FANINDRA DEB RAIKAT Vs. RAJESWAR DAS

JUDGEMENT

(1.) THE suit which is the subject of this appeal was brought to recover a large estate called Baikantpur, situated on the north-east frontier of Bengal, in the district of Jalpigori. The largest landed estates in this district are those of Patgram and Boda, belonging to the Raja of Kuch Behar, and this estate, which became the property of a branch of the Kuch Behar family. It is not included in any Sarkar or Muhammadan division of the country, having been only added to Bengal since the British assumed the government of the country. From Dr. W.W. Hunter's Statistical Account of Bengal, it appears that Raja Nilambhur of Kamatapur (now a ruin within the present State of Kuch Behar) was the last independent Hindu ruler of the country, and that after his defeat and capture by Husain Shah, one of the Afghan Kings of Gaur in the beginning of the sixteenth century, anarchy prevailed for several years, and the land was overrun by wild tribes from the north-east. Among these the Koch came to the front, and founded the Kuch Behar dynasty. Of the Kochs, Dr. Hunter says, in the Statistical Account of Darjiling: "This aboriginal tribe first rose "into power about the close of the fifteenth or the commencement of the "sixteenth century under one Hajo, who founded the Koch kingdom on the "ruins of the ancient Hindu kingdom of Kamrup.... The Koch "raj extended from 88? to 93 1/2? east longitude, and from 23? to 27? north "latitude, Kuch Behar being its metropolis, and its limits being co-equal with "the famous yet obscure Kamrup of the Tantras. Brahmanism was introduced among the Kochs in the time of Yisu, Hajo's grandson, who, together "with his officers and all the people of condition, apostatized to Hinduism. A "divine ancestry for the Chief was manufactured by the Brahmans. The converts abandoned the despised name of Koch and took that of Bajbansi, literally, "'of the royal kindred,' and the name of the country was altered to Behar." From the account of their manners and customs given by Dr. Hunter, it appears that they differ from their Hindu neighbours in various respects. Of the Baikantpur family, Dr. Hunter says that "Sisu, grandson in "the female line of Hajo, is the original ancestor of the family. It is generally asserted that he was the son of Jira, the daughter of Hajo, but the "family themselves allege that he, as well as Visu (another grandson of Hajo, "and the first of the Kuch Behar Bajas who was converted to Hinduism), 'was not the son of Jira, but of her sister Hira, and that his father was the "god Siva, on which account all the members of the family assume the name 'of Deo, and return no salute that is made to them by any person. Sisu, on "the conversion of Visu to Hinduism, took the title of Sib-kumar, or young "Siva. He was appointed hereditary Raikat, or the second person of rank in " the Koch kingdom, and received the Baikantpur estate as an appanage."

(2.) THE plaint of the appellant (the plaintiff in the suit) states that Jogendra Deb Raikat, the possessor of the estate, died on the 10th of March 1878, without leaving any son of his body, and "therefore, according to the "immemorial family custom and practice descending from generation to " generation in our Raikat family of Baikantpur and the shastras, I have "acquired an absolute title in all the properties left by him, and I am entitled to "recover possession thereof." It then refers to a title by adoption and under a will and agreement (angikar-patro) made by Jogendra Deb, which had been set up on behalf of Rajeswar Das, who was then a minor, but has since become of age and is the respondent, by Rani Jagdeswari Debi, the widow of Jogendra Deb. She was sued as the guardian of Rajeswar and executrix. This is followed by a paragraph which says: " According to the kulachar "(family custom) and custom prevailing in our Raikat family from very ancient "times and descending from generation to generation, no one among the Raikats "is competent to adopt or to alter the line of succession thereby, or by will or "any other deed to give away the kingdom and the rajguddi. According to "the said immemorial kulachar, no female also is competent to hold property "and the gaddi. Consequently the said Jogendra Deb Raikat is not, "contrary to the above kulachar and custom, empowered to receive in "adoption any one competent to hold the property, or to give or alienate the "rajgi and the kingdom to the said adopted son or to any other person, either "by will or agreement (angikar patro), or by any. other deed. In fact, the "above will and agreement (angikar patro) are contrary to the prevailing family " custom, the law, and the Hindu shastras, and are, indeed, not true." It was contended by the counsel for the respondent, in the argument of this appeal, that, by the references in the plaint to the shastras, the plaintiff admitted that the family was governed by the Hindu law except where it is modified by custom. Their Lordships do not so construe the plaint. They think the meaning is to insist upon the family custom as being allowed by the shastras to govern the family. The materiality of this contention will appear when the evidence and the judgments of the lower Courts come to be noticed.

(3.) THE issues framed by the Court were: