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1927 Supreme(SC) 86
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD SINHA, AND SIR JOHN WALLIS.
MARTAND RAO - Appellant
Versus
MALHAR RAO - Respondents
On Appeal from the Court of the Judicial Commissioner, Central Provinces.
Decided On : November 24, 1927.
Solicitors for appellant:T. L. Wilson & Co. Solicitor for respondent: H. S. L. Polak.
To establish an estate as impartible, the party alleging a custom contrary to ordinary inheritance law must prove that such custom is ancient, invariable, and established by clear evidence of immemorial usage. The mere designation of an estate as a "raj" does not automatically imply impartibility.
Headnote:(A) Succession Law - Impartibility of Estate - Onus of proof - When there is a dispute regarding whether an estate is impartible, the onus lies on the party alleging a custom different from the ordinary law of inheritance. To establish impartibility, it must be proved that the estate is either impartible by nature or by virtue of a special custom. Any such special custom modifying the ordinary law of succession must be ancient, invariable, and established by clear and unambiguous evidence of immemorial usage.
(B) Evidentiary Value of Official Reports - While official reports are valuable and often the best evidence of facts, the opinions expressed therein should not be treated as conclusive in matters requiring judicial determination.
(C) Nature of Estate - The designation of an estate as a "raj" does not necessarily imply impartibility. Unless considerable age can be ascribed to a particular estate, it cannot claim to be governed by an ancient or invariable custom.
Facts of the case:
Two brothers disputed the succession of a zamindari estate. The elder brother sought a declaration that the estate was impartible and that he alone was entitled to succeed to it under the rule of lineal primogeniture, asserting that the younger brother was entitled only to maintenance. The claim was based on the terms of the original grant, family custom, and territorial custom.
Findings of Court:
The court found that the estate was not impartible by nature, by the terms of the grant, or by territorial custom. Evidence showed that other similar estates in the region had been partitioned, disproving the existence of a territorial custom of impartibility. Furthermore, the family history showed that succession had followed ordinary rules of inheritance, and no instance of primogeniture was established. The court also held that the estate's relatively recent origin precluded the application of an ancient and invariable custom.
Issues: Whether the estate was impartible and subject to the rule of primogeniture based on the terms of the grant, family custom, or territorial custom.
Ratio Decidendi: To establish an estate as impartible, the party alleging a custom contrary to ordinary inheritance law must prove that such custom is ancient and invariable. An estate of relatively recent origin cannot claim the protection of such a custom. The mere classification of an estate as a "raj" or the reliance on opinions in official reports is insufficient to override the ordinary law of succession without clear evidence of a specific grant or a proven, immemorial custom.
Result: Judgment and decree of the Judicial Commissioners set aside and the judgment of the District Judge restored.
Legal Category Hierarchy
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property law
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land tenure
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zamindari
- impartibility
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zamindari
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land tenure
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family law
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succession
- primogeniture
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succession
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practice and procedure
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evidence
- burden of proof
- official reports
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evidence
Judgement
Appeal (No. 10 of 1926) from a decree of the Court of the Judicial Commissioner (February 23, 1923) reversing a decree of the District Judge of Bhandara (March 1, 1920).
The appellant and the respondent were the only sons of the zamindar of Amgaon, who died in 1917, the respondent being the elder. The zamindari was situated in the Bhandara district of the Central Provinces, and was one of a group of zamindaris known as the Wainganga zamindaris.
The respondent brought a suit against the appellant in the District Court for a declaration that the zamindari was impartible, that he alone was entitled to succeed to it, and that the appellant was entitled to maintenance only.
The facts appear from the judgment of the Judicial Committee.
The District Judge passed a decree in favour of the plaintiff, but on appeal to the Court of the Judicial Commissioner the decree was set aside and the suit was dismissed.
1927. July 15,19,20,21,22 and 25. Sir George Lowndes K.C, Parikh and P. A. Pandit for the appellant.
De Gruyther K.C., Dube and N. B. Nyogi for the respondent.
The arguments were chiefly as to the effect of the documentary evidence. [Reference was made to Rajkishen Singh v. Ramjoy Surma Mozoomdar (( 1872) I. L. R. 1 C. 186 (P. C).) ; Rewa Prasad Sukul v. Deo Dutt Ram Sukul (( 1899) I. L. R. 39 0. 515; L. R. 391. A. 39.); and Rao Kishore Singh v. Gohenabai . (( 1919) 24Cal. W.N.601 (P.C.).)]
Nov. 24. The judgment of their Lordships was delivered by
LORD SINHA. This is an appeal against a judgment and decree, dated February 23, 1923, of the Court of the Judicial Commissioner, Central Provinces, reversing a judgment and decree, dated March 1, 1920, of the Court of the District Judge, Bhandara.
The suit in which the said decrees were made was brought by the plaintiff, Malhar Rao, against his younger brother, Martand Rao, claiming that, on the death of their father, Madho Rao, he alone was entitled to succeed to the Amgaon estate, situate in the Bhandara District of the Central Provinces, to the exclusion of his younger brother, on the allegation that by the terms of the grant under which the estate was held, and by a family custom and also by a territorial custom, the said estate was impartible and succession thereto was governed by the rule of lineal primogeniture, and that the younger brother was entitled to suitable maintenance only and not to any specific share in the estate.
The pedigree of the family from its founder, Kolhu Kunbi, including the Amgaon branch (under Pandoo) and the other branches, is given below— Seventeen issues were framed by the trial Court, of which the following four only are material at this stage—namely, issues Nos. 1, 2, 9 and 10 (1.) Was the zamindari of Amgaon conferred on Pandoo by the Bhonsla Raja subject to the condition that it was to be impartible and to devolve on the eldest son, females having no right of succession, as alleged by the plaintiff, or was it conferred on Sonba (or Sona) without any condition being attached to the grant as alleged by the defendant ? (2.) In the time of the Bhonsla Raj, whenever a zamindari was granted, did the grant always carry with it the conditions mentioned in para. 5 of the plaint (i.e., impartibility and single succession) and also the incident of inalienability ? (9.) Was devolution to zamindari property governed by the rule of primogeniture in the family of Pandoo and Kolhu ; if so, are the parties bound by the ..aid custom ? (10.) Is there a territorial custom to the effect that zamindari property is impartible, inalienable and devolves by the rule of primogeniture as alleged by the plaintiff; if so, are the parties bound by the said custom ?
Kolhu
|
| |
Rama Pandoo.
| |
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Raghoo
| Sitroo | Sona | Jana
| |
| Kondi | Gondi | Mohna | Tanya Bapu. | = Mr. Raju Bai |
| |
Madhorao Chimna
Bhau (adopted by
(adopted by Tenya
Raju Bai). Bapoo)
|
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Ragho = Mt. Arjun.
Gange Bai.
dth1421 |
Madhorao
Bhau
(adopted by
Raju Bai)
|
| |
Malharrao Martand Rao
(Plainti
