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out of the income of the estate (riasat) , if qualified, Bs. 200, and if not quali-
fied, Rs. 50 per mensem without demanding an account of profit and loss.
(The distinction there is, I understand, between legitimate sons and illegi-
timate sons). Whatever property will henceforth be purchased by means
of the income of the estate (riasat), is shall be deemed to be of the same
character. Should any of my issue give up his religion or act contrary
to the family usage be shall get nothing from this riasalt (estate)." Then
there is an interesting paragraph " I, Thakur Gir Prasad Singh, or after
me my heirs, shall not transfer property in order that the estate might be
preserved, but they shall be competent to dispose of the profit as their
own." That is indeed of the very essence of the custom of primogeniture
and the mention of ib is absolutely superfluous upon the assumption that
the custom of primogeniture did in point of fact govern the devolution of
property in the family. The proceeding adopted in relation to one village
seems to have been adopted in the completion of the wajib -ul-arzes of all
the villages. And again I emphasize the observation that any such pro-
vision as has been inserted in relation to the Beswan family has never been
seen or heard of as existing in the records of the previous settlements.

821



15 All. 162



INDIAN DECISIONS, NEW SERIES



[Vol.



1893 I think the absence or presumed absence of any such clauses in any previous

FEB. 7. document is enormously more significant than their detailed insertion in
the wajib-ul-arzes of 1873. Another observation of the same kind [162]

APPEL- I desire to make in relation* to the members of the family like Raja Ghan-
LATE shyam Singh of Mursan who say, in contradiction to the majority of

OlVlL. witnesses called for the defendant, that they never heard that the custom

of primogeniture existed in the Beswan family. While it is conceivable,

13 A. 147= indeed not difficult to conceive, that some persons, aware only of the bare

13 A.W.N. f ac t O f devolution on the lines of primogeniture, 'may have given too

(1893) 85. ready belief to the assurance of Gir Prasad and others, and, moved by
the interest they felt in the enhancement of the greatness of the family
with which they were connected, may have been induced more or less
to strain their evidence upon a point of this kind ; it is impossible that
a person such as the Eaja of Mursan, called by the defendant as a witness,
could have failed to know such a custom had it existed in a branch of
his own family with which, at all events in the present generation, he
appears to have been upon terms of amity. The learned Subordinate Judge
feeling the force of the evidence of the Raja of Mursan upon the point en-
deavoured to discredit it by suggesting that some previous litigation between
the Raja and Gir Prasad might have excited his animosity, so that he was
dishonestly willing to assist in a case against the eldest son of Gir Prasad.
Why this animosity should have been directed to the eldest son instead of to
the younger brother or both equally, unless the animosity followed the cus-
tom of primogeniture, it is difficult to understand. I do not see how any
serious and reasonable person, considering the manner in which Raja
Ghanshyam Singh had been accredited by the defendant himself, can
venture to impeach the bona fides of his testimony. It appears thai some
time before the suit was instituted a dispute had arisen between the
brothers as to the custom of inheritance in the family, and it was decided
to refer the matter to arbitration, an arbitration in which Har Narain
Singh was to be the arbitrator for the plaintiff while Raja Ghanshyam
Singh was chosen by the defendant as his arbitrator ; and it was only
on failure of these arbitration proceedings that the present suit was
instituted. It does not, I think, lie in the mouth of the defendant to impeach
the veracity of a witness of this class. I believe every word of what Raja
Ghanshyam [163] Singh asserts, no? can I see any better reason for looking
upon Har Narain Singh, the grandson of Daya Ram, as anything but a trust-
worthy and honorable witness when ha also asserts his ignorance of the
prevalence of primogeniture in the Beswan branch of his family. Now I
do not propose to read the document to which I have previously alluded
and which is No. 252 of the record at page 20 of the respondent's book.
It is headed as " Proceeding recorded in the Settlement Office at Beswan,
district Aligarh, before the Deputy Collector and Settlement Officer on the
30fch of April, 1846," and I have already in the course of the observations
repeated most of the important facts that are to be found in
the proceeding in the order in which they appeared to me relevant.
But there is one point in this respect which seems to me significant and
which may now be touched upon. I may mention that Jiwa Ram, the
uncle of Jai Kishore, had made some attempt to obtain a footing in the
property of his young nephew. I did not mention that he was thereupon
evicted from its management. I have mentioned that Rs. 400 per men-
sem was ordered by the Government to be paid to Jiwa Ram as mulikana.
For some 8 or 10 years this sum was paid. Afterwards it was paid to
the sons of Jiwa Ram in gradually decreasing amounts. Now it is one

