Authored By : S.C. Ghose, Hamilton Wincup Gordon

S.C. Ghose and Hamilton Wincup Gordon, JJ.

1. One Atlanta Narain Singh was the holder and possessor ofan ancestral ghatwali tenure in the Sonthal Pergunnahs described in the plaintas "Mehal No. 38 ghaiwali taluk Noniad within towji No. 1, withinpergunnah Shaontadi tuppeh Sewruth in Deoghur." He died without issue onthe 14th Agrahan 1295, leaving a widow, Srimati Saraswati Kumari, who is theplaintiff in this suit, and who claims to be entitled as her husbands heiressto succeed to the ghatwali in preference to her husbands brother, ChhatradhariSingh. Her case as set out in the plaint is substantially this : According tolong-established custom the ghatwali is held by one person and descends to hiseldest son, and in default of male issue to his widow; that after her husbandsdeath she applied to have her name recorded as her husbands successor to theghatwali, but that the Doputy Commissioner rejected her application andillegally appointed her late husbands brother, the defendant ChhatradhariSingh, to be ghatwal; that the defendant is not her husbands heir, that heseparated from her husband during the life-time of his father, the late DarbarSingh, and has ever since remained separata in food and transaction; and thataccording to the custom prevailing in ghatwali tenures he was allotted certainmouzahs for his maintenance. She accordingly brought this suit to establish herright to the ghatwali tenure as heiress of her husband, and to set aside asillegal the order appointing her husbands brother as his successor to theghatwali. The defence raised by Chhatradhari Singh was that he was not separatefrom but joint with his brother, and that under the Benares School of Hindu Lawhe was his brothers successor and not the plaintiff; and the defence of theSecretary of State, who was subsequently added as a defendant, was that theplaintiff is not a descendant of the deceased ghatwal, within the meaning ofSection 2, Regulation XXIX of 1814, and is therefore not entitled to succeed tothe ghatwali in question. The learned Subordinate Judge has decreed the suit.He finds that the Deputy Commissioner was not legally competent to appointChhatradhari to succeed his deceased brother as ghatwal; that the word"descendants" in Section 2 of Regulation XXIX of 1814 is notnecessarily restricted to actual issue of the body but includes natural orlegal heirs; that Chhatradhari Singh was separate from his brother in estateand transactions at the time of his brothers dead that, therefore, theplaintiff, and not Chhatradhari, was the legal heir of Ananta Narain, and thatthere was no bar to the plaintiffs right by reason of her being a female, itbeing established that there is a custom prevailing in tuppeh Sewruth Deoghurof females succeeding to ghatwali tenures.

2. Against this decree, the defendant Chhatradhari appealedto this Court. He has since died, and his eldest son has been substituted ashis legal representative for the purpose of the present appeal. His learnedpleader has attacked the judgment of the lower Court mainly on two grounds,viz., (1) that plaintiff being the widow of the late ghatwal is not a"descendant" within the true meaning of the term as used in a. 2 ofRegulation XXIX of 1814; and (2) that Chhatradhari was joint with his brotherat the time of his death, that the ghatwali tenure was joint family property,and therefore that Chhatradhari was entitled to succeed under the law of theMitakshara.

3. As regards the first ground, we are not prepared to givethe word descendants the restricted meaning contended for by the learnedpleader for the appellant. No doubt in its strict grammatical sense, the worddenotes issue of the body, but having regard to the origin, character andincidents of these Beerbhoom ghatwali tenures as described in Regulation XXIXof 1814 (the tenure in the present case is admittedly a Beerbhoom ghatwali) itseems to us very doubtful whether the framers of the Regulation intended togive to it that restricted meaning. Mr. Justice JACKSON in the case of LallDharee Roy v. Brojo Lall Singh 10 W.R. 401 observes in reference to RegulationXXIX of 1814: "By this enactment a hereditary tenure was secured to theghatwals and their descendants, subject only to the condition of punctualpayment of the rent assessed upon them and fulfilment of their otherobligations." We entirely concur in the remarks of that learned Judge. Wethink that these tenures are in fact tenures to be held in perpetuity, and aredescendible from generation to generation subject to certain conditions andobligations, and that it would be inconsistent with the true character of thesetenures to hold that the Legislature intended that they should devolve on issueof the body only and not on heirs generally according to the law which maygovern such succession. Moreover, the case of Kustooree koomaree v. Monohur DeoW.R. Gap. No. (1864) 39, appears to us a clear authority in favour of the viewwe take. In that case the learned Judges held that under the Mitakshara themother of the last ghatwal, in default of issue of the body, had a preferentialright to the ghatwali tenure as against a collateral male member of the family.It is true that the meaning of the word "descendants" in RegulationXXIX of 1814 does not appear to have been discussed in that case, the principalpoint for determination being whether a female could hold a ghatwali tenure,but at the same time we do not think it likely that the learned Judges, inarriving at the conclusion they did arrive at, entirely overlooked this matter.In describing the nature of these tenures they observed as follows: "Thesetenures, it must be remembered, were in existence in many parts of the countrylong before the accession of the present Government, and were grants of landmade either by the authority or sanction of the Government to certain personsas remuneration for their services as police. The head or sirdar of each ofthese police stations was required to keep up a certain number of men properlyarmed to apprehend criminals, protect travellers, keep the peace and to performother police duties. They were liable to be dismissed for misconduct or neglect,and any stranger might have been appointed in their room. Some of these grantswere hereditary in their origin, and all very soon became so, and it beinginconvenient and wholly subversive of the ghatwali system to admit the elementof Hindu law, which requires an equal mission of the deceased fathers propertyamong his sons, the ghakwali tenure "descended undivided to the eldestson, to the exclusion of the others, who either lived with, or were supportedby him, or followed their own pursuits."

