HARIHAR PRASAD SINGH Vs. BALMIKI PRASAD SINGH

JUDGEMENT

(1.) In the year 1872 one Ramdhan Singh, a Bhumihar Brahmin, of village Barhiya in Bihar died leaving behind two widows, Mosst. Manrup Kumari and Pari Kumari, and about 1700 bighas of land. Manrup Kumari died in 1923 and Pari Kumari in 1933. Even while Pari Kumari was alive her brother Sunder Singh seems to have been managing the estate on her behalf. Shortly before her death he managed to get from her a deed of release in favour of two persons, Gaga Singh and Falgu Singh, alleged to be the sons of Ramdhan Singh's daughter,Jayanti Kumari. In spite of the objections by persons-who claimed to be the nearest reversioners of Ramdhan Singh's estate, the lands were recorded in their names in the land revenue proceedings. This led to a number of proceedings both civil and criminal. Ultimately the reversioners, who are now the respondents in these appeals, filed five suits, T. S. Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 for possession of the estate. In 1936 another suit, T. S. No. 37 of 1936 was filed by the present plaintiffs 8 to 12, 15, 16 and 18 to 21 and Kunu Babu Singh, uncle of the 11th plaintiff. In that suit also Gaya Singh and Falgu Singh were defendants. In addition, the plaintiffs in T. S. No. 53 of 1934 and certain others were added as defendants. The plaintiffs in that suit claimed to lee the nearest reversioners to the estate of Ramdhan Singh and also that there was a custom prevalent in the family for a long time that more distant heirs then the Shastri heirs of a person also joined the latter in succeeding to the properties left behind by him. They wanted to be held as the nearest reversioners to Ramdhan Singh's estate and thus entitled to the properties left by Pari Kumari. That suit failed. Thereafter, the suit out of which the present appeals arise was filed. In this suit all the plaintiffs in T. S. Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 are defendants; so also certain alieness from them. Certain parties who are related to Ramdhan Singh in the same degree as the plaintiffs are also defendants. The plaintiffs in the title suits of 1934 and 1935 are the nearer heirs of Ramdhan Singh and are entitled to succeed to his estate on the ground of propinquity if the ordinary rule of Hindu Law applied. The plaintiffs in the present suit as well as the defendants who are sailing with them are related to Ramdhan Singh in a distant degree and would not be entitled to succeed to his estate under the ordinary rule of Hindu Law. Their claim is based on the plea of a special custom applying to the family to which the parties belong.

(2.) According to the plaint the parties are descendants of one Choudhry Mokham Singh. The plaint was accompanied by a genealogical table which runs into 26 printed pages in the paper book. But during the course of the trial evidence has been let in to prove the genealogy from the days of one Pran Thakur who is said to have migrated to the village Barhiya about five to six hundred years ago from a place called Sandehpur. Though on behalf of the defendants the fact that the original family had migrated from Sandehpur was not admitted, a point which is of little importance, it seems to have been generally agreed among the parties that the common ancestor was Pran Thakur and he lived five to six hundred years ago. Instances to prove the custom put forward on behalf of the plaintiffs were given not merely from the family of Mokham Singh but also from various other branches said to be descended from Pran Thakur. The village Barhiya is divided into twelve Tarafs named after twelve of Pran Thakur's descendants. These twelve descendants whose names these Tarafs bear were not necessarily at the same degree of descent from Pran Thakur but that agate is not of much importance The parties to this suit belong to Taraf Ram Charan but in the plaint it was not the custom of Taraf Ram Charan that was pleaded but only the custom in the family of Ch. Mohkam Singh, Taraf Ram Charan being a larger group.

(3.) Fifty-two instances were sought to be proved on behalf of the plaintiffs. The learned Subordinate Judge who tried the suit held forty-three of them proved. The learned Judges of the High Court felt that from a reading of the plaint, evidence in connection with the instances in Ch. Mohkam Singh's family only were admissible and ought to have been gone into. But as it did not appear that the defendants had objected to the adducing of evidence from the other families and Tarafs and the parties perhaps understood the plaint to mean that their common ancestor was Pran Thakur, they did not rest content with examining the instances from Mohkam Singh's family only. Out of the 52 instances only three were from among the descendants of Mohkam Singh. Out of the other 49 instances, nine were from the Taraf Ram Charan, two of which were held by the learned Subordinate Judge as not proved. He, however, held all the three instances from Mohkam Singh's family as proved. The learned Judges of the High Court, however, on an exhaustive review of the evidence held that none of the fifty-two instances had been established satisfactorily by clear and unambiguous evidence so as to be sure of the existence of the custom alleged in the family of Mohkam Singh or amongst the descendants of Pran Thakur.