ACHAL RAM Vs. UDAI PARTAB ADDIYA DAT SINGH

JUDGEMENT

(1.) THIS was a suit brought by Udai Partab against Achal Ram, who was the husband of Brij Raj Kunwar, deceased, and who obtained possession of the estate in question upon the death of his wife. The Plaintiff alleged himself to be the heir of Pirthi Pal Singh, and in the action of ejectment it was necessary for him before he could turn out the Defendant to prove that he had a better title. He attempted in support of his title to shew that the estate was to descend according to the rules of lineal primo-1 geniture. If that rule prevailed he appears to have been the heir of Pirthi Pal Singh. A question was raised in the suit whether Pirthi Pal Singh had made a will; but it is unnecessary to decide that question, because, whether he made a will or not, or whether his daughter, Brij Raj Kunwar, the wife of the Defendant, took an absolute estate or not, is immaterial, if the Plaintiff fails to prove that he has a better title than the Defendant. It is necessary, therefore, for the Plaintiff to make out that the estate descended according to the rules of lineal primogeniture as distinguished from descent to a single heir amongst several in equal degree.

(2.) THE estate in question was a taluk created by the Government of India after the confiscation of Oudh. Pirthi Pal Singh, upon whom it was conferred, died before Act I. of 1869 was passed; but the taluk was one in respect of which the Government of India laid down certain rules as to the title of the talukdars whom they had created and as to the mode of succession. The preamble of Act I. of 1869, intituled the Oudh Estates Act, is in these words:--"Whereas after the re-occupation of Oudh by the British Government in the year 1858, the proprietary right in divers estates in that province was under certain conditions conferred by the British Government upon certain talukdars and others: And whereas doubts may arise as to the nature of the rights of the said talukdars and others in such estates and as to the course of succession thereto: And whereas it is expedient to prevent such doubts and to regulate such course and to provide for such other matters connected therewith as are hereinafter mentioned, it is hereby enacted as follows." Among other enactments is Section 8, which provides that "Within six months after the passing of this Act the Chief Commissioner of Oudh, subject to such instructions as he may receive from the Governor General of India in Council, shall cause to be prepared six lists; namely, first, a list of all persons who are to be considered talukdars within the meaning of this Act." Pirthi Pal Singh, who had been allowed to contract for the revenue, and with whom a summary settlement had been made, was entered in the first of the lists as a talukdar; and he must therefore be deemed a talukdar within the meaning of the Act. He was also entered in the second of the lists, which is a list of the talukdars whose estates, according to the custom of the family on and before the 13th day of February, 1856, ordinarily devolved upon a single heir. Therefore the taluk must be considered as a taluk which ordinarily descended upon a single heir; but it omits altogether to state that that heir is to be ascertained by the rules of lineal primogeniture. The third list is "A list of the talukdars not included in the second of such lists to whom sunnuds or grants have been or may be given or made by the British Government up to the date fixed for the closing of such lists, declaring that the succession to the estates comprised in such sunnuds or grants shall thereafter be regulated by the rules of primogeniture." Pirthi Pal Singh was not entered in that list, and it is contended that because he was in the list of estates which ordinarily devolved upon a single heir it is to be presumed that the heir was to be ascertained according to the rules of lineal primogeniture. Their Lordships cannot concur in that contention. They are of opinion that when a talukdar's name was entered in the second list and not in the third, the estate, although it is to descend to a single heir, is not to be considered as an estate passing according to the rules of lineal primogeniture.

(3.) IT has been stated that the judgment obtained by the Plaintiff has been executed, and that the Defendant has been turned out of possession. There is no evidence to that effect; but if it is the case the Defendant ought to be restored to possession, and ought not by reason of his having been turned out under an erroneous judgment, to be placed in the position of having to seek to recover possession himself and to prove his title.