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TMI Blog1916 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ake large gifts at the expense of the estate to one Pandit Banarsi Misir, a Brahman, that she had tried to get the consent of the plaintiff's father to her action, that the plaintiff had intervened to prevent his father consenting and that thereupon the Rani turned her attention to the rival claimant and his brother defendant No. 2, with whom she was more successful. That the Rani did make very extensive gifts to Banarsi, is an admitted fact. Banarsi Das was made a defendant to the suit though he is no party to the appeal. On the 4th of November 1912, Rani Bed Saran executed a document purporting to be a codicil to a Will executed by her on the 1st of March 1910, whereby she had appointed the aforesaid Pandit Banarsi and others executors for the performance of her funeral ceremonies. The document recites that defendants Nos. 1 and 2 belong to the same gotra and will become owners of her husband's estate after her death. The lady then declares that these persons will be her successors: "I direct that Babu Baijnath Prasad should occupy the gaddi of the estate and continue to maintain the other members of the family in accordance with the old usage. These persons even cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e family in accordance with the old usage." 2. I now proceed as shortly as possible in these hot days to deal with the history of the family. The accuracy of the pedigree filed with the plaint has (save in one respect) not been contested. According to the pedigree Raja Adil Shah was succeeded by Raja Ran Bahadur Shah, the son of Babu Bhop Narain, brother of Raja Adil Shah. It was conceded at the hearing that the evidence showed that Ran Bahadur was adopted by Adil Shah and the successor was the adopted son. The family is beyond all question a very ancient one. There has always been a Raja installed in the gaddi in the usual way and the membersof the junior branches are styled Babus", the appropriate name for junior members of a Raja's family. The history of the family is referred to in many works including that of Mr. Sherring (vide, Hindu Tribes and Castes, Vol. 1, page 182-183). 'About the year 1744 A.D., Shambhu Shah the then Raja of Agori was dispossessed of his domains by Raja Balwant Singh. During the insurrection of Chait Singh, Adil Shah, grandson of Shambhu Shah, just mentioned, attended on Warren Hastings and made himself so useful that the Governor Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with the help of British soldiers in pursuance of this document. Warren Hastings, as already stated, also made a grant to Adil Shah of ₹ 8,001. It would appear that the origin of the grant of ₹ 8,001 was to compensate Adil Shah for not getting possession and actual enjoyment at once of the ancestral estate. The Raja, or perhaps I should say the family, are now in passession of the ancestral estate and they also enjoy the ₹ 8,001, malikana, grant in perpetuity. The arrangement now is that they are charged with Government revenue on all the property including the property the jama of which was assigned to meet the grant of ₹ 8,000, but they take credit for ₹ 8,000. Warren Hastings had entered into a treaty or arrangement with the Maharaja of Benares, and subsequently difficulties presented the mselves as to how faith could be kept with both the Raja of Benares and the Raja of Agori, having regard to the fact that in a sense the property had belonged to both. This led to a good deal of complication and prevented temporarily the sanad of Warren Hastings being completely acted upon. In the end matters were adjusted and the family are now, and have for man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of the Will of the Rani accepted by the defendant and his brother, I think that this estate must be deemed impartible [see Kachi Yuva Rangappa v. Kachi Kalyana Rangappa 24 M. 562 : 11 M.L.J. 191, affirmed by their Lordships in Kachi Kaliyana Rangappa v. Kachi Yuva Rangappa 28 M. 508 : 2 A.L.J. 845 : 2 Cri.L.J. 231 : 10 C.W.N. 95 : 7 Bom. L.R. 907 : 15 M.L.J. 312 : 1 M.L.T. 12 : 32 T.A. 201 : 8 P.C.J. 855 5. We now come to another question. Assuming that the estate is impartible who is entitled to the gaddi? Defendant No. 1 says that the Raja is he that is found nearest in blood to the late Raja and senior in birth at the date of the death of the Rani and that he fulfils these conditions. The plaintiff contends that the property has always been joint that the Rani got possession after the death of her husband, not as succeeding to separate estate in default of heirs, but by virtue of custom and that the Raja must be found in the senior line and that he as the eldest son of Babu Jagannath (brother of defendant No. 1) should succeed. It may here be pointed out that the common ancestor of both claimants is Babu Rachpal, brother of Raja Adil Shah. It is admitted at the Bar t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted to be in the nature of a principality--impartible, and capable of enjoyment by