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1921 Supreme(SC) 33
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, LORD DUNEDIN, LORD SHAW. SIR JOHN EDGE, AND MR. AMEER ALI.
RANA MAHATABSINGH - Appellant
Versus
BADANSINGH - Respondents
On appeal from the Court of the Judicial Commissioner, Central Provinces.
Decided On : Apr. 21. 1921.
Solicitors for appellant :Adams & Adams. Solicitor for respondents 1 and 2: E. Dalgado.
A long-standing family custom of primogeniture, evidenced by the succession of the eldest son and the provision of maintenance to junior members, renders an estate impartible, and this custom persists despite changes in the administrative or fiscal status of the landholding.
Headnote:(A) Hindu Law - Custom of Primogeniture - Impartibility of Estate - Succession to the headship of a house and its ancestral property in certain families is governed by the rule of primogeniture, where the eldest male representative of the eldest branch is entitled to the estate and title to the exclusion of junior members, who are entitled only to maintenance. (Paras 1, 10, 15)
(B) Evidence of Custom - A long-standing practice where the eldest son succeeds to the estate and junior members consistently accept grants for maintenance over several generations constitutes sufficient evidence to establish a custom of primogeniture and impartibility. (Paras 4, 25)
(C) Effect of Change in Status - The conversion of a feudal chief into a fiscal officer or zamindar, or the cessation of services attached to an impartible estate, does not automatically destroy the custom of impartibility or render the estate partible under ordinary Hindu law. (Paras 21, 22)
Facts of the case:
A suit for partition was filed by a younger brother against the eldest brother, claiming a share in ancestral property including revenue-free and revenue-paying villages. The defendant contended that the property was impartible according to a family custom of primogeniture, whereby the eldest son succeeds to the estate and title, while junior members receive maintenance. The trial court found the custom established and dismissed the suit, but the appellate court reversed this decision, suggesting that the custom had evolved into a right to partition over time.
Findings of Court:
The court found that the family's history and traditions, supported by historical records and the conduct of family members over generations, established a continuous custom of primogeniture. The property in question was recognized as belonging to the estate of the chief, and junior members had historically accepted maintenance rather than shares in the property.
Issues: Whether the ancestral property of the family was partible under ordinary Hindu law or impartible based on a custom of primogeniture.
Ratio Decidendi: The court held that the long-term adherence to the rule of primogeniture, the existence of a gaddi, and the consistent practice of providing maintenance to junior members instead of shares in the estate established a valid custom of impartibility. The mere change in the administrative nature of the landholding from feudal to fiscal does not extinguish such a custom. Speculative theories regarding the evolution of family rights cannot override proven historical custom and the consistent conduct of the parties.
Result: Judgment and decree under appeal reversed and the order of the District Judge restored.
Legal Category Hierarchy
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family law
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hindu law
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succession
- primogeniture
- impartibility
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succession
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hindu law
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property law
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land tenure
- zamindari
- watan
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land tenure
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practice and procedure
-
evidence
- custom
-
evidence
Judgement
Appeal from a judgment and order of the Court of the Judicial Commissioner (April 19, 1917), reversing a decree of the District Judge of Nimar, at Kandwa.
The suit was brought by the first respondent and a purchaser from him, alleging that certain property in the possession of the appellant (since deceased) was joint family property, as to which the first respondent and his brothers (also respondents) were entitled to partition. The property, as described in the plaint, included two muafi villages, Nandia and Pangra, and two malguzari villages, Piplod and Jirwan. The main question in the appeal was whether the property was partible or whether the deceased appellant as the eldest son of the last holder had been entitled to it according to the rule of primogeniture. The family were Rajputs settled in the Nimar district, Central Provinces, for several centuries. The material facts (with a pedigree) appear from the judgment of the Judicial Committee.
There was no dispute in the appeal that the eldest male representative of the eldest branch was entitled to the title of Rana and was installed on the gaddi, and there was evidence to show that the family had been a ruling family with a raj since the year A.D. 1300, or thereabouts, though its property at the present time was of a small amount. Umedsingh, the father of the principal parties, was shown to be the fourth eldest member of the family in succession to hold the property as impartible ; he died in 1892, and on his death the original appellant succeeded to the property and to the title of Rana and the gaddi. The first respondent was then a minor, but he attained his majority in 1898 ; he first raised a claim in 1908, in the Settlement Court which rejected it.
The District Judge dismissed the present suit. He found that upon the evidence the appellant had established the alleged custom of primogeniture ; he particularly relied on the fact that the younger members of the family had acquiesced in the eldest male of the eldest male line holding the property in question, and had accepted grants for maintenance, for at least four generations.
On appeal the Court of the Judicial Commissioner reversed the decision of the District Judge and remanded the suit. The learned judges recognized that no partition had taken place during the last four generations, but held that the conduct of the members of the family since Hatesing (great grandfather of the parties) succeeded to the gaddi would not in itself suffice to establish a custom of primogeniture and impartibility, even if they were prepared to hold, as they were not, that what was done was of right and not because of convenience. They said " It must also be established that the recent practice was followed, because it was the ancient practice. As we have endeavoured to show, it is impossible to say from the evidence on the record as to this particular family that there used not to be divisions of pro perty partaking of the nature of partition. Once it is held that there have from time to time been distributions of property partaking of the nature of a partition then we must hold that a suit for partition cannot be defeated, and in making the partition the only rule that a Court can follow is the ordinary rule of Hindu law, by which the rights of brothers are equal." In the course of their judgment the learned judges referred to their judgment in appeal No. 11 of 1911, which was reversed by the Judicial Committee ( Rao Kishore Singh v. Mt. Gahenabai (July 29, 1919; unreported.)), citing the passage which is set out in the present judgment of the Judicial Committee.
1921. Feb. 7,8,10. Sir Erle Richards K.C. and E. B. Raikes for the representatives of the appellant. The earlier history of this family appears from Captain Forsyths Settlement Report made in 1868 and published in 1872. [Reference was made to the following paragraphs of the Report 34, 38, 43, 59, 111, 113, 117 to 119, 128, 135, 241, and 249.] The report establishes
