decree is fraudulent, it is open to the plaintiffs under Section 44 of the Evidence Act to show that it was obtained by fraud, and it is not necessary to set it aside. Section 44 of the Evidence Act lays down that any party to a suit or other proceedings may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. The section was construed by Maclean, C.J., and Banerjee, J., in the case of Rajib Panda v. Lakhan Sendh Mahapatra [1899] 27 Cal. 11, and it was held that a party to a suit can show that a decree obtained by the opposite party against him in another suit was obtained by fraud, and it is not necessary for him to bring an independent suit for setting it aside. See also Ahmedbhoy v. Vulleebhoy [1882] 6 Bom. 703; Manchha Ram v. Kalidas [1894] 19 Bom. 821, and Nistarini Dassi v. Nundo Lal Bose [1902] 30 Cal. 369, where a consent decree was treated as a nullity.
154. Reliance is placed on behalf of the plaintiffs on the cases of Chitambar v. Krishnappa [1902] 26 Bom. 543; Paresh Nath v. Hari Charan [1905] 38 Cal. 622, and Raj Kumar Sarkel v. Raj Kumar Mali [1915] 20 C.W.N. 659.
155. We do not see how these cases help us in the present case. The first two cases were decided on the principle that bona fide auction-purchaser is not affected by any fraud in the decree if he is not a party to the fraud, and the third held that a sale cannot be set aside without setting aside a fraudulent decree, and if the plaintiff has lost his rights to attack such a decree he cannot get the sale set aside. We were also referred to the judgment of the Judicial Committee in the case of Benode Behari Bose v. Nistarini Dassi [1905] 33 Cal. 180, as showing that the decree was dealt with as if it was set aside. But their Lordships did not decide whether it was necessary to set aside the decree or it could be treated as a nullity, and it does not appear that the decree was set aside.
156. The learned Advocate-General contended that it the view taken in Rajib Panda's case [1899] 27 Cal. 11 is accepted, the provision of Article 95 of the Limitation Act would be nugatory and there would be no limitation for setting aside a decree.
157. No doubt there would be an anomaly, but in Rajib Panda's case [1899] 27 Cal. 11, Maclean, C.J., held that having regard to the plain words of the section, a party against whom a decree relevant under Section 40 is proved is entitled to show that it was obtained by fraud. In the present case, however, no question of limitation under Article 95 arises. The decree was passed by the High Court on the 31st August 1917 and the present suit was instituted on the 6th March 1919 which was well within three years. Then the plaintiffs prayed for a declaration that the decree was fraudulent and not binding upon them. The Court, in order to grant the relief prayed for by the plaintiffs has to see whether the decree was obtained by fraud, and the effect of the declaration prayed for would be to set aside the decree. The enquiry would be the same if a formal prayer were added for setting aside the decree, when there is no question of limitation, and the utmost that can be said is that formal amendment by adding such a prayer might be necessary.
158. It was contended on behalf of the plaintiffs that the judgment of the High Court on its Original Side is not res-judicata as the Court was not competent to decide the present suit as it relates to properties which are outside the local limits of the ordinary original jurisdiction of the High Court and reference was made to the case of Shibo Kant v. Baban Kant [1908] 35 Cal. 353, where it was pointed out that in order to establish the plea of res judicata, it has to be shown that the Court of concurrent jurisdiction which decided the former suit was a Court of jurisdiction competent to try the subsequent suit. It is contended on behalf of the defendant that the principle applies only to cases relating to the pecuniary jurisdiction of the Court or to Courts such as the Small Cause Court, and not to cases of territorial jurisdiction. It is unnecessary, however, to discuss this question as we have found that the decree is fraudulent and is not binding upon the plaintiffs. [His Lordship then dealt with evidence as to payment of Rs. 48,000 and Rs. 64,000 and jewellery etc., and proceeded].
159. Custom about self-acquisitions.--It is contended for the defendant that according to the family custom of the Jheria Raj, all acquisitions, including moveables, go to the next holder.
160. Reference is made to the deposition of Raja Paresh Nath Singh of Palgrnge given on the 7th February 1885 (in the Pandra case) in which he stated that if a Raja on obtaining a hereditary Raj 'extends it' or purchases a property or gets property by inheritance Or by gift from anybody, his successor will get the whole according to custom. But he was speaking to the family custom of Palgunge. It is said that Jheria sprang from Palgunge, but the question we have to consider is the family custom of the Jheria Raj.
161. In the Jheria Raj, when Raja Jharwar Singh died and his brother Pirthi Singh got the estate, Jharwar's widows sued Pirthi Singh for it.
162. It appears from the robakari of the Sudder Dewani Adalat, dated the 21st April 1825, that the Ranis of Jharwar Singh in their suit against Pirthi Singh, while claiming the Raj, reserved their right to bring a suit for the moveables subsequently. The suit was dismissed and there is no evidence that any suit was brought for the moveables subsequently. But there might have been various reasons for not bringing the suit or the matter might have been made up amicably, and, so far as the statement goes, it was an assertion against the alleged custom.
163. Sangram succeeded Raja Pirthi on his death, and Raja Udit succeeded his father Raja Sangram on his death. There is no evidence whether any moveables were left by Raja Pirthi or Raja. Sangram and what became of them. Raja Udit was succeeded by his son Rash Behari and the latter, as the son, would get his moveables. Raja Kash Behari purchased parganah Joynagar. In his deposition in the Pandra Case, on the 11th August 1885, he stated 'why should my second son, the Koonwer (Durga Prasad) get the said zamindari of Joynagar?' and further that the rule of succession as regards Joynagar would be like 'those of my zamindari and not like those prevailing in Joynagar.' But if Joynagar was an impartible Raj the succession to it would be governed by the rule of lineal primogeniture, and would accordingly devolve upon his eldest son. No clear inference, therefore, can be drawn from his deposition.
164. On Raja Rash Behari's death, Joynagar, as well as the moveables were obtained by his eldest son Jaimangal and were not shared by Durga Prasad. The Court below relied upon a passage in the letter of the Deputy Commissioner dated the 14th September 1888, while taking charge of the estate, where it was stated that both (Jaimangal and Durga Prasad) were wards of the Court, but it omitted to notice the statement that the former being the eldest is the heir...according to primogeniture and the latter was entitled to maintenance allowance only to be fixed by the heir.' It also appears that Raja Rash Behari left Rs. 33,200 in G.P. Notes which was in a box the 'key of which was with the proprietor' (in the singular). Then there was an instalment decree payable in instalments of Rs. 1,000 obtained by Rash Behari, and some immovable properties purchased by him at Purulia in the name of Durga Prasad, all of which were taken possession of by the Court of Wards. Paresh Nath Ghose applied for mutation of names as sub-manager on behalf of Jaimangal, 'minor proprietor of Joynagar estate.' The G.P. Notes were sold and taluk Telo was purchased with the proceeds, and, when Jaimangal attained majority, the balance to the credit of the estate and decrees, etc, were made over to him.
165. It appears that the Court of Wards, when taking possession of the estate, mentioned the names of both the minors-Jaimangal and Durga Prasad, as wards of the Court. Ramkalpa Mahata was appointed guardian 'of the two minor proprietors of the Jheria estate,' and a private tutor was appointed to 'the two minor proprietors of the Jheria estate'; and there is an order sanctioning the disbursement of Rs. 442 for purchase of clothes for 'the two minor proprietors.' It seems, therefore, that the Court of Wards treated both the brothers as the proprietors of the estate. On the other hand, as stated above, in the letter of the Deputy Commissioner it was said that the eldest is the heir, and the application for mutation of names in respect of Joynagar was in the name of Jaimangal alone. When the Court of Wards gave up charge on Jaimangal's attaining majority, the entire estate, money etc., were made over to him. But he and Durga Prasad were members of a joint family and he was the eldest member.
166. Having regard to all these circumstances, it is not a clear case of the custom set up.
167. On Raja Jaimangal's death, Durga Prasad succeeded to all his properties, moveable and immovable and this is strongly relied upon by the defendant, The cash left by Raja Jaimangal was taken possession of by Durga Prasad. The valuables were all locked up under the orders of the Collector (see Rakhal Das Sarkar's report dated 3rd September 1899), and Durga Prasad was called upon to furnish security to the extent of Rs. 20,000.
