Judgement

Appeal (No. 87 of 1934) from a decree of the High Court (February 26, 1931), which varied a decree of the Subordinate Judge of Patna (August 22, 1925).

66 Law. Rep. 63 Ind. App. 441 ( 1935- 1936) Someshwari Prasad Narain Deo V. Maheshwari Prasad Narain Deo 167

This appeal arose out of a suit brought by the appellants for partition of the Dhanwar estate in Pargunnah Kharakdhia, District Hazaribagh, which was owned by the late Ran Bahadur Narain Deo, the grandfather of the first appellant, Someshwari Prasad Narain Deo, and the father of the second appellant, Harihar Prasad Narain Deo. The main questions for determination were whether the Dhanwar estate was impartible or partible, and whether certain immovable pro perties acquired in the lifetime of Ran Bahadur from the income of the estate merged in the estate or were partible and should be partitioned on his death among his heirs under Hindu law.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit, holding that the estate was impartible.

On appeal, the High Court (Ross and Fazl Ali JJ.) held that it was only the ancestral estate which was impartible, and that Ran Bahadurs estate also comprised certain self-acquired properties which were partible, and they made a decree for partition of a certain portion of the estate. The appeal is reported at ( 1931) I. L. R. 10 Pat. 630.

1936. June 19, 22, 23, 25, 26. Dunne K.C. and Hyam for the appellants.

De Gruyther K.C. and Wallach for the respondent manager, Encumbered Estates, Hazaribagh.

July 29. The judgment of their Lordships was delivered by SIR SHADI LAL. The dispute in this appeal relates to the succession to an estate, situate in the Province of Behar, which is known as the Dhanwar Estate. The succession opened on the death of Ran Bahadur Narain Deo, which took place on October 6, 1900. He left surviving him two sons, Ishwari Prasad Narain Deo and Harihar Prasad Narain Deo. It appears that the Court of Wards had taken possession of the estate in the lifetime of the deceased, but released it after his death to his elder son Ishwari Prasad.

The suit was commenced in 1917 by the younger son for a partition of the estate, and subsequently his sons and other persons were added as plaintiffs. The claim was resisted on the ground that the estate was impartible, and that the succession to it was governed by the rule of lineal primogeniture. It was pleaded that the plaintiff, Harihar Prasad, being a junior member of the family, was entitled, not to a share in the estate, but only to maintenance. The Courts below, the Subordinate Judge who tried the suit, and the High Court at Patna, who heard the appeal from his judgment, have upheld this plea ; and the principal question for determination is whether the estate descends according to the rule of lineal primogeniture.

Now, the Dhanwar estate is an estate of considerable age, and, apart from the traditions which rest upon doubtful material, there is abundant documentary evidence to show that in the first half of the 18th century it consisted, not only of 17 nankar (revenue free) villages and 53 khalsa (revenue paying) villages, but also of other territories. The estate was, at that time, known as Pargunnah Kharagdiha, and was held by Mode Narain, an ancestor of Ran Bahadur. Mode Narain was evicted in 1752 by one Kamdar Khan, who was succeeded by his son Ekbal Ali Khan. In 1774, Ekbal Ali Khan rebelled against the East India Company, who had acquired the Diwany of the Province of Behar, with the result that he lost the estate by forfeiture. Mode Narains grandson, Girwar Narain, had helped the Company in suppressing the rebellion ; and he was rewarded in 1775 with the grant of 17 nankar villages. In 1805, one khalsa village, Mandhirkha, was settled with him ; and this was followed in 1810 by the settlement of other khalsa villages, 52 in number. These villages (both

66 Law. Rep. 63 Ind. App. 441 ( 1935- 1936) Someshwari Prasad Narain