Judgement Appeal from a decree of the Judicial Commissioners Court (March 21, 1895) affirming a decree of the District Court of Rae Bareli (March 23, 1891) and dismissing the appellants suit with costs. The suit was brought to recover possession of the entire Pawansi estate, situated in the Partabgarh District, as detailed in three schedules annexed to the plaint. That estate was held by the Judicial Committee (Brij Indar Bahadur Singh v. Ranee Jank i Koer, ( 1877) L.R. 5 Ind. Ap. 1) to have been created by sunnud and to have vested absolutely in Thakurain Kablas Kunwar, the widow of Mahpal Singh, as her stridhan; and on her death to have descended to her daughter Rani Janki Kunwar, under clause 11, s. 22, of Act I. of 1869. Kablas Kunwar was entered in lists 1 and 2, men tioned in s. 8. Janki Kunwar died on December 16, 1888, childless. Thereupon the appellants father and the respondent claimed the estate as the nearest living heirs of Mahpal Singh. They derived title through Raghunath Singh, the respondent claiming through the elder son, Shankar Baksh, the appellants great-grandfather, Sitla Baksh, claiming as the son of Raghunaths first wife, " according to the custom of the clan and by law." The fifth issue related to this alleged custom and law. The sixth raised the question of the impartibility of taluqa Pawansi with all other things pertaining to it. The material passages of the Judicial Commissioners judgment on the two points of law, which was in affirmance of that of the District Judge, are as follows— " It was contended by the learned advocate for the plaintiff that Janki Kunwar having succeeded to the estate under clause 11—i.e., under the ordinary Hindu law—did not take the estate under the special provisions of the Act, and was not therefore an heir of the talukdar within the meaning of s. 2 of Act I. of 1869; and that the estate in her hands was not subject to the provisions of the Act, and did not on her death descend as an impartible estate by virtue of the provisions of ss. 8, 10, and 22. This question appears to me to have been conclusively settled by the decision of their Lordships of Her Majestys Council in Ran Bijai Bahadur Singh v. Mae Jagatpal Singh. (L. R. 17 Ind. Ap. 173.) .... 8, 10, and 22. This question appears to me to have been conclusively settled by the decision of their Lordships of Her Majestys Council in Ran Bijai Bahadur Singh v. Mae Jagatpal Singh. (L. R. 17 Ind. Ap. 173.) .... “ Following this ruling of their Lordships, I am of opinion that upon the death of Janki Kunwar the Pawansi estate descended as an impartible estate to a single heir." Then, upon the question whether under Hindu law the son of the first married wife took precedence of the elder son born of a later wife, he held that the principle laid down in Pedda Ramappa Nayanivaru v. Rangari Seshamma (( 1880) L. R. 8 Ind. Ap. 1.) was binding, notwithstanding that it had been admitted before him that the interpolation of the words " but of a lower class " in Manu, c. ix. v. 122, had been erroneously attributed by Sir William Jones to Kulluka Bhatta. He was of opinion that " the appellant has failed to establish satisfactorily, by the texts quoted by him, his contention that in the case of sons by several wives of the same class the ordinary rule which confers seniority on the first-born is departed from in favour of the son of the senior wife, should such first-born son be born of a junior wife. " The argument of the learned advocate for the appellant is based on the texts of Manu, which were considered by their Lordships. He points out that the interpolation of the words 1 but of a lower class made by Sir William Jones in his translation of s. 122, is not authorized by the Commentary of Kulluka Bhatta; and that that commentator endeavoured to reconcile s. 122 with s. 125 by making a distinction between virtuous and vicious sons, and not by the addition of the words 1 but of a lower class in s. 122 see Colebrookes Digest of Hindu Law, Bk. 5, ch. 1, s. 57. " The learned advocate for the respondent admits that s. 122 was not explained by Kulluka Bhatta in the manner adopted by Sir William Jones. He says that that explanation has the authority of the commentator Prakash. 5, ch. 1, s. 57. " The learned advocate for the respondent admits that s. 122 was not explained by Kulluka Bhatta in the manner adopted by Sir William Jones. He says that that explanation has the authority of the commentator Prakash. While, however, it appears to be the case that the addition of the words ‘but of a lower class in Sir William Jones translation cannot be supported by the commentary of Kulluka Bhatta, it is clear that the translation of the original text itself is not free from doubt. Sir William Jones, Colebrooke, Max Miiller, and Loiseleur Deslongchamps translate the word parvaja in s. 122 as the elder son/ and in s. 125 as the son born of the elder wife. Max Miiller gives the following note on s. 125 As this verse and the following one contradict the rules given in verses 123 and 124, the commentators try to reconcile them in various ways. Medh