168. On the 24th September 1899, however, Rani Chatura Kumari put in a petition stating that 'under the prevailing (torn) of this Raj family, no female is entitled to inherit 'and that' under the shastras and (torn) 'Durga Prasad had on the death of her husband became the 'owner (torn) and all moveable and immovable properties.' In accordance with the prevailing custom (torn) the other Rajas, zemindars, relatives and friends on the 31st Bhadro invested him with the Raj Tika and Pugree at the time of the installation.'
169. Raja Durga Prasad by his petition dated the 2nd October 1899 stated that Rani Chatura Kumari had 'admitted that under the custom obtaining in the Raj family of Jheria and according to the law of Mitakshara she was not the heir to the said zemindari and that she had no claim thereto,' and prayed that the moveable properties might be released without any security being furnished therefor. The moveables were, accordingly, ordered to be made over to Durga Prasad.
170. It appears from the evidence of plaintiffs' witness Jagabandhu Roy that at the time of the 'Tika Pugree' of Raja Durga Prasad, Rani Chatura Kumari's father came and raised an objection to his succession, and one or two persons joined in it, but that it was explained to them that in a litigation carried up to the Sudder Dewani Adalat it had been settled that if there be full brother living in joint mess, the widow does not get the Raj, and that they should not spend a lot of money for nothing, that the estate was in danger of being ruined on account of debts, and litigation up to the final Court would cost ten lacs of rupees and nothing would be left, that after that the Raja had Golap Sastri fetched who also explained everything to all and then they desisted. The defendant's case on the point was that no claim was preferred to the estate, the only dispute was as to the maintenance which was settled at the majlish (assembly) held on the occasion, and that no claim was preferred to the moveables or self-acquisitions on behalf of Rani Chatura Kumari. It is contended that according to the evidence adduced by the plaintiffs, a dispute was raised and was settled in favour of Durga Prasad who got all the moveables as well as all the immovable properties. But the very fact that Golap Sastri was brought down to Jheria by Raja Durga Prasad shows that there was a serious dispute about the succession. The statement of Jagabandhu Roy is corroborated by the evidence of Kirti Bakshi who said 'At the time Durga Prasad got the Gadi, I heard that there was a ruling that females would not get the Gadi. Golap Sarkar's son had a book with him in which this ruling was noted. He is not a pleader. I read the ruling. On reading it I understood that females would not get Gadi. He brought the ruling there after Durga Prasad got the Gadi. I cannot say why he brought it there. Golap Sarkar and his son were on the side of Durga Prasad. It is not a fact that Indra Banerjee was on the side of Maharani Chatura Kumari. Question--Is it not a fact that Indra Banerjee, Golap Sarkar and his son came to Jheria as Maharani Chatura Kumari claimed the Gadi? Answer--No. There was no question of Maharani Chatura Kumari getting the Gadi at the time.'
171. Kirti Bakshi cannot say why the ruling about female exclusion was brought by Golap Sarkar, and although he says there was no dispute about the succession, it is difficult to see why Golap Sarkar and his son were taken down to Jheria with a ruling about female exclusion. This could not have been for settling the amount of maintenance. The fact seems to be that a dispute was raised as to the succession. Golap Sarkar was taken to Jherja, and the matter was amicably settled and the Rani submitted the petition.
172. Raja Durga Prasad executed a deed on the 25th January 1900 reciting that he was entitled to the Raj under the Mitakshara law and family custom and had been installed on the Gadi, and agreeing to pay Rs. 3,600 as her maintenance as settled at the time of the Sradh of Jaimangal.
173. Rani Chatura Kumari in her deposition in the present case stated that Durga Prasad became the malik of everything, that she got mouza Dheya as khorposh and the pocket money, which was sufficient. She was then asked 'Did you not say this to Durga Prasad after the death of Jaimangal;--You are my debar (husband's younger brother), my object of affection, what shall I do with the movable properties you enjoy them all'? She answered 'Yes.' It is contended by the defendant that it was not because of her fondness for Durga Prasad that Rani Chatura Kumari gave up her claim, but on the contrary she made a claim which was unsuccessful. There is, however, the evidence of the Rani herself.
174. The learned Advocate-General says that the question put to her was a 'double-barrelled, tricky' one. But there was no re-examination on the point, and she admitted that she had affection for Raja Durga Prasad as a son and that the latter-reciprocated it. It seems that once the dispute raised by her father as to the succession to the estate was settled, the question of movable properties was settled amicably and she put in the petition admitting the claim of Durga Prasad.
175. The Court below observes that 'she gave up her claim for the moveables as she liked Durga Prasad very much. In the first instance in the family the two brothers lived in the same mess and in the second instance there was some contention after the death of Jaimangal and some sort of amicable arrangement was arrived at. So one cannot rely upon these two instances as giving a clear indication of the existence of a custom.' We agree with the Court below in its observations on the point.
176. But assuming that it is an instance of the custom, the instance is of a very recent date (1899), and one or two instances, specially of such recent dates, cannot prove a custom. A few instances may be explained by ignorance of law or by good feelings between the parties. In the case of Chandika Bakhsh v. Muna Kuar [1901] 24 All. 273 where a custom of succession in derogation of the ordinary law was sought to be proved, Lord Macnaghten observed that 'in support of the alleged custom four instances at most can be adduced and these of a comparatively modern date and there is no other evidence. It is obvious that a family custom in derogation of the ordinary law cannot be supported on so slender a foundation.' In Abdul Hussain v. Bihi Sona Dero [1917] 45 Cal. 415 Lord Buckmaster observed 'But as pointed out by this Board in Ramalakshmi Animal v. Sivanantha [1872] 14 M.I.A. 570, it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable: and it is further essential that they should be established to be so by clear and unambiguous evidence. 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.' See also Durga Charon v. Raghunath 18 C.W.N. 55 and Ambalika Dasi v. Aparna Dasi [1918] 45 Cal. 835.
177. Reference was made on behalf of the defendant to the case of Garurudhwaja v. Saparandhwaja [1900] 23 All. 37, where 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. But no such custom has been proved in this case and as for the group of families, there is no uniform custom, e.g. in, Nowagarh females succeed.
178. Reference was made to an observation in Maharani Hiranath Koer's case [1882] 9 B.L.R. 274 that in order to establish a Koolachar you must at least show one of two things--either a clear, distinct and positive tradition in the family that the Koolachar exists, or a long series of instances of anomalous inheritance from which the Koplachar may be inferred, and to the observations in Mahamaya Debt v. Haridas [1914] 42 Cal. 455 that it is well settled that evidence showing exercise of a right in accordance with an alleged custom as far back as living testimony can go raises the presumption though only a rebuttable presumption as to the immemorial existence of the custom, and that if the existence of the custom has been proved for a long period the onus lies on the person seeking to disprove the custom to demonstrate its impossibility. In the Jheria family the existence of the custom has not been proved for a long period. As for instance of anomalous succession, we have dealt with the case of Jharwar Singh's widow. On Raja Jaimangal's death Durga Prasad as an undivided brother was entitled under the law to the estate. It is true he got the moveables also but, as stated above, there was an amicable arrangement with Rani Chatura Kumari. Nor is there any clear, distinct and positive tradition in the family about the custom. There is the statement of Raja Rash Behari about the custom of female exclusion, but he was financing the plaintiff in that litigation, and that is insufficient to prove any custom. As to the custom about moveables, there is no evidence about tradition. No one speaks to the existence of any tradition in the family about moveables and self-acquisitions. The learned Advocate-General tried to draw the inference from the fact that Jaimangal got all the properties, moveable as well as immoveable, on Jaimangal's attaining majority, the Court of Wards making over all the properties to him. But Jaimangal and Durga Prasad were two brothers living as members of a joint family and the Court of Wards without going into the rights of the two brothers as between themselves made over the entire estate on the elder's attaining majority.
179. The absence of any instance of succession to separate property in the Jheria Raj was relied upon. But the instances in which such question could arise have been sufficiently explained as stated above. On the whole, we are of opinion that the custom of exclusion from succession to self-acquisition has not been proved.
