JUDGMENT
Narasimham, C.J.
1. This is a defendant’s appeal against the decision of the Additional Subordinate Judge of Puri decreeing the Plaintiff’s suit for recovery of possession of certain properties described in the schedule attached to the plaint. The following geneological tree will show the relationship of the parties:
KRISHNA CHANDRA BHANJA
BIRABAR JAGADES
|
——————————-
| |
Pitabas Bhanja Ramchandra Bidhar
Birabar Jagadev Samant
| (died in 1943)
Raghunath |
Bhanja Birabar |
Jagadev (Plaintiff) |
|
--------------------------
| |
1st wife 2nd wife
| |
Braja Sundar Indramani Devi
Bidhar (died defdt.1
in 1946) |
=Annapurna Dev |
defdt. 5 ------------------
| |
Hemalata Ratnamali
defdt.2 defdt.3
married to
Bansidhar
defdt.4
2. The plaintiff was the proprietor of the well-known Khandayat estate of Haldia in Puri District (commonly known as the Raja of Haldia). The said
estate is said to be an ancient impartible estate descending in accordance with the rule of lineal primogeniture. The founder was one Anu Bhanj, a scion of Mayurbhanj Raj family who about 17 generations ago, came to Puri district, married the daughter ot the then Raja of Puri and obtained the estate as her dowry. It is alleged by the plaintiff that his paternal uncle Ramchandra Bhanj was granted some lands by way of maintenance by the plaintiff’s father Pita-bash when he was the Raja of Haldia. Ramchandra died in 1943, leaving a widow (2nd wife) named Indramani Devi (defendant No. 1) and two daughters through her, viz., Hemtata (defendant No. 2) and Ratnamali (defendant No. 3). Through his first wife Ramchandra had a son named Braja Sundar whose widow is Annapurna Devi (defendant No. 5). Braja Sundar also died in 1946.
The plaintiff alleged that according to the family custom, maintenance grants to the younger members (Bhayyas) of the proprietor’s family which were locally known as ‘Bhyya-Bhag’ reverted to the parent estate on the failure of male heirs in the grantees line. It was further alleged that the female heirs, under the ordinary rule of Hindu Law were according to this special family custom, excluded from inheriting these maintenance grants. As Braja Sundar admittedly died issueless, the plaintiff claimed that the maintenance grants made in favour of his father by Pitabash reverted to Haldia Raj and that neither the widow and daughters of Ramchandra nor the widow of Braja Sundar had any claim to the same. It was admitted that the widows of Ramchandra and Braja Sundar were entitled to maintenance. Defendant No. 5 Annapurna Devi however executed a Nadabi deed in favour of the plaintiff on the 1st September, 1949 and thus lost all interest in the property.
3. The contesting defendants, namely 1, 2, 3 and 4 filed a joint written statement denying the existence of the peculiar family custom as alleged by the plaintiff. According to them, a Bhayya Bhag grant made to the younger members of Haldia Raj family became their absolute property and descended to their heirs according to the ordinary rule of the Hindu Law like any other property and female heirs also were entitled to inherit the same. It was also alleged that Annapurna Devi ‘Defendant No. 5’ became unchaste during the lifetime of her husband. Braja Sundar, and that he had completely abandoned her after performing a special ceremony known as ‘Tyage Sudhi’ by which she lost all rights over his interests in the property. Defendant No. 4 is a stranger to the family, being the husband of defendant No. 2. Admittedly, he has no right to the property and he has been impleaded as a party because it was alleged that he was the prime mover in the resistance offered by defendants Nos. 1, 2 and 3 to the plaintiffs taking possession of the same.
4. The main issues in this litigation are issues 5 and 5/A which are as follows :-
“(5) Are the suit lands impartible, inalienable and uninheritable, except by male heirs as alleged by the plaintiff ?
(5/A) Has the disputed property reverted to the plaintiff on the death of Braja Sunder without any male heirs alleged by the plaintiff ?”
5. There is no documentary evidence to prove the terms of the grant made by the plaintiff’s father
Pitabash, in favour of his younger brother Ramchan-dra. The contesting defendants are admittedly the heirs of Ramchandra and they would, under the ordinary rule of Hindu Law, be entitled to the property
unless the special custom (Kulachara) of excluding female heirs in respect of maintenance grants, as alleged by the plaintiff, be held to have been clearly established. Though custom may supersede a rule of Hindu Law, as pointed out by the Privy Council in Ramalakshmi Ammal v. Sivananatha Perumal, 14 Moo Ind. App 570 (586) (PC) :
“It is of the essence of special usages, modifying the ordinary law of succession, that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.
