Judgement

Appeal from a decree of the above Court (March 6, 1900) modifying a decree of the Subordinate Judge of Partabghur (Dec. 24, 1898), which dismissed the respondents suit with costs.

The subject of suit was (inter alia) the right to succeed to a nine-twentieths share in the taluqa of Raepur Bichore, the last male owner of which was Rae Bisheshar Bakhsh Singh, who died on August 31, 1890.

After the annexation of the Province of Oudh, the estate of Raepur Bichore was summarily settled with Rae Pirthipal Singh, the father of Rae Bisheshar Bakhsh Singh and the grandfather of the respondent. He was the owner of the estate at the time, and after the confiscation of all proprietary rights in the soil of Oudh, which was effected by the pro clamation of the Viceroy and Governor-General of India in March, 1858, obtained a taluqdari sanad, or title-deed, from Government.

On January 22, 1866; Rae Pirthipal Singh devised eleven-twentieths of the said taluqa to the wife of Rae Jagmohan Singh, his eldest son, and half-brother to Bisheshar, for the benefit of Rae Jagmohan Singh, who was suffering from mental infirmity. The remaining nine-twentieths share he devised to Rae Bisheshar Baksh Singh. He made two separate lists of the villages which were to constitute each of the said shares, and in his lifetime obtained the orders of the Revenue authorities to record the names of his sons in regard to these villages in the Revenue registers. In June, 1866, Rae Pirthipal Singh died.

On Bisheshar Bakhshs death intestate, his widows, the appellants, and the respondent, who was the son of Jagmohan Singh, claimed to succeed. The Revenue Courts on December 12, 1890, placed the appellants in possession, and thereupon the respondent sued by his next friend to recover the said nine-twentieths share which was specified in List A annexed to the plaint. The other lists contained property which was not taluqdari property. He claimed as next heir to the taluqa under s. 22, clause 6, of Act I. of 1869, and to be next heir to the whole property by virtue of a special family custom of descent according to primogeniture.

The Subordinate Judge decided that Rae Bisheshar Bakhsh Singh had obtained his share in the said taluqa as legatee under the will dated January 22, 1866, and not under any family settlement or

transfer inter vivos. As to the succession to the taluqa being governed by s. 22, Act I. of 1869, he con

sidered that the Act did not apply, being of opinion, on the construction of ss. 14 and 15 of the Act, that Rae Bisheshar Baksh Singh was not the person who would have succeeded Rae Pirthipal Singh if he had died intestate, and was, therefore, not the legatee referred to in s. 14. He said further that, if he had to decide the question, he should hold that the word " brother " in s. 22, clause 6, Act I. of 1869, included half-brother.

In appeal the Judicial Commissioners affirmed the finding that Bisheshar was a legatee of Pirthipal Singh within the meaning of Act. I. of 1869. They then held that s. 22 of that Act did not directly

apply, inasmuch as Rae Bisheshar Baksh Singh was a legatee under a will which had come into opera

tion prior to the passing of Act I. of 1869. They were nevertheless of opinion that on the proper construction of s. 14 the succession would still be governed by the rules laid down in s. 22. They were also of opinion that in clause 6 of the said section the word "brother" included half-brother. In the result they modified the Subordinate Judges decree of dismissal, and passed a decree in favour of the respondent for the villages constituting the nine-twentieths share of taluqa Raepur Bichore, as specified in List A annexed to the plaint, with costs in proportion.

With regard to the question whether the succession was governed by s. 14 or s. 15, they said " It is contended for the plaintiff that the words in s. 14, a person who would have succeeded according to the provisions of this Act if the testator had died intestate, mean a