RAJA MOHAN Vs. NISAR AHMAD KHAN

JUDGEMENT

(1.) These are consolidated appeals from two decrees of the Chief Court of Oudh, dated 15 October 1929, which affirmed two decrees of a single Judge of that Court dated 8 October 1928, passed on Suits Nos. 1 and 2 of 1928 respectively. The main point for decision in the appeals is whether appellants (plaintiffs) Nos. 2 to 8 were entitled to succeed as Sunni Mahomedans to a share in the property left by Mohammad Ewaz Ali Khan, Talukdar of Mahona who died on 24 July 1915. Appellant 1 who had a financial interest in the property and was financing the action may be disregarded herein as his claim was not pressed in this appeal, having been rejected by the Courts below. Respondent 1, who alone appeared on the appeal, claims the property as having descended to him as single heir of Ewaz Ali, either in virtue of Act 1 of 1869 or according to family custom.

(2.) The relationship between the parties is shown in the following pedigree : Suit No. 1 related to the property left by Dost Mohammad on his death in 1917 ; Suit No. 2 related to the entire property left by Ewaz Ali on his death in 1915 ; the appellants claimed in their respective proportions a three-fifths share in the latter property and a one-fourth share in the former. The estate in question was Known as the Mahona estate and had been for some generations in the family of Raja Ali Bakhsh Khan; he was killed after the end of the Mutiny in November 1858. The Government were then proceeding with the second summary settlement of the entire land of Oudh which they had annexed, and they were inviting applications from the existing proprietors. Shortly after her husband's death, the widow, Rani Sadha Bibi, executed the form of application Form A : on that form the names of the Malguzars were stated to be those of herself, Jamshed Ali and Ewaz Ali. The Rani stated that the estate was a Raj, without pattidars or cosharers, and ancestral property, having been long in the possession of the family. She claimed the settlement with herself on the ground that she was the owner, in her husband's place ; she stated that the two nephews lived with her and under her control; she asked that Ewaz Ali should succeed her as owner. This application appears to "have been provisionally granted, but on 15 March 1859, it was ordered by the settlement authorities that the settlement should be with the Rani and the two nephews jointly and a patta be granted accordingly. On the same day the patta was granted in the names of all three and a kabuliyat was executed by all three. The summary settlement was originally temporary in character, being limited to three years, but as the talukdars were apprehensive that their tenure might be uncertain and it was desired to dispel these fears, a letter was published by the Government of India declaring that "every talukdar with whom a summary settlement has been made since the re-occupation of the Province, has thereby, acquired a permanent hereditary and transferable proprietary right, namely, in the taluka for which he has engaged, including the perpetual privilege of engaging with the Government for the revenue of the taluka."

(3.) The letter went on to provide for the preparation of a list of talukdars upon whom a proprietary right had thus been conferred and for the preparation of sanads to be issued to them. This letter constituted an act binding on the Government and as applied to the persons in question here, constituted the Rani and her two nephews, tenants in common of the taluka and a sanad ought to have been issued to them accordingly. But in fact when the sanad for the taluka was issued on 11 April 1862, it was in the name of the Rani alone, and when lists were prepared under Act 1 of 1869, the name inserted was that of the Rani alone in lists I and II as the talukdar.