This principle was reiterated by the Privy Council in Abdul Hussain v. Mst. Bibi Sona Dero, AIR 1917 PC 181 and was again cited with approval in Saraswathi Ammal v. Jagadamba, AIR 1953 SC 201 at p. 205. Thus, the burden had become doubly heavy on the respondent to prove the alleged custom by clear and unambiguous evidence because not only is he the plaintiff in the suit but he also claimed title to the property on the basis of a special custom (Kulachar) against the ordinary rule of Hindu Law.
6. One striking feature which should be pointed out at the outset is that though Haldia Raj was said to have been founded more than 17 generations ago, the plaintiff has not been able to cite even a single instance in which a maintenance grant in favour of younger members of the family reverted to the estate on the failure of male heirs, even though female heirs such as widows and daughters were in existence. The authorised agent of the plaintiff, Madhabananda Mohanty (P. W. 3) admitted that there were papers in the estate to show that the maintenance grants made to the younger branch (Bhayyas) reverted to the parent estate on the death of the maintenance-holder without leaving male issues, but gave a lame excuse for their non-production by saying that they were destroyed by white ants. It is difficult to accept the plea that such valuable documents would have been kept so carelessly as to be destroyed by white ants.
7. The plaintiff’s important witness Dayanidhi Misra (P. W. 1) who is said to be an old priest of the family, aged 70 years, cited four instances in the past where maintenance grants were made in favour of the younger member of Haldia Raj family, viz., (i) Krutibas Bhanj, (ii) Ramakrushna Bhanj, (iii) Kunja Behari Bhanj and (iv) Banchhanidhi Bhanj and these reverted to the estate on their death. But when cross-examined he made the following significant admissions :
“The property of the above four persons reverted to the Raja (meaning Haldia Raj) as those persons left no male or female issues.”
This answer would show that the reversion to the parent estate in the aforesaid four instances was due to the complete extinction of the younger branch and will not support the special custom put forward by the plaintiff. P. W. 2, Uchhab Santra who is said
to be the hereditary Sarbarakar of Haldia Raj also admitted in cross-examination that the maintenance grant made to one Balaram Bhanj was still in possession of his widow though Balaram had died about 10 to 14 years prior to the date of his deposition (10th September 1952).
This admission by the plaintiff’s own witnesses would disprove the alleged custom set up by the plaintiff because, on the death of Balaram without a male issue, the property should have reverted to the plaintiff and could not have been possessed by his widow. The third witness for the plaintiff viz., Madhabananda Mohanty (who is his authorised agent) admitted that during the Revisional Survey of 1912 one Asli Bewa was recorded in respect of the property of her deceased husband, Banchhanidhi Bhani. He added, however, that on a petition tiled by the Haldia Raja her name was cancelled. But on a perusal of the compromise decree in O. S. No. 15 of 1905 in the Court of the Subordinate Judge of Cuttack to which the plaintiff’s father was a party (to which I shall refer later), it appears that Asli Bewa was plaintiff No. 6 in that suit.
8. Apart from the aforesaid admission by the plaintiff’s witnesses there is the evidence of D. W. 1′ Binod Routrai who is a retired Sub-Inspector of Schools and who knows the Bhanj family of Haldia Raj very well, having been married to the daughter of a Bhanj, to the effect that after the death ot one Kunja Behari Bhanj, his property was in possession of his widow Ichhabati.
9. Thus the oral evidence adduced by the plaintiff’s witnesses and also by D. W. 1 would show that tile widows of some of the Bhanjas of the younger branch of the Raj family remained in possession of their husband’s maintenance grants even though they had no male issue. The four instances of reversion of the grants to the parent estate, relied on by the plaintiff, were all instances where the younger branch had no issue, either male or female, and hence they cannot support the peculiar family custom (kulachar) as alleged by the plaintiff.
10. I may now discuss the other documentary evidence adduced by the plaintiff.
Exts. 1 and 1/(a) are Robkaris dated 23rd September 1842 and 7th December 1837 respectively showing the decisions of the Revenue Officers in a dispute between the then Raja of Haldia and his Bhayyas
(descendants of the younger branch).
Ext. 1/(a) is not very material but Ext. 1 is ot some importance inasmuch as there the Bhayyas claimed a share in Haldia Raj while the then Raja claimed it as an impartible estate alleging that the younger branch was entitled only to maintenance. The Raja’s claim was upheld and so far as the rights of the younger branch were concerned the following significant observations were made in the Robkari:
“There is also a custom in this Garh that if any of these Bhanjas dies heirless (Na Varash) his property which is given for maintenance and also his belongings came to the Zamindar. Nobody else has any claim to such properties. Also the defendants cannot even sell or do otherwise in respect of the properties which have been given for their maintenance. So these defendants are only kinsmen to whom some land has been given for maintenance
over which they do not have even the right of disposal”.
