Lord Thankerton:
These are three consolidated appeals from two decrees dated 15-12-1927, passed by the Chief Court of Oudh, which varied a decree, dated 04-01-1927, of a single Judge of the same Court sitting as a Court of Original Civil Jurisdiction.
The plaintiff in the suit out of which these appeals have arisen was Raja Bisheshar Bakhsh Singh, and he is appellant in the second of these appeals No. 103 of 1929). The defendants in the suit were (1) Dulahin Jadunath Kuar (hereinafter referred to as defendant 1), who is appellant in the first appeal (No. 102 of 1929), (2) Lal Pratap Harihar Bakhsh Singh (hereinafter referred to as defendant 2), who is appellant in the third appeal No. (104 of 1929), and (3) Mahabir Singh. The last-named is not a party to the first two appeals, as, by agreement with the plaintiff, the appeal which he had taken from the decree of the trial Judge to the Chief Court was dismissed on 15-03-1927.
In the suit the plaintiff claims possession of the Taluka Gangwal, consisting of sixty villages as set out in the schedule attached to the plaint lying in District Bahraich and District Gonda, as the nearest male agnate according to the rule of lineal primogeniture, of Raja Suraj Pragash Singh, the last male-holder, who died in 1899, in terras of S. 22 (10), Oudh Estates Act of 1869, as amended by the Oudh Estates (Amendment) Act, 1910. In the suit the plaintiff also claimed certain other property, as to which no question arises in these appeals.
Two main questions arise in the present appeals, viz.: (a) Whether the succession is governed by the provisions of the Oudh Estates Act, which arises in the first appeal, and, if so, (b) whether plaintiff is "the nearest male agnate according to the rule of lineal primogeniture" within the meaning of the Act, which arises in the third appeal.
A minor question is raised in the second appeal as to certain villages, which the Chief Court held defendant 1 entitled to hold during her life, thereby varying the decree of the trial Judge.
Raja Sitla Bakhsh was the first Talukdar of Gangwal, and his name was entered in Lists I and II, prepared in accordance with the provisions of S. 8 of the Act of 1869. The Act was passed on 12-12-1869, and in terms of S. 9 these lists were approved by the Chief Commissioner of Oudh on 20-07-1869, and published in the Gazette of India on 31-07- 1869.
On 03-04-1869, Raja Sitla wrote a letter to the Deputy Commissioner of Bahraich, in which he said :
"I beg to state that, firstly, I hope to have issues, and they will, after me, succeed me. In case there be no hope of issue, the two legally-wedded Ranis of mine are (malik) proprietors (of my estate). After my death, the Rani Saheba have power. Share in the estate shall not be divided."
It was not disputed before this Board that, as concurrently found by both Courts below, this document is of a testamentary nature. It was equally undisputed that this document was not attested as required by S. 19, which incorporated S. 50, Succession Act, but the application of S. 19 was disputed. If this document was both valid and operative as a will, it was not disputed that its effect was to take the succession outside the operation of the Act, with the consequent failure of the plaintiff's case.
The defendants stand on the defensive and put the plaintiff to proof of his title to claim the estate.
The question of the validity of the will depends on construction of the original Act of 1869 apart from its amendment by the Act of 1910. Both the Courts below have held that the will was invalid on the ground that it was not attested as required by S. 19 of the Act of 1609, the material part of which is as follows:
"19. Sections 49, 50, 51, 54, 55 and 57 to 77 (both inclusive), and Ss. 82, 83, 85 and 88 to 98 (both inclusive), Succession Act (No. 10 of 1865), shall apply to all wills and cod cils made by any Talukdar or Grantee, or by his heir or legatee, under the provisions of this Act, for the purpose of bequeathing to any person his estate, or any portion thereof, or any interest therein: Provided that marriage shall not revoke any such will or codicil: Provided also that nothing herein contained shall affect wills made before the passing of this Act ..."
Defendant 1, who is appellant, in this issue, maintains that the provisions of 8. 19 of the Act of 1869 with regard to the attestation of wills made by talukdars did not apply to a will made before approval and publication under S. 9 of the lists prepared under S. 8, even though, as in the present case, at the time of his making the will, the talukdars name was included in the lists made up for the purpose of subsequent approval and publication. This contention is based on the definition of talukdar in S. 2, which is as follows:
"Talukdar means any person whose name is entered in the first of the lists mentioned in S. 8."
The material portion of S. 8 is as follows:
"8. Within six months after the passing of this Act, the Chief Commissioner of Oudh, subject to such instructions as he may receive from the Governor-General of India in Council, shall cause to be prepared six lists, namely:
"First: A list of all persons who are to be considered Talukdars within the meaning of this Act. ..."
