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 t