Mr. B. N. Das for the respondent relied very much on the aforesaid observations in support of the family custom set up by him. These observations are undoubtedly entitled to great weight. But the question arises as to what is the true significance of the expression ‘No Varesh’. According to Mr. Mohanty for the appellant it means ‘heir-less’ — whether male or female and it is not limited to male heirs only. Mr. Das on the other hand contended that in the context ‘Varesh’ only means male heirs and ‘Na Varesh’ should mean failure of male heirs.
The expression ‘Varesh’ is a Persian term which, according to Wilson’s Glossary means ‘heir’ and would include a widow. There is a decision of the Bombay ‘High Court reported in Dundoobai Anandrao v. Vithal Rao Anandrao, AIR 1936 Bom 182, to the effect that the word ‘varesh’ is a general word used to include widows also. In the Oriya Bhasha Kosh of Sri Gopal Chandra Praharaj, the word “varesh” (or Varish) has been given the following meaning :
“Heir. Successor to the property of a deceased person. Claimant to a property.”
It is thus clear that the word is not restricted to male heirs only. Mr. Das ingeniously contended that the expression “Varesh” occurring in Ext. 1-(a) is an Oriya corruption of the Sanskrit expression ‘Aurasha’ and, as such, it should be construed to mean male heirs only. I am unable to accept this interpretation. The Sanskrit expression ‘Aurasha’ is fundamentally different from the Persian expression ‘Varesh’ which has been used in the aforesaid document. Moreover, even in Sanskrit the expression ‘Aurasa’ is not restricted to male descendants. It would include any issue born of a person i.e. sprung from the loins of a person (literally ‘produced from the breast’) whether male or female.
11. It must thus be held that the Robkari of 1842 does not support the peculiar family custom of complete exclusion of female heirs, as alleged by the plaintiff.
12. The most important documents are (1) certain observations contained in Maddex’s Settlement Report of 1829 and (2) the Village Note of Haldia (Ex. 5) prepared by the Assistant Settlement Officer during that Settlement.
13. Maddox’s Settlement Report is not very helpful in this litigation. At page 414 (para 600) he describes the peculiar customs in the Khillajat Estates of Orissa namely Kanika, Aul and Madhupur etc., saying that in these estates the younger members get a maintenance grant known as “Khorak-poshik” Nishkar, etc, and that “these grants are generally heritable but not transferable and the head of the family claims the right to resume on failure of direct heirs and adoption is not recognised”. But Maddox does not say that ‘heirs’ would mean male heirs only. At page 439 (para 515) he describes Haldia Estate as follows:
“Haldia and Haldiapada are two Khandayat tenures held at a fixed quit rent from before the conquest which were recognised by the British Govt. in 1819. Khandayats do not render any service to Govt. but regard themselves almost as tributary
Chiefs, and many of the peculiar customs of Khillajat estates are found amongst them in full force”.
Later there is a reference to the Bhaya Bhag lands given to agnates for their maintenance, but there is no express observation to the effect that these maintenance grants of the ‘Bhayyas’ reverted to the parent estate on failure of male heirs. Moreover, in that report though it is pointed out that many of the peculiar customs of Khillajat estates are found in Haldia estate, it is not stated that all the customs prevalent in Khillajat estates are found there.
Again, as already pointed out, even while describing Khillajat estates the Report does not say that on failure of male heirs the maintenance grants reverted to the parent estate. Mr. Mohanty rightly pointed out that while the maintenance grants of junior members in Khillajat estates are described as ‘Baredaran Jagir, Khorposhak, nishkar etc., the maintenance grants of the younger members of Haldia Raj family were described as ‘Bhayya Bhag’. The word ‘bhag’ indicates some sort of share in the property and is inconsistent with the idea of a limited, grant with right of reversion to the grantor on failure of male heirs.
14. In the village Note of Haldia Raj (Ex. 5) prepared by the Assistant Settlement Officer on the 28th August 1897 the following observations were made, about Haldia Raj :
“The eldest son became the King and the rest became agnates (Bhayya) and they took some lands from the Mahal of the King for maintenance. According to the current rent of Killa, they possessed and enjoyed some properties on payment of Rs. 2.5.4 per bati i.e. 20 acres towards revenue and if any of the brothers were becoming issueless (Nis-Santan) then his lands used to go to the king. According to the custom prevalent here, the brothers were not entitled to adopt any son in the absence of any issue.”
