JUDGMENT
Rrgular Appeals Nos. 89 and 132.
1. The two present appeals arise out of in suits brought against the appellant in both appeals (1) by Takurani Tara Kumari widow of Takur Ram Narain Singh of gadi Telwa and (2) by Maharaja Sir Raveneswar Prosad Singh Bahadur K.C.I.E. of Girdhaur in which each claimed to recover from the appellant a half share of Taluq. Telwa, the widow of one-half share by right of inheritance from her husband, the Mahrajah of the other half share by right of purchase from the widow. The Maharajah in his suit, out of which Appeal No. 132 of 1909 arises, sought also in the alternative to have it declared that in his capacity of representative in interest of the mortgagees and creditors (defendants Nos.7 to 12) of the deceased Thakur Ram Narain Singh, he was entitled to recover from the estate all the money including interest &c. up to the date of realization due under the mortgage and sudbarna bonds and deeds of transfer and to be declared to be entitled to possession of the properties covered by the sudburna bonds (usufructuary mortgage bonds) dated the 5th Aghran 1298 and 22nd Magh 1310 and if dispossesse I daring suit to mesne profits during dispossession.
2. Telwa gadi originally belonged to Thakur Bhyro Narain who died in 1272 Fasli leaving 2 sons, Ranjit Narain and Bhupat Narain. The gadi being an impartible estate and succession to it being governed by the law of primogeniture, the custom being that the eldest son of deceased malik succeeded to the entire gadi while the other sons are entitled to maintenance only, Ranjit Narain the eldest son succeeded by inheritance to the gadi on the death of his father.
3. On 14th Asin II 1287 Fasli, Thakur Ranjit Narain executed a permanent mokarari lease in favour of his brother Bhupat Narain of two mouzahs Ghatori and Bothnabaran together with 4 bighas of paddy growing land in Tala Kanoi as a khorpesh grant for his maintenance.
4. Afterwards in 1308 Fasli Thakur Ranjit Narain died leaving a widow, Gyan Kumri and an infant son, Ram Narain. Gyan Kumri was appointed guardian of her minor son by the District Court and the son succeeded to gadi according to the family custom.
5. Bhupat Narain died in Magh 1311 Fasli leaving a son Chaturbhuj Narain Singh (defendant No. 1). Chaturbhuj has 4 sons, defendants Nos. 2, 3, 4 and 5.
6. Thakur Ram Narain died while still a minor in Asar 1312 Fasli leaving a widow Tara Kumri. The widow is the plaintiff in suit No. 427 of 1907. (Appeal No. 89 of 1909) and pro forma defendant No. 6 in suit No. 428 of 1907 (Appeal No. 132 of 1909).
7. Tara Kumri afterwards applied in the Revenue Court for registration of her name as proprietor of gadi Telwa by right of inheritance from her husband Ram Narain. Objection was taken by Chaturbhuj Narain on the ground that his father and he were all along joint in food and property with Thakur Ranjit Narain and Ram Narain, that on Ram Narain’s death he succeeded to the gadi by right of inheritance and that he had since been in possession. He too applied separately for registration. Tara Kumri’s application was rejected by the Ravenue Court and Chaturbhuj’s application was granted and the decision was confirmed on appeal by the higher Revenue Courts.
8. Heavy debts were incurred by Thakur Ranjit Singh during his life-time and after his death and the death of Ram Narain, the creditors demanded payment. In order to discharge these debts Tara Kumri sold a half share of the estate gadi Telwa to the Maharajah of Grirdhaur (paintiff in suit No. 428) for Rs. 50,000 in September 1906. The price paid was to be applied first to pay off the mortgages amounting to Rs. 47,699 and the balance to defray the expenses of the present suit brought by the widow and in accordance with that arrangement the Maharajah paid off the following bonds and obtained deeds of transfer of their rights from the mortgagees, viz.,” mortgage bond for Rs. 29,700 dated 5th Aghan 1308 11th November 1900, in favour of Bunwari Roy, a sudburna (usufructuary mortgage) bond for Rs. 9,000 in favour of Sheo Lal Madi and Amer Madi, dated 22nd Magh 1310 Fasli and another sudburna (usufructuary mortgage) bond for Rs. 8,999-15, dated 5th Aghan 1296 in favour of Tota Mahto, Jiban Mahto and others.
