RAO KISHORE SINGH Vs. MUSAMMAT GAHENABAI

JUDGEMENT

(1.) This is an appeal from the decision of the Judicial Commissioner of the Central Provinces on appeal from the District Court of Nimar reversing a judgment of the latter Court in an action in which the present appellant was plaintiff and the present respondents were defendants. The fact that the respondents have not appeared on the hearing of the appeal before this Board, requires that the evidence, and the points raised in the case should be examined by their Lordships in more detail than would have been necessary, had counsel for both the appellant and the respondents appeared and presented their respective contentions to them.

(2.) The action out of which the appeal has arisen was brought by the appellant, Rao Kishore Singh, to have it declared that he, as sole heir of his second cousin, Rao Himmat Singh, who died on the 16th October, 1906, was entitled to a certain estate, particulars of which are set out in detail in the schedules attached to the plaint, of which his said cousin was owner in possession at the date of his death, and also to recover possession of the same. The appellant claims this heirship by virtue of a special family custom upon which he relies, according to which, as he avers (1) females are wholly excluded from inheritance; (2) on the death of a proprietor the whole estate passes to a single person, subject to the liability to maintain the other members of the proprietor s family; (3) on the death of a proprietor the male relative who is in the eldest line of male descent from him succeeds, and in default, the male relative in the eldest line of male descent, from his father, and next from his grandfather succeeds and so on. No restraint on alienation is imposed in other respects by this custom.

(3.) The respondents are the mother and stepmother of Himmat Singh, widows of his late father, Rao Ram Singh, claiming to be entitled as the latter s heirs to the aforesaid estate under the ordinary Hindu law. They admittedly would be so if the alleged custom did not govern the descent of the estate. The genealogical table of the appellant s family for the last six generations, which is set out in the plaint, is admitted to be correct, and runs thus:-