180. Self-acquisition.--With regard to the question whether the income of an impartible estate or properties acquired therewith is to be regarded as accretion to the estate we need only refer to the Serampore case [Rani Jagadamba Kumari v. Wazir Narain Singh A.I.R. 1923 P.O. 59. In that case, all the estate possessed by the Raja other than the impartible Raj was derived from the income of the Raj itself. 'There were certain villages, certain mortgages, usufructuary or otherwise, sums due on bonds and decrees, Government promissory notes to the extent of two lacs and other moveable and immovable properties. 'With the exception of the Government promissory notes, the whole of these had been awarded by the High Court to the plaintiff (who was found entitled to the impartible estate) upon the ground that they represented an Accretion to the estate and descended with it. The Judicial Committee observed: Their Lordships think that this conclusion is wrong, and that its error is due to the idea that the produce of the impartible estate naturally belongs to and forms an accretion to the original property. In fact, when the true position is considered there is no accretion at all. The income when received, is the absolute property of the owner of the impartible estate. It differs in no way from property that he might have gained by his own effort, or that had come to him in circumstances entirely disassociated from the ownership of the Raj. It is a strong assumption to make that the income of the property of this nature is so affected by the source from which it came that it still retains its original character.'
181. It is possible that this confusion is due to the consideration of the position with regard to an ordinary joint family estate. In such a case the income, equally with the corpus, forms part of the family property, and if the owner mixes his own moneys with the moneys of the family--as, for example, by putting the whole into one account at the bank or by treating them in his accounts as indistinguishable--his own earnings share with the property with which they are mingled the character of joint family property; but no such considerations necessarily apply to the income from impartible property.'
182. Upon the question of incorporation of the properties acquired with the impartible estate, it appears that the income of the estate was utilized by the Raja in giving loans and purchasing other properties, and the income of zamindaries purchased as also loans with interest repaid were entered in the books of the estate and treated as a part of the income of the estate, and all this was done at the instance of the Raja, but their Lordships held that this was insufficient to affect the property with the character of impartibility.
183. In the Jambuni case [Parbati Kumari v. JagadishChander Dhabal [1902] 29 Cal. 433 some property was bought out of the savings of the estate by the Court of Wards during the Raja's minority and their Lordships observed:' All that the defendants can point to as indicating Purno's intention to deal with them as part of the Raj is that the rents were collected by the same servant and the collection papers kept with the papers of the Raj. Their Lordships do not find in these meagre facts adequate ground for holding that the Raja intended to incorporate the four moveables with the ancestral estate for the purposes of the succession. The four moveables must therefore follow the rule of the Mitakshara Law as to self-acquired property.' See also Janhi Pershad Singh v. Dwarka Pershad Singh [1913] 35 All. 391--a case under the Oudh Talukdar's Act and Murtaza Hussain v. Mahomed Yasin [1916] 38 All. 552.
184. It is contended, however, on behalf of the defendant that the gross income of perganahs Jheria and Joynagar at the time of Raja Jaimangal was only about Rs. 35,000. Raja Durga Prasad was in possession from September 1899 to March 1916, i.e., about 16 years so that even taking Rs. 35,000 to be the full income available in 16 years it would be less than 6 lacs of rupees. But the self-acquisitions claimed by the plaintiffs would be about 30 lacs of rupees so that the properties moveable and immovable claimed as self-acquisitions, could not have been acquired from the income of the estate. Reference is made to paragraph 2 of the plaint where it was stated that the estate consisted formerly of a property of inconsiderable income, that afterwards during Raja Durga Prasad's time coal mines were discovered and the income of the estate had swelled to about ten lacs a year, and was now considered to be one of the biggest estates in Bengal, Behar and Orissa.
185. Reference was made to Mitakshara, Chapter I, Section 4, paras. 1, 2 and 6, Mayne's Hindu Law 9th edition para. 281 and Gokal Chand v. Firm of Hukam Chand [1921] 2 Lah. 40 to show that property which is acquired without detriment to the estate is self-acquisition not where it is acquired with detriment to the estate, that a lease of coal is really a sale of the corpus, and that the salami (bonus) and royalties of such lands cannot be said to be income of the lands, and it is accordingly contended that the properties were not acquired without detriment to the estate, and it is for the plaintiffs, the party who claim the self-acquisitions, to show that they were not acquired without detriment to the estate.
186. It is not disputed that a lease of coal lands is really a sale of the corpus, but the principle that only acquisitions made without detriment to the estate are self-acquisitions has no application to the present case. In the case of ordinary property only an acquisition by a member without detriment to the family property would be his self-acquisition. But in the case of an impartible estate, the holder is the owner both of the impartible estate as well as its income. We do not see therefore how the question of 'without detriment' arises in such a case. It is now settled by the decisions of the Judicial Committee in Sartaj Kuari's case [1887] 10 All. 272 and the 1st Pittapur case [1898] 22 Mad. 383 that the holder of the estate can alienate it at his pleasure. He is therefore under no obligation to preserve the corpus of the estate for the benefit of the successors to the estate. It is contended, however, that if the owner does not dispose of the estate but converts a portion of it into money, such money does not constitute his separate estate nor follow the succession to the separate estate, but devolves along with the estate upon the successor. If, however, a portion of an impartible Raj is sold and converted into money or some property is purchased with the money, does the money or the property purchased with it continue to be impartible estate? The junior members have merely a right to maintenance under custom and a possible right of succession to the impartible estate. The owner of the estate, however, can put an end to such right by alienating it or converting it into money.
187. If, therefore, the holder of the impartible estate sells a portion of it and converts it into money, it is no longer a part of the impartible estate. It is not a question of an intention to sever but actual conversion of the estate into money. The junior members have no right whatsoever to what is not impartible estate, and the money to which it is converted is freed from the rights of the junior members whatever they may be, and become the absolute property of the holder of the estate. If the junior members have no proprietary right to the corpus, they have none to the money to which the corpus may be converted, nor to the income of the estate.
188. Moneys received on account of mining leases, or royalties from mines or compensation under the Land Acquisition Act, at the best, stand on the same footing as a sale, and junior members cannot have any right to any of them, once it is held that the holder of the estate has an unrestricted power of alienation.
189. It may be said that it depends upon the question of intention. But would not the very fact of selling a portion of the estate indicate his intention of severing the money or the property purchased with it from the partible estate? We think that in such event the money or the property purchased with it is freed from the possible rights of the junior members unless the money or the property is incorporated with the estate.
190. We will now deal with the properties claimed as self-acquisitions one by one. [His Lordship then discussed the evidence as to immovable properties of the Raj and continued:]
191. It is contended on behalf of the plaintiffs that Jheria and Joynagar are referred to as two separate entities and no inference can be drawn that Joynagar was incorporated with the impartible estate, Jheria. But so far as Joynagar is concerned, we have said that it was incorporated with the estate by the acquirer, Raja Rash Behari. The other immovable properties, however, stand on a different footing. They are referred to as 'other immovable properties' separately from Jheria and Joynagar which are described as 'my ancestral zamindaries.' It is true that the Will proceeds to state 'Whoever will be my heir on my death shall get the said properties and it is not necessary to make any direction with regard to them. 'But that merely shows his impression that all the immovable properties would go to his heir; it does not show incorporation. It is contended for the plaintiffs that incorporation cannot be made by a revocable document such as a Will that it is not permissible for a person to say that certain properties should not be incorporated during his lifetime, but that after his death it should be incorporated; that is, that instead of following the ordinary course of succession it will follow the law of devolution applicable to an impartible estate. The learned Advocate-General contended that the properties were incorporated during the lifetime, the Will merely being evidence of such incorporation. We do not, however, see that there was any incorporation during the lifetime of Raja Durga Prasad, and we think that, with the exception of pergunnah Joynagar, which was incorporated by Raja Rash Bebari, no other property was incorporated with the Jheria estate. Properties Nos. 2 to 7, however, appear to be family properties of Raja Durga Prasad. Property. No. 3 Telo, No. 6, the bunglow at Purulia, and No. 7, Rajgunge cutchery, were acquired by Raja Jaimangal, and Raja Durga Prasad claimed them on the death of Raja Jaimangal by survivorship. It appears that the rents of Telo were sometimes paid to Raja Durga Prasad as Huzur Dakhil, but the same system prevailed with regard to Jheria also. We do not, however, attach any importance to the Hazur Dakhil entries, because as the Serampore case [Gurusami Pandian v. Pandia Chinnathambiar [1920] 44 Mad. 1 shows the mere fact that rents are credited to the account books of the estate or treated as part of the income of the estate is not sufficient to affect the property with the character of impartiality. But properties Nos. 2 to 7 of schedule Ka were either the ancestral properties or properties which devolved upon Raja Durga Prasad on Raja Jaimangal's death, and we do not think they can be claimed by the plaintiffs as the self-acquisitions of Raja Durga Prasad. If Telo and the other properties which were acquired by Raja Jaimangal were not incorporated with the estate they would devolve upon his widow, Rani Chatura Kumari, and not upon the plaintiffs. We, accordingly, agree with the Court; below so far as properties 2 to 7 of schedule Ka are concerned. [His Lordship then considered evidence as to the properties Nos. 1 to 20 separately and proceeded:]
192. No. 20--Moveable Properties.--
193. With regard to moveable properties it is contended that the Will of Raja Durga Prasad shows that they were incorporated with the estate. The passage in the Will runs as follows: 'But six annas of the diamonds and other jewelleries, gold and silver etc., mentioned in the schedule hereto which I have and those which I shall purchase hereafter besides these and all cash money, notes, gold and silver, etc., which will be there in my own tehbil or in the Bank of Bengal or any other bank at the time of my death shall form part of my zamindari, and whoever will get the zamindari at any time shall possess and enjoy the same, and my wives (those who will be living at the time of my death) shall get the remaining ten annas of the said diamonds and other jewelleries, the notes, cash moneys, silver and gold, etc. '
194. But, in the first place, we think there can be no incorporation of moveable properties with an impartible estate. In order that there may be incorporation, the property to be incorporated must be of the same nature as the impartible property. The Jheria estate is immovable property, and it seems to us that only immovable property can be incorporated. Then, again, incorporation involves altering the ordinary course of succession. The holder of the impartible estate by purchasing a cow or a horse, for example, would be able to alter the course of succession to it by declaring his intention to incorporate it with the estate.