9. The two suits were instituted in August 1907 and the case for the plaintiff in each was that on the 14th Asin II 1287, Thakur Ranjit Narain Singh separated from his brother Bhuput Narain when he executed the permanant mokarari lease in his favour for his maintenance, that since that time Bhuput Narain and his son and grandsons had been separate in food, worship and property from Thakur Ranjit Singh and his son Ram Narain, that the property in suit, gadi Telwa, became from that time the separate property of Ranjit Singh and his descendants and passed by inheritance as separate property on the deaths of Ranjit Narain and Ram Narain to their heirs in their branch of the family to the exclusion of all members of the branch of Bhuput Narain. The property, in the ordinary course of succession as obtaining in the family, passed as an impartible estate by rule of primogeniture to the eldest male heir and on failure of all male heirs in that branch of the family passed to the widow of the last holder of the estate. The Maharajah claimed the half share by right of purchase from the widow.
10. The main line of defence taken in both suits, which has been followed in these appeals, is that the defendants appellants deny that Thakur Ranjit Narain separated from his brother, Bhuput Narain, in 1287 when he made the maintenance grant in his favour; they allege that the family remained joint all along up to the death of Ram Narain and the defendant Chaturbhuj, under the Mitakshara law and the rule of primogeniture prevailing by custom in the family, claims to be entitled to succeed to the estate in preference to the widow, Tara Kumri. Further the defendants disputed the right of the plaintiff Maharajah in his suit to the alternative relief which he claimed as purchaser of the rights of the mortgagees.
11. Dealing with the last question first the lower Court has held that the plaintiff Maharajah was entitled in the present suit to the alternative relief claimed. The Subordinate Judge has held that the mortgage debts were family ancestral debts and as such recoverable from the family property in the hands of the, subsequent rightful owner; that the payments made by the Maharajah to discharge those debts were not voluntary payments and that the Maharajah in his suit, though not entitled to a declaratory decree only, should be allowed to recover the sum paid by him in discharge of those debts from the zamindari.
12. Dealing with the second principal issue in the suit, the lower Court has held that Taluka Telwa is an ancestral impartible estate, and that inheritance to the same is governed by the rule of primogeniture prevailing by custom in the family, The Subordinate Judge further has held that the defendants have failed to prove the existence of any custom prevailing in the family by which females are excluded under all circumstances from the succession, but on the contrary he has held that the custom is that females are excluded only by male heirs living jointly with the last holder of the estate at the time of his death and that they are not excluded by male heirs who were separate from the deceased at the time of his death, but that on the contrary following the ordinary rule of succession to separate estate under the Mitakshara law, the female succeeds in preference to such separated male kinsmen.
13. Taking up next the question of separation, the lower Court first notices that in the written statement (para. 5) it is admitted that Chaturbhuj separated from the two widows Gyan Kumri, widow of Ranjit Singh and Tara Kumri, widow of Ram Narain, after the death of Ram Narain, and then he deals with the evidence. He points out that in spite of the insertion of a clause prohibiting alienation in the grant of the permanent mokarari lease made to Bhuput Singh by Ranjit Singh in 1237 Fasli Bhupat raised money by giving mortgages on the property granted to him, and with that money built himself a house, separate from Ranjit Singh, which was divided off from Ranjit Singh’s house by a wall, and in which he established a separate Thakurbari and Tulsi Pinda, and that the house so built was separately assessed with chowkidari taxes; and that he paid the expanses of Chaturbhuj’s marriage and had transactions separate from Ranjit Singh and Ram Narain Singh. On those facts the Subordinate Judge holds that Bhuput Narain and Chaturbhuj Narain were separate in food, worship and estate from the time when the maintenance grant was made, and following the decision of their Lordships of the Privy Council in the case of Chhatradhari Singh v. Saraswati Kumri 22 C. 156 at p. 162, he holds that the Taluka Telwa having been the separate property of Ranjit Singh and afterwards of Ram Narain, it followed a course of succession different from that which it would have followed if joint, and that following the ordinary course of succession under the Mitakshara law, it passed on the death of Ram Narain to his widow, Tara Kumri, to the exclusion of Chaturbhuj Narain and his descendants.