thinks that verses 123-124 are an artharada and have no legal force, and Ragh inclines to the same opinion. Nar and Nand hold that the seniority, according to the mothers marriage, is of importance for the law of inheritance (verses 123-124), but that it has no value with respect to salutations and the like, or to prerogatives at sacrifices (verses 125, 126). Kull finally, relying on Govs opinion, thinks that the rules leave an option, and that their application depends on the existence of good qualities and the want of such. It is, however, probable that, according to the custom of Hindu writers, the two conflicting opinions are placed side by side, and that it is intended that the learned should find their way out of the difficulty as they can. Burnell and Hopkins, on the other hand, give the same meaning, viz., the first-born, to the word parvaja in both ss. 122 and 123 (Ordinances of Manu, 1884). Their translation of ss. 122, 123, and 124 is as follows — " 122. (Suppose) the youngest son is born by the eldest wife and the first-born (son is born) by the youngest wife, how should the division be between them ? If a doubt should arise expressed in these words. " 123. 122 and 123 (Ordinances of Manu, 1884). Their translation of ss. 122, 123, and 124 is as follows — " 122. (Suppose) the youngest son is born by the eldest wife and the first-born (son is born) by the youngest wife, how should the division be between them ? If a doubt should arise expressed in these words. " 123. (We answer it thus) The first-born should receive one bull as his portion to be taken out (of the general inherit ance); after this, the other bulls, not the best (belong), according to their mothers, to his brothers who are inferior to him [in point of age]. " 124. But when the eldest (son) is born of the first wife, he should take fifteen cows and a bull; then the rest; may divide, according to their mothers, with these words the rule is fixed. " Their note on verse 123 is as follows Madhatithi and Kulluka define " parvaja " as the " son born of the first wife, even if he is the youngest," and render " swamatritas," " in consequence of their mothers," as explaining " inferior " ; but Gautama, XXVIII-14, shews that the eldest son is intended, even when born by other than the first wife. This verse gives the rules for the eldest son, irrespective of his mother; the next allots him a better portion if his mother is the first eldest wife. " Jolly in his Hindu Law of Partition, Inheritance, and Adoption (Tagore Law Lectures, 1883, p. 178), says ‘ Manu has discussed the same question, and as far as his meaning can be made out he proposes two answers to it either the son of the first-married wife, though younger, shall get an excellent bull as his additional share; or the right of primogeniture shall follow the date of birth alone, just as in the case of twins the first-born is considered as the elder of the two. The latter view, say the commentators Medhatithi and Raghavananda, represents Manus own opinion. He adds in a note Doctor Mayr thinks that the two rules (Manu, 9, 123 and 125) do not contradict one another, as "parvaja" in 123 may denote the eldest son of all sons, and " tadunanam " the eldest son of each wife. This interpretation is supported by one MS., which reads " Sarvapurvaja," the eldest Son of all. He adds in a note Doctor Mayr thinks that the two rules (Manu, 9, 123 and 125) do not contradict one another, as "parvaja" in 123 may denote the eldest son of all sons, and " tadunanam " the eldest son of each wife. This interpretation is supported by one MS., which reads " Sarvapurvaja," the eldest Son of all. But all the other MSS. read " Sa purvaja." Narayana tries to remove the contradiction between 123 and 125 by referring the latter rule to questions of etiquette only, such as formal salutations. Kulluka brings in the difference between virtuous and vicious sons. "If Burnetts translation is accepted, the supposed contradiction between ss. 123 and 125 disappears; and, according to Manu, amongst sons born of different mothers of equal class the first-born son is the senior. " The learned advocate for the respondent relies on Burnetts translation as being the correct one, inasmuch as it gives the same meaning to the word ‘ parvaja ‘ in both the verses 122 and 123. " As the correct translation of verse 123 is doubtful, and as Manus own answer to the question propounded by him in verse 13 cannot be clearly ascertained, it appears to me that the appellant has failed to establish satisfactorily his contention by the texts quoted by him. "I find, therefore, that by Hindu law Sitla Bakhsh did not, by virtue of being born of the first-married wife, acquire seniority over his elder brother Shankar Bakhsh, the first-born son of his father, and that accordingly he was not under that law entitled to succeed to the impartible Pawansi estate in preference to his elder brother, the first-born son." Branson, for the appellant, contended upon the first-mentioned point of law that the Judicial Commissioners Court ought to have held that as Janki