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Judgment
Richard Couch, J. 1. The Appellant in this case brought a suit in the Court of the Subordinate Judge of Mirzapur against the Respondents and others to recover possession of a Raj and large estates, the greater part of which are situate in Pargana Bejaigarh Zillah, Mirzapur. The suit was tried by the District Judge, who decided it in the Appellant''s favour, and gave him a decree for possession of the property claimed---except six mauzas---against the Respondents. They separately appealed to the High Court at Allahabad, which Court, on the 19th of July, 1889, reversed the decree of the District Judge and dismissed the suit. The Appellant''s case is that Rajah Ram Saran Sahai, who was possessed of the property, was the lineal descendant of Rajah Harhar, or Harihar, Sahai, the son of Rajah Daljit Singh, who died between 1781 and 1790; that Rajah Ram Saran Sahai, who died on the 8th of December, 1853, left a widow, Rani Pirthiraj Kuar, and a daughter, Radhopershad Kuar; that the Appellant is the eldest of the three sons of Babu Lachhman Saran Singh, the lineal descendant of Babu Sheo Baksh Singh, the younger son of Rajah Daljit Sahai; and that Rani Pirthiraj Kuar died on the 19th of April, 1886. The Appellant filed his plaint on the 23rd of September, 1886. The Respondents, who were in possession appear to have obtained it in the following manner. Rani Pirthiraj Kuar having taken possession of the property after the death of her husband, on the 28th of April, 1857, made deeds of gift of parts of it in favour of her daughter, Radhepershad Kuar. She died on the 13th of April, 1859, and her husband, Babu Brijendar Bahadur was, with the consent of Rani Pirthiraj Kuar, recorded as zemindar and proprietor of the property, which was the subject of the deed of gift of the j 28th of April, 1857. On the 15th of January, 1872, Rani Pirthiraj Kuar executed a deed of gift of the whole of her property, with the exception of Taluka Silhat, in favour of Babu Brijendar Bahadur. He died on the 4th of August, 1879, leaving no issue, and the name of Mussummat Dharamraj, his widow, was recorded in the revenue papers. On the 21st of November, 1879, she, and Rani Pirthiraj Kuar, by a deed of gift and agreement, gave and assigned to the first Respondent, the nephew of Brijendar, all their interests in the estates belonging to the Raj of Bejaigarh, and he was put into possession and recorded as proprietor of them with the assent of Rani Pirthiraj Kuar. 2. In his written statement the first Respondent denied that the Appellant belonged to the family of Rajah Ram Saran Singh. He also alleged that Lachhman Singh had been convicted of offences under Act XXV. of 1857 (a mistake for Act XI. of 1857), that his whole property and rights were forfeited to the Government, and therefore that the Appellant had no right to sue. He also relied upon the law of limitation. The defence of the second Respondent was in substance the same. 3. The Appellant''s evidence was both documentary and oral. It will be seen hereafter that the latter is of little value. In a proceeding recorded by the Settlement Officer and Deputy Collector of the Mirzapur District, on the 9th of May, 1851, the question being who should be recorded in the. Collectorate as proprietor of two mauzas, Bamangaon, Sindwari and Soli, tappa Silhat pargana Bejaigarh, it appears that Lachhman Singh, the Appellant''s father, presented a petition to the effect that the mauzas had been "from the time of Rajah Gobind Saran Sahai" (the father of Rajah Ram Saran Sahai) "in the possession of the applicant''s ancestors and the applicant himself, without payment of revenue, in this manner: that Rajah Daljit Singh had two sons, (1.) Rajah Harhar Sahai and (2.) Babu Sheo Baksh Singh. Again, Rajah Harhar Sahai had four sons, viz., (1.) Rajah Pirthipat, (2) Babu Dunya Singh, (3.) Babu Gurdat Singh, and (4.) Zalim Singh. Babu Sheo Baksh Singh had two sons, (1.) Babu Barb Singh and (2.) Babu Dhurab Singh. Babu Dhurab Singh had a son, Babu Deonath Singh, and Babu Barb Singh had Babu Aman Singh, the father of the applicant. Babu Deonath Singh died childless. His widow, Bahoria Jawahir Kuar, is his heir. She is alive. Rajah Gobind Saran Sahai in his lifetime granted the aforesaid villages revenue-free to Babu Barb Singh and Babu Dhurab Singh, the applicant''s ancestors, for their maintenance. From that time the applicant''s ancestors, and after them the applicant, have as usual been in zemindari possession of the said villages, together with all the mal and sair items, without paying any Government revenue. But in the public record the name of Rajah Ram Saran Sahai is entered in the column of lambardar." It was ordered that the applicant should produce his evidence, and that the Rajah''s mukhtar should file his reply and adduce his evidence, and that the kanungo be called upon to submit a report. On the 2nd of January, 1851, the Rajah by his mukhtar filed his reply. It is as follows:
The said applicant, who has no complete title-deed, calls himself a zemindar, and says that he never paid the revenue of the villages Bamangaon and Soli, and that he has been long in possession. But the fact is that the said villages constitute the ancestral zemindari of the petitioner under a decree of the Civil Court, and that he has been paying the Government revenue from year to year to the Collector, obtaining receipts and discharges from him. Formerly, Babu Barb Singh and Babu Dhurab Singh were the door-keepers of the petitioner''s ancestors, and that they therefore having built a house at mauza Bamangaon, took up their residence in it, and made an application for the lease of those villages. Accordingly, Rajah Gobind Saran Sahai, the petitioner''s ancestor, made over the village Bamangaon to Babu Barb Singh, at a jama of Rs. 55, and mauza Soli to Babu Dhurab Singh, at a jama of Rs. 35, without executing any deed. These persons continued to pay the above-mentioned jamas into the petitioner''s office during their lifetime. Babu Barb Singh used to be paid a maintenance allowance of Rs. 40 per annum, and Babu Dhurab Singh of Rs. 30 per annum from the petitioner''s office, and both these persons served the Raj and the gaddi throughout their lives. But since 1250 Fasli the applicant, at the instigation of the mischief makers in the pargana, would neither pay the revenue nor perform the services r rendered by his ancestor. Under these circumstances the villages should be resumed by reason of the revenue remaining unpaid. The applicant''s allegation of maintenance allowance is wholly false. If the applicant''s ancestor was an own brother of Rajah Harihar Sahai, he should produce a grant made by that Rajah; but he had no connection with the petitioner''s ancestor. If the ancestor of the applicant considered himself to be an equal or brother, he should have asserted his claim in the Court when a suit was brought by the petitioner''s ancestor. Babu Dhurab Singh died childless, and the applicant has nothing to do with mauza Soli. As regards the arrears of revenue relief will be sought from the Court. The revenue not having been remitted by the Government to the petitioner, he could not absolve others from payment thereof. This is a matter which is to be taken into consideration by the Court. 4. This is the official translation of the document. The District Judge in his judgment has given his own translation, in which, instead of "were the door-keepers of the petitioner''s ancestors," it is "used to live at the threshold of petitioner''s ancestors." The latter translation seems rather to shew that "door-keeper" should not be taken to mean merely a servant. This proceeding appears to their Lordships to be important evidence. There is a clear statement by Lachhman of the pedigree now relied upon when there was no question as to the succession to the Raj. The reply of the Rajah is not such as might be expected if Barb Singh and Dhurab Singh were not relations, but were only servants. The denial of the Appellant''s ancestor being a brother of Rajah Harihar Sahai is argumentative rather than direct. There was no occasion to produce a grant to prove it, or to have asserted the claim before in Court. The Order of the Settlement Officer is not material to the present question. It was that the Petitioner''s ancestors held the villages revenue-free. 5. On the 7th of April, 1854, a proceeding relating to mutation of names by inheritance was recorded by the Collector of Mirzapur. It states that a petition of the Tehsildar of Shahganj, dated the 10th of December, 1853, was received, containing information of the death of Rajah Ram Saran Sahai, the Rajah L of Pargana Bejaigarh; that the kanungo of the pargana also submitted a report on the 14th of that month stating that the Rajah died on the 8th of December, 1853, leaving Rani Aprup Kuar his mother aged sixty years, Rani Pirthiraj Kuar, widow, aged forty years, and Babui Radhepershad Kuar, daughter, aged eleven years, as his heirs; and that besides these persons Babu Lachhman Saran Singh was also a near heir. He (Lachhman), the report says, writes "that Rajah Daljit Singh had two sons, Rajah Harihar Sahai and Babu Sheo Baksh Singh; that Rajah Harihar Sahai had four sons, Rajah Pirthipat, Babu Duniapat, Babu Gurdat Singh, and Babu Zalim Singh; that Rajah Pirthipat, Babu Duniapat, and Babu Zalim Singh had no children; that Babu Gurdat Singh''s son was Rajah Gobind Saran Sahai whose son was Rajah Ram Saran Sahai; and Babu Sheo Baksh Singh''s sons were Babu Barb Singh and Dhurab Singh; that the last-named person died childless; and that Babu Barb Singh''s son was Babu Aman Singh whose son is Babu Lachhman Saran Singh. 