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was asked whether he had not saved a' lakh or one and a quarter lakhs
of rupees. The plaintiff also stated that his father at his death left
Bs. 30,000. Sa much for his waalth. His ambition we may measure by the
fact that he applied to the English Government to confer upon him the
title of Rajah. Now, as I have said above, records there were none of
any kind whatever until the British conquest in 1803, and I feel little
doubt that if we had found an interruption in the course of devolution by
the substitution by the act of the Government of some person as an
incumbent of the estate, who by the family custom was devoid of title
but was better qualified to perform the services demanded by the
authorities, I for one should be loth to say that they had broken down
or intended permanently to break down the custom of inheritance. In
this case no such question arises, because, in so far as it was deter-
mined by the English Government, in every case the responsibility for
the management of the property and the collection of revenue fell on the
person who either under the rule of primogeniture or the ordinary custom
of a united Hindu family would be the natural person to appoint. Now
I think it desirable, before dealing with the solid documentary evidence
in the case, which will require the most careful scrutiny, to get rid of a
mass of evidence which is wholly and absolutely inconlcusive, although it
occupied a considerable portion of the x time and attention of the Court
below. It was set up by the respondent that in conjunction with the
system of primogeniture in the raj of Hathras and in that of Mursan
there was also found a characteristic custom called the custom of
gaddinashini ; that the bead of the family took his seat upon a cushion of
state ; that he then received offerings called nazars from friends, relations
and tenants, and that in some way this institution was connected with the
joint worship by the family of weapons and animals ; and it was alleged
that the same practice had prevailed from the full memory of man in
the Beswan family, and the Court was .then asked to infer that
[152] what was the concomitant of primogeniture in one case was strong
evidence of the existence of the custom ia the other case. It was a syllo-
gism without a major premise. In order to constitute a valid argument it

815



1893

FEB. 7.

APPEL-
LATE
CIVIL.

13 A. 117 =

13 A. W.N.
(1893) 89.



15 All. 153



INDIAN DECISIONS, NEW SERIES



[Vol.



1893 oughb to have been shown, nob only that gaddinashini and the presenta-

FBB. 7. tion of nazars wore tha ordinary concomitants of the possession of an

impartible m/,bub also that it was an exclusive attributeof families in which

APPEL- . the custom of primogeniture prevailed. There is no evidence, and it is

LATE not the fact that such attribute belongs exclusively to families where the

CIVIL, custom of primogeniture prevails. Ib is to be found in families subject to

the ordinary Hindu law, and there would be nothing exceptional or un-

15 A. 147= usual in the karta or manager of a great united Hindu family occupying
13 &.W.N the gnddi and receiving nazars. it seems probable on the part of tha
(1893) 85- Beswan family, which at all events is far inferior in wealth and import-
ance to the branches of Mursan and Habhras, a pretension and a claim
to consideration to which they might well conceive their descent
entitled them. ' Further than this it does not go. I hava already said
that there were reasons enough why persona connected with the
Beswan family should have been impressed by the regularity of the
devolution of the estate, and there can be little doubt that Gir Prasad
availed himself of this impre3sion to record in the village papers at much
length and detail, and with gveat insistence, that such had been the
custom of the family and that such was the law by which it is to be
ruled in the future ; and I notice with some astonishment that witnesses
most closely connected with Gir Prasad at the time of the preparation
of the wujib-nl-arzes of 1873, conceive that they are lending additional
weight and aubhoriby to those documenbs by declaring that there was
not a word in them bearing upon the system of inheritance in the Beswan
family that was not expressly ordered to be inserted by Gir Prasad. That
this was to them the highest guarantee of the truth and accuracy of the
statements embodied in those documents destroys to my mind the whole
of the cogency of their evidence. Gases have been quoted to us which I
do not care to recite, which have laid down that a wajib-ul-arz constitutes
a document which is created by the consensus of all persons interested,
and which [153] defines the rights and duties of each and all as recognized
by the whole of their community and ascertained by the Settlement
Officer. But when a present holder of an estate, there being nobody with
a contrary interest to gainsay and contradict him, chooses to make repre-
sentations as to matters affecting his status and family position r the
document in relation to such entries becomes absolutely valueless as
evidence. I confess I was much impressed in reading the evidence of
witnesses who came to support the custom of primogeniture by the fact
that not one of them from first to last, not a member of the immediate
family or of the collateral families, not even the agents of Gir Prasad him-
self, Ganesh Eai and Pitam Lai, professed to have founded their opinion
about primogeniture upon any document of any kind whatsoever. It is
to me difficult to conceive that wajib-ul-'arzes that represented the custom
of ancient devolution of the estate should have absolutely disappeared
from the face of 'the earth or been kept from the knowledge of
the very people who were Gir Prasad's men of business. To speak
plainly, I do not believe it. I do not believe that Pibam Lai or Ganesh
Bai are ignorant of these previous wajib-ul-arzes. I am satisfied in
my mind that they were under the belief when they obeyed the
behests of a powerful master, that it was not likely until Gir
Prasad had run the full extent of bis natural life that anybody in the
world would have any interest in inquiring for, or searching after or
examining the obsolete wajib-ul-arzes of periods anterior to 1873. In
most 7 , or at all events a large number of villages, Gir Prasad alone was