Kunwar had succeeded to the estate under the provisions of clause 11 of s. 22 of Act I. of 1869, as the person entitled to succeed under the ordinary Hindu law, that estate was not in her hands subject to the provisions of Act I. of 1869, but descended from her as an estate under the ordinary Hindu law to which she was subject, and not as an impartible estate, and was therefore partible between the appellant and respondent. Reference was made to Dewan Ran Bijai Bahadur Singh v. Bae Jagatpal. (L. R. 17 Ind. Ap. Reference was made to Dewan Ran Bijai Bahadur Singh v. Bae Jagatpal. (L. R. 17 Ind. Ap. 173.) . Upon the other point of law he contended that, as it was now admitted that the interpolated words in Sir William Jones Translation of c. ix. v. 122 of Manus Institutes are not supported by the authority of Kulluka Bhatta (L. R. 8 Ind. Ap. 1.); the doctrine, which was based on the supposition that this gloss was the work of Kulluka Bhatta, is no longer to be considered as of binding authority. The Court below ought to have held that the correct view of the law as to the rights of sons born of mothers married at different times is correctly laid down in s. 123, and establishes that preference is to be given to the son of the earliest or first married wife. He referred to Sarvadhikaris Tagore Law Lectures ( 1880), pp. 224, 239, and 240. He further contended that the Court ought to have held that it lay on the respondent to prove that by custom the non-talukdari property mentioned in lists B and C annexed to the plaint was impartible, and went with the taluqa. As he had not proved any such custom, the non-talukdari property was partible, and should be divided between appellant and respondent in equal moieties. Reference was made to Sri Rajah Rajeswara Gajapaty v. Sri Virapratapah Gajapaty (( 1869) 5 Madr. H. C. 31.); Ramasami Kamaya Naik v. Sundaralingasami. (( 1893) Ind. L. R. 17 Madr. 422, 444) Mayne, and Cowell, for the respondent, being heard only upon the last point, contended that on the pleadings and issues the non-talukdari property was treated by both parties as appurtenant to the talukdari, and following the same line of devolution. It was one entire claim, and was so treated by both parties and both Courts throughout the litigation see Sundaralingasawmi Kamaya Naik v. Ramasawmi. (( 1899) L. R. 26 Ind. Ap. 55,57.) The judgment of their Lordships was delivered by LORD DAVEY. The present appellant is the great-grandson and heir of Sitla Baksh, the original plaintiff, and was substituted for the latter on his death after the commencement of the suit. The respondent is the son and heir of Shankar Baksh. Sitla Baksh was the son of Raghunath by his first wife Bish Nath Kunwar. The present appellant is the great-grandson and heir of Sitla Baksh, the original plaintiff, and was substituted for the latter on his death after the commencement of the suit. The respondent is the son and heir of Shankar Baksh. Sitla Baksh was the son of Raghunath by his first wife Bish Nath Kunwar. Shankar Baksh was also the son of Raghunath but by his junior wife Raj Kunwar. Shankar Baksh was born before his half-brother Sitla Baksh, and was, therefore, the elder born son of Raghunath. The suit relates to the succession of the taluq of Pawansi, which after the annexation of Oudh was by a sunnad granted to a lady named Kablas Kunwar, the widow of Mahpal Singh. Her name was .entered in the first and second lists mentioned in s. 8 of the Oudh Estates Act, 1869. In the case of Brij Indar Bahadur Singh v. Ranee Janki Koer (L.R. 5 Ind. Ap. 1.) the succession of the taluq on the death of Kablas Kunwar was determined by this Board. Their Lordships there held that the sunnad conferred and was intended to confer a full proprietary and transferable right in the estate upon Kablas and her heirs male according to the law of primogeniture, and as regards the succession they considered that the rights of the parties claiming by descent must be governed by the provisions of s. 22 of Act I. of 1869. This Board, therefore, held that under clause 11 of s. 22 the estate descended to Janki Kunwar, the daughter and only child of Kablas Kunwar, as the person entitled under the ordinary law to which persons of her mothers religion and tribe were subject. Janki Kunwar died childless on December 16, 1888. It is not disputed that the succession must be to the heirs of her father, and both, or one or other of the sons of Raghunath, if living, would be entitled to succeed to the taluq on her death. The plaintiff by his plaint claimed to be entitled to the entire taluq, together with all other movable and immovable property of Janki on the ground that, being born of the first wife, he was entitled to inherit the entire taluq and other property according to the custom obtaining among his clan and by law. The plaintiff by his plaint claimed to be entitled to the entire taluq, together with all other movable and immovable property of Janki on the ground that, being born of the first wife, he was entitled to inherit the entire taluq and other property according to the custom