CHINTAMUN SINGH Vs. NOWLUKHO KONWARI

JUDGEMENT

(1.) THE only question raised by this appeal is whether the appellant, the plaintiff in the Courts below, or the respondent, was entitled to succeed to the property called talooka Gungore, the appellant claiming as the nearest collateral male heir of the last possessor, and the respondent claiming as the widow of the last possessor.

(2.) IT was admitted on the opening of the case, and seems to have been admitted throughout the proceedings below, that the enjoyment of this talooka has long been by a single member of the family, and that it has passed from father to son according to the rule of primogeniture for several generations. The existence of this family custom has moreover been litigated at various times from a very early period, and has been affirmed by repeated decisions. By that of the 17th May 1809 it was held that the talooka was one which by custom descended according to the law of primogeniture; that it was one of those estates which were in the contemplation of the Legislature when it passed Regulation XI of 1793; and that the rights of all parties under the custom were saved to them by the fifth section of that Regulation. It seems to their Lordships too late to question what is affirmed by many reported cases, that a custom of descent according to the law of primogeniture may exist by kulachar, or family custom, although the estate may not be what is technically known either as a raj in the north of India or as a polliam in the south of India.

(3.) THERE is some evidence in the luksimnaiuan of 1832 of what the family understood to be the custom. To that reference will afterwards be made. It is to be observed, however, that if the evidence were wholly silent as to that point, the general law as laid down in decided cases seems to be that, where the family to which ancestral property held in this peculiar manner belongs is governed by the law of the Mitakshara, that law, in the event of a holder dying without male issue, would, if the family be undivided, give the succession to the next collateral male heir in preference of the widow or daughters of the last possessor.