15. There was acute controversy about the meaning of the expression ‘Nis-Santan’ occurring in Ex. 5. According to Mr. Mohanty ‘santan’ means issue — whether male or female and consequently, ‘Nis-Santan’ would mean issue-less — male or female. Mr. Das contended that in the context the word ‘Santan’ must be limited to mean only male issues. In Sri G. C. Praharaj’s Bhasha Kosh the expression ‘Santan’ has been explained as being equivalent to ‘Santati’ which expression also has been explained as meaning ‘issue whether son or daughter’. While dealing with the expression ‘Nig Santan’ the learned lexicographer pointed out that it means either “issue-less” or “sonless”. “Santan” is a Sanskrit expression whose ordinary meaning is ‘progeny, offspring, issue’ which may be either male or female. It is true that in a particular context it may be limited to male issues only.
Thus, while explaining the expression “Santan” occurring in a passage in the Mitaskhara of Bigneswar, the Privy Council observed, in Buddah Singh v. Laltu Singh, 22 Cal LJ 481 at p. 490: (AIR 1915 PC 70 at p. 74) as follows:
“The word ‘descendants’ in Mr. Colebrooke’s translation is, in the original, ‘Santana’ which means race, lineage or posterity and is still used among Hindus to mean male progeny without limitation.
Mr. Justice Telang construes it as meaning “continuation”. Other learned Sanskritists interpret it to mean ‘an uninterrupted series (of progeny) or heirs’. Their Lordships have no doubt that Vignaneswar used it in the sense of lineal male descendants.”
Similarly, in Chinnaswami v. Kunju, ILR 35 Mad 152 (at p. 157) there is a reference to the opinion of Mr. Harington, one of the Judges of the Sadar Dewani Adalat to the effect that the expression ‘Santan’ should be understood as a generic term for the male issue or descendants (see 2 Moo Ind App 132 (154 to 158) (PC), Rutcheputty Dutt v. Rajunder Narain. But the construction of the expression ‘Santan’ occurring in the Mitakshara cannot necessarily be a guide for construing that expression used in a village Note like Ex. 5 prepared in Oriya by a Village Officer in 1893. It was pointed out in Kumud Krishna Mandal v. Jogendra, 26 Cal LJ 250; (AIR 1917 Cal 19) that the expression ‘Santan’ used in Bengali document of the 19th or 20th century should be construed to mean issue generally, whether male or female, and that the observations of the Privy Council in 22 Cal LJ 481 : (AIR 1915 PC 70) based on its. interpretation of that expression occurring in the Mitakshara of Vignaneswara, a Sanskrit work, would not be a guide. The Oriya meaning of the expression is also similar to the Bengali meaning as will be clear from the meaning given in Sri G. C. Praharaj’s Bhasha Kosh.
It is thus clear that though expressions like “santan’ ‘Varash’ etc., according to their dictionary meaning connote all classes of issues or heirs, whether male or female, yet in a particular context they may be restricted to male heirs only. To a similar effect is the decision reported jn Perkashlal v. Rameshwarnath, ILR 31 Cal 561 where it was pointed out that though etymologically the expression “Al Aulad” may include female as well as male descendants in construing that expression in a grant in a particular part of the country, its meaning may be restricted to male descendants only on the basis of the custom proved to have prevailed at the time of the grant and subsequently in that part of the country. In the instant case however no such custom has been proved, nor is there anything in the context to justify the giving of a narrow meaning to the expression ‘Nis Santan’ found in Ex. 5.
15a. On the other hand from certain passages occurring in Ex. 3 in a compromise decree in O, S. No. 15 of 1905 it seems clear that even in Maddox’s Settlement Report the names of the widows of some of the younger members of Haldia Raj family were recorded in place of their deceased husbands. Thus, Asli Bewa was recorded in place of her deceased husband Banchhanidhi Bhanj and it was further mentioned that after the death of Krutibas his widow Chandrama Bewa was recorded in respect of his properties. The village note (Ex. 5) was prepared during that Settlement and consequently in construing the expression ‘Nis Santan’ occurring in that note the very fact that the widows were recorded in cases where there was no issue either male or female, seems to support the contention of Mr. Mohanty that the word ‘Nis Santan’ was not used in a restricted sense so as to exclude females altogether.