Sections 9 and 10 may also be conveniently cited here:
"9. When the lists mentioned in S. 8 shall have been approved by the Chief Commissioner of Oudh, they shall be published in the "Gazette of India." After such publication, the first and second of the said lists shall not, except in the manner provided by S. 30 or S. 31, as the case may be, be liable to any alteration in respect of the names entered therein. If, at any time after the publication of the said lists, it appears to the Governor-General of India in Council that the name of any person has been wrongly omitted from or wrongly entered in any of the said lists, the said Governor in Council may order the name to be inserted in the proper list, and such name shall be published in the "Gazette of India" in a supplementary list, and such person shall be treated in all respect as if his name had been from the first inserted in the proper list."
"10. No persons shall be considered Talukdars or Grantees within the meaning of this Act, other than the persons named in such original or supplementary lists as aforosaid. The Courts shall take judicial notice of the said lists and shall regard them as conclusive evidence that the persons named therein are such Talukdars or Grantees?."
Defendant 1 maintained that there could not be a list within the meaning of the definition until at least the approval of the Chief Commissioner had been obtained, that the reference to lists in the definition was imperative and rot merely evidentiary, and that the definition applied to S. 19 as fully as to any other section. The plaintiff, on the other hand, maintained that the reference to lists in the definition was merely evidentiary and that the Act applied, as from its passing, to every talukdar who came within the terms of S. 3, which, apart from the definition, appears to be declaratory of the rights of an existing class. He further maintained that, even if the definition is imperative, it was repugnant to the context of S. 19 and in particular to the proviso as to wills made before the passing of the Act. The plaintiff did not maintain that the provisions of S. 13 as to registration applied in the present case, as he was unable to say that the legatee was not a person excepted from the operation of the section.
The history of events from the annexation of Oudh in 1856 up to the passing of the Oudh Estates Act in 1869, including the summary settlement, the preparation of lists of talukdars and the granting of sanads to talukdars was fully dealt with before their Lordships, and the plaintiff founded on the two orders of the Governor-General incorporated in Sch. 1 to the Act, but their Lordships are of opinion that the Act only recognized a statutory class of talukdars and that this is made clear by the provision of S. 10 that no persons should be considered talukdars "within the meaning of this Act" other than the persons named in the original and supplementary lists. Further, their Lordships are of opinion that such lists, in the case of the original lists, did not become operative as lists until they had been approved by the Chief Commissioner, but that they be-came operative as from the date of such approval, the subsequent publication being merely public notification of the fact.
The plaintiff founded on certain passages in the judgment of this Board, delivered by Mr. Ameer Ali, in Murtaza Husain Khan v. Mahomed Yasin Ali Khan (1). In that case the original talukdar, whose name appeared in lists 1 and 2 prepared under S. 8, had died in 1865, prior to the passing of the Act, and the property in dispute was not part of the talukdari estate under the Act, it being undisputed that the taluka fell under the provisions of the Act. It was held that, upon the death in 1899 of a subsequent talukdar, the succession to his property, not forming part of his talukdari estate, was subject to a rebuttable presumption that there was a family custom of descent to a single heir. In referring to the original talukdar, Mr. Ameer Ali said (at p. 276 of 43 IA):
"As already observed, a summary settlement of the Government revenue had been made with Jamshed Ali Khan on 22-01-1859, a talukdari sanad was granted to him on 17-10- 1861, and his name was entered as a talukdar in the first of the lists. He had acquired, as declared by S. 3, "a permanent, heritable and transferable right" in his estate, and was unquestionably a talukdar within the meaning of the Act. His death before the Act was passed into law in makes no difference in his status or in his rights. The lists which the Chief Commissioner was directed to "cause to be prepared" were obviously in course of preparation long before the passing of the Act; the limit of six months was clearly meant as a limit for their completion, and not for their initiation. In fact, it is beyond dispute now that Jamshed Ali and his heirs and successors to the estate are such talukdars."
No argument arose in that ease as so whether the deceased talukdar became a talukdar within the meaning of the Act as soon as it passed or only on approval of the lists, and, in their Lordships' opinion, either view is consistent with the general expressions used in this passage.
As regards S. 19, their Lordships consider that operative affect should be given, if a reasonable construction so permits, to every provision of a statute, and that to apply the definition of talukdar to S. 19 so as to limit its operation to wills made after the approval of the lists would have the effect of rendering the proviso as to wills made before the passing of the Act purposeless ; they are therefore of opinion that the definition is to that extent repugnant to the context and is inapplicable. It follows that, in their Lordships' opinion, the provisions of S. 19 applied to wills made after the passing of the Act by talukdars of the statutory class prescribed by S. 10, and that it applied to the will here in question, so that, being unattested as required by S. 50, Succession Act, 1865, it was invalid as a will.
It therefore becomes unnecessary to consider whether, on the assumption that it was a valid will, it ever became operative or was abandoned by the legates, Raja Sitla's widow, as to which a separate argument was raised.
With regard to the plaintiff's pedigree, there are concurrent findings of fact by the Courts below of the effect that the plaintiff has proved his pedigree, and their Lordships see no reason for disturbing these findings, which establish that, in blood relationship, the plaintiff is the nearest male blood relation according to the rule of lineal primogeniture of the last male holder to the taluk. But this leaves open the issue in the third appeal, in which defendant 2 raises a point of law on the construction of S. 22 (10) of the 1869 Act as amended by the Act of 1910.