195. It is true that in the case of Sarabjit Partap v. Indarjit Partap [1904] 27 All. 203 Stanley, C.J., and Burkitt, J., were of opinion that moveable property (in that case) was appurtenant to and part of the Raj estate, and as such passed to the defendant who was held entitled to the estate. But it appears that the plaintiff executed an ekrarnama on the basis that all the property formed portion of the estate, and descended in accordance with the family custom, and the learned Judges said that if they were right in thinking that the ekrarnama was binding it was obvious that the claim in regard to the moveable property could be no more supported than the claim to the immovable property. In that view, the observations were obiter. However that may be, in the Serampore case A.I.R. 1923 P.O. 59 the Judicial Committee observed: 'Whether it be possible in any circumstances to treat moveable property as an accretion to a landed estate of this character is a matter not arising for decision. It is true that in Sarabjit Partap v. Indarjit Partap [1904] 27 All. 203 it was decided that moveable property could be so regarded, but as the point does not arise here, their Lordships need only say that they must not be regarded as accepting the soundness of that decision.' Their Lordships did not approve of the decision in Sarabjit's case [1904] 27 All. 203, and we are of opinion that moveable properties cannot be incorporated so as to make it impartible estate. In the next place, the provision in the Will that the jewellery, etc., shall form part of the estate does not necessarily show incorporation with the impartible estate. The vernacular words Shamil thakibey' are somewhat ambiguous. They may mean continue to form part of' or 'shall form part of.' However that may be, it is contended on behalf of the plaintiffs that incorporation cannot be made by a revocable document such as a Will which moreover speaks 'only from the death of the testator,' that it is not open to a person to direct certain properties (not incorporated with the estate in his life time) to be treated as impartible after his death so as to follow a course of succession different from the ordinary, and that in any case, an undivided six annas share cannot be incorporated, because before division it cannot be predicated of any particular property that it is part of the estate. The learned Advocate-General contended, that the Will did not incorporate the moveables that the 16 annas (entire) moveables had already been incorporated with the estate, and that the Will is strong evidence of the incorporation and of the manner in which he had treated the moveables, and it provides that a six annas out of the moveables incorporated shall continue to form part of the estate. But the Will does not say that there had been incorporation of the entire moveables, and it seems to us that the provision that six annas 'shall form part' or 'continue as part' of the estate is the manner of expressing the bequest made to the successor.
196. As for the provision that the properties which would be purchased 'hereafter,' i.e., after the date of the Will, obviously there could be no incorporation of such after-acquired properties, and that supports our view that the provisions in the Will about the moveables does not show incorporation. It may be pointed out that there is no provision in the Will that the moveable properties other than these mentioned in the Schedule (to the Will) were to form part of the zamindari.
197. There is a provision in the Will that in the case of a birth of a son, he or the eldest, if more than one son were born, would get the estate and the other sons would get maintenance, but it was provided that the Will in that event would become invalid and inoperative.
198. We now proceed to deal with the moveable properties. Items Nos. 1 to 23 are jewellery which have already been dealt with by us. Item No. 24 relates to several motor cars out of which the Minerva, Berliet and Hupmobille ears which were purchased by Raja Durga Prasad have been allowed to the plaintiffs and the rest disallowed as they were purchased by the defendant.
199. With regard to the sum of Rs. 7, 17, 400, on account of the current deposit and fixed deposit in the Bank, the Court below has decreed the sum (with certain deductions to be presently noticed) to the plaintiff with interest thereon at 6 per cent. from the time of institution of the suit. The plaintiffs contend that they are entitled to interest from the dates when the deposits became due. It is contended, on the other hand, that the defendant was under no obligation to realize the interest or withdraw the deposits when they fell due; that the plaintiffs did not claim interest in the plaint and they are not entitled to get any interest there being no agreement to pay interest that although there was no claim for interest in the plaint, even after the institution of the suit, the Court below has allowed it, as it had power to do sounder Section 84 of the Civil Procedure Code.
200. But although the defendant may not be liable for interest from the dates on which the fixed deposits became due, the plaintiffs being entitled to the money in the bank there is no reason why they should not get the interest upon the money in the Bank which has been realized by the defendant. The decree against the bank was obtained on the 31st August 1917, and we think-that the plaintiffs are entitled to the sum decreed against the bank, together with interest thereon from the date on which the defendant got the money, and not merely from the date of the institution of the suit. It is true that there was no specific prayer for interest in the plaint, hut if, as we find that the plaintiffs are entitled to interest prior to the date of the suit, they can get the relief under the general prayer.
201. Then, again, the Court below has deducted the sum of Rs. 48,000 and odd found by it to have been paid under the bantannama to the plaintiffs and the sum of 2-1/2 lacs of rupees paid to the plaintiffs in the Court below and allowed interest upon the balance from the institution of the suit. We have held that the payment of Rs. 48,000 and odd to the plaintiffs has not been proved, so interest upon the 2-1/2 lacs only should be deducted; but there is no reason why the defendant should not pay interest between the date on which the defendant got the money from the bank and the 10th March 1920, on which date two lacs of rupees was paid and the 23rd March 1920, on which Rs. 50,000 was paid to the plaintiffs in the Court below.
202. Moneys realized after Raja Durga Prasad's death.--It is contended that the plaintiffs being entitled to the self-acquisitions are also entitled to the royalties, rents and debts which became due during Raja Durga Prasad's time and which have been realized subsequent to his death by the defendant, and the case of Aparna Debi v. Shiha Prashad Singh A.I.R. 1924 Pat. 451 (a case relating to this very estate) is relied on. In that case, the present defendant, Siva Prosad, sued a tenant for arrears of rent and royalty a portion of which related to Raja Durga Prasad's time, and the High Court held that the right to recover arrears of rent which fall due during the lifetime of the holder of an impartible estate, but which are not realized by such holder, passes to the latter's heirs and not to the person who succeeds to the estate. Das, J. (Ross, J. agreeing with him) observed: 'It has been held by the Judicial Committee that the produce of an impartible estate does not necessarily belong to and form an accretion to the original property.
203. 'In this case we have he evidence that the late Raja treated the produce of the estate as an accretion to the estate. That being so prima facie the plaintiff is not entitled to rent which accrued due in the life time of the late Raja. It was, however, contended on behalf of the respondent that unrealized rents cannot be regarded as a self-acquisition as they still adhere to the estate. I am unable to accede to this argument, Rent which has become due is produce of the impartible estate whether that produce has actually come into the hands of the owner or not. I can make no distinction between realized rent and unrealized rent in this respect.' We entirely agree in these observations.