only one member of the family at a time. But whatever suggestions of special custom of descent may heretofore have been made (and there are traces of such in the proceedings) the rule of succession to it is now admitted to be that of the general Hindu Law prevalent in that part of India with such qualifications only as flow from the impartible character of the subject. Hence if the zemindar at the time of his death, and his nephews were members of an undivided Hindu family, and the zamindari, though impartible, was part of the common family property, one of the nephews was entitled to succeed to it on the death of his uncle." The judgment in this case was delivered by Turner, L.J. 6. In Doorga Persad Singh v. Doorga Kunwari 4 C. 190 : 3 Cri .L.J. 31 : 5 I.A. 149 : 3 P.C.J. 540 : 3 P.C.J. 827 : 2 Ind. Jun. 650 : 2 L.R. 21 : 2 Ind. Dec 121 their Lordships say at page 201 of the Report: The impartibility of the property does not destroy its nature as joint family property or render it the separate estate of the last holder, so as to destroy the right of another member of the joint family to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family in an impartible estate can agree to separate and the estate still remain impartible. If each member of the family including the occupier of the gaddi took his share of the estate, it would almost seem as if the impartibility would cease with the partition. In Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 : 42 C. 1179 : 19 C.W.N. 1119 : 18 M.L.T. 228 : 29 M.L.J. 371 : 2 L.W. 843 : (1915) M.W.N. 717 : 13 A.L.J. 1034 : 17 Bom. L.K. 1012 : 22 Cri .L.J. 498 : 42 I.A. 192 , their Lordships held that there had been separation but their Lordships do not appear to have held that the estate remained impartible after separation. In this case their Lordships decided the question of separation as a question of fact not of law. I will, however, assume that there can be such a separation. The question I conceive is one of fact. "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" (Section 3, Indian Evidence Act). The question is, did Adil Shah and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a had really made an oral Will, (which was not improbable), giving the Rani direction to take over the estate and adopt a son, it would explain why she was allowed to remain in possession, or her possession could be explained on the basis of custom and there is evidence of such a custom. It is pleaded in the present case that the Rani succeeded on the basis of custom. In the case of Raja Rup Singh v. Rani Baisni 7 A. 1 : A.W.N. (1884) 246 : 11 I.A. 149 : 4 P.C.J. 533 : 3 Ind. Dec. 902 the question was whether the Rani was entitled by custom to the estate for her life. The case was decided by the High Court in 1880. Part of the evidence by which it was sought to prove that there was such a custom, was the fact that this very Rani Bed Saran had so succeeded to the gaddi of Agori. It is quite possible, if in 1871 the question had arisen whether there was a family custom and the Rani was claiming the estate on the basis of custom, that she might have failed to discharge the onus just as the other Rani failed in the case reported as Raja Rup Singh v. Rani Baisni 7 A. 1 : A.W.N. (1884) 246 : 11 I.A. 149 : 4 . P.C.J. 533 : 3 Ind. Dec 902. In considering whether there is such a custom, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily was separate. I do not believe that the family separated or intended to separate. It is still joint in worship. In my opinion it remains joint to this day so far as the custom permits. 13. The defendant's contention is that under the circumstances Ran Bahadur must he held to have acquired a completely new title and that the property was his self-acquired property. Bearing in mind all the circumstances and the fact that the question arises not between the Government and the family but between members of the family, I think this contention is not sound. It seems to me that on every principle of justice and equity the case should be considered just as if Balwant Singh had never interfered with the possession of Shambhu. If I am correct in this, I think that for the purpose of looking for the heir to the gaddi we should apply the principle so clearly established in the cases I have referred to, namely, that the family should for this purpose be considered joint. It would, in my opinion, be deplorable if the Courts were to depart from this principle. I think that this family has always followed the ancient custom of providing for the maintenance of the Babus by assigning to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aja Balwant Singh. At the period, the two perganas were divided into 18 taluqas, 16 of which belonged to Chandel Babus of the Raja's own blood and kin, who according to local custom obtained an assignment of villages for their support when they became separate from the household of the Raja: of the remaining taluqas one remained to the Raja, one belonged to a then influential family of Brahmans peculiar to the pergana created By the Rajas called Raipari Brahmans" (Robert's Report dated 6th January 1847). The above is taken from: "A Collection of papers relating to the Settlement of South Mirzapur", printed by the Government. Note.