HARDEO BAKSH Vs. SHANKAR BAKSH

JUDGEMENT

(1.) THE principal question raised in this case is whether certain estates which belonged to Dariao Singh, taluqdar of Rampur Kalan, go according to the law of primogeniture, or are subject to a family arrangement by which they were divided into shares? The principal estate is known by the collective name of Rampur Kalan. It was an estate which was. subject to the common Hindu law of Oudh-the Mitakshara law. It was confiscated with other Oudh estates, and it was restored to the family by sunnuds. The only material difficulty that exists in the case is owing to the circumstance. that two different sunnuds were granted for the purpose of the restoration, one recognising a division into shares, and the other establishing primogeniture.

(2.) THEIR Lordships have not to deal with the difficult question which has been agitated in so many cases here, whether, to use rather a popular than a legal term, equities shall prevail against the form of the sunnud; because, although it was maintained in the Courts below that the primogeniture sunnud was to prevail against all inferences to be drawn from the transactions among the family, yet that position has been abandoned now, and Mr. Doyne has very candidly stated that he cannot resist the conclusion that, as regards the beneficial interest in the profits, there must be participation between the members of the family. But what ho maintains is that the arrangements led to this inference, that the family was still to have a sole head to it, and that he would take the title of taluqdar, and have the management of the property, and though he would be accountable to his brothers, the younger branches, for certain shares of the profits, yet the property was still to be held in one hand as an entire estate; and that they could not displace the head of the family from that position.

(3.) THE ordinary rule is that if persons are entitled beneficially to shares in an estate they may have a partition. In the last case of Hardeo Bakhsh- that of Pirthi Pal Singh and another v. Thakur Jewahir Singh Law Rep. 14 Ind. Ap. 37, very much the same sort of contention was set up. Let us take the statement of the Defendant's contention-he was the head of the family-from page 60 of the report. Jewahir Singh prayed a declaration that he was entitled to hold the property "as an integral, impartible, and indivisible estate or taluqa subject to the beneficial interest of the Defendant in respect of the profits thereof to the extent of his share as declared by the Court. Sir Richard Couch delivered the judgment of the Committee, and observes that Jewahir Singh did hold the estates in "trust for the joint family, but as a joint family estate they were subject to partition, and as a trustee he is bound to allow the partition to be made."