Judgement

Appeal from a judgment and decree of the High Court (August 22, 1909) reversing a judgment and decree of the Subordinate Judge of Bhagalpur (August 15, 1908).

The suit was instituted by the appellant against the respondent, the widow of his deceased brother, who died without leaving male issue, claiming certain movable and immovable property. The immovable property claimed had originally been included in babuana and sohag grants made to the parents of the appellant and his brother; the movable properties were alleged to be accretions to the babuana properties. The brothers formed a younger branch of the Durbhanga raj family, which was governed by the Mithila school of Hindu law, corresponding (so far as material) to the Mitakshara, but subject to a kulachar or family custom.

The appellant by his plaint claimed the property first by survivorship, and secondly by the kulachar, under which he alleged that widows were excluded from the inheritance of or succession to babuana and sohag properties. The nature of the case appears fully from the pleadings as set out in their Lordships judgment.

At the trial much evidence, both documentary and oral, was adduced with reference to the exclusion of widows by kulachar, though no evidence was given of the exclusion of a widow after a partition of properties originally granted under babuana and sohag grants. The grant to the appellants father was not exhibited, but copies of sanads for other babuana grants in the family were put in evidence. These by their terms appeared to exclude some female heirs but did not specifically define the rights of widows. They used the words of limitation "auras putra poutradik."

Both Courts in India found that there had been a complete separation between the brothers, with a partition of the property the subject of the grants, and that consequently there was no right of survivorship in the plaintiff (appellant).

Upon the second ground of the claim the Subordinate Judge held that there was a valid custom in the junior branches of the raj family excluding widows from the succession to babuana and sohag properties, and that the partition did not affect the appellants right to succeed under the family custom since it overrode the ordinary rule of succession. He accordingly made a decree in favour of the plaintiff for the properties claimed with certain exceptions not material to this report.

Cross-appeals to the High Court were filed; that Court (Sharfuddin and Richardson JJ.) held that the present appellant had failed to establish a kulachar affecting the properties in suit and entitling him to succeed thereto to the exclusion of the respondent, and accordingly dismissed the suit.

Sir Erie Richards, K.C., and Dunne, for the appellant. The evidence established that under the kulachar on the death without male issue of a male descendant of a grantee of babuana property his rights do not pass to his widow but to his nearest agnate among the male descendants in the male line of the grantee, and that the same rule applies to sohag grants. The partition between the brothers did not affect the character of their holding. Moreover, if the judgment in Durgadut Singh v. Maharaja Sir Rameshwar Singh (L. R. 36 Ind. Ap. 176.) stands there could be no partition of the babuana property. [Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh (( 1855) 6 Moo. Ind. Ap. 164.), Laliteswar Singh v. Bhabeswar Singh (( 1908) I. L. R. 35 Calc. 823.), and the Indian Evidence Act (I. of 1872), s. 13, were also referred to.]

De Gruyther, K.C., and Kenworthy Brown, for the respondent. Although, as held in Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh (2), the raj itself is impartible, the babuana and sohag grants are held by the grantees as their absolute estate according to the ordinary Hindu law subject only to reversion upon failure of male heirs; they are heritable and alienable Laliteswar Singh v. Bhabeswar Singh (3); Durgadut Singh v. Maharaja Sir Rameshwar Singh. (1) The l