822



YII] SUPERUNDDHWAJA PRASAD V, G. PRASAD 15 All. 165

of the suggestions that was made by the defendant in the case that J893
Harkishan must have held the Beswan property by right of primogeni- p EB 7>
ture because Jiwa Earn never brought any effective proceedings to estab-
lish the claim which be would have had to an equal right in the ancestral APPEL-
properfcy with his brother. It is true that Jiwa Bam did not go beyond LATE
the proceedings in the Revenue Court in which he endeavoured to sub- rjiviT

stantiate the very claim which is now being made by the plaintiff in this

suit, and the Collector, dealing always with the fact of possession, and 13 A. 117 =
knowing also that the holder of the estate had received the sanad of jagir 13 A.W.N.
and istimrar, declined to entertain his claim. Although his (Jiwa Ram's) (1893) 85.
neglect to press his claim in a Civil Court is evidence against him, it loses
a great part of its importance when we recollect that Jiwa Ram was a
poor man, and that, whatever his right may have been under the
Hindu law, his brother was the nominee of the Government, and the same
remarks [164] apply to the qualified acquiescence of the heirs of Jiwa
Ram, because again we find that proceedings were taken in forma pauperis,
but probably for the same reasons they did not press on the matter in the
Civil Court in the teeth of the Government. I have mentioned that Jiwa
Ram was at the time a poor man ; but there came a later period when he
received an estate as recompense for his services to Government, and it
was contended on behalf of the defendant that he had become possessed of
ample means to contest his right in a Court of law. I think he may well
have believed, when he was ordered by the Government to be paid
Rs. 400 per mensem, and when they afterwards availed themselves of
his services and bestowed upon him an estate, that such a gift was
intended partly as a solatium for his dispossession of all interest in the
family property above and beyond the malikana allowance of Rs. 400, and
that any attempt to deprive his relative, the appointee of the Government,
of the family estate would be unfavourably regarded by them. But
there is in this case in respect to an earlier devolution an acquiescence
much more impressive. From first to last no descendant of Nawal
Singh ever impeached the title of Daya Ram to the ancestral property
which he is alleged to have appropriated. This is not a very instruc-
tive fact in the early period of this century, because Daya Ram was treated
by the Government with confidence ; was left in full possession of his pro-
perty ; and was looker! to by them for recovery of revenue. But this
observation fails in effect entirely when we come to 1817, only 20 years
after the death of Nawal Singh, when Daya Ram had brought himself into
such sharp collision with the Government that forces were sent to besiege
and capture his fortress at Hathras. Then it was when his contumacy
had brought upon him disaster and confiscation, that one would have
expected that the heirs of his elder brother Nawal Singh, untainted them-
selves by rebellion, might have applied to Government for reinstation in the
fiefs which had been seized by Daya Ram, as has been alleged, in violation
of Nawal Singh's right of primogeniture. They did not do so, and to my
mind this acquiescence of the descendants of N awal Singh is far more impres-
sive fchan the acquiescence of Jiwa Ram and his descendants. Ihavesaidthat
the [165] non- production by the defendant of the wajib-ul-arzes of older
dates than 1873, and the absence of evidence as to their contents is to me
mosfc significant, but it fortunately happens that they have not all been
destroyed, and there are some on the record which must vitally influence
the opinion of any tribunal in adjudicating upon the questions at issue.
On page 127 of the appellant's book I find an impressive document. It
is an extract from the ivajib-ul-arz of mauza Bhaman, part of the Beswan

823



15 All. 166



INDIAN DECISIONS, NEW SEBIES



[Yol.



