Judgement

Appeal from a judgment and decree of the Court of the Judicial Commissioner of Oudh (August 4, 1913) reversing a decree of the Subordinate Judge of Sultanpur.

At the annexation of Oudh the taluqa of Deogaon was in the possession of one Jamshed Ali Khan. The British Government made a summary settlement with him in December, 1858, and on October 17, 1861, conferred upon him a primogeniture sanad. His name was afterwards included in lists 1 and 2 of the lists prepared under s. 8 of the Oudh Estates Act, 1869. He died in 1865, and was succeeded by his son Azam Ali Khan. Azam Ali Khan died in 1899 leaving two sons, Mustafa Ali Khan and

29 Law. Rep. 43 Ind. App. 269 ( 1915- 1916) Murtaza Husain Khan V. Mahomed Yasin Ali Khan

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Murtaza Husain Khan (the appellant), and two daughters. It was agreed by the parties that daughters were excluded from succession by the family custom.

Mustafa Ali Khan succeeded to the taluqa under the sanad, and also obtained possession of all the non-taluqdari property of his father. He remained in possession until 1909, when he died and was succeeded by his only son, Yasin Ali Khan (the respondent). The family had been Mahomedan for many generations.

In 1910 the appellant instituted the present suit against the respondent, claiming possession of a moiety of the non-taluqdari property specified in the plaint. He alleged that the property in suit was governed by the ordinary Mahomedan rule of succession. The respondent pleaded that the properties devolved upon him, according to the family custom, by the rule of primogeniture.

The Subordinate Judge held that, Jamshed Ali Khan having died prior to the passing of Act I. of 1869, the provisions of that Act did not apply, and that the Court was not bound under s. 10 to take judicial notice of the lists. He held that the onus of proving a family custom was upon the defendant and that he had failed to discharge it. He accordingly made a decree in favour of the appellant for one half of the non-taluqdari property.

Upon appeal to the Court of the Judicial Commissioner the decree was reversed and the suit dismissed. The learned judges held that the estate of Deogaon was within Act I. of 1869, and that the pro visions of that Act raised a presumption in favour of the existence of the custom with regard to the non-taluqdari property. They also considered that the oral evidence adduced by the defendant (respondent) was reliable, and referred to a petition and statement, both filed in Court by the taluqdar Azam Ali Khan, as showing that he regarded the custom of impartibility as applying to both ancestral and acquired property. The judgment is reported at 16 Oudh Cases, 290.

1916. June 5. De Gruyther, K. C., and Arthur Grey, for the appellant. The family custom alleged was not established either as to the taluqa or particularly as to the acquired property. The taluqa descended by primogeniture by virtue of the sanad and not under any family custom. Jamshed Ali Khans application in response to the circular of January 30, 1860 (see Sykes Compendium, p. 389), shows that he did not base his request upon any pre-existing custom. The taluqa was really one to which list 3 applied ; no presumption arises from the name of the taluqdar being placed in list 2 Achal Ram v. Udai Partab (( 1883) L. R. 11 Ind. Ap. 51.); Thakur Sheo Singh v. Rani Raghubans. (( 1905) L. R. 32 Ind. Ap. 203.) If there was a presumption it did not apply to non-taluqdari property. There was no evidence of an intention to incorporate the acquired property with the taluqa. The decision in Janki Pershad Singh v. Dwarka Pershad Singh (L. R. 40 Ind. Ap. 170.) as to the acquired property there involved is conclusive in the appellants favour. The wajib-ul-arz papers showed that villages were on several occasions divided between members of the family. They were evidence under s. 35 of the Indian Evidence Act, 1872—Rani Lekraj Kuar v. Mahpal Singh (( 1879) L. R. 7 Ind. Ap. 63.)—and should be regarded as co