14. The Subordinate Judge further held that the Maharajah plaintiff had acquired a good title to half the property by purchase from the widow, Tara Kumri.
15. Accordingly he decreed both suits in favour of the plaintiffs. The defendants 1st party have appealed.
16. In these appeals the contention between the parties has centred round the point which is all important for the decision of the suits, namely, whether Thakur Ranjit Singh separated in estate from Bhuput Singh and Chaturbhuj Singh, when he made the maintenance grant in favour of Bhuput Singh in 1287 Fasli,
17. It is true that reliance has been placed by the learned pleader for the appellants on the decision of this Court in the case of Laliteswar Singh v. Rameswar Singh 36 C. 431 : 13 C.W.N. 888 : 2 Ind. Cas. 200 : 6 M.L.T. 11, which dealt with the right of succession to the Durbhangah Raj, to support the broad contention that Taluq Telwa being an impartible ancestral estate there could have been no separation in estate quoad the Taluq between Thakur Ranjit Singh and his brother Bhupat Singh, and that, therefore, so far as that property is concerned it must be held that the two brothers remained joint in estate, whatever may have been their relations in respect of other property and even though they may have separated in food and worship. It seems, however, open to question whether the decision in that suit was meant to go so far as to lay down the broad rule, that in no circumstances whatever could an impartible ancestral estate, which was originally the joint property of several members of a family, become the separate property of one member for in that case it was held that the compromise on which the plaintiff relied as an indication of the intention of the parties to separate could not be accepted as sufficient proof of such an intention.
18. The learned pleader in his argument has, however, relied on the evidence and on other decisions to support the contention on behalf of the appellants that there was in fact no separation between Thakur Ranjit Narain and Bhuput Narain in 1237 and that in consequence the Taluq, in accordance with the Mitakshara law as applicable to joint property and the custom prevailing in the family, passed on the death of Ram Narain to Chaturbhuj Narain, his eldest surviving male heir. He has pointed out that in the case of Kattama Nauchiar v. The Raja of Shivagunga 9 M.I.A. 530 : 2 W.R. 31 (P.C.), (commonly known as the Shivaiganga case 9 M.I.A. 530 : 2 W.R. 31 (P.C.) what was dealt with was self-acquired property and it was held that self-acquired property was descendible by inheritance according to the rule governing succession to separate estate and did not fall into the common stock with the ancestral property, even though the family may have been united at the time of the decease of the last proprietor, he has further pointed out that in the case of Jowala Buksh v. Dhaurn Singh, it was laid down that the mere impartibility of the estate is not sufficient to make the succession to it follow the course of succession to separate estate and he adds that if the estate be ancestral and undivided then it goes to the male heirs. In the case of Chintamun Singh v. Nowlukho Kanwari, the distinction in the rule of succession to joint property and separate property is clearly drawn in the passage in which their Lordships of the Privy Council lay down that “whether the status of the family be joint or divided, property which is joint will follow one and property which is separate will follow another course of succession.” In the case of Doorga Fershad v. Doorga Kooeree 20 W.R. 154, it was decided that the impartibility of property does not destroy its nature as joint family property or render it the separate estate of the last holder so as to destroy the right of another member of the joint family to succeed to it upon the death of the holder in preference to those who would be his heirs if the property were separate and the same view was expressed in the cases of Jogendro Bhupati Hurro Chundra Mohapatra v. Nityanand Man Singh 18 C. 151, and Kali Krishna Sarkar v. Raghunath Deb 31 C. 224, for the purpose of determining who is the heir to an impartible estate the same rules apply which also govern succession to partible estates, though the estate can only be held by one member of a family at a time.
