Judgement

Appeal (No. 104 of 1922) from a decree of the Court of the Judicial Commissioner (April 4, 1919) affirming a decree of the Subordinate Judge of Mohanlalganj.

The suit was instituted by Narain Singh, represented by the appellants, against Avadhesh Singh, a minor represented by the respondent, to recover possession of a taluqa named Rampur Kaithaula.

The material facts appear from the judgment of the Judicial Committee.

The trial judge dismissed the suit, and that decision was affirmed (though on different grounds) upon appeal to the Court of the Judicial Commissioner. The effect of the judgments in India appears from the present judgment. The question of res judicata, one of the grounds of the decision of the trial judge was not material to the present decision; it is therefore not necessary to state the facts as to it.

1923. June 4, 5, 7. Sir George Lowndes K.C., and Kenworthy Brown for the appellants. The appellate Court rightly reversed the finding of a custom of lineal primogeniture, but erred in allowing a new defence based on the deed of 1871 and the alleged will of 1888. The limitation to Lachman Singh and "his heirs and representatives .... as provided by s. 22 of Act.1. of 1869 " was invalid under the rule in the Tagore Case (( 1872) L. R. I. A. Supp. 47.), as laying down a rule of inheritance other than that prescribed by law Rajindra Bahadur Singh v. Raghubans Kunwar. (( 1918) L. R. 45 I. A. 154.) If Lachman had a vested interest under the deed, it was merely a life interest Tarakeswar Roy v. Shoshi Shikharesivar (( 1885) L. R. 10 I. A. 51.); Kristoromoney Dossee v. Norendro Krishna. (( 1888) L. R. 16 I. A. 29.) Bhoobun Mohini Debya v. Hurrish Chunder Chowdry (( 1893) L. R. 5 I. A. 138.) is distinguishable on the words of the deed; the decision helps the appellant as showing that a benignant construction should be adopted. Ghulam Abbas Khan v. Amatul Fatima (( 1921) L. R, 48 I. A. 135.) was also referred to. If, however, Lachman took absolutely he took the estate as ancestral property and could not dispose of it by will. On this point reference was made to Mitakshara, Ch. I., s. 4, sub-ss. 1, 6, 28, and to the series of decisions in India referred to in the judgment of their Lordships.

De Gruyther K.C., Wallach and Dube for the respondent. [Their Lordships were satisfied that Lachman did not take otherwise than absolutely.] It was admitted that the estate was impartible by custom; Lachman accordingly took the estate under the settlement as impartible property, and the further descent of the estate was subject to that custom Narindar Bahadur Singh v. Achal Ram (( 1893) L. R. 20 I. A. 77.); Janki Per shad Singh v. Dwarka Per shad Singh (( 1915) L.

R. 40 I. A. 170.) ; Ghulam Abbas Khan v. Amatul Fatima. (( 1921) L. R, 48 I. A. 135.) Consequently, even if Lachman took the estate as ancestral property he had the right of alienation which attaches to impartible estate Sartaj Kuari v. Deoraj Kuari (( 1888) L. R. 15 I. A. 51.); Baijnath Prasad Singh v. Tej Bali Singh. (( 1921) L. R. 48 I. A. 195.) But Lachman did not take it as ancestral property; first, because he would not have taken under an intestacy, secondly, because if he had taken under the Act he would have had a power of disposition. [Maynes Hindu Law, para. 275, was referred to.] The Indian decisions, upon consideration, support the respondent on this point.

Sir George Lowndes K.C. in reply. The effect of s. 15 is that in Lachmans hands the estate was not to be regarded as a taluqdari estate; no custom by which acquired property was impartible was set up. The descent is therefore not governed by custom. On that point Murtaza Husain Khan v. Mahomed Yasin Ali Khan (( 1916) L. R. 43 I. A. 269.) is conclusive; Sitla Baksh Singh v. Sital Singh (( 1921) L.

R. 48 1. A. 228.) accords with it. Lachman took the property as ancestral property. Under s. 15 of the Act the estate is to be regarded as if Lachman had "bought" it; further, the property was not acquired w