LALU DAYAL Vs. LALU GOPAL

JUDGEMENT

(1.) The controversy here, so far as we are now concerned with it, turns upon the question of the right of succession to one Nagar Valabh, and the relation between the parties is shown in the following table :-

(2.) The plaintiff sued for a declaration that a deed of mortgage executed in 1857 by Bai Benji in favour of a deceased uncle of the defendants was null and void. He prayed for recovery of possession of the mortgaged property and offered to redeem the mortgage if it should be held to be good in law. He alleged that the property originally belonged to Nagar Valabh and consisted of Bhag aid Gamotia lands and houses and Gabhan building sites. He claimed to be Nagar's heir in preference to Bai Ratan's son, Nagji, on the ground of a special custom applicable to Bhagdari villages in the District, that is, the Broach District, under which custom he, as a pitrai male relative of Nagar, was entitled to succeed to the exclusion of the daughter's son. The mortgage and the relation between the parties were admitted by the defendants, who, however, resisted the claim upon several grounds; of these the only pleas now pertinent were a denial that the special custom alleged in fact prevailed in the village, Bholav, and a denial that the custom, even if proved otherwise, could be held applicable to Bholav in the special circumstances in which that village acquired its Bhagdari character. This latter point was found in the defendants favour by the learned Subordinate Judge, who accordingly dismissed the suit. Upon the former point the Subordinate Judge came to the conclusion, though not without some hesitation, that, except for the particular circumstances in which Bholav became a Bhagdari village, it would have been proper to apply to it the special custom upon which the plaintiff relied.

(3.) From this dismissal of his suit the plaintiff now appeals, and during the course of the argument we intimated to his counsel, Mr. Setalvad, that we desired to hear him only on the question whether the alleged custom was proved and was applicable to Bholav, as we were disposed to think that upon this point the lower Court's decision was right. Having taken time to consider our judgment, we are still of the same opinion.