1893 estate. It is dated 1267 F., and verified in 1269 F., that is about 1862,
FEB. 7. the settlement immediately previous to that of 1873. It is signed by
Ganeshi Lai, Kanungo, who, it can hardly be doubted, is the defendant's
APPEL- witness Ganeshi Eai, who for thirty years was mukhtar alam of Gir
LATE Prasad. It says in paragraph 18: " On the death of the lambardar his
CIVIL, eldest son will succeed him as lambardar without any objection. If
there be no son, then one of the heirs shall be the lambardar with
ISA. 147= th e consent of the other heirs." Why should the consent of other
18 A.W.N, heirs be required, if by primogeniture one only oould have a herit-
(1893) 83. able title ? But paragraph 22 sets up an absoluteness of title which
is wholly inconsistent with the idea of primogeniture and with the
limited life-estate of each successive incumbent. It says : " My
client has an exclusive right of transferring the property. " Paragraph
24 says : " My client is the sole proprietor, there is no necessity for
partition. " Now this is the view of his rights enunciated by Gir Prasad
in 1862 and it is diametrically opposed to that set up by him in the
wajib-ul-arz of 1873, and which forms the basis of the defendant's conten-
tion in his action. I turn to the wajib-ul-arz of mauza Bahadur,
ilaka Beswan, at page 128 of the appellant's book. I find in paragraph
24 the following words : " Of transfer.* This is a pure zemindari village,
and Thakur Gir Prasad Singh is the proprietor. He is at liberty to
sell bis right. " In mauza Namwattia there is a wajib-ul-arz similar
to the preceding, and the same remarks apply to its contents, as well
as to those of tbewajb-ul-arz at page 131 of the appellant's book, except
that I think in this particular case no mention is made in relation
to the right of alienation. Now I pass on to page 134. [166] Para-
graph 8 says: ''This is a zemindari village, and Thakur Gir Prasad
Singh pays the Government revenue into the tahsil treasury. " Now
it is according to our view that this very duty was to be performed
by the persons selected by the Government by virtue of the sanad I have
mentioned. Again I find in that wajib-ul-arz the expression : " My client
is competent to transfer his property. I notice the observation of the
learned Judge who admitted the document that it, like other wajib-ul-
arzes of about the same date was not prepared with the knowledge of Gir
Prasad or signed on his behalf, and still it was received in evidence. I
think it was moat properly received in evidence. But how the Court
which admitted and nerused those documents could have failed to see that
the contention of Gir Prasad as to his tenure and title was one thing in
1873 and another in 1863, I utterly fail to understand. On page 138 and
subsequent pages, there are extracts from another wajib-ul-arz in which
again Gir Prasad, who is entered as " my client," by some pleader or
representative, is described as " competent to transfer his property.'

Before I leave the subject of the wajib-ul-arzes on the record, looking
to the contents of the wajib-ul'arzes, the material parts of which I have
just read, of the settlement of 1863 and thereabouts, and looking back
to those framed in accordance with the instructions of Gir Prasad in 1873,
I find that the observations of their Lordships of the Privy Council in
Uman Parshad v. Gandharp Singh (l) are relevant and impressive. At
page 134 their Lordships are reported to have said : " In this case the
Judicial Commissioner has treated the wajib-ul-arz in question as a
document of weight which must be taken as showing local, customs until
some proof to the contrary is produced. But on looking at the evidence

(l) 14 I. A. 127.

824



11]