204. It is contended, however, on behalf of the defendant that it is only the income which was received in Durga Prasad's time, and not that which merely accrued due, which would devolve upon the Ranis; and that the Judicial Committee in the Serampore case A.I.R. 1923 P.O. 59 did not hold that unrealized arrears are income which is the absolute property of the holder of the estate. Reference is made to the passage at page 7 where their Lordships observed: 'The income when received is the absolute property of the owner of the impartible estate.' But the passage cannot be read as meaning that it is Only when the income is received that it becomes the absolute property. In that case the income was received, and therefore their Lordships said: 'The income when received.' The reasons given by their Lordships in the next passage indicate that it was not intended to confine the rule only to cases where the income is actually received during the lifetime of the holder. Their Lordships observed:---'It is a strong assumption to make that the income of the property of this, nature is so affected by the source from which it came that it still retains its original character.'
205. The utmost that can be said is that their Lordships did not decide the question of unrealized arrears. We are referred to the case of Bhagabati Koer v. Sahudra Koer 16 C.W.N. 834, and it is contended that the holder of an impartible estate is in a position analogous to that di a Hindu widow so far as the right to the income is concerned. In that case the learned Judges observed that unrealized rents in the hands of tenants cannot be treated as temporary savings by a Hindu widow on her own account, but should be looked upon as an accretion to her husband's estate. But we do not think that the interest of the holder of an impartible estate is analogous to that of a Hindu widow. The Hindu widow has a limited interest, whereas it is now settled that the holder of an impartible estate has absolute powers of disposal over the estate. There is no authority against the view taken by the Patna High Court, which upon principle appears to be right, and we agree with it.
Moveable properties.
206. With regard to the moveable properties, the Court below observed: 'The parties have not adduced any evidence before me as regards their price. I shall therefore accept the price of these items as given in the plaints.'
207. But the value of the articles was disputed by the defendant in the written statement and the 13th issue raised the question: 'What are the moveable properties left by Raja Durga Prasad and what their respective value.' In these circumstances, the Court below should not have accepted the values given in the plaint without any evidence. It is contended on behalf of the plaintiffs that there should be an enquiry as to the moveables and their value. The defendant contends that he and not the plaintiffs can complain of the decree on the point, that had the Court below given a decree for the articles, and not for their value, the plaintiffs could not have come to the appellate Court and said that they should be allowed to adduce evidence as to their value, and that the plaintiffs not having adduced evidence cannot now ask the Court to allow them to do so. But the defendant having raised the question in his appeal, we think the appellate Court can order that the proper procedure should be followed. We think there should be an enquiry as to the moveable properties left by Raja Durga Prasad and as to their value.
208. Apart from discovery and accounts, it is contended that the plaintiffs are entitled to certain sums of money realized by the defendant, viz.
(1) Five lacs and thirty-five hundred rupees realized in 1916 from Maharaja Manjndra Chandra Nandy as royalty.
(2) Rs. 35,000 realised from Tika Prosad.
(3) One lac and thirty thousand realized from the Raja of Barabhum.
(4) Rs. 18,000 realized from the Tikait of Pathrol.
(5) Rs. 54,000 due from Mr. Smith.
(6) Rs. 20,000 due from Kunjo Behari Singh of Nunyad.
(7) Rs. 9,000 from Ram Chandra Singh of Nala.
(8) Rs. 3,00,000 in the iron chest.
(9) Arrears of royalties of the time of Raja Durga Prasad with interest thereon from the 7th March 1916, the date of the death of Raja Durga Prasad.
208. The defendant's contention is that there is no evidence of realization of these sums by the defendant. So far as the items Nos. (1) and (2) are concerned, they are specifically mentioned in the affidavit sworn by the Plaintiff No. 1 on the 11th September 1919 in support of her application for the appointment of a Receiver. Paragraph 55 of the affidavit runs as follows:--'That your petitioners have further ascertained from the said Babu Ram Kalpa Mahata that the defendant since be obtained wrongful possession of the said Jheria Raj estate has realized large sums of money due by different persons to the said Raja Durga Prasad as his own money on different accounts, among others.
(a) In the year 1916 he realized the sum of rupees five lacs or thereabouts from Maharaja Sir Manindra Chandra Nandy Bahadur of Cossimbazar in execution of a decree which had been obtained by the said Raja Durga Prasad Singh.
(b) The sum of Rs. 35,000 from Tikait Krishna Prasad Singh of Pathrol.
(c) And by execution of various other decrees the particulars of which your petitioners have not been able to ascertain yet.' So it does not rest merely upon an allegation as it is supported by an affidavit.
209. It is contended that there is no evidence that the whole of the amounts of Items 1 and 2 had been realised. Paragraph 70 of the defendant's affidavit in answer states as follows:
That with reference to paragraph 55 of the petition this defendant states that the different sums of money advanced by the late Raja Durga Prasad Singh were part of the Jheria Raj estate and are all entered in the rokars thereof, this defendant has realized some of these amounts and they have been duly entered in the rokars' It is contended on behalf of the plaintiffs that the statement that the defendant has realized some of the amounts and they have been duly entered in the rokars 'refers to the general statement made in the Hani's affidavit (paragraph 55) about the defendant having realised large sums of money and not to the two specific Items (a) and (b) mentioned in the affidavit. It is not clear 'whether the admission refers to these two particular items.
But the defendant having stated that some of those amounts had been realized and are duly entered in the rokars,' the question as to how much has been realized may be ascertained from the rokars.
210. It was further contended by the defendant that assuming the decree against Maharaja Manindra Chandra Nandy was on account of royalty, we do not know the terms of the lease, and whether the royalties had been stipulated to be paid to the Raja and his successors and that the Court cannot deal with it without amendment of the plaint and without giving the defendant an opportunity of meeting the case. But although it was generally pleaded that everything was part of the Raj there was no suggestion that any money was payable to the successors of Raja Durga Prasad Singh. The plaintiffs alleged in the Receiver petition that the defendant had realized large sums due to Raja Durga Prasad and the defendant states that he had realized 'some of those amounts.' But assuming that there was any such stipulation it does not help the defendant as the plaintiff's are the successors of Raja Durga Prasad in respect of the self-acquisitions. 'Successor' does not necessarily mean successor by survivorship.'
211. With regard to the item No. 3, one lac and thirty thousand rupees said to have been realized from the Raja of Barabhum, the plaintiffs relied upon a letter of Lalit Kishore to Mr. Macnair, dated the 4th November 1916. That however, only shows that a decree had been obtained, not that the money had been realized and there is no evidence that it has been realized.
212. It was pointed out that there are serious objections to a decree being passed for these items (Nos. 1 to 3) referred to above. Any application for amendment would raise the question of limitation and the jurisdiction of the Alipore Court to entertain the claim. We need not discuss these questions because there is no prayer for amendment. It is further contended that if these amounts are allowed, the value of the appeal would be increased. But no question of Court-fee would arise because the highest Court-fee payable has been paid. As for the valuation of the appeal also, we do not see any difficulty. The appeal is valued at eighty lacs of rupees. There is no specification of the properties for which the appeal has been preferred, but it relates to the properties of schedule Ka which were valued at Rs. 60,77,000, and certain properties of schedule Kha which were disallowed by the Court below. The entire properties were valued at 90 lacs of rupees, so that deducting the value of properties of schedule Ka valued at 60 lacs and odd they claimed other properties of the value of about 30 lacs. They succeeded in the Court below to the extent of about 13 lacs and 42 thousand rupees, leaving about 16 lacs of rupees for which they have appealed. So the valuation of the appeal would cover the amounts for which the plaintiffs are claiming.
213. Then it is contended that the cause of action for dispossession of immovable properties is different from the cause of action for money had and received. The conversion which took place at the date of the death of Durga Prasad is different from the conversion subsequent to his death, and the plaintiffs could not sue the defendant until he had received the moneys, that the suit for moneys should have been brought in a Court where the cause of action arose or where the defendant resided. But the suit is for recovery of the impartible estate as well as other properties moveable and immovable, of which the defendant is said to have been in Wrongful possession, and there is only-one cause of action, viz., the withholding of all those properties by the defendant, and that would include the moneys realised subsequent to the death of Raja Durga Prasad-and prior to the institution of the suit.
214. With regard to the remaining items as also the various other sums of money alleged to have been realized, there is no evidence of realization on the plaintiff's side. But, as stated above, the defendant admitted that some of those amounts mentioned in para. 55 of the plaintiffs' affidavit had been realized, and duly credited in the rokars. So an enquiry will be made with regard to all these items by the Court below.