-- This document refers to the custom for the provision for maintenance of the Babus and the property assigned to them. 1781-- Sanad from Warren Hastings to Adil Shah (see page 70R): "In view of former rights he should remain in proprietary possession of his share as heretofore." 1787.-- Adil Shah appointed (30A) Tahsildar of a large amount of property (including the ancestral estate). Note.-- This appointment was inconsistent with the terms of the sanad of 9th October 1781, Adil Shah nominally was appointed merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Shah. 1794.-- After the death of Adil Shah on the earnest entreaties of the family the grant was allowed to remain with the new Raja Ran Bahadur. 1803.-- The debt due to Dube was still undischarged and he had got a decree against the Raja for ₹ 49,000 odd. The Raja petitioned Government stating that his estates were over-assessed. The grant was restored to ₹ 8,000 and made permanent. The revenue of the villages representing the old ₹ 4,000 was assigned and the revenues of 136 new villages were added bringing the grant to ₹ 8,000 (see 28 A). The Raj has the benefit of this grant to this day. Supplementary Statement as to the right of Babu Bachpal Singh to ₹ 900 per annum, part of ₹ 8,000. 1795.--At page 48A a long letter will be found, dated 13th August 1795, from the Resident of Benares, which shows that the origin of the claim to this ₹ 900 by the Rachpal branch was an alleged arrangement between Adil Shah and his brother Rachpal, by which Rachpal was to manage the jagir, liquidate the debt to Dube and take ₹ 900 himself. The letter concludes: "At the same time if in consideration of the brethren and large family left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usurpation managed to regain his patrimony and put to sword every Chandel thakur. But one of the Ranis escaped and gave birth to a son who was brought up in a peasant's family, and was called Oran Deo. He on attaining majority regained the Raj of Agori Barhar with the help of the Raja of Kantit. Ever since then for about five hundred years, but for a short interruption which will be mentioned presently, the family of Oran Deo, from whom the parties to this appeal are descended, has retained the Raj of Agori Barhar. The Rajas of Agori Barhar by reason of the inaccessibility of their estate were very little affected by the changes of Government in this country until 1744-1745, They used to pay ₹ 8,001 per year, not in cash but in skins of elephants and deer and in bamboos, timber and other forest productions as tribute or revenue to the Nazim of the Moghal Empire at Ohunar. In 1719-1720 the sircars of Benares, Jaunpur and Ghazipur were given by the Moghal Emperor to one Murtaza Khan, a courtier, who in 1722 made them over to Saadat Khan, the first Nawab Wazir of Oudh, in consideration of seven lakhs a year. He in his turn leased the revenues to his friend and dependent Mir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was installed on the gaddi in place of Chait Singh by Warren Hastings. All the possessions of Chait Singh, were restored to Mahip Narain Singh but the revenue payable formerly was increased and an English Resident was appointed at Benares, Among the old and dispossessed zemindars, who had helped Warren Hastings against Chait Singh, was Adil Shah the grandson of Shambbu Shah of Agori Barhar. In recognition of services rendered Warren Hastings granted a sanad to Adil Shah restoring him to his estate. The sanad was granted on 9th October 1781 and was as follows: Be it known to Adil Shah, the honourable Zemindar of Pergana Agori, that on a representation made by him it has been found that the zamindari in the pergana aforesaid is his old ancestral property and that several years ago Raja Balwant Singh forcibly dispossessed him and brought it to his use. Therefore, in view of former rights, he should remain in proprietary possession of his estate as heretofore and should make arrangements as regards the cultivation of the land and population of the pergana aforesaid in accordance with the directions of the Revenue Officer and Raja Mahip Narain Bahadur of high rank. He is particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nares, without any peculiar exception in his favour, and that the allowance of ₹ 8,000 ought to cease. It still, however, remains to be determined, whether the zamindari which he has acquired shall be deemed an inheritance. The Board are of opinion that it should not, but to give him every fair advantage during his possession, be recommended to the Raja (presumably the Raja of Benares) to make a mokarrari settlement with him during his life only. 22. Mr. Duncan, the English Resident who was conducting the settlement made a mokarrari settlement accordingly with Adil Shah, who wrote a counterpart for a settlement with the Raia of Benares on 8th January 1789, undertaking to pay revenue annually and admitting that the settlement was made with him for his life only. On 26th April 1789 Mr. Duncan reported his proceedings to the Governor-General who sanctioned them on 17th June 1779, vide, Thomson's Despatches, pages 102-108. In 1790 Adil Shah through his Vakil complained of the inclusion of his estate in the Raj of Benares and of the mokarrari settlement with him for his life only. Mr. Duncan replied that the arrangement could not be then disturbed and held out hopes to him. