TIKAIT HARGOBIND PRASAD SINGH Vs. PHALDANI KUMARI

JUDGEMENT

(1.) WHILE agreeing generally with my learned brother Mahajan J., I wish to say a few words to indicate the main ground on which I would dismiss this appeal.

(2.) THERE are a number of authoritative decisions dealing with the special features of ghatwali property, one of which is said to be that if the ghatwal is a member of a joint family, the family has no right over the property while it is in his hands. . The logical corollary from this characteristic of ghatwali property would seem to be that it is more in the nature of exclusive property of the ghatwal than of joint family property. Nevertheless, in some cases, succession to such property has been determined with reference to the rules of Hindu law regarding joint property, where the ghatwal was found to be a member of the joint family. As at present advised I am not prepared to say that those cases were wrongly decided, but I think it will not be incorrect to say that custom and usage are also important factors governing succession to ghatwali property, and it is conceivable that while in some cases custom may develop on the lines of Hindu law relating to succession owing to repeated instances of tacit and unquestioned application of the law, in other i.e cases succession to ghatwali property may be governed not entirely by Hindu law but by such law as modified in certain respects by usage and custom.

(3.) TIKAIT Kali Prasad Singh, the last gaddidar of Pathrol, died in the year 1935. He belonged to the Baisi-Chaurasi clan. On the 29/11/1935, the Commissioner of Bhagalpur Division recognized Smt. Phaldani Kumari as the next ghatwal and entitled to be maintained in possession of the ghatwali estate on the 30/11/1936, sarju Prasad Singh brought the suit out of which this appeal arises in forma pauperis in the court of the Subordinate Judge of Deoghar for possession of the ghatwalis. In paragraphs 7, 8 and 10 of the plaint it was alleged that the ghatwalis in suit were joint family property and were impartible by custom; that succession to them was governed by the law of lineal primogeniture; that the females and persons claiming through them were altogether excluded from inheritance. It was claimed that the late TIKAIT Kali Prasad Singh and the plaintiff were members of a joint Mitakshara family and that he alone as the eldest member of the eldest surviving line of the descendants of the common ancestor was entitled to succeed to them.