215. With regard to the cash in the Raj Treasury, the plaintiffs in the Receiver petition (para. 54), alleged that the rewas a large sum of cash in the iron safes of Raja Durga Prasad, amounting to about 3 lakhs, which was his own absolute property, unconnected with the Jheria Raj estate, and was wrongfully taken possession of by the defendant. The defendant in his affidavit in answer (para. 69) stated that whatever cash there was in the cutchery had been entered in the inventory by Mr. Luby and subsequently divided between the plaintiffs and the defendant as stated in the deed of bantannama. The statement that whatever was in the cutchery was entered in Mr. Luby's inventory is not true, because admittedly some iron safes were not shown to him.
216. It is true that in the plaint the plaintiffs claimed that the cash in the bahir tahabil at the time of the death of Raja Durga Prasad was Rs. 26,302 and the cash in the Treasury in the cash box and nij iron chest was Rs. 1,58,371-12-3 the latter being the sum mentioned in the bantannama. The Court below has also found that Rule 1,34,531-10 was in fund of the estate on the date of the death of the Raja out of which Rs. 1,06,879 was shown to Mr. Luby, and there was the sum of Rs. 26,302 in the Treasury. The said sum of Rs. 1,06,879, together with Rs. 5,150, found in three unopened safes make up the sum of Rs. 1,58,371 which is claimed in the plaint. But the plaintiffs in the plaint stated that they had no accurate knowledge about the properties left by the Raja and prayed that they might be ascertained by discovery and included among the properties in suit. As stated above, in the Receiver petition, they alleged that the Raja left about three lacs of rupees being his absolute property unconnected with the Raj estate. The defendant said that all the cash was entered in Mr. Luby's inventory, which is not true. The Court below found that the cash in the Treasury was not shown to Mr. Luby; that Mr. Smith kept it back from him; and that Mr. Smith and the officers of the defendant went on spending money from the cash in the Treasury. Large sums of money must have been spent not only on the Sradh of Raja Durga Prasad and the 'Tika Pugree' of the defendant, but very large sums of money were paid to the persons who helped the defendant in securing his succession to the estate.
217. Kalipada Roy, cashier of the Raj since 1914 (formerly rokar mohurrir), says that cash was kept in an iron safe in the Treasury room as well as in an iron safe under double lock; that there was a book to show how much money was kept under double lock which was opened on the day the name of the defendant was entered in the rokar. But he cannot say where that book is. He says that his hath-khata has been destroyed, that there was another khata which showed how much he had under double lock and has not been preserved. In these circumstances we think an inquiry should be made as to how much cash was left by Raja Durga Prasad at his death.
218. With regard to the moveables (Nos. 24 to 83) some of which have been decreed to the plaintiffs, it is urged by the defendant that there is no evidence that they were acquired by Raja Durga Prasad.
219. It appears that the plaintiffs described the properties of schedule Kha as acquired during Raja Durga Prasad's time. The original schedule contained only the list of jewellery. The defendant did not dispute that the jewellery was acquired by Raja Durga Prasad. Subsequently, the plaint was amended on the 10th June 1919 by giving the values of the properties claimed separately, the jewellery being valued in a lump at one lakh and a half of rupees. There was further amendment on the 16th June 1919 and then the moveable properties, Items Nos. 24 to 83, were added. The defendant putin an additional written statement on the 28th June 1919 in which he stated that some of the properties were missing from the time of Raja Rash Behari and other former Rajas and that the moveable properties in the schedule Kha were not properties acquired, in the time of Raja Durga Prasad.
220. The Court below appears to have proceeded upon the basis of the list of moveables filed by the defendant when he was called upon to produce a list of the articles in his possession. We think that an enquiry should have been directed as to the moveables left by Raja Durga Prasad as his self-acquisitions and as to the value thereof.
221. Executor de son tort.--The plaintiffs claimed discovery and accounts from the defendant. In prayer Gha in the plaint they prayed as follows: 'That defendant being in wrongful possession of all the properties left by the plaintiff's husband and as the plaintiffs do not possess accurate knowledge about them, and the defendant has special knowledge of them, they may be ascertained after discovery made by the defendant and included among the properties in suit, and a decree he passed declaring the plaintiffs' aforesaid right to them and giving them possession thereof.'
222. The 12th issue in the case was: 'Are the plaintiffs entitled to any discovery as prayed for by them.' That issue, however, was not tried by the Court below, although it is stated on behalf of the plaintiffs that the shorthand notes of the arguments in the Court below show that the point was argued by the plaintiffs' counsel.
223. It is not contended that there should be further discovery by way of inspection or production of account books, i.e., discovery by suit, but that if the plaintiffs have established their title to the self-acquisitions, they are entitled to discovery and accounts under the decree on two grounds.
(I) That the defendant was executor de son tort; and
(II) that he was the agent of the plaintiffs under the Am-mukhtearnamah obtained by him from them.
224. The first question, therefore, is whether the defendant is an executor de son tort.' 'If one who is neither executor nor administrator intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, he thereby makes himself what is called in the law, an executor of his own wrong or more usually an executor de son tort.... A very slight circumstance of intermeddling with the goods of the deceased will make a person executor de son tort' (see Williams on Executors, 11th Edition, Vol. 1, page 177.) The principle has been embodied in Section 265 of the Indian Succession Act which lays down that 'a person who intermeddles with the estate of the deceased or does any other act which belongs to the office of executor while there is no rightful executor or administrator in existence thereby makes himself an executor of his own wrong.' There are no provisions similar to those of Sections 265 and 266 in the Probate and Administration Act which therefore do not in terms apply to Hindu Wills, but in the case of Rajah Parthasarathy v. Rajah Venkatadri A.I.R. 1922 Mad. 457 it was held that the doctrine of executor of his own wrong in the law of Wills introduced in Sections 265 and 266 of the Succession Act is applicable to cases not governed by that Act on general principles of equity and good conscience even though similar provisions have not been introduced into the Probate and Administration Act. This is not disputed on behalf of the defendant.
225. 'If, however, a person set up in himself a colourable title to the goods of the deceased though he may not be able to make out his title completely he shall not be deemed an executor de son tort: Flemings v. Jarrat [1794] 1 E.N.P.C. 336. See also Rajah Parthasarathy v. Rajah Venkatadri A.I.R. 1922 Mad. 457: but the claim must be bona fide. So also if he takes the goods of the deceased by mistake supposing them to be his own, this will not make him executor of his own wrong' (see Williams on Executors, page 182).
226. It is contended that the defendant has recognized the Will, and has not only taken possession of the properties but has paid legacies under the bantannama and khorposh deeds, that the only reason why Probate was not taken out, according to Lalit's evidence, was to avoid payment of a heavy probate duty, that the defendant did not take possession of the properties on the assertion of a paramount title, but as claiming from the testator Raja Durga Prasad, and that the mere fact that he may be the successor does not relieve him from being an inter-meddler as he was doing something which would be the legitimate office of the executor, viz., the payment of debts and legacies. It is contended, on the other hand, that the defendant did not pay the legacies as executor; that both parties claimed the estate, the defendant got possession under a claim of title and in his own right by survivorship, and he paid the legacies out of his estate and not as legacies under the Will, and the payments therefore cannot be held to Lave been made as executor. But the mere fact that the defendant did not profess to act as executor does not relieve him from the liability, as an executor de son tort rarely professes to act as such. It is true that if a person claims a title not derived from the testator but a paramount title he does not make himself liable as an executor de son tort.
227. But in the present case, the bantannama deeds stated that the defendant had at first raised objection to the Will as not finding upon him but eventually had given up those objections and agreed to give shares of the properties mentioned in the Will in accordance with the wishes of the deceased as 'expressed in the said Will,' and that the properties had accordingly been divided. In the khorposh deeds also, it was stated that 'in accordance with the terms of the said Will,' the defendant had executed the deed promising to pay the khorposh. Whatever his attitude might have been originally, he recognized the Will and gave effect to it under the deeds of bantannama and khorposh. It is true that a person taking possession of properties under a bona fide claim of title does not constitute himself an executor de son tort. But the position taken up by the defendant in the present case was not that there was no Will or that the Will was not valid. He not only did not repudiate the Will, but adduced evidence to prove that the Will was genuine, valid and effective. He relied considerably upon it to show what the intention of Raja Durga Prasad was with respect to the succession, and the incorporation of the self-acquisitions with the impartible Raj. Having done all this, and given legacies under the Will in terms of the Will, we do not think that he is entitled to say that what he did was as owner of the estate.
228. The payment of debts and legacies is characteristic of the office of an executor and the defendant paid the legacies under [the terms of the Will.