816



YII] SUPERUNDDHWAJA PBASAD V. G. PRASAD 15 All. 155

interested ; but whenever his interests were involved with those of other 1893
persons they would find that those interests as set forth in the earlier FEB. 7.

wojib-ul-arzes would be recorded also in those of later dates. They would

have no cause or reason to question the authority of a wajib-ul-arz which APPEL-
safeguarded their rights, and if, as happened, Gir Prasad impressed upon all LATE
that the custom of primogeniture had existed in his family without excep- CIVIL.
tion as far as the memory of man could run, who was there in the world
who could contradict him, or who could have an interest in contradicting * s * 1*7 =
him unHl he had become the father of more than one son ? And how much 13 A.W.N.
longer aiter [154] that was the question likely to remain in abeyance witha (1893) 85.
younger brother under the control, first of his father, then of his elder brother,
who had every motive for concealment ? This is what appears to have
happened in this case. I do not suggest, I do not believe, chat the defen-
dant in the suit is acting with conscious dishonesty in maintaining in bis
own interest the custom of primogeniture. I do not suppose that at the
time the suit was instituted he was cognizant of half the present facts
that bear upon the past history of the case, and therefore, at all
events, whether his position is that of an honest defendant or not,
upon coming to the knowledge of the existence of certain documents
produced as evidence to prove his case by bis pleaders, it is difficult
to imagine that he and they were not staggered at the inferences that
might ha drawn from those documents. Previous to the documentary
period we know in a rough and general way that Bhuri Singh, who
is identified in no way except by his name, was the father of two
sons, the eldest, Nawal Singh, from whom the parties to the present
suit are descended, and a younger brother called Daya Ram Singh. Of
Nawal we know absolutely nothing. He may have been a scholarly
recluse or he may have been a person of weak and incompetent intellect.
He has no individuality in the family traditions. His obscurity may also
have arisen from the greater prominence which has found its way into
the pages of the history of his younger brother Daya Ram, and it appears
to have been common ground between the parties that somehow, whether
by devolution, by fraud, by force or by consent, a considerable portion of
the patrimony inherited from Nawal Singh came into his possession.
That an able and ambitious son in times when force prevailed, when law
was in abeyance, might have possessed himself of property belonging to his
feeble and inoffensive brother, is quite possible. But in assuming that
force or fraud must have been used, Mr. Atkinson and the other repositories
of the family tradition seemed to have assumed the right of primogeniture
for the purpose of inferring fraud or force as the basis of possession of a
large estate by the younger brother. I do not know how this was, but
can well understand that an able and competent younger brother
[155] of one of smaller capacity for affairs, whether by consent or devolu-
tion, might well have taken the position which he occupied, and without
arriving myself at an absolute conclusion upon the point, I think this
construction is consistent with the future friendly relations which appear
always to have subsisted between Nawal Singh and bis descendants
and Daya Ram Singh who survived him. There is no trace of discord
or of disunion founded upon resentment against usurpation by the younger
brother. But into these matters it is needless to go. It is sufficient
to say that the case of Bhuri Singh proves nothing in favour of the
custom of primogeniture. It does non prove the custom of primogeniture
that of two brothers of a family both should be found in possession of the
family estate and the younger in possession of a larger portion. It looks

817
A VII-103



IS All. 156 INDIAN DECISIONS, NEW SERIES [Vol.