19. The learned pleader contends further that the decision in the case of Chhatradhari Singh v. Saraswati Kumri 22 C. 156 at p. 162, on which the learned Subordinate Judge relies, cannot be held to apply to the present case as that was the case of a ghatwali tenure. But in that case there was a distinct finding that there had been a separation in the family.
20. In substance then the learned pleader’s arguments amount to this that even though Taluk Telwa is an impartible ancestral estate, it cannot be held to be on that account the separate estate of Thakur Ranjit Narain or his son Ram Narain so as to pass in the course of inheritance laid down for separate estate. It would pass in that course only if there had been a separation between-Ranjit Narain and Bhuput Narain. If there was no such separatoin and the family remained undivided the inheritance would follow the course for joint property subject only to the family custom by which the rule of primogeniture prevails. He contended that there had been no separation and that the view taken by the Subordinate Judge on the evidence was wrong.
21. The learned Counsel for the respondents contends that it is clear from the judgment in the cases of Bejai Bahadur Singh v. Bhupendra Bahadur Singh 22 I.A. 139 : 17 A. 456, that their Lordships of the Privy Council were of opinion that there could be separation among members of the family even in the case where the ancestral property consisted of an impartible estate; and that the question of separation was one of intention and of fact to be determined on the evidence. He further points out that in the case of Doorga Pershad Singh v. Doorga Kooeree 20 W.R. 154, it was held that from the fact of an estate being impartible it does not follow as a necessary consequence that no division or separation can be effected with respect to it, and that an ancestral impartible estate may be held separately after separation from other members of the family. This, no doubt, was a ghatwali tenure but he argued that there was no difference in this respect between ghatwali tenure and zemindari estates.
22. He contended that there had been a separation between Ranjit Narain and Bhuput Narain and that the view taken of the evidence by the lower Court was correct.
23. The question for our decision then resolves itself into one of fact or intention to be determined on the evidence.
24. It is the case common to both sides that Bhuput Narain was a man of licentious habits and that he made himself a nuisance to his brother Ranjit Narain and created a scandal by introducing his mistresses into the family, dwelling house. It was in consequence of this that Ranjit Narain executed the maintenance grant in his favour in 1287 to enable him to start a separate establishment. There can be no doubt that after receipt of the grant Bhupat Narain built himself a new house outside the old family dwelling and that in course of time a Thakurbari and a Tulsee Pinda were established in that house and that a wall of separation between his house and the family house was constructed It seems to be also beyond doubt that after receipt of the grant Bhuput Narain raised money by mortgages on the property leased to him and spent it on the marriage of members of his family and on their maintenance. Still are not all these acts such as might have been expected on the part of a member of the family who had received a grant for his maintenance or must they be accepted as in-contestible proof of an intention to separate from Ranjit Narain from the time of the grant and of a separation in fact from that time?
25. It has not been contended before us, nor indeed could the contention be accepted as a sound one, that a separation in estate and from the joint family must follow as a necessary consequence from the receipt of a maintenance grant.
26. The learned Subordinate Judge has accepted these facts coupled with the admitted separation in food as sufficient proof that from the date of the maintenance grant Ranjit Narain and Bhuput separated and ceased to be members of a joint Hindu family. We have given our careful consideration to the judgment of the Subordinate Judge and also to the evidence and the arguments of learned pleader and counsel which have been advanced before us and even though we accept the findings of the Subordinate Judge, we are unable to agree in his conclusion that the plaintiffs have proved that there was a separation in intention or in fact.
