BAIJNATH PRASAD SINGH Vs. BABU TEJ BALI SINGH

JUDGEMENT

(1.) This appeal relates to the right to possession of a very valuable estate in Mirzapur, referred to in the plaint as the Agori Barhar Raj. The last male owner was Raja Kesho Saran Shah. The Raja died on the 4th of March 1871, leaving no issue but a young Rani Bed Sarau Kunwari him surviving. The Rani lived until 1913 when she died. A glance at the pedigree filed with the plaint will show that the plaintiff is the eldest son of Babu Jagannath Prasad. This gentleman survived the late Raja but died before the Rani on the 14th of October 1910. Defendant No. 1, Babu Baijnath Prasad, is the rival claimant to the Raj. He was a brother, next in seniority to Babu Jagannath Prasad aforesaid, father of the plaintiff. Defendant No. 2 is a younger brother of defendant No. 1. In the plaint it is alleged that the Rani had made or attempted to make large gifts at the expense of the estate to one Pandit Banarsi Misir, a Brahman, that she had tried to get the consent of the plaintiff s father to her action, that the plaintiff had intervened to prevent his father consenting and that thereupon the Rani turned her attention to the rival claimant and his brother defendant No. 2, with whom she was more successful. That the Rani did make very extensive gifts to Banarsi, is an admitted fact. Banarsi Das was made a defendant to the suit though he is no party to the appeal. On the 4th of November 1912, Rani Bed Saran executed a document purporting to be a codicil to a Will executed by her on the 1st of March 1910, whereby she had appointed the aforesaid Pandit Banarsi and others executors for the performance of her funeral ceremonies. The document recites that defendants Nos. 1 and 2 belong to the same gotra and will become owners of her husband s estate after her death. The lady then declares that these persons will be her successors: "I direct that Babu Baijnath Prasad should occupy the gaddi of the estate and continue to maintain the other members of the family in accordance with the old usage. These persons even came to me...and in proof of faithfulness and obedience they have to-day under a deed of relinquishment admitted my powers to make wakf and to manage the wdkf property and to make transfers under deeds of gift and to make gifts and religious gifts of cash and articles, etc which I, the executrix, have done out of the profits arising from the property of my husbard." By a deed of even date defendants Nos. 1 and 2 completely ratified all that the Rani had done: "It is a matter of great pleasure to us that the said Rani Sahiba has used the said income for good and religious purposes which every Hindu widow is authorised to do....Pandit Banarsi has been in the service of the said Rani since 1893. So far as we have come to know from enquiry as well as from the Rani and from our personal acquaintance we are fully satisfied that the Panditji is a very honest man." It is to be hoped that defendants Nos. 1 and 2 meant all they said and that the Panditji was entitled to the high testimonial given him. A perusal of the document discloses not only the piety of the deceased Rani but also of defendants Nos. 1 and 2. It is perhaps open to the criticism that the executants protest too much. And there is a marked contrast between this document and a complaint addressed to the Collector on the 17th June 1896 by the father of the plaintiff and the two defendants (see A. 80) in which they bitterly complain that the Rani is destroying and wasting the estate and has given Rs. 99,000 in cash besides other extravagant grants to the priest. It may well be doubted that defendants would have executed the deed of November 1912, if defendant No. 1 believed that he was entitled to succeed to the gaddi on the death of the Rani. On the 4th of November 1912, the Rani executed a deed of relinquishment in favour of Baijnath Prasad, defendant No. 1, who was declared owner of the gaddi. By way of proof of consent Bindeshwari Prasad executed the document. Mutation of names followed and defendant No. 1 got possession. On one issue in the case, viz., whether the, estate is an impartible Raj, the fact that Baijnath Prasad took it as a Raj with the assent of his brother is not without some significance. In the codicil, of which of course defendants Nos. 1 and 2 were cognizant, Baijnath Prasad was "to occupy the gaddi of the estate and continue to maintain the other members of the family in accordance with the old usage."

(2.) I now proceed as shortly as possible in these hot days to deal with the history of the family. The accuracy of the pedigree filed with the plaint has (save in one respect) not been contested. According to the pedigree Raja Adil Shah was succeeded by Raja Ran Bahadur Shah, the son of Babu Bhop Narain, brother of Raja Adil Shah. It was conceded at the hearing that the evidence showed that Ran Bahadur was adopted by Adil Shah and the successor was the adopted son. The family is beyond all question a very ancient one. There has always been a Raja installed in the gaddi in the usual way and the membersof the junior branches are styled Babus", the appropriate name for junior members of a Raja s family. The history of the family is referred to in many works including that of Mr. Sherring (vide, Hindu Tribes and Castes, Vol. 1, page 182-183). About the year 1744 A.D., Shambhu Shah the then Raja of Agori was dispossessed of his domains by Raja Balwant Singh. During the insurrection of Chait Singh, Adil Shah, grandson of Shambhu Shah, just mentioned, attended on Warren Hastings and made himself so useful that the Governor General gave him a sanad restoring him to the zemindari of Agori Barhar. This was in October 1781. A few days latter (on 15th October 1781), the Raja appears to have received a second sanad granting him an allowance of Rs. 8,001 in the form of an assignment of certain villages, and on this is based the right, which his descendant still enjoys, of holding free of revenue nearly the whole of Agori Pergana and certain villages in Barhar.; On possession being taken of Kon by the Company the taluqa was one of the estates assigned to Adil as his malikana. It was managed till his death in 1794 by his brother Babu Rachpal. The latter then claimed to hold the taluqa but on his death shortly afterwards (in 1796) Raja Ran Bahadur, the nephew and heir of Adil Shah, obtained possession, Agori Taluqa had a similar fiscal history. Both Taluqas were in 1803 declared to be included in the jagir of the Raja" The above is taken from a Government publication called: "A note on the tract of country south of the River Son by W. Crook, C.S., and G.A. Dampier, C.S."

(3.) To avoid confusion it is necessary to keep separate the history of the family property and the history of malikana grant of Rs. 8,001. The latter was undoubttdly originally a personal grant to Adil Shah for a temporary purpose. It is not quite accurate to say that "villages were assigned" as the equivalent of this grant. It was the revenue of the villages not the villages themselves which was assigned, and some if not most of the villages were already part of the family estate. The sanad relating to the zemindari given by Warren Hastings on the 9th October 1871 was in the following terms:- Be it known to Adil Shah, respectable zemindar of Pergana Agori, that on a petition having been made, it is known that the zemindari in the pergana aforesaid is his old ancestral property. Several years ago Raja Balwant Singh forcibly dispossessed him and brought it to his use. Therefore, in lieu of former rights he should remain in proprietary possession of his share as heretofore. He should make arrangements as regards the cultivation of the land and population of the pergana aforesaid in accordance with the directions of the Revenue Officer and Raja Mohit Narain Bahadur of high rank. He is insisted on doing as directed above.