RAO KISHORE SINGH Vs. MUSAMMAT GAHENABAI

JUDGEMENT

(1.) THIS is an appeal from the decision of the Judicial Commissioner of the Central Provinces on appeal from the District Court of Nimar reversing a judgment of the latter Court in an action in which the present appellant was plaintiff and the present respondents were defendants. The fact that the respondents have not appeared on the hearing of the appeal before this Board, requires that the evidence, and the points raised in the case should be examined by their Lordships in more detail than would have been necessary, had counsel for both the appellant and the respondents appeared and presented their respective contentions to them.

(2.) THE action out of which the appeal has arisen was brought by the appellant, Rao Kishore Singh, to have it declared that he, as sole heir of his second cousin, Rao Himmat Singh, who died on the 16th October, 1906, was entitled to a certain estate, particulars of which are set out in detail in the schedules attached to the plaint, of which his said cousin was owner in possession at the date of his death, and also to recover possession of the same. THE appellant claims this heirship by virtue of a special family custom upon which he relies, according to which, as he avers (1) females are wholly excluded from inheritance; (2) on the death of a proprietor the whole estate passes to a single person, subject to the liability to maintain the other members of the proprietor's family; (3) on the death of a proprietor the male relative who is in the eldest line of male descent from him succeeds, and in default, the male relative in the eldest line of male descent, from his father, and next from his grandfather succeeds and so on. No restraint on alienation is imposed in other respects by this custom.

(3.) IT is in the plaint averred amongst other things and subsequently found by the District Judge that certain properties of which the appellant was then in actual possession were by a certain instrument in writing, dated the 21st January 1841, obtained by his grandfather, Shore Singh, from Rao Partab Singh, the then head of the family, in lieu of the yearly sum of Rs. 210, formerly received by him for maintenance. This document is Exhibit P. 42. From the extraordinary and, as it appears to their Lordships, misleading use made of it by the Appellate Court, it becomes necessary to examine its terms in detail. IT is further averred that, with certain trifling exceptions, named by the District Judge, the whole family estate in the schedule to the plaint described descended from Rao Durjan Singh to Rao Barjor Singh, from him to Rao Mohan Singh, thence to Rao Chatar Singh, and from him to Rao Partab Singh, and thence to Rao Daolat Singh, all of whom are named in the above-mentioned genealogical table.