Judgement

Appeal (No. 74 of 1917) from a judgment arid decree of the High Court (May 20, 1916) affirming, subject to a slight modification, a decree of the Subordinate Judge of Mirzapur (March 3, 1915).

The suit was instituted by the respondent to establish his title to the estates appertaining to the raj of Agori-Barhar. The last male holder, Raja Kesho Saran Shah, died in 1871 leaving no children ; since that date his widow had been in possession until her death in 1913. The plaintiff-respondent was the direct senior lineal descendant of the common ancestor of himself and the last male holder. The first two appellants (defendants), who were in possession, were uncles of the plaintiff, being thus one degree nearer to the common ancestor than the plaintiff. The family was governed by the Mitakshara.

The facts appear more fully from the judgment of the Judicial Committee and from the report of the appeal to the High Court at I. L. R. 38 A. 590, in which report a pedigree will be found.

The material allegations in the plaint were that the estate was impartible, and that by custom the succession was governed by lineal primogeniture; the possession by the deceased rani was accounted for by an alleged custom of the family. These several allegations were traversed by the appellants written statements.

The Subordinate Judge found that prior to 1744 the estate was an impartible raj, that it was restored as an impartible raj to Adil Shah, the son of the common ancestor, by a sanad granted in 1781, and that by presumption of law lineal primogeniture was the rule of succession. He was of opinion that the estate was held by all the descendants of Sudisht Narayan Shah, the common ancestor, as members of a joint Hindu family ; and that a custom of lineal primogeniture had been established. In the result he made a decree for possession with mesne profits.

The defendants appealed to the High Court. The learned judges (Sir Henry Richards C.J. and Muhammad Rafiq J.), whose judgments are fully reported at I. L. R. 38 A. 590, were of opinion so far as is material to this report (1.) that the estate was impartible prior to 1744 and that when it was restored it was still held as impartible ; (2.) that the regrant to Adil Shah was on behalf of the joint family, and that he and his brothers constituted a joint Hindu family ; and (3.) that the possession of the rani was under a family custom. They held that when an impartible estate passes by survivorship from one line of descent to another it devolves not on the co-parcener nearest in blood, but on the nearest co-parcener of the senior line ; and that consequently the plaintiff was entitled to succeed in preference to the defendants. Rafiq J. was of opinion that the evidence did not establish the custom of lineal primogeniture alleged. A decree was made dismissing the appeal except in regard to the movable property, as to which the decree of the Subordinate Judge directing an account was set aside.

1920. Nov. 1, 2, 4, 5, 8. De Gruyther K.C. and Dube for the appellants. The sanad of 1781 did not restore to the grantee what his ancestors had ; under it the property was held as separate property. There could not be a joint family of which Kesho Saran Singh and Deoki Nandan Singh were members. Having regard to the circumstances in which the property was acquired it was partible. But if the estate was rightly held to be ancestral joint property, that finding must be associated with the further finding that it was impartible. The judgments in the High Court are based upon the view that the members of the joint family having a co-parcenary interest in the estate. But the effect of the judgments of the Board in Sartaj Kuari v. Deoraj Kuari (L. R. 15 I. A. 51.) and Rama Rao v. Raja of Pittapur (L. R. 45 I. A. 148.) is that there is no co-parcenary in an impartible estate. The judgment in the latter said, in relation to an impartible zamindari, that "it is of its essence that no co-parcenary exists." As a nece