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

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Rama Pandoo.

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Raghoo

| Sitroo | Sona | Jana

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| Kondi | Gondi | Mohna | Tanya Bapu. | = Mr. Raju Bai |

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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)

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Malharrao Martand Rao

(Plaintiff