6. It is then stated in the record of the proceeding that the kanungo was ordered to furnish a report as to whether the ancestor of Babu Lachhman Saran Singh used to get any maintenance allowance as brother of the Rajah from this estate and also to state who then managed the estate of the deceased Rajah and paid the Government revenue; that afterwards Rani Pirthiraj Kuar, zemindar, filed a petition to the effect that she had succeeded as heiress to all the property left by her deceased husband, and she prayed that her name should be entered in the official papers by expungement of that of the deceased. 7. It is to be observed here that the widow could only be the heiress of her husband if he was separate in estate from the other branch of the family. Her claim to be the heiress may reasonably be taken to mean that he was separate in estate. It would be evidence against her, and is also evidence against the first Respondent, who came into possession by virtue of her gift. 8. The record states that the report of the kanungo was to the effect that the ancestors of Babu Lachhman Saran Singh received only mauza Bamangaon and Soli as a provision for their maintenance from the Rajah, as bila-den (or rent free bhuwad) allowance to a brother, and that these villages were still held in lieu of maintenance; and that the estate of the deceased Rajah was entirely managed by Rani Pirthiraj Kuar and the revenue paid by her. The record then sets forth a petition of Lachhman to the effect that he and the Rajah "were cousins, the descendants of a common grandfather"; that Rajah Ram Saran Salmi had granted the villages Bamangaon and Soli "as a provision called bhuwad for his necessary expenses"; and that under Regulation X. of 1793 a woman was prohibited from engaging for payment of the Government revenue, "and being a sarbarakar (manager)," and therefore it was but just that the management of the official matters should be entrusted to him. He seems not to have disputed that the widow was the immediate heir for her life. Rani Pirthiraj Knar filed a reply to this petition to the effect that "Rajah Gobind Saran Sahai was the only son of his father, and he had neither a brother nor a first cousin; then how can the objector be a cousin (brother amzad) of the deceased Rajah, and how can he have right or title to the estate?" This is evasive. It gives the literal meaning to "grandfather," which could not have been intended, as in the pedigree the common ancestor was more remote. The Order was that the name of Rani Pirthiraj Kuar should be entered as lambardar, the Collector saying: "The objection of Babu Lachhman Saran Sakai, who urges his own right, cannot be admitted. He is three or four degrees removed from the deceased Rajah." 9. The proceeding for mutation of names was immediately followed by an application by Pirthiraj Kuar for a certificate of heirship under Act XX. of 1841, to the Judge of Mirzapur. The proceeding recorded by him on the 5th of May, 1854, states that Pirthiraj Kuar applied as the only heir to the deceased Rajah, which would be true if he and Lachhman were separate in estate; that Lachhman filed his objections to the effect that the certificate of heirship was to recover debts and not to get possession of the zemindari estate, and to secure the gaddi of the Raj; but that it was known to all that the objector and Rajah Ram Saran Sahai "were cousins, being the descendants of a common grandfather, and that the zemindari and the Raj (estate) of Bejaigarh is a hereditary property which has not up to this day been ever partitioned (divided) according to the customs and usage of the Raj. It is thus clear that after the death of Rajah Ram Saran Sahai the objector and the Rani Saheba were the only heirs to the Raj and the estate, and that the Rani Saheba being a pardah-nashin lady, he was the only person entitled to manage the Raj and the estate." The decision of the judge was that the objections of Lachhman could not be allowed "because, according to Macnaghten, it is