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Adil Shah's nephew and adopted son, Ran Bahadur Shah, making over the pergana to him. Shortly after on 25th January 1794 a sanad was granted to him "confirming him in the inheritance of the zamindari" of Adil Shah. In 1795 the revenue, assessed on the estate of Agori Barhar in 1788-S9, was made permanent and payable, directly to the East India Company. 24. Ran Bahadur thus became full owner of the estate of Agori Barhar directly responsible to the East India Company for the payment of revenue, and in no way liable or subordinate to Raja of Benares. He was succeeded on his death by Makerdhuj Shah. The latter died without leaving any issue and was succeeded by his nephew and adopted son Raghunath Shah. He died leaving him surviving a son Kesho Saran Shah, who succeeded to the estate and remained in possession of it till 1871 when he died leaving no issue. He in his turn was succeeded by his widow Rani Bed Saran Kuar, who held the estate up to 1913. I now proceed to give briefly the history of the malikana of ₹ 8,001. I have already said that it was granted to Adil Shah on 15th October 1781, as it was found that he could not get possession of his ancestral estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioned and Rachpal got ₹ 900 per annum. In 1822 Ran Bahadur sued the descendants of Rachpal Singh for the resumption of ₹ 900 malikana or in the alternative of the taluqa of Bisrekhi, now known as Jamgaon, which he said was given by Adil Shah for the maintenance of Rachpal's family. The claim was dismissed on the ground that the taluqa was given for maintenance and the malikana as a gift by Adil Shah. Ever since then the descendants of Rachpal have retained both the taluqa of Bisrekhi and the malikana of ₹ 100 per annum. The subsequent history of the estate is'uneventful and relates to the financial difficulties of Ran Bahadur and some of his descendants and the determination of inferior rights in the estate of persons other than the members of the family. The estate remained in the hands of the descendants of Ran Bahadur Shah up to the time of Raja Kesho Saran, who dipd leaving him surviving a widow but no issue. Among the collaterals alive at the time of his death the nearest by blood relationship was Babu Bindeshwari Prasad Singh and next to him in degree were the three sons of his elder brother, viz., Jagannath Prasad, Baijnath Prasad and Bishannath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the last Raja to succeed after the widow. On the death of Raja Kesho Saran Shah in 1871 Babu Jagannath Prasad Singh, father of the plaintiff, became entitled to the Raj subject to the life-estate of Rani Bed Saran Kuar. In fact the late Raja on his death bed in conformity to the family custom directed that his widow should hold the estate for her life and that after her death Jagannath Prasad should succeed to the Raj. The latter was accordingly recognized as yuvaraj, i.e., the heir-apparent. He died on 14th November 1910 and the plaintiff, his eldest son, became entitled to the Raj subject to the life-estate of Rani Bed Saran Kuar. She wanted plaintiff and his father to consent to the gifts and other alienations she had made to and in favour of Banarsi Misir and even offered to relinquish the Raj in their favour, but they refused. She then approached the defendant No. 1 and got his consent to the benefits conferred by her on Banarsi Misir, and in consideration of the compliance of the defendant No. 1 with her wishes she first made a Will and then executed a deed of relinquishment in his favour and a lease of 67 villages in favour of his sons. She had no right to make any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings of defendants Nos. 1 to 4 against them and decreed the claim. They have in their appeal to this Court reiterated the pleas taken in their written statements in the lower Court. 28. The main question in the appeal is, who is the lawful successor of Kesho Saran, the last Raja? The reply to the question depends upon the decision of four matters, viz: (1) The character of the estate. (2) The nature of the grant to Adil Shah and again to Ran Bahadur Shah. (3) The status of the family at the time of the grant to Adil Shah and subset quently. (4) Nature of Rani Bed Saran Kuar's possession. 