RAJA AJAI VERMA Vs. MT VIJAI KUMARI

JUDGEMENT

(1.) These consolidated appeals arise out of a suit filed by Kunwar Vijai Verma to make good his claim to a moiety of the Pawayan Estate in the Shahjahanpur District of the United Provinces. The litigation has been protracted and in some ways singularly unfortunate, and the appeals as they come before this Board have little resemblance to the case originally tried. Only one of the issues originally raised is now in dispute and upon it their Lordships have not deemed it necessary to hear argument. It has been found by the Indian Courts, and is now admitted, that the Pawayan Estate was in the hands of Raja Fateh Singh, the father of Vijai Verma, an impartible Raj descending by the custom of male primogeniture, under which, on the Raja's death in December 1921, it would, in the absence of any testamentary disposition by him, have passed intact to his eldest son, Raja Indra Bikram Singh, the original defendant in the suit. His younger brother however claimed that the Estate was joint family property subject to the ordinary Mitakshara law, and alternatively that by the duly executed will of his father, half the Estate was devised to him. The trial Court held that the Estate was as to some portions impartible, but as to others partible and gave the plaintiff a decree for his share of the latter with mesne profits. It held the will not to be proved. The High Court on appeal found the whole estate to be impartible, but upheld the will so that the plaintiff, if he had then been alive, would have succeeded in his suit. Unfortunately however he died before the decision of the Appellate Court was given leaving an only daughter who was under protest from the other side substituted for him on the record. This brought an entirely new issue into the field of dispute, as the daughter's right of inheritance to her father was denied on the ground of family custom. It necessitated a remand to the lower Court to try the validity of the custom on which evidence was recorded at great length. The trial Judge found the custom proved the result of which would have been to deprive the daughter of all the fruits of her dead father's success, but on his finding being returned to the High Court the learned Judges there disagreed with his conclusion and held that the custom was not established that the daughter inherited under the Mitakshara law and was therefore entitled to half the estate with a large sum for mesne profits. The matter now comes before the Board with two questions in dispute, viz. whether the validity of the will was established and whether the custom excluding the daughter from inheritance was proved. With the consent of the parties their Lordships took up first the question of custom, and having come, somewhat reluctantly, to the conclusion that the custom is proved, they have not found it necessary to go into the question of the will.

(2.) It is desirable in the first place to set out in more detail the course which the litigation took in the Indian Courts. Raja Fateh Singh died on 28 December 1921, leaving two sons, Indra Bikram Singh, the elder, who succeeded to the hereditary title of Raja and Vijai Verma. The latter, on 7 March 1922, instituted his suit in the Court of the Subordinate Judge of Shahjahanpur, making his brother defendant. After recording a mass of evidence, both oral and documentary, the Subordinate Judge delivered his judgment on 16 September 1926. He held (as already stated) that the will of Rajah Fateh Singh was not proved, that certain of the Pawayan villages were impartible and passed to the defendant, but that others were in the nature of ordinary joint family property in which the plaintiff was entitled to share equally with the defendant. He passed a decree to this effect and directed an enquiry on the usual lines as to mesne profits, in respect of which a sum of about 2? lakhs of rupees was eventually decreed on 17 January 1928. In the meantime both parties appealed to the High Court at Allahabad and a third appeal against the mesne profits decree was lodged by the defendant in April 1928. Before however any of these appeals came on for hearing, both plaintiff and defendant died, the defendant on 25 May 1928, and the plaintiff on 12 September 1929. The defendant left two sons, the elder of whom, Ajai Verma, succeeded to the Raj and was brought on the record of the appeals in the place of his father. He is now the appellant before the Board. His younger brother was added as a pro forma party and is respondent 2. He takes no part in the present proceedings. The plaintiff, Vijai Verma, left, as already stated, an only daughter, Vijai Kumari, then and still a minor, who under the guardianship of her maternal uncle is the first and contesting respondent before the Board. The course of the proceedings in the High Court has already boon referred to. The issue remanded for trial in the lower Court was in the following terms: Whether there is any custom in the family by which a daughter is excluded from inheritance and whether therefore Vijai Kumari is excluded and cannot maintain her father's appeal or resist the appeal of Indra Bikram Singh.

(3.) The Additional Subordinate Judge by whom this issue was tried recorded a mass of evidence tendered by Raja Ajai Verma (hereinafter referred to as the appellant) upon whom the burden of proving the custom lay. It consisted in the main of wajib-ularzes of villages held by other branches of the family, statements by deceased members of the family recorded by settlement officers, family tradition, and instances in which daughters had actually been excluded from inheritance. No oral evidence was offered on behalf of the present respondent, whose counsel was content with a not very effective cross-examination of the witnesses called by his opponent. The significance of this is considerable: see per Sir Montague Smith in Lekraj Kuar V/s. Mahpal Singh, (1880) 5 Cal 744 at p. 72. The learned Subordinate Judge delivered an exhaustive judgment to which he appended a laboriously compiled geneological table of the family which has materially lightened the labours of counsel and also of their Lordships at the hearing of these appeals. He came to the conclusion that the custom was proved, that Vijai Kumari did not inherit to her father, and in effect that she had no locus standi in the appeals before the High Court. He gives an interesting history of the family, derived mainly from the local Gazetteers, and a history sheet of the family prepared under the directions of the Collector in 1865. It is, no doubt, in part legendary, but its only materiality is to connect the various branches of the family appearing in his geneological table with a common ancestry, and for this purpose their Lordships think that it may fairly be accepted. No argument has been addressed to them, nor indeed was any cross-examination before the Subordinate Judge directed to show that such family connexions did not exist. The generally accepted family tradition is undoubtedly of a common descent from Raja Chandra Sen who is said to have ruled over a considerable tract of country in what is now the Sitapur District of Oudh and the neighbouring territory in the 16 century. His descendants are all spoken of as Brahm Gaur.Thakurs and they seem to have spread over Sitapur during the break up of the Mogul Empire, acquiring extensive estates chiefly by force of arms. One of them, Udai Singh, the direct ancestor of Rajah Fateh Singh, carved out for himself the estate of Pawayan in or about 1746. It was apparently part of the Rohilla country or at all events, of the debatable ground between Rohilkhand and Oudh, and was ceded to the British in 1801, and it thenceforward formed part of the Shahjahanpur District of the Bareilly Division; Sitapur, in which most of the branches of the family were settled, and in which the Pawayan branch subsequently acquired certain villages, remained a part of Oudh and passed into British hands by the annexation of 1856. It is not now disputed that Pawayan has since the time of Udai Singh been held as an impartible estate descending by male primogeniture with the hereditary title of Raja recognized by the British Government. It follows almost necessarily from this that so long as there was no partible property in the Pawayan branch the question of a daughter's inheritance could never arise. But if the custom of the daughter's exclusion prevailed throughout the family before the impartible estate came into existence, it may well have remained (so to speak) latent, and ready to come into operation in respect of any partible property that might be acquired at any time by a member of that branch. . Gaurs were one of the recognized clans of Kshattriyas who are said to have migrated from Gaur the ancient capital of central Bengal.