the general rule of the Benares School of Hindu law, which also applies to these parts, that when there is a separation and no son the widow as against other heirs has a preferential right. It appears that the objector and the deceased Rajah were separate, because, irrespective of the deposition of the witnesses of the Rani-applicant, who spoke of the separation, it appears from the proceeding of the Revenue Court, dated the 9th of May, 1851---the contents of which are not only admitted by the objector''s witnesses but by the objector himself---that they were separate, that is, it shews that the objector and his ancestors were in separate possession for a long time of the villages of Bamangaon, Sayedwari, and Sani Balami for their maintenance." It was accordingly ordered that the objections of Lachhman Singh be rejected, and a certificate be given to Rani Pirthiraj Kuar. 10. It thus appears that Rani Pirthiraj Kuar relied on the separation as entitling her to the certificate, and that on that ground the decision was in her favour. This is strong evidence against the Respondents of the separation. Their Lordships are of opinion that there was a separation, and this disposes of the objections of the forfeiture by Lachhman and the law of limitation. Lachhman, when he was convicted, had no property or right in the estates that could be forfeited. He could only be entitled as heir to the Rajah upon the death of the widow if he survived her. It is also to be observed that Pirthiraj Kuar appears in this proceeding not to have denied the relationship, as she did in the previous proceeding, but only evasively. 11. The only question then is whether the evidence is sufficient to prove that the Appellant was the heir of Rajah Ram Saran Singh on the death of Pirthiraj Knar. Of the Appellant''s witnesses the District Judge was of opinion that only four had "some claim to special means of knowledge"; that the rest had not, and therefore that their opinions were "worthless." As no written pedigree was produced he held that their evidence, so far as it was derived from such a pedigree, was clearly inadmissible under Section 59 of the Evidence Act. As to their being members of the same family, he said they were so remotely connected with the last Rajah''s family that their opinion as to the Appellant''s connection, step by step, with the last Rajah was of little weight. He considered that the witnesses of the Defendant (the Respondent Bhupindar Singh), who spoke as to the Rajah''s pedigree, and asserted that Rajah Daljit had but one son, Harhar, had "no special means of knowledge whatever, and their evidence on the point is worthless." The High Court agreed with the District Judge as to the oral evidence, except that of the four witnesses. The learned Judges appear to have thought that the evidence derived from a pedigree not produced was admissible, because the questions in chief put by the Plaintiff''s pleader to the witnesses were not objected to. But after stating the evidence rather fully they said they were of opinion that as no effort was made to produce a pedigree, or account for its non-production, the evidence was worthless. Their Lordships think little, if any, weight should be given to this evidence. Their opinion on the case is founded upon the documentary evidence. That appears to shew that Lachhman, as far back as 1851, asserted his relationship, and set out the pedigree upon which the Appellant now relies. On the death of the Rajah in 1854, according to the report of the kanungo, Lachhman again set out his pedigree and claimed to be a near heir. This was met by the Rani by the allegation that she was the heiress, and in the certificate proceedings she appears to have examined witnesses to prove separation, which would shew that she was the heiress, but is consistent with the claim of Lachhman according to his pedigree. She does not appear in this proceeding to have denied his relationship, and her conduct not long before her death agrees with this, though it may perhaps be explained by her having quarrelled with the Respondents. 12. Their Lordships have come to the conclusion that the evidence is sufficient to prove that the Appellant was, on the death of Rani Pirthiraj Kuar, the heir of her husband the Rajah, and was entitled to the estates of which possession was decreed to him by the District Judge; and they will humbly advise Her Majesty to affirm that decree and to reverse the decrees of the High Court, and to order the appeals to it to be dismissed with costs. The Respondents will pay the costs of these appeals.