1893 more like what might have happened on partition in a joint Hindu family.
FEB. 7. And moreover, considerable as we know the property and possession of
Day a Earn to have been, we do not know with any accuracy how much
APPEL- of the property possessed by him was ancestral and how much acquired.
LATE Indeed one witness called by the defendant, named Kehri Singh, said
CIVIL, positively that the Hathras estate was personally acquired by Daya Earn
and that he had acquired it from the Porch Thakurs, and that previously
18 A. 147 = it had not belonged to the Thenna Jats. The only reason why this statement
13 A.W.N. does cot impress us at all is that it shares to a large extent the lack of
(1893) 83. definiteness in the traditions of the family as to when and how the property
was acquired by it. The end of the century followed close on the close of
Nawal Singh's life, but previous to his death we have it upon the authority
of the settlement records, and also of a report made by Eaja Tikam Singh
put in evidence by the defendant and numbered 250, printed on page 16
of respondent's book, and of which a correct translation is hereto appen-
ded, that Harkisban, his eldest son, had been put by his father and his
uncle Daya Earn in control and management, at all events, of the family
property, and therefore Harkisban, upon his father's death seems to have
been looked upon for a few years for which he lived as the owner
of the ancestral property. I may observe, however, that during the
time there appears to have been no contention between himself and
[156] his brother, and they lived together as might be the case in a joint
Hindu family, in different houses, but in the same fort, and no doubt
on the death of Harkisban, Jiwa Sam endeavoured, though nominally
on behalf of his nephew, to strive for influence and power for himself and in
his own interest among the family relations. Now about the time of
Harkishan's death the East India Company, which had acquired the
whole of the territory of Mursan, Hathras and Beswan, began to utilize,
as far as possible, the existing owners of land for enforcement of orders
and collection of revenue. We find that by a wise as well as generous
policy the ambitious Daya Earn is left in possession of the whole of his
domain, ancestral or acquired. The position of Harkishan also remained
unassailed, and I do not think that the Eaja of Mursan was dispossessed
of any of his property. Indeed the Government preferred to continue
an able and efficient; person like Daya Earn for the collection of
Government revenue, which would have been with difficulty extracted
by their own underlings. We are now approaching the period in
which the action of the Government makes itself plainly felt and
is attested by the most interesting and instructive documentary
evidence. The evidence which I am now going to read, and which is to
my mind most instructive as bearing upon the point at issue in the case,
is the documentary evidence put in by the pleaders for the defendant. It
is perhaps not very clear whether Nawal Singh died at the close of the
last century or at an early period in the present, having been practically
superseded in the control of his property by bis son Harkishan. The
Government were anxious to single out persons to whom they could look
as owners of the property for purposes of the collection of revenue, and
the following document, No. 241, which is a proceeding of the Court of
the Collector of the Aligrah district, was drawn up. The document is
dated the 22nd of November 1809, and is to be found at page 1 of the res-
pondent's book. It recites : " Eeceived a letter from the members of the
Board, dated the 8kh of November 1809, together with the letter of
the members of the S&dr, dated the 21th October 1809, to the
effect that, whereas in consequence of the death of Thakur Harkiiban