29. It is contended on behalf of the appellants that the estate was not impartible prior to 1745 nor was it granted to Adil Shah or Ran Bahadur as an impartible estate. The grant to Adil Shah was of mokarrari lease and to Ran Bahadur of an ordinary zamindari. The character of the estate prior to the grant, to Adil Shah is only relevant to show the nature of the grant to him, as in the sanad and other official documents it is stated that he is restored to his former rights and also to show the natural desire of Adil Shah and his descendants to retain and keep up the dignity of a R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him so as to make the estate his self-acquired property? The language of the sanad of 9th October 1781 shows that Adil Shah was given the same estate as was held by his grandfather Shambhu Shah. The words of the grant are that in view of former rights" the zamindari is given. Warren Hastings explained his grant to Adil Shah in his narrative of the insurrection of the Raja of Benares. He says that as these persons" (meaning Adil Shah and others) "showed a zeal for the service of our Government and a desire of being useful to us during the late troubles, I have thought it proper that their conduct should not pass without the retribution due to it and for that purpose have directed that they be restored to the possession of the lands to which they have hereditary claims," vide Appendix, page 34. The italics are mine, to show the nature of the estate granted. The hereditary claim of Adil Shah was to succeed to an impartible Raj. The subsequent correspondence on the subject between the English Resident at Benares, the Governer-General and other official correspondence and papers show conclusively that what was granted to Adil Shah was the estate he would have got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame manner as his ancestors were, vide his complaint to Mr. Duncan. Ran Bahadur Shah, his successor, also held and dealt with the estate as an impartible one. Moreover the litigation of 1822 between Ran Bahadur and the descendants of Rachpal, the custom of gaddi-nashini, which is deposed to by plaintiff's witnesses, the last ceremony being that of Rani Bed Saran Kuar, her own declarations about the estate, especially in the deed of relinquishment to defendant No. 1, the impartible character of other estates held by other members of the family which were similarly confiscated by Balwant Singh and restored by Warren Hastings, go to prove the impartibility of the estate in suit. It is too late in the day, I think, to dispute the legality of the confiscation by Balwant Singh or of the grant by Warren Hastings. Besides the dispute in the present case is not about the rights of Balwant Singh's family or those of the British Government which now represents the Bast India Company, but the dispute is between the descendants of Adil Shah as to succession to the estate. The question of the nature of the grant is raised simply to find out the successor. All considerations point to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shah or Ran Bahadur was personal and, therefore, the estate conferred on them was their self-acquired property. 32. For the appellants' reference has been made to the following cases:--Jagannadha Razu v. Ramanbhadra Razu 14 M. 237 : 18 I.A. 45 : 5 P.C.J. 645 : 15 Ind. Jun. 222 : 5 Ind. Dec. 167, Ven-katarayadu v. Venkataramayya 15 M. 284 : 5 Ind. Dec 549, Venkata Narasimha Appa Row v. Parthasarathy Appa Row 23 Ind. Case. 166 : 41 I.A. 51 : 18 C.W.N. 554 : 12 A.L.J. 315 : (1914) M.W.N. 299 : 26 M.L.J. 411 : 15 M.L.T. 285 : 16 Bom. L.R. 328 : 37 M. 199, Brij Indar Bahadur Singh v. Ranee Janki Koer 5 I.A. 1 : 1 C.L.R 318 : 3 P.C.J. 763 : Bald. 148 : Rafique & Jackson's P.C. No. 48 : 3 P.C.J. 474. 33. None of these cases in my opinion lays down that a fresh grant in all circumstances renders the property of the grantee his self-acquired property. 34. The first case related to the zamindari of Merangi in Madras. The contention was that the zamindari was impartible prior to its incorporation in another zernindari and its grant by the British Government did not render it partible. It was held that even if the zernindari was impartible prior to its inclusion in the Vizianagram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the estate was joint at the time of Shambhu Shah or that Adil Shah was joint With his brothers. In fact, they say that the circumstances disclosed by evidence go to show that the family was neither joint before the confiscation of the estate in 1744-1745, nor at the time of restoration in 1781 or after. Prior to the confiscation during the time of Shambhu Shah, other members of the family, his own brothers included, were living separately and had separate taluqas in their possession over which they had disposing power and which were divisible and were divided among their descendants. After the restoration Adil Shah gave his two brother?, Bhup Narain and Rachpal, separate taluqas who lived on their estates. Adil Shah mortgaged some of his property to Rachpal. He also gave the latter ₹ 900. per annum out of the malikana, which is still enjoyed by the family of Rachpal. The, holders of the said taluqas cannot be said to be guzaradars. A guzara is not alienable and a guzaradar must pay his revenue to the parent estate and not directly to the Government Besides if the family was joint, plaintiff's