ADRISHAPPA BIN GADGIAPPA Vs. GURUSHIDAPPA BIN GADGIAPPA

JUDGEMENT

(1.) IN this case a suit was instituted by two younger brothers against their elder brother, all being members of a joint Hindu family, whereby the younger brothers claimed two-thirds of the Inam village of Konoor, which is admitted to be that part of a deshgat watan, or property held as appertaining to the office of desai, which lies within what is, strictly speaking, British territory; the rest of the watan being within the territory of the feudal chief of Jamkhandi, in the Southern Mahratta country. The elder brother insisted that, inasmuch as he held the office of desai, and this property belonged to his office, he was entitled to hold it as impartible, subject to the customary right of his brothers to receive allowances by way of maintenance. The action was brought in the year 1861, in the Court of the Political Agent, and through a lamentable delay, as their Lordships cannot help thinking it, of successive political agents, was not decided in first instance until the year 1874. The effect of the decision of the Political Agent, whose judgment was for the Defendant, may be stated to be this: that the property appertaining to a desai-ship must be assumed prima fade to be impartible, and that sufficient evidence had not been given of its partibility. This judgment on appeal was reversed by the High Court, who laid down a different rule or rather presumption of law. The effect of the judgment of the High Court was, that there is no such general presumption in favour of the impartibility of estates of this kind as to shift the burden of proof in the manner which the Political Agent supposed; that in such cases the burden of proof is upon the desai, who seeks to shew that the property devolves upon him alone, in contravention of the ordinary rule of succession, according to the Hindu law. The High Court further came to the conclusion that no sufficient evidence had been given by the Defendant cither of family custom or of district custom to prevent the operation of the ordinary rule of law whereby the property would be partible. The question in the cause, in a great measure, depends upon which of these two views of the law is right. Their Lordships are of opinion that the High Court was right; that there is no general presumption, as has been contended for on the part of the Appellants, which shifts the burden of proof; and that it lies upon the Defendant, who seeks to shew that the estate is impartible, to give evidence of the special ten are of the watan, or of either family custom or of district or local custom sufficiently strong to rebut the operation of the general law. Their Lordships have also come to the conclusion that the High Court was right in the opinion which they formed that the evidence given in this case was insufficient.

(2.) THE High Court intimate that the contention with respect to a family custom was abandoned in the argument before them; but be that as it may, their Lordships are of opinion that no such family custom has been proved. A pedigree has been put in whereby it appears that, as far back as the year 1780, the watan, which had been resumed at that time by the Native Government, was conferred on or restored to one Gurushidappa; but inasmuch as Gurushidappa appears to have been an only son, that devolution of the property throws no light upon the question in dispute. Front Gurushidappa it appears to have devolved, in 1814, upon his only son Gadgiappa. Subsequently, in 1836, the desaiship devolved upon Adrishappa, the present Defendant. It would appear that his family, consisting of himself and his two brothers, remained joint until the year 1854, when, for the first time, a dispute arose, and the younger brothers claimed the shares which, they claimed subsequently in this suit. It appears to their Lordships that this state of things throws very little light upon the controversy; it certainly does not support the contention of the Defendant that he was entitled to the possession of the property as impartible, giving his brothers only maintenance.

(3.) THEIR Lordships, therefore, are of opinion that the High Court was right in determining that there was no evidence in this case of family custom one way or the other.