In the first appeal defendant 1 also sought to raise a question as to whether a village called Rajapur Grant was comprised in the taluka, though no such point was raised in her case of appeal ; but, even if it were not too late to raise the point their Lordships were not prepared to disturb the concurrent findings of fact by the Courts below that the taluka consisted of the sixty villages claimed in the plaint, including the village of Rajapur Grant.
In the second appeal (No. 103 of 1929) the plaintiff takes objection to the variation of the decree of the trial Judge made by the Chief Court, in that they held that defendant 1 was entitled to remain in possession during her life of five villages of which she was in possession under an agreement dated 29-06-1899.
Raja Sitla, the original talukdar, died in 1885, leaving surviving him his widow Rani Sukhraj Kuar, and his half-brother Narpat Singh. Under a compromise of a suit raised by the latter against the former, Narpat Singh was declared to be the absolute owner of the entire estate of Gangwal, and the Rani was allowed to remain in possession of five villages by way of guzara, besides some other property, which is not in issue in these appeals. Narpat remained in possession of the taluka of Gangwal until his death in 1892, when he was succeeded by his son, Raja Suraj Prakash Singh, who died in 1899, having been predeceased by his only son, Mahesh Bakhsh Singh. Raja Suraj Prakash Singh was survived by :
(a) Rani Sukraj Kuar, Raja Sitla's widow, who died in 1922 ; (b) Rani Itraj Kuar, the senior widow of Raja Suraj Prakash Singh, who died in 1925, and on whose death the present dispute arose; (c) Rani Abhiraj Kuar, the junior widow of Raja Suraj Prakash Singh, who died before 1925 ; and (d) defendant 1, the widow of Mahesh Bakhsh Singh, the predeceasing son of Raja Suraj Prakash Singh.
On 29-06-1899, an agreement was entered into between the two widows of Raja Suraj Prakash Singh and defendant 1, the material portion of which is as follows :
" Whereas Raja Suraj Prakash Singh, Talukdar of Gangwal, died childless and intestate, while we, i.e , Rani Itraj Kuar, the first widow, Rani Abhairaj Kuar, the second widow, Dulhin Saheba, viz. Jadunath Kuar, widow of Bachcha Mahesh Bakhsh Singh the son of the late Raja and Rani Achal raj Kuar, the mother of the deceased Raja, are the heirs and now we, by mutual consultation have decided that the mutation of Taluka Gangwal, Districts Bahraich and Gonda, and purchased Pattis Chaisar, etc., be effected in favour of Rani Itraj Kuar and during her (Itraj Kuar's) life Rani Abhairaj Kuar, Mt. Dulhin Jadunath Kuar, and Rani Achal Raj Kuar, the mother of the deceased Raja, having received the following Bhaiyai villages, which have always remained in the possession of the heirs to the estate and also were held for a long time by Raja Narpat Singh during the Shahi rule, should support themselves because this Bhairai right now belongs to Rani Abhairaj Kuar and Mt. Dulhin Jadunath Kuar, the heirs to the estate, who, after me, Rani Itraj Kuar shall gradually become the successors."
As Rani Sukraj and Rani Abhiraj Kuar died in the lifetime of Rani Itraj Kuar, defendant 1 was in possession of the guzara villages at the time of Rani Itraj Kuar's death in 1925.
The Chief Court held that the agreement was a reasonable family settlement, made for the purpose of settling controversies as to the mutation of names consequent on the death of Raja Suraj Prakash Singh, and they further said :
"Prima facie a provision, for maintenance must be deemed to be intended to enure for the lifetime of the grantee Rameshar Bakhsh Singh v. Arjun Singh (2). In the present case the provision was to cease earlier, but only in the event of the grantee coming into the possession of the estate. We are unable to discover anything in the document to justify the interpretation that it was to cease on the death of Rani Itraj Kuar, and during the lifetime of the grantee, when the succession to the estate is withheld from her on a ground not contemplated by the settlement."
Their Lordships find themselves unable to agree with this construction of the agreement, as, in their opinion, the words "during her (Itraj Kuar's) lifetime" do not qualify the antecedent part of the provision, but qualify the subsequent part of the provision, under which alone defendant 1 has any claim to the guzara villages. It follows that defendant is not entitled to retain possession of these villages, and it is unnecessary to consider whether the settlement was valid and reasonable.
The third appeal involves a question of construction of the Oudh Estates Acts of general importance, which does not appear to their Lordships to have been clearly or adequately placed before either of the lower Courts, and, in view of the importance and difficulty of the question, their Lordships feel that it will be more satisfactory to have this appeal reheard before a fuller Board.
Until the advice to be humbly tendered by their Lordships to His Majesty in respect of the third appeal is determined, it will not be possible to settle the terms of the order in respect of the first two appeals.
Order accordingly.