229. It is contended that the defendant was bound to pay the legacies as they were charged upon the estate; that had the plaintiffs obtained Probate and sued him he would have had to pay, which would have been payment by a debtor, and similarly the payment amicably should he considered as payment by a debtor. But the Will was not proved in the Probate Court, and unless it was proved, the legacies could not be enforced against the estate, even though they had been charged upon it.
230. It is next contended that the defendant even if liable as an executor de son tort to executors, administrators, creditors or legatees, are not liable to the plaintiff's. But an action for administration, which means that the legacies and debts have to be paid off, may be brought by the next of kin: see form No. 17, appendix D, Civil P.C. It is next contended that the defendant was not sued as an executor de son tort, and that the plaintiffs having repudiated the Will cannot set up a new ground of relief, and now ask the appellate Court to hold the defendant liable as executor de son tort. Reliance is placed upon the case of Kali Das Chaudhuri v. Draupadi Sundari 22 C.W.N. 104, where the defendant who was sued as a partner pleaded that he was remunerated by a share of the profits, and an application by the plaintiff made to the Court of appeal to amend his plaint on the footing that the defendant was not a partner but a servant, as alleged by the latter, was refused on the ground that where a plaintiff bases his claim upon a specific legal relation alleged to exist between him and the defendant, he should not be allowed to amend the plaint so as to base it on a different legal relation.
231. In the present ease, the plaintiffs alleged in the plaint that there was no Will but that the defendant was in possession and that his possession was wrongful. The defendant, on the other hand, says that there was a Will, and if he has in fact intermeddled with the estate it is sufficient, although he is not sued as executor de son tort: see In re Lovett, Ambler v. Lindsay [1876] 3 Ch. D. 198 where Malins V.C., observed 'it has been argued that they are not sued as executors de son tort, because it is not stated upon the claim that they are executor de son tort; but that is not necessary, if it appears from the ordinary' interpretation of the allegations that they have intermeddled with the estate.' Then it is contended that Sections 265 and 266 give only certain rights against the executor de son tort. But Sections 266 does not appear to be exhaustive, it deals with some of his liabilities and does not deal with all the rights and liabilities of an executor de son tort. In the case of Coote v. Whittington [1873] 16 Eq. 534 Malins, V. C, observed 'I quite agree that if you file a bill against an executor de son tort for a general account, you cannot sustain it. He is executor de son tort if he has improperly received assets, and, so far as you can state that he has received a particular asset he is liable, but no further. He is not liable to a general account unless he has received everything.' So under Section 266 of the Indian Succession Act he is liable to the extent of the assets which might have come to his hands.
232. Lastly, it is pointed out that there is a difference between the English and Indian Law, so far as the liability arising from taking possession of the estate of the deceased is concerned. But a person who takes possession of or intermeddles with the estate of a deceased person without being appointed an executor is an executor de son tort, and is liable both under the Hindu and English law: see Magaluri v. Narayana [1881] 3 Mad. 359 and Kanakamma v. Venkataratnam [1884] 7 Mad. 586.
233. An executor though not a trustee for specific purpose under Section 10 of the Limitation Act is a trustee with a fiduciary character even as regards the next of kin: see Kherodemoney v. Doorgamoney [1878] 4 Cal. 445: Greender Chunder Ghose v. Mackintosh [1879] 4 Cal. 897.
234. In Adair v. Shaw [1803] 1 S. & L. 254, the Lord Chancellor observed: 'If we advert to the cases on the subject, we shall find that trusts are enforced not only against persons who rightfully are possessed of the trust property as trustees, but also against all persons who came into possession 6i the property bound by the trust with notice of the trust, and whoever so comes into possession is considered as bound with respect to that special property to the execution of the trust. '
235. With regard to the second ground, viz., that the defendant was the am-mukhtear, it is not sought to make the defendant liable to account on the footing of an agent, but only to show that he stood in a fiduciary relationship to the plaintiffs.
236. Discovery.--'With regard to discovery the plaintiffs say that so far as self acquisitions are concerned the defendant being in wrongful possession and in possession of the books of account, should give discovery as otherwise the plaintiffs cannot have knowledge of the moneys which accrued due during Raja Durga Prasad's time and were realized by the defendant; and that an enquiry should be directed as to the self-acquisitions, moveables and the arrears of rents and royalties, etc.,--an enquiry in the nature of an enquiry into mesne profits.
237. The defendant says that the plaintiffs had discovery to which they were entitled, that the discovery which they claimed in the plaint was a discovery of properties left by Raja Durga Prasad and of discovery of moneys realized after his death. In paragraph 13 of the plaint the properties which came down from Raja Jaimangal are referred to as mentioned in schedule Ka, and those acquired in the life time of Raja Durga Prasad, in schedule Kha, and it was stated that the defendant having taken wrongful possession of them, knows all about them and he is bound to make a discovery of them. It is, accordingly, contended that the only discovery wanted was with respect to properties which came down from Jaimangal and those left by Raja Durga Prasad, and that there was no reference to moneys which accrued due in his lifetime, but were realized by the defendant after his death. But in the earlier portion of the paragraph, the plaintiffs, stated that they had no correct information as to the properties acquired in the lifetime of their husband, the moveable properties, cash deposits in the banks or money invested in the money lending business which had been left by their husband. The discovery prayed for must refer to them also. The moneys realized' by the defendant after the death of Raja Durga Prasad were not specifically mentioned, but the properties and money invested in lending business left by him 'would include the moneys realized by the defendant. It is true that when the plaintiffs amended the plaint the prayed that certain properties which their husband got from Raja Jaimangal should be added to schedule Ka of the plaint, and certain other properties acquired by their husband should be added to schedule Kha. But they did not profess to give a list of all such properties. They distinctly stated that they had prayed in the plaint that besides the properties mentioned in schedules Ka and Kha 'other properties should be ascertained and included in the list of properties by causing the defendant to make a discovery thereof, 'and that they had been able to ascertain some properties which they wanted to add to the two schedules Ka and Kha. In the list of properties to be added to schedule Kha they mentioned 'moveables' valued at one and a half lacs of rupees, but did not mention royalties and rents. But they did not give up the right to discovery as claimed by them in the plaint which related to all properties left by Raja Durga Prasad. It is contended that the issue: 'Are plaintiffs entitled to discovery as prayed for by them' refers only to properties which came down from Raja Jaimangal and those left by Raja Durga Prasad, and did not refer to royalties or rents, etc. But that assumes that properties left by Raja Durga Prasad did not include the rents and royalties, etc., realized subsequent to his death. We think that the contention of the defendant is based upon a narrow view of what was claimed in paragraph 13 of the plaint.
238. In the petition for appointment of a Receiver the plaintiffs in paragraph 55 stated that the defendant since he obtained wrongful possession of the estate had realized large sums of money due by different persons to Raja Durga Prasad and specifically mentioned the sums realized from Maharaja Manindra Chandra Nandy, and the Tekait of Pathrol, and in paragraph 62 stated that the defendant was attempting to realise and misappropriate large sums of money still remaining unrealized out of the amounts due by various persons to their husband and some instances were specified. They prayed (d) that the defendant may be ordered to discover all move-able property wrongfully taken possession of by him and (e) that the defendant may be directed to produce all papers documents, vouchers, books of account and other papers and writings showing the moveable properties and cash left by the said Raja Durga Prasad and all income derived by the defendant after his death and all his dealings in connexion therewith for the purposes of this application.
239. The prayers were comprehensive enough and there was express reference to all income derived by the defendant after His death. These go to show what the plaintiffs meant by discovery in paragraph 13 of their plaint. The compromise arrived at in connexion with the application for appointment of a Receiver does not show, as contended by the defendant, that the plaintiffs in any way gave up their claim to discovery as to the income. On the contrary, paragraph 5 of the terms of settlement provided: 'Defendant not to deal with any self-acquired and personal properties of Raja Durga Prasad moveable or immoveable in his possession except as otherwise provided herein.' and paragraph 6 provided: 'Defendant to keep separate accounts of the properties acquired by Raja Durga Prasad and in his possession and the income thereof except as otherwise provided herein.'