4. We think that these observations indicate that thelearned Judges then understood that the word "descendants" in theRegulation was not meant to be confined to the heirs of the body but that itincluded heirs generally according to the particular law applicable to thecase.

5. The plaintiff then being, as we think, a descendant ofher husband within the meaning of the Regulation, the next question whicharises is whether she or her husbands brother is the preferential heir ofAnanta Narain Singh, it is admitted that by custom the ghatwali tenure isimpartible and descends to the eldest son, and further that this family isgoverned by the law of Mitakshara. In the case of Nilkristo Deb Barmono v. BirChandra Thakur 12 Moo. I.A. 523 : 3 B.L.R. P.C. 13 [see also Sartaj Kuari v.Deoraj Kuari I.L.R. 10 All. 272 : IL.R. 15 IndAp 51] their Lordships of thePrivy Council at page 542 of the report in Moores I.A. observed: Where acustom is proved to exist, it supersedes the general law which however stillregulates all beyond the custom." Applying this principle to the presentcase, the point for determination is whether Chhatradhari, at the time of thedeath of his brother Ananta Narain, was joint with or separate from him. Wehave examined the evidence bearing on this matter, and we have no hesitation inaccepting the conclusion of the learned Subordinate Judge that Chhatradhari wasseparate from his brother in food, estate, and transactions. We think theevidence proves that Chhatradhari separated in 1262 during the life-time of hisfather Darbar Singh, who then assigned to him for his maintenance five villagesappertaining to the ghatwali holding-an assignment which after his fathersdeath was renewed by Ananta Narain in 1292. The evidence further proves that Chhatradhariexclusively enjoyed the profits of these five villages; that he held some othervillages on lease from his father, two of which he dealt with as his ownproperty by sale to Muktaram Dutt and Torab Khan; and also that histransactions generally were separate from those of his brother. We find also onthe evidence that the ghatwali was exclusively the property of Ananta Narain,who was in sole enjoyment of the profits thereof with the exception of thevillages assigned to Chhatradhari according to the prevailing, custom. In thisview the plaintiff, being the widow of Ananta Ram (sic), is clearly his heiressunder the Mitakshara, and neither Chhatradhari nor any of his sons has anyright to succeed by survivorship.

6. The learned pleader for the appellant has howevercontended before us that, although this ghatwali tenure is impartible, yet,according to the decision of their Lordships of the Privy Council in ChintamanSingh v. Nowlukho Koonwari I.L.R Cal. 153 : 13 W.R. P.C. 21 it is not necessarilyseparate property, and that as their Lordships observe, "whether thegeneral status of a Hindu family be joint or undivided, property which is jointwill follow one and property which is separate will follow another course ofsuccession." The decision referred to is no doubt an authority for theproposition that there may be impartible joint family property, such as a rajor other estate similar to a raj, but whether such property is to be regardedas joint or separate would appear to depend generally upon the character of theproperty at its inception, such as the nature of the grant, &c, creatingit. Having regard however to the view we have already expressed as to thestatus of the family in the present case, and as to the ghatwali tenure havingbeen the exclusive property of Ananta Narain, we think it is unnecessary todetermine what was originally the character of this tenure, although, if wewere called upon to decide the question, we should be disposed to say, withreference to the peculiar character of these tenures as described in RegulationXXIX of 1814, that they were intended to be the exclusive property of theghatwal for the time being, and not joint family property in the proper senseof the term. And in this connection we would refer to some observations of thelearned Judges who decided the case of Kustooree Koomaree v. Monohur Deo W.R.Gap. No. (1864) 39 already referred to. They say: "The party who succeedsto and holds the tenure as ghatwal must be, and has always been, looked upon assole proprietor thereof, and therefore the other members of the family cannotclaim to be coparceners and entitled to share in the profits of the property,though they may by the permission and goodwill of the incumbent derive theirsupport, either from some portion of the property which he may have assigned tothem or directly from himself, and if it be so with the nearer members, thedistant members of the same family cannot be considered as holding in commonwith the incumbent so as to bar the widow or mothers right to succeed."

7. For the above reasons we think the learned SubordinateJudge has rightly decreed this suit, and we accordingly dismiss this appealwith costs.

.

Saraswati Kumari vs. ChhatradhariSingh and Ors. (20.07.1894 - CALHC)