818



YII] SUPERUNDDHWAJA PRASAD V. G. PRASAD . 15 All. 158

ifc became necessary to pass other orders in the [157] matter of his 1893
jagir and istimrar, the members of the Sadr state that the jagir and FEB. 7.
istimrar were granted only for the life of the jagirdar and istimrardar,
but as the sons of Harkishan, deceased, have not been benefited by the APPEL-
favours of the Government, Thakur Harkishan having died before the LATE
declaration of the grant of the sanads, the members of the Sadr, who have
the support of all respectable persons in view, have sanctioned to maintain
the jagir and the istimrar of Tbakur Harkishan for the life of Jai Kishore, 15 A. 147 =
his son, provided that it be consistent with law and usage of the Hindus 13 A.W.N.
according to their custom and religion, but it is proper that Thakur Jai (1893) 85.
Kishore should carefully bear in mind that, though this order has been
made in his favour, it shall not be made in favour of the other heirs of
the jagirdars and istimrardars, and the fact of the jagir and istimrar
beiug maintained in favour of Thakur Jai Kishore should be noted in the
body of the sanad. The members of the Board therefore direct thafc the
Collector should fully inquire whether there is any son of Thakur Harki-
shan other than Thakur Jai Kishore and whether the jagir and
istimrar of Thakur Harkishan should or should not be made over
to Thakur Jai Kishore according to the custom of the Hindus."
Now what strikes me on a perusal of the document is that reference is
made to the law and custom of the Hindus.' By these words I find it
difficult to believe that the Court of the Collector and the members of the
Sadr had in their minds anything but the general law appertaining to the
Hindu people. Had there been at the time a custom of devolution in the
family at variance with the general law, I cannot help thinking that the
Government, obviously anxious to maintain all persons in authority and
to break no system of native law or custom would have made some allu-
sion, bad it existed, to the custom of primogeniture. Accordingly it was
ordered that a parwana be issued to Thakur Daya Earn, uncle of Har-
kishan and grand uncle of Jai Kisbore, landlord of Hathras and other
domains, and to Eaja Bhagwant Singh who was the Kaja of Mursan; and
they were asked to inform the Board whether there was any son
of Thakur Harkishan other than Thakur Jai Kishore and whether
according to the custom of Hindus the property of Thakur [158]
Harkishan devolved upon Thakur Jai Kishore and whether the sanads
of jagir and istimrar should be granted to Thakur Jai Kishore ; and accord-
ingly these two heads of the great and important branches of the family
answered the inquires of the Collector in a form so nearly identical with
one another, that if I read one it will be needless to refer to the other.
They were the work of one hand and obviously written after consultation.
My brother Tyrrel, who I believe in substance accedes to the views which
I have formed upon the case, has taken the trouble of translating them for
me, as those documents do not appear to have been translated with the
accuracy desirable in legal proceedings. I choose to read the shorter
letter. Ifc is dated the 14th of December 1809, and is No. 243 of the
record and is to be found at page 3 of the respondent's book. It is couched
in the following terms :

" Petition of Bhagwant Singh, Bahadur, Kaja. dated 24th Aghan
1217 Fasli.

To

The Sahib exalted in rank and position, may he be ever prosperous.

I received your kind letter inquiring whether owing to the death
of Thakur Harkishan the property was to be entered in the name of
Jai Kishore, and (stating that) a sanad in respect of the jagir and istimrar

819



15 All. 159



[Yol.



1893 might be issued in his name, if it was ascertained that according to the

FEB. 7. custom of Hindus he was entitled to the shield and grant of the sanad,

I became acquainted with its contents Formerly Thakur Harkishan was

APPEL- older than his other four brothers in point of age and was superior to all

LATE and distinguished in the qualities of a sardar and head, and in his life-

OlViL tinie his other four brothers were unanimous with him and obeyed his

orders and worked zealously. Even in the existence of Thakur Harki-han,

15 A 147= Jdi Kishore, who has four brothers, was regarded as heir-appareat and

13 A.W.N. representative. Now on the death of the said Thakur all the members of

(1893) 83. the brotherhood tied the turban of Sardarship round the head of Jai

Kishore. Accordingly he (Thakur Jai Kishore) is the master of all the

affairs of bis father. Submitted for information. "

Bhagwant Singh, Bahadur, "Kaja. "