240. It is pointed out that the defendant was called upon to file an inventory and an inventory was filed on the 12th May 1920. Objection was taken by the plaintiffs that it was not a full and complete inventory, but no objection was taken that it did not set out the moneys which had accrued due during the life-time of Raja Durga Prasad but were realized subsequently, whether on account of rents, royalties or money lending business. The defendant by his petition stated that he had set out all that he considered were valuable properties. It appears however from Order No. 140, dated the 23rd June 1920 that there was a discussion before the Court whether the inventory was complete, having regard to the fact that it was only a list of properties in the possession of the defendant since the date of the compromise, and that it did not purport to be a list of the properties appertaining to the estate at the time the defendant took charge of it. The Court was of opinion that the latter question formed the subject of an issue, and was a controversial point and that putting a strict construction on the petition of compromise, the defendant undertook to file an inventory of valuable moveables in his possession at the time the compromise was entered into, and the Court ordered the defendant to furnish a complete list of moveables which the defendant was in possession of from the time of the compromise, and that if the list was considered incomplete by the plaintiffs they might move the Court to depute a Commissioner for the preparation of a list. Accordingly, a full inventory was filed on the 12th July 1920, but no objection was taken that it did not include royalties, rents and money lending business etc. It will be seen that no money was entered in the list. The expression 'moveables' evidently was understood to mean moveable articles and not money (whether rents, royalties or money invested in money-lending business), and having regard to the order, dated the 23rd June 1920 directing the defendant to file a list of moveables which came into the possession from the time of the compromise, we do not attach any importance to the fact that no objection was taken to the non-inclusion of royalties etc,
241. The question is whether the plaintiffs abandoned their claim to discovery of all properties left by Raja Durga Prasad which we think includes rents, royalties and other moneys left by him and subsequently realized by the defendant. As stated above, the plaintiffs in the Receiver petition referred to moneys realized by the defendant after the death of Raja Durga Prasad and the prayer in petition expressly refers to all moveable properties and cash left by Raja Durga Prasad and all 'income derived by the defendant after his death.' So late as the 9th February 1922 while these appeals were pending in this Court Mookerjee and Cuming, JJ., made an order (evidently at the instance of the plaintiffs) directing the defendant to forthwith deposit in this Court to the credit of the suit all such sums as may from time to time be realized by him out of the moneys invested in the various money-lending businesses. We refer to the order only to show that the plaintiffs never gave up their claim to discovery.
242. In paragraph 70 of his affidavit in the Receiver matter (in answer to paragraph 55 of the plaintiffs' affidavit) the defendant stated that he 'has realized some of these amounts and they have been duly credited in the rokars.' This again shows that the plaintiffs were claiming the moneys realized after their husband's death.
243. It is pointed out that the defendant produced the rokars from 1300 to 1332 (1894 to 1916) along with his written statement. Those for 1323-25 were filed on the 12th July 1919 and the pucca rokar of 1326 was filed on the 14th April 1919.
244. But the Court below did not touch the 12th issue at all and no enquiry appears to have been made with reference to the moneys rents, royalties, money lending business or other moneys) except the cash in the Treasury and in the bank. We think that, in these circumstances, there should be an enquiry into the moveable properties left by Durga Prasad including arrears of rents, money lending, royalties and moneys realized by the defendant after his death and the value of the moveable properties.
245. At the time of our giving directions in the ordering portion of the judgment, the plaintiffs contended that the Court below should be directed to fix the maintenance to which the plaintiffs are entitled. They say that they are entitled to maintenance out of the estate. In the written statement the defendant stated that they could 'only claim khorposh according to long standing custom.' But before us it is, contended by the defendant that the plaintiffs are not entitled to it as they are getting a large amount of property besides the mokarari grant made to them by Raja Durga Prasad. There was no claim for maintenance made in the plaint nor was the question argued before us at the hearing of the appeal. In these circumstances, we do not decide the question in the present suit and it is left open.
246. Both the appeals are accordingly, partly allowed the result being:
(i) That the decree of the Court below in so far as it disallows the claim of the plaintiffs to the impartible estate Jheria (Property No. 1) and the immovable Properties Nos. 2 to 7 of schedule Ka and Properties Nos. 9 to 19 of schedule Kha of the will be confirmed;
(ii) That the decree of the Court below in so far as it allows the claim of the plaintiffs to the immovable properties Nos. 1 to 8 of schedule Kha of the plaint will be confirmed;
(iii) That the plaintiffs will get mesne profits of the Properties Nos. 1 to 8 of schedule Kha as directed by the Court below.
(iv) If as a result of the enquiry any other immovable property be found to have been acquired by Raja Durga Prasad the plaintiffs will get the same together with the mesne profits thereof.
(v)(a). In addition to the money in the Bank with interest thereon as allowed by the Court below, the plaintiffs will get interest upon the said money at 6 per cent. per annum from the dates of the withdrawals from the bank up to the institution of the suit (the lower Court having allowed interest from the date of institution of the suit ) and the plaintiffs will also be entitled to the interest upon the 2 lacs and fifty thousand rupees paid to the plaintiffs in the Court below between the date of the institution of the suit up to the date or dates of payment thereof to the plaintiffs;
(b) in addition to the amount in cash allowed by the Court below, the plaintiffs will get the sum of Rs. 48,219-3-9 pies which was disallowed by the Court below together with interest thereon at 6 per cent. per annum from the 7th March 1916
(c) the plaintiffs will get all rents and; royalties which fell due during the lifetime of Raja Durga Prasad, and all moneys on account of mortgages and the money lending business of Raja Durga Prasad (including the sums realized from Maharaja Manindra Chandra Nandy) which have been realized by the defendant after the death of Raja Durga Prasad up to the date of institution of the suit together with interest thereon at 6 per cent. from the dates of such realizations. The defendant will be entitled, however, to get a deduction of the costs of realization of the same, the income-tax, super-tax and other public charges which may have been paid by the defendant on account of such sums (whether paid before or after institution of the suit ). The Court below will consider what proportion of the total cost of realization ( including costs of management) was incurred by the defendant in respect of such-sums of money as are referred to in this 01. (c). The defendant will also be entitled to get a deduction of any shop debts and other outstanding bills and debts of Durga Prasad paid by the defendant otherwise than for the estate and the properties mentioned in paragraph (I) above up to the institution of the suit;
(d) The plaintiffs will get all moveable properties and cash (in addition to the jewellery and cash and the moneys decreed to the plaintiffs by the Court below and the sum of Rs. 48,249-3-9 pies dealt with in paragraphs (b) above), left by Raja Durga Prasad which came into the hands of the defendant. The plaintiffs, however will not be entitled to such moveables or furniture as are appurtenant to the Raj as found by the Court below and in respect of which the plaintiffs' claim has been disallowed by the Court below.
(vi) There will be an enquiry as to the value of the jewellery allowed by the Court below to the plaintiffs; there will also be an enquiry as to which of the moveable properties Nos. 24 to 83 were left by Durga Prasad, and the plaintiffs will get a decree for such of them as may be found to have been left by Raja Durga Prasad or the value thereof and the jewellery or the value thereof to be fixed by the Court;
(vii) The defendant will give discovery relating to the above matters, except with regard to moveable properties already included in Exhibit Z 270 and moneys, rents and royalties which appear in the rokars already on the record;
(viii) The defendant will pay, from the 1st August 1925, Rs. 300 per month to each of the three plaintiffs until final disposal of the case by the Court below, ( such amount to be deposited in the Court below ). The defendant will get credit for such amounts against the amount which will be payable by him to the plaintiffs;
(ix) Each party to bear its own costs in both Courts. The paper-book costs will be taxed by the Taxing Officer and apportioned between the plaintiffs and the defendant and the defendant will recover from the plaintiffs two-thirds of the costs of the papers included in the plaintiff's lists in both the appeals, which had been advanced by him, and the amount of such costs will be set off ( in part ) against the amount which may be payable by him to the plaintiffs.
247. The defendant gives an undertaking through his pleaders that he will not disturb the plaintiffs' residing in the house they are occupying until the final disposal of the case.
248. The plaintiffs give an undertaking through their pleaders not to withdraw the sum of Rs. 2 lacs in deposit with the Registrar, High Court, Appellate Side, without giving security at any time before the 30th November 1925.
249. The state of things as ordered by this Court on the 9th February 1922 as modified by the order of His Majesty in Council, will continue until 30th November 1925.
250. The case will go back to the Court below for making the enquiries referred to above ( which are to be completed within four months of the arrival of the judgment and decree there ) and for disposal of the case according to law, having regard to the directions made above.
251. Let the records be sent down as soon as the decree is signed and the taxation of paper-book costs is made.