16. The last document is the compromise decree in O. S. No. 15 of 1905 in the Court of the Subordinate Judge, Cuttack (Ex. 3). That suit was brought by 64 members of the younger branch ot Haldia Raj family, including Asli Bewa (the widow of a deceased Bhayya). It appears that the main relief asked for in that suit was for a declaration that the Bhayyas’ share did not revert to the Haldia Raj (defdt. No. Z) if the plaintiff become ‘Nis Santan’ and that they had also the right to adopt a son on failure of male heirs. That suit was compromised and according to the terms of the compromise while the ‘Bhayyas’ agreed not to transfer their maintenance grants to any other person the Raja agreed to their adoption of a son if any of them became ‘Nis Santan’ but this right of adoption was restricted to the members of the Bhanj family. In paragraph 6 of the compromise petition (Rafa Nama) it was further stated that plaintiff Jagabandhu Bhanj, on the death of Kratibas Bhanja issueless leaving only a widow named Chandra Bewa, was recognised as the adopted son of the Raja of Haldia on condition that he agreed to give up half the properties of Krutibas to the Raja and to remain content with the other half only. There is no stipulation that in respect of the other half given to Jagabandhu as the adopted son of Krutibas that property would also revert to the Raj on failure of male heirs. It is thus clear that Ext. 3 does not support the special custom pleaded by the plaintiff.
17. I would accordingly hold that neither the oral evidence nor the documentary evidence adduced by the plaintiff supports the case of the plaintiff that the maintenance grants of the younger members of the Raj family would revert to the parent estate on failure of male heirs of the grantee or his male descendants. The normal rule of succession according to Hindu Law should therefore be held to prevail.
18. I am not attaching much importance to the observations made by a Judge of this Court in Indramoni Devi v. Raghunath Bhanja, ILR (1949) 1 Cut 635: (AIR 1950 Orissa 59) regarding this question because that case arose out of a criminal proceeding under Section 145 Cr. P. C. and the observations were of an incidental nature. The question was not directly raised as an issue for decision.
19. Though defendants 1, 2, 3 and 4 alleged that Annapurna Devi (defdt. No. 5) widow of Braja Sundar lost all interest in the property of her husband as he renounced her during his life-time, the finding of the trial Court is that there was no such renunciation. Defdt. No. 5 did not contest the suit in the lower Court but she was made a pro forma respondent in this appeal by the other contesting defendants and an Advocate appeared on her behalf in this Court. The finding of the trial court on this question (vide issue No. 4) was not challenged by either side and must therefore be taken as not affected in any way by our decision in this appeal. For the same reason the finding of the trial court to the effect that the Nadabi deed executed by Annapurna Devi in favour of the plaintiff was ineffective and inoperative and did not result in the extinguishment of her interest, is also maintained. The plaintiff based his claim to the suit property on the basis of a special family custom whereby all female heirs were excluded and as he has failed to prove that custom his suit must be dismissed. The rights inter se amongst the defendants is not the subject matter of this litigation.
20. Before concluding the judgment I may notice a minor argument raised by Mr. B. N. Das on behalf of the respondent. He urged that in the written statement of the contesting defendants there was practically an implied admission that Braja Sundar became the sole owner of the disputed properties after the death of his father Ramchandra to the exclusion of his step-mother Indramani Devi and that this admission would support the plaintiff’s case that the maintenance grant devolved on a male heir of the grantee to the exclusion of female heirs. This argument proceeds on a very narrow interpretation of the written statement. In paragraph 5 of the statement it was clearly asserted that the Bhayya Bhag grant was “descendible to the original holder and his heirs like ordinary property. Such lands are partible, transferable and heritable”. Again, in paragraph 9 it was asserted that the ordinary law was applicable in respect of the disputed properties. It is true that in paragraph 10 to 11 it was stated that the properties devolved on defendant No. 1, after the death of her son Braja Sundar, but in paragraph 11 there was a reference to the Hindu Women’s Rights to Property Act and the General Hindu Law.
As Ramchandra died in 1943 after the coming into force of the Hindu Women’s Rights to Property Act his properties would devolve on his son Braja Sundar and also on his widow Indramani in equal shares, her right being limited to a widow’s estate. There might have been some inaccuracy in describing the rights of defendant No. 1 in paragraphs 10 and 11 of the written statement, but in view of the clear statement in the earlier paragraphs to the effect that the ‘Bhayya Bhag’ property descended according to the rule of Hindu Law like any other property, too much importance should not be attached to the statements in paragraphs 10 and 11 of the written statement. In any case, they cannot support the plaintiffs case of a special custom.
21. For the aforesaid reasons, I allow this appeal, set aside the iudgment and decree of the lower Court, and dismiss the plaintiff’s suit with costs throughout. Costs should be paid to the contesting defendants 1, 2, 3 and 4.
Barman, J.
22. I agree.