SUPERUNDDHWAJA PRASAD V. G. PRASAD 15 All. 168



their Lordships find that this wajib-ul-arz was the concoction of Fatteh
Kunwar herself, received by the Settlement Officer as an expression
of her views, which she had a right to enter upon the village records
because she was proprietor of the estate. But they are not entered
as her views, they are entered as the official record of a custom.
[167] And supposing fifty years had gone by and then a dispute arose
about the family or the local custom, this would probably have been pro-
duced from the office as an entry made fifty years ago under circum-
stances of no suspicion at all, and it would be taken that the Government
officer had recorded it as the local custom. And now we find it delibeately
stated (though there was an appeal from the entry of this wajib-ul-arz) by
the Oudh Courts that the proprietor has the right to enter his own views
upon the village records and have them recorded as if they were the
official records of the local customs. Well, that is an exceedingly startling
thing, and their Lordships think that the attention of the Local Govern-
ment should be called to what has appeared in this case to have been
done in one instance, and may be done in other instances. It does not
only render those records useless ; they are worse than useless ; they are
abosolutely misleading, because they are evidence concocted by one party
in his own interest. It is to be hoped that under the Act of 1876 which
empowers the Local Government to make rules under which these records
shall be framed, such proceedings will not take place any more." I have
some doubt whether the entries in the wajib-ul-arz made under the
circumstances and conditions described by Pitam Lai are admissible at all
in evidence in support of any claim of Gir Prasad on the topic
- of primogeniture. I recur to the dicta of the learned Subordinate
Judge and I ask myself whether it has been proved by satisfactory
and conclusive evidence that the custom of primogeniture has existed
in the Beswan family, whether it has been proved to be ancient and
long-established, and whether it has been proved to be invariable
and certain. I ask whether the evidence in support of the propo-
sition is clear and unambiguous, and whether the evidence is such that
upon it a court could be assured of the existence of such a special
privilege. I ask whether the series of acts from which we are asked to
infer the custom are plural, uniform and constant. To all these questions
I most unhesitatingly reply in the negative. I do not think that in the half a
dozen devolutions which I have been describing, there is a single one which
is conclusively proved by evidence to be consistent with the custom of
primogeniture [168] and with the custom of primogeniture alone. Now
this being the opinion which has been forced upon me by the study of
the evidence with great hesitation, and after careful thought, I recur for
one moment to a matter which, though unimportant to my mind, should
not be left untouched. It is alleged that at about the age of sixteen,
the plaintiff, who is now trying to set up a right equal to his bro-
thers in the family property, took part in a transaction in which he
acquiesced in his brother's claim to be entered as sole proprietor
of the Beswan estate, and repudiated upon his own part any right
or claim except to the allowance of Rs. 200 per mensem. It is
true, we believe, in spite of the denial upon oath of the plaintiff,
that he did fully and unreservedly make the admission, but it does
not operate against him as an estoppel in point of law. The value
of such admission depends upon the knowledge or ignorance of the real
facts possessed at the time it was made. We believe that the plaintiff
knew just as much and not more than what Gir Prasad chose to tell him,



1893

FEB. 7.

APPEL-
LATE
CIVIL.

ISA. 147 =
13A.W.N.

(1893) 83.



A VII 104



825



15 All. 169 INDIAN DECISIONS, NEW SERIES [YoL

1893 and that probably until he had come in contact with other members of the
FEB. 7. family who had not allowed themselves to be overpowered by the attractive

statements of Gir Prasad, he never doubted his brother's right by virtue

APPEL- of primogeniture and that his own exclusion was according to the custom
LATB of the family. I do not think that there is any reason in the presence of
CIVIL what I must call an entire failure of the defendant to substantiate his case

, to refuse the plaintiff the relief he asks.

IS *. 147= The result is that the appeal will be allowed. But, having regard to

13 A.W.N, what appears the probable fact that both the plaintiff and defendant were
(1893) 85. misled by the misrepresentations of their father and his dependents as to
their rights in the matter, we think that justice would be done by decree-
ing the appeal and leaving the parties to bear their own costs here and
below.

TYRRELL, J. I fully concur in the judgment and in the decree
proposed by my brother Blair.

Appeal decreed.



18 A. 169 = 13 A.W.N. (1893) 78.

[169] EEVISIONAL CIVIL.

Before Mr. Justice Knox.



MARY DICK AND OTHERS (Applicants] v. LOUISA DICK (Opposite
Party}* [18tb February, 1893.]

Costs Taxation Competency of Judge before taxation to reconsider an order as to
costs mcde by his predecessor in office Certificate of pleader's fee Civil Pto:edure
Code, s. 373 Revision.

A Subordinate Judge in granting the application of a plaintiff before him foe
permission to withdraw with leave to file a fresh suit in the same matter made
an order as to costs in favour of the defendants in the following terms : "As the
.case has not been contested to the bitter end, half the pleader's fees are allowed
and the process expenses, &o., incurred in the case, except those already
refused to the defendants For travelling and incidental expenses defendants to
put in a bill in one week, this to be subject to the decision of the Court after
hearing both parties. The application under s. 373 of the Code of Civil Proce-
dure is granted with leave to the plaintiff to bring a fresh suit for the same
matter. Costs allowed to defendants as above."

The Judge who had made the above order having been transferred before tax-
ation was completed.

Beld that id was competent to his successor at taxation and before granting
payment of the pleader's fees to consider whether the certificate given by a pleader
as to the fee paid to him in the case was according to rule and to disallow pay-
ment of any fee not duly certified as paid.

Held also that the order under s. 373 of the Code of Civil Procedure was an
order liable to revision. Kalia Shingh v. Lekkraj Singh (1) referred to.

[R ., 5Ind. Gas. 187 (189) = )! C.L.J. 45.]

THE facts of this case sufficiently appear from the judgment of
KNOX, J.

Mr. W. Wallach, for the applicants.
Mr. A. E. Ryves, for the opposite party.