obtaining among his clan and by law. Alternatively he contended that the taluq was or had become partible, and claimed to be entitled to a 9-annas share as son of the first wife of Raghunath, or, at any rate, to an 8-annas share. The latter, claim was maintained on the ground that Janki, having succeeded under the provisions of clause 11 of s. 22, the estate was no longer subject to the provisions of the Act of 1869, but descended from her as an estate under the ordinary Hindu law, and not as an impartible estate, and was, therefore, partible between the two brothers. By his defence the defendant contended that the estate was impartible by custom. A vast amount of evidence was taken upon this question, but, in the opinion of their Lordships, unnecessarily. . The point is concluded by authority. In the case of Dewan Ran Bijai Bahadur Singh v. Bae Jagatpal Singh (L. R. 17 Intl. Ap. 173.) their Lordships said " A question might arise upon the construction of clause 11 of s. 22 whether the estate descended as an impartible estate. Their Lordships are of opinion, looking to the pro visions of Act I. of 1869, list 2, ss. 8, 22, that it was the intention of the Legislature that the estate should descend as an impartible estate. The only question which remains as regards the succession, therefore, is whether the original plaintiff as son of the first wife of his father was either by custom, or by the common law, entitled to succeed in preference to his elder brother born of a junior wife. Evidence was taken by the District Judge on the claim by custom, and that learned judge after an exhaustive review of the evidence came to the conclusion that the alleged custom was not proved, and that decision was affirmed in the Court of the Judicial Commissioner. There being thus two concurrent judgments on a question of fact, their Lordships are relieved from examining the evidence, and were not asked by counsel to do so. There being thus two concurrent judgments on a question of fact, their Lordships are relieved from examining the evidence, and were not asked by counsel to do so. The question involved in the claim of the plaintiff by law, apart from custom, has been considered by this Board in two cases. In Ramalakshmi Animal v. Sivanantha Perumal Sethu-rayar (( 1872)14 M00, Ind. A p. 570,) this Board decided that the son of a junior wife was entitled to succeed to an impartible zemindary in preference to the later born son of a senior wife. It is true that in this case the mother of the younger son, although married before the mother of the elder son, was not the first wife, and therefore it is said not to be a direct authority. In Pedda Ramappa Nayanivaru v. Rangari Sesshamma Nayanivaru (L. R. 8 Ind. Ap. 1.) a firstborn son, though by the fourth wife, was held to be entitled to succeed in preference to a younger son born of the third and senior wife whose marriage was subsequent to the deaths of the first two wives. The grounds of the judgment are shewn very clearly in the passages which are quoted at length by the Judicial Commissioner, and their Lordships will not repeat them. It was laid down that the principles upon which the Board held in the former case that the first-born was entitled to succeed apply equally to a son of a first married wife and sons of other wives, and, that being so, it lay upon the defendant to shew some positive rule of Hindu law supported either by ancient text or modern decision to the contrary effect, which had not been done. The grounds upon which the learned counsel for the appellant endeavoured to escape from the authority of these cases were these. The verses of the Laws of Manu which were referred to by their Lordships are those numbered 122 to 125 in ch. 9. In Sir William Jones translation the 122nd and 125th verses are as follows " 122. A younger son being born of a first married wife after an elder son had been born of a wife last married, but of a lower class, it may be a doubt in that case how the division shall be made. 125. 9. In Sir William Jones translation the 122nd and 125th verses are as follows " 122. A younger son being born of a first married wife after an elder son had been born of a wife last married, but of a lower class, it may be a doubt in that case how the division shall be made. 125. As between sons born of wives equal in their class and without any other distinction there can be no seniority in right of the mother, but the seniority ordained by law is according to the birth." The words printed in italics were accepted by Sir William Jones as being, and until recently were generally believed to be, the interpolation of an ancient commentator of great eminence named Kulluka Bhatta. It is said to have been discovered by the research of scholars that the interpolation was not made by Kulluka Bhatta but by a later and inferior commentator named Prakash, and that statement seems to have been accepted in the Court of the Judicial Commissioner. It is thereupon argued that verse 122 (with the omission of the interpolated words) and the two following verses are inconsistent with verