TEJ BALI SINGH Vs. BAIJNATH PRASAD 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 Aghori-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, Red Saran 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 was made a defendant to the suits, 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 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 waqf and to manage the waqf property and to make transfers under deeds of gift and to make gift and religious gift of cash and articles, etc., which I the executrix have done out of the profits arising from the property of my husband". By a deed of even date defendants land 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 authorized to do Pandit Banarsi has been in the service of the said Rani since 1893. So far as we have come to know from inquiry 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 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 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 of June, 1896, by the father of the plaintiff and the two defendants (see A 407) in which they bitterly complained 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 desd of relinquishment in favour of Baijnath Prasad, defendant No. 1, who was declared owner of the gaddi. By way of proof of consent Bishnath 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 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 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 Bhup 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 members of 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 Hindoo Tribes and Castes, Volume I, pages 182-183). "About the year 1744 A.D. Shambhu Shah, the then Raja of Aghori, 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 zamindari of Aghori-Barhar. This was in October, 1781. A few days later (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 Aghori pargana 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 tnalihana. 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. Aghori 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.R. Dampier, C.S."

(3.) To avoid confusion it is necessary to keep separate the history of the family property and the history of the malikana grant of Rs. 8,001. The latter was undoubtedly 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 j themselves, which was assigned, and some if not most of the villages were already part of the family estates. The sanad relating to the zamindari given by Warren Hastings on the 9th of October, 1781, was in the following terms: Be it known to Adil Shah, respectable zamindar of pargana Aghori, that on a petition having been made, it is known that the zamindari in the pargana 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 pargana aforesaid in accordance with the directions of the Revenue officers and Raja Mahip Narain Bahadur of high rank. He is insisted on doing as directed above." According to Mr. Roberts report Adil Shah recovered possession with the help of British soldiers in pursuance of this document. Warren Hastings, as already stated, also made a grant to Adil Shah of Rs. 8,001. It would appear that the origin of the grant of Rs. 8,001 was to compensate Adil Shah for not getting possession and actual enjoyment at once of the ancestral estate. The Raja, or perhaps I should say the family, is now in possession of the ancestral estate and they also enjoy the Rs. 8,001 malikana grant in perpetuity. The arrangement now is that they are charged with Government revenue on all the property including the property, the jama of which was assigned to meet the grant of Rs. 8,000, but they take credit for Rs. 8,000. Warren Hastings had entered into a treaty or arrangement with the Maharaja of Benares and subsequently difficulties presented themselves as to how faith could be kept with both the Raja of Benares and the Raja of Aghori, having regard to the fact that in a sense the property had belonged to both. This led to a good deal of complication and prevented temporarily the sanad of Warren Hastings being completely acted upon. In the end matters were adjusted, and the family are now and have for many years been in undisturbed possession. In this connection Regulation I and II of 1795 should be read and in particular the preamble to Regulation I and Clause XVII of Regulation II, Sub-clause (3), in which Adil Shah is referred to as the "representative" of the Aghori Rajas. The conclusion I have arrived at is that from the time of Warren Hastings the family have been substantially in possession of the ancestral estate (they never in fact completely lost touch with it) and that, notwithstanding the various events that happened, the restoration of the property in justice and equity ought to be attributed to the sanad of the 9th of October, 1781, just as if the latter had been carried into full effect at the time. I have appended to my Judgment a short statement of the events which have happened. The first question is whether the estate is impartible. This is a question which their Lordships of the Privy Council say is to be decided on the facts of each case. No doubt the Government in making a grant of an estate can determine the nature of the grant, but I do not think, in the absence of specific terms in the grant, surrounding circumstances can or ought to be ignored. I will give an example. Suppose Government confiscated what was admittedly joint family property and suppose (in consequence of representations made by a member of the family to the effect that the confiscation, had been made by mistake or for insufficient reasons) the Government restored the property by making a fresh grant to the member without any special terms or conditions in the grant. I think that the property so restored would be joint Hindu property in the hands of the member of the family to whom the grant was made just as it would have been if there had been no confiscation. In the present case I think that the restoration of the property, notwithstanding what subsequently happened, must and ought to be referred to the action of Warren Hastings. If this view be correct, Regulation XLIV of 1795 (relied on by the defence) can have no application, because it refers to grants after 1797. It does not appear to me that Balwant Singh had lawful power to confiscate the estate, though the defence strongly contend that he had. Bearing in mind the terms of the document of 9th of October, 1781, bearing in mind the fact that four Rajas subsequently ascended the gaddi and bearing in mind the terms of the will of the Rani accepted by the defendant and his brother, I think that this estate must be deemed impartible: see Kachi Yuva Rangappa Kalakka Thola Udayar v. Kachi Kalyana Rangappa, Kalakka Thola Udayar (1905) I.L.R. 24 Mad. 562 affirmed by their Lordships in (1909) I.L.R. 28 Mad. 508.