[159] Now I again observe that the Raja of Mursan speaks of the cus-
tom of Hindus and not of any privilegium or custom to be found in force
in the particular family. The same observation applies to the letter which
is signed by Thakur Daya Ram Singh and which is precisely to the same
effect. In summing up the construction which I am diposed to put upon
these letters I may point out that the expression "eldest son" was a term
of description and not of qualification, and that no condition other than
the qualification of conformity to the Hindu law was expressed to be
required in the status of the person to whom it was proposed to give the
jagir and no indication shown that such appointment would rest upon the
basis of primogeniture. That the order of grant was not intended except
in respect of management and control to affect the relationship between
the two brothers, and that it was not part of the policy of Govern-
ment to strip a younger brother of all interest that he might
under the Hindu law have had in the family inheritance is manifested
by the treatment by the Government of Jiwa Ram. We find that
Jiwa Ram, who does not appear to have held any control of anv part
of the family inheritance, was still awarded by the Government a malikana
of Rs. 400 a month to be drawn from the estate under the control of his
brother Harkishan. The use of the word malikana is, I think, most
important. It is an expression totally different from that which is used
where as an incident of the custom of . primogeniture the maintenance of
younger brothers or illegitimate brothers is dealt with. It is a word of
explicit and well-founded meaning and it is a compensation for dispossession
from the zamindari estate. No such expression would he applicable to a
case where no right to possession existed. Now upon these letters I have
this further observation to make that the tying of the turban round the
head of Harkishan or Jai Kishore is not exclusively the practice in families
in which the custom of primogeniture prevails. It is just as applicable to
an acting head, karta or manager of a Hindu family, while the references
to the superior capacity of one individual ft,nd to the consent of the others
would be simply irrelevant to a right of inheritance which vested indefeasi-
bly on the determination of the prior life estate. Thakur Daya Ram Singh
[160] and Raja Bhagwant Singh, the heads of the two great fiefs of
the family from which the Beswan family had derived its origin, are
united in not saying a single word about the system of primogeniture
or from which its existence could be necessarily inferred. Now upon
their recommendation Jai Kishore became the practical proprietor for
his lifetime, and by a sanad granted for his life only he became the
manager of the property and for all practical purposes as proprietor and
as the person to whom the Government looked for the due collection

820



YII] SUPERUNDDHWAJA PBASAD v. G. PEASAD 15 All. 161

and payment of revenue. Now this devolution of the estate upon Jai 1893
Kishore alone has been pointed out by some witnesses as indicating the FEB. 7.
existence of the right of primogeniture. The bare and unexplained fact
of such devolution would undoubtedly have pointed in that direction, had APPEL-
he possessed a younger legitimate brother of full age and capacity ; but LATE
I find upon the evidence that it is extremely doubtful whether Jogal CIVIL.

Kishore did not predecease his father. We think that be did. The evi-

dence of Kharag Singh upon this point is worthy of belief, and I could 13 1. 147 =
turn, if necessary, to a large mass of evidence all of which shows that 18 A.W.N.
be predeceased his father. The holding of the property, which was (1893) 83.
granted to Jai Kishore for his life-time only, furnishes no argument
for the existence of the custom of primogeniture. Now Jai Kishore was
succeeded by Girdhar Singh who was one of two illegitimate brothers.
Girdhar Singh, according to the account of the defendant's witnesses,
never sat on the gaddi. His death took place a few months after that of
his father, and, whatever position he might have attained in the future, it
must have been very ill-defined in those few months, and seeing that his
brother Gir Prasad was only five or six years old, no possible inference
could ba drawn in favour of the custom of primogeniture by the absolute
exclusion of the infant from all control and interest in the property and
the appropriation of everything to himself by Girdhar Singh. It is not
proved, therefore, that the descent was one consistent only with the custom
of primogeniture. Gir Prasad came to his estate early in life, and, having
before him the devolutions I have mentioned, proceeded in A. D. 1873,
to formulate the status of his family in a series of isajib -ul-arzes
[161] which have been relied upon by the defendant to maintain his con-
tention. I shall turn back hereafter to the historical document recorded
in the Settlement Office at Beswan before the Deputy Collector, relating to
the history and claims of two generations of the Beswan family. For the
present; I proceed to the wajib ul-arzes in which were set out, literally in
accordance with his orders, the pretensions of Thakur Gir Prasad Singh
as to the status of his family. One of the wajib-ul-arzes is to be found
at page 48 of. the respondent's book and is No. 358 of the record. It
recites : "According to usage and custom of the family after me the eldest
son, if qualified and sensible, will be the masnad nashin (occupant of the
masnad), and manager of tberiasai (estate), and the other sons will receive



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 120 of 155)