* Application No. 61 of 1892 under s. 622, Civil Procedure Code, to revise an order
passed by R. Greeven, E=q., Subordinate Judge of Dehra Dun, dated the 16th June
1892.

(1) 4 A.W.N. (1884) 28.

826



YII] MABY DICK V. LOUISA DICK 15 All. 171

JUDGMENT. 1893

KNOx, J. This is an application presented by Mrs. Dick and FE ^_
others asking this Court to revise an order passed by the Subordi- T> WVT
nate Judge of Dehra Dun, dated the 16th of June, 1892. [170]
The order is an order passed by the Subordinate Judge of Dehra
Dun in which he directed that a certain bill of costs presented on behalf CIVIL,
of Mrs. Mary Dick in the case of Mrs. Louisa Dick and others be passed, a~~iBa
but that neither the fee of Mr. Morton nor the expenses of Captain ' _.
Hearsey be allowed. The portion of this order to which exception is , |89 jj 7 ' 8 '
taken is that whereby the fee of Mr. Morton is disallowed, and the
grounds on which it is prayed that this Court should revise the order
are two-fold ; firstly, that the Court has exercised jurisdiction not vested
in it by law, and, secondly, that the order was illegal, as all requirements
precedent to payment of pleader's fees had not been fulfilled. A good
deal of argument in the case was directed to the question whether or not .
this was a case for revision, and exception was taken on the ground
that the order was one in which an appeal was granted by law. The
order of which the portion above cited forms part was an order per-
mitting withdrawal of an application and passed under s. 373 of the
Code of Civil Procedure. On behalf of the petitioner I was referred
to a judgment of this Court, Kalian Singh v. Lekhraj Singh (1) in which
this Court held that an order of this nature was an order against which an
appeal did not lie, and for the purpose of the present case it is sufficient to
say thai. I am prepared to follow that precedent ana act on the case as one
in which this Court can exercise powers of revision. The next and more
important question in the case was whether the Judge in acting as he did
had exercised a jurisdiction not vested in him by law. In order to deter-
mine this point it will be necessary to set out further the particular
circumstances out of which that order arose. Mrs. Louisa Dick had
sued the petitioners before me for a declaratory decree. Three of the
said petitioners were permitted in that case to appear through a
person known as Captain Hearsey who held a power of attorney
on their behalf. The pleader appointed under the power of attorney
was one Mr. Morton. For reasons into which it is unnecessary to
enter, Mrs. Lousia Dick was permitted to withdraw the applica-
tion subject to payment of costs. The question of costs was first
[171] gone into by Mr. Leggatt, who was at that time seised of the
case as Subordinate Judge of Debra Dun. The order that be passed is
couched in the following terms : " As the case has not been contested
to the bitter end, half the pleader's fees are allowed and the process
expenses, &c., incurred in the case, excepfc those already refused to defend-
ants. For the travelling and incidental expenses defendants to put in
a bill in one week, this to be subject to the decision of the Court after
hearing both parties. The application under s. 373 of the Code of Civil
Procedure is granted, with leave to the plaintiff to bring a fresh suit for
the same matter. Costs allowed to defendants as above." Before the
case could again be considered Mr. Greeven had succeed Mr. Leggatt
as the Subordinate Judge, and finding that the question of costs was
one in which the parties concerned were at considerable variance, he
proceeded to take evidence, and amongst other persons examined were
the persons mentioned before as Captain Hoarsey and Mr. Morton.
In the examination of the former he elicited the following facts.

(1)4 A.W.N. (1884) 28.

827



15 All. 172 INDIAN DECISIONS, NEW SERIES [Yol,

1893 That the case was one in which a percentage of 50 per cent, on whatever
FEB. 18. was recovered was to go to the witness ; that the witness was not in good
circumstances ; that his yearly income consisted of pensions amounting
to 120 ; that he was considerably indebted to a local bank ; that a lia-
SIONAL bility of Rs. 4,000 due from the witness may or may not have been wiped
ClVIL. ff by fc Qa k bank as a bad debt ; that he had engaged Messrs. Morton and
Dyer as legal practitioners ; that Mr. Dyer had received no remuneration,
ISA. 169= a nd that Mr. Morton's remuneration was 68 by a cheque drawn by the
13 A.W.N. witness on his bankers in England ; that he had made up the amount of



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 121 of 155)