27. The grant made to Bhuput Narain for his maintenance was a grant such as is common in a family where the ancestral estate consists of impartible property and the clause in restraint of alienation is such as is common in such grants as providing for the reversion of the property to the main line of the family on failure of all heirs of the branch for the maintenance of which it was made. Its object in this case appears to have been to stop a state of affairs which had become a nuisance to the family and to enable Bhuput Narain to support his own family and pursue his vicious habits without applying for funds in each case as occasion arose to the head of the family and the fact that Bhuput Narain built his house on the family homestead land just outside the old family dwelling seems to us to indicate that he did not intend to separate entirely from the family so as to relinquish his right of expectancy to succeed to the family estate on the failure of nearer heirs of Ranjit Narain.
28. We have further, in these cases, two admissions one by each party going to support the case of the other.
29. There is the admission by Thakurani Gyan Kumrain the petition, dated 13th March 1899, presented to the District Judge of Bhagalpur when she applied to be appointed guardian of her minor son Ram Narain. In that she says:
30. The minor’s uncle and cousin are not members of a joint family in the proper sense of the term. They live in the same house and are maintained by the minor but have no interest in the property which belongs exclusively to the minor.” This admission supports the view that Bhuput Narain when accepting the grant for maintenance was not considered to have separated himself from his brother, Thakur Ranjit Singh. The Subordinate Judge has placed no reliance on the admission on the ground that he cannot hold that Gyan Kumri knew the contents of the petition. The evidence of the pleader Jagarnath’ Prasad who filed the petition and of the pativari Sundar Lall who instructed him hardly seems to support the conclusion as it fails entirely to indicate that any one else was responsible for the statement made in the petition.
31. On the other hand there is the statement made by Chaturbhuj Narain in the criminal case brought against him by Sarup Sen, in which he said in his defence that he was separate from the Thakur of Telwa. He explains in his evidence that he made the statement on the advice of his evidence to escape conviction, and apparently with success. It does not appear to us that much weight can be attached to the statement having regard to the circumstances in which it was made.
32. The facts that after the grant of the mokarari lease for maintenance Bhuput Narain lived in a separate house along side his family homestead, that he and his branch of the family were afterwards separate in food and possibly in worship, and that he paid the axpenses of his family out of the profits of the property granted to him for maintenance and by borrowing money on mortgages on that property do not appear to us in this case to be sufficient to prove that there was a complete separation between Bhuput Narain and Ranjit Narain by which Bhuput Narain sacrificed his expectancy to succeed to the family property in the failure of nearer male heirs of Ranjit Narain.
33. In these circumstances, disagreeing with the Sub-Judge, we must hold that at the time of the death of Ram Narain, Chaturbhuj Narain and his son were not separate from him and, therefore, that Taluq Telwa must follow the ordinary line of inheritance to joint property under the Mitakshara law subject to the rule of primogeniture which prevails in the family by custom.
34. As regards the alternative relief claimed by the Maharaja in his suit, we are of opinion that it could not be claimed in the suit as framed being inconsistent with the main relief sought in the suit. The suit was brought against the present appellants as trespassers and we are of opinion that in the same suit an absolutely inconsistent relief could not be sought against them as the true owners. Moreover if, as we understand, the Maharajah is in possession of the lands hypothecated under the sudhurna bonds no declaration of his right to remain in possession is necessary. Should he be ousted or should he wish as representative of the original mortgagees to recover the money due under the mortgage bonds for debts, which, we agree with the Subordinate Judge in holding, were family ancestral debts legally recoverable from the estate of debtors and which the Maharajah has discharged, it will be open to him to bring a suit properly framed for that purpose.
35. On the findings at which we have arrived we are unable to support the judgment of the lower Court. We accordingly decree the appeals and direct that both the suits be dismissed with costs.
36. We would only add that so far as the suit brought by the Maharaja is concerned such dismissal must be held to without prejudice to any rights he may have under the ‘sudburna (usufructuary mortgage) bonds.
Rules Nos. 3863 and 3864.
37. These Rules having become, infructuary no order with reference to them is necessary.
