THAKUR BHARATSINGH Vs. THAKUR RAJSINGH

JUDGEMENT

(1.) THIS is an application under sec. 115 of the Civil Procedure Code. Thakur Raj Singh filed an application under sec. 372 of the Jaipur Succession Act, in the court of the District Judge, Jaipur City for grant of a succession certificate in respect of certain debts and securities left by his father. Thakur Devisinghji of Chomu, who died on the roth of April 1947. It was claimed by the petitioner that he was entitled to succeed to the debts and securities left by his father on account of the custom and practice of the rule of primogeniture which was said to be applicable to the estate of the petitioner. The petitioner claimed that he was the eldest son of Thakur Devisinghji of Chomu and was thus entitled to a certificate in his favour. An objection was raised by Thakur Bharat Singh, one of the brothers of the petitioner, who admitted that the rule of primogeniture was applicable to the Thikana or the Jagir properties left by the late Thakur Devisinghji of Chomu but pleaded that the personal properties left by Thakur Devisinghji were governed by the principles of ordinary Hindu Law. He claimed an interest in the debts and securities in respect of which a certificate was prayed for by the petitioner. The District Judge on the 13th of July, 1949 framed three issues, out of which the second issue was as follows : - "whether the properties specified in the petition were made from the personal property of Thakur Devisinghji in which all the sons of Thakur Devisinghji were entitled to get equal shares. "

(2.) THE burden of proof of this issue was placed on Thakur Bharat Singh, the opposite party. It is contended on behalf of Thakur Bharat Singh in this revision that the lower court acted with material irregularity in placing the burden of proof of this issue on him. According to him it was for Thakur Rajsingh to prove the special custom of primogeniture pleaded by him which entitled him to succeed to all the properties, whether Jagir or otherwise, left by Thakur Devisinghji.