father should have claimed the succession on the death of Kesho Saran. In his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between Ran Bahadur and Rachpal, for Ran Bahadur had been adopted by Adil Shah and could not claim the whole taluqa as the son of his natural father. But Bhup Narain's Taluqa reverted to the Raj. In his plaint in 1822 Ran Bahadur distinctly stated that Rachpal was given the taluqa of Bisrekhi, now called Jamgaon, as maintenance. The descendants of Rachpal made the same allegation and the Court found it to be true. Had the family been separate Rachpal's descendents, the ancestors of defendant No. 1, would have pleaded that Bisrekhi Was obtained on partition. In the litigation of 1793 relating to the taluqa of Mukarsam Khas, neither party pleaded that Babu Deo Dutt had got the taluqa by partition. The common case was that he had got it for maintenance. The learned Counsel for the appellants relies on the case of Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 : 42 C. 1179 : 19 C.W.N. 1119 : 18 M.L.T. 228 : 29 M.L.J. 371 : 2 L.W. 843 : (1915) M.W.N. 717 : 13 A.L.J. 1034 : 17 Bom. L.K. 1012 : 22 C.L.J. 498 : 42 I.A. 192 in support of his contention that when some portion of the estate is given to a member of the family who goes away and takes up his residence in anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kuar, the widow of Raja Makerdhuj Shah, in her application of 18th August 1828, refers to the custom in question, But apart from custom or the belief in it the oral Will of Raja Kesho Saran, alleged by Rani Bed Saran Kuar on more than one occasion and admitted by the plaintiff in his plaint and deposed to by some of his witnesses, would give the Rani the right to hold the estate for her life. I think that the weight of evidence is in favour of the oral Will of Baja Kesho Saran Shah, whose wishes were respected by plaintiff's father and defendants Nos. 1 and 2 giving the estate to his Rani for her life. I do not at the same time believe the story of the plaintiff that the Raja on his death-bed nominated plaintiff's father as 'yuvaraj.' The possession of Rani Bed Saran Kuar was not, therefore, adverse. Moreover, if it be said that the alleged oral Will of Kesho Saran is not proved and that the Rani held the estate without any right, we have to see whether she became the absolute proprietor of the estate and thus the claim of the plaintiff is not sustainable. She admittedly held the estate as a Hindu widow. She says so in her Will, her deed of relinquishment, her petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he status of the family and the fact that the parties are subject to the law of Mitakshara, the choice must fall on ,the nearest co-parcener of the senior line in the absence of any special family custom of descent. The rule of succession in such a case as the present was first enunciated in the case of Naraganti Achammagaru v. Venkatachalapati Nayanivaru 4 M. 250 : 1 Ind. Dec. (N.S.) 1010. It was laid down in that case that "when impartible property passes by survivorship from one line to another, it devolves not necessarily on the co-parcener nearest in blood, but on the nearest co-parcener of the senior line." This principle was adopted in subsequent cases and was approved of by their Lordships of the Privy Council in the case of Kachi Kaliyana Rangappa v. Kachi Yuva Rangappa 28 M. 508 : 2 A.L.J. 845 : 2 Cri .L.J. 231 : 10 C.W.N. 95 : 7 Bom. L.R. 907 : 15 M.L.J. 312 : 1 M.L.T. 12 : 32 I.A. 261 : 8 P.C.J. 855. In the present case the plaintiff is the nearest co-parcener of the senior line, while defendant No. 1 is the coparcener nearest in blood. The plaintiff, therefore, has the preference over defendants Nos. 1 and 2 and I hold accordingly. 39. I should also mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of it would have been resumed but for the guarantee given by the Resident to the creditor of Adil Shah. The re-grant to Ran Bahadur was made on his representation that his estate had been over-assessed and he was getting into financial difficulties frequently. His representation may have been right or wrong, but it was in the belief that his estate had been over-assessed that the grant was made and not only for his life but permanently. It, therefore, follows that the grant of malikana was made to enable the holder of the estate to pay his revenue punctually and to maintain the position and dignity of his rank. The malikana must, therefore, go with the estate. I would, therefore, dismiss the appeal and uphold the decree of the lower Court, but with this modification that the decree with regard to the moveables should be limited to the list given by the defendant No. 1 in his written statement at pages 29 and 30 of the paper book. 42. The order of the Court is that the decree of the Court below is set aside with regard to moveable property save to the extent, of the moveable properties mentioned at pages 29 and 30 of the paper book. In all other respects the appeal is dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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