AJABSING Vs. NANABHAU VALAD DHANSING RAUL

JUDGEMENT

(1.) THE question in this case is most readily explained by means of a pedigree; and one is annexed which has been extracted from those in the Record with the omission of some unnecessary names. SULTANJI. _______________________________|_____________________________ | | | BHABA GUNGBA. ESBA. _____________|____________ | | | | | | Lal = Wife Sujan Nahar. Futteh ob. s.p. | who adopted | adopted | adopts by Futteh ? _______|_______ Sujan ? | | | _______|_______ Durjan = Baijabai Devi Dhun. | | ob. 1793. | ob. 1818. adopted | Durjan | | by Baijabai | adopted Bhim. | to Durjan Nandhan by lal's widow | Devi the defendant. to him. Ude. adopted | in 1815. | | Madha | the plaintiff. Sardar. | | Bhil ob. s.p. it shows that from the common ancestor of the parties there have descended three lines of issue; that the senior line, that of Bhaba, is extinct; that the defendant belongs to the second line, that of Gungba; and the plaintiff to the third, that of Esba. Plaintiff and defendant each claim to be heir-at-law of Bhil, or, adding his honorary suffix, Bhilesing, the last owner of the property in dispute. The plaintiff is the lineal descendant of Sujan, who was born into the senior line. The pedigree shows that he was adopted into the third line. The plaintiff denies that, and the question in this appeal is whether or no the adoption was made. The Subordinate Judge determined that issue in favour of the plaintiff, and the High Court in favour of the defendant. The plaintiff has appealed, and the present appellants are his heirs.

(2.) IN opening the case Mr, Phillips submitted another question, namely, whether the line of Esba is not senior to that of Gungba, so that Sujan's descendant would still be heir even if he had been adopted into Esba's line. The contents of this Record do not favour such a supposition. But their Lordships are clear that the plaintiff never raised the question in the Courts below. The plaint says nothing about it; neither do the settled issues; the Subordinate Judge does not address himself to it; and the High Court says expressly that the only question is the adoption of Sujan, on proof of which the plaintiff's case must fail.

(3.) IN the year 1793 Durjan died without issue leaving Baijabai his widow. At that time the reigning Holkar was a lady whose variously spelt name may be designated as Ayla Bai. She was the widow of the son of the first Holkar conqueror, and after his death she assumed the government and carried it on with marked ability and success for thirty years. Notice of Durjan's death was given ;to her by Baijabai according to the custom in such cases, and apparently because of her double capacity as Sirkar and as joint-owner. Ayla Bai's answer runs as follows: From your friend Ahilyabai Holkar Raul, Tarf aforesaid, salutations. The Sur year one thousand two hundred and ninety-three (A.C. 1792-93). I have received the letter which you sent and have noted the contents. You wrote to say that Durjansing Raul had been ailing and that the medicines tried (on him) proved ineffectual and that he died, that God willed it so, and that could not be helped, and prayed that an Abhayapatra might be sent in the name of his full brother Bhikaji Raul. As to that, Durjansing died ; God's will be done. I have sent a separate Abhayapatra in the name of his brother. Should the Bhaubands (kinsmen) &c, take objections (to the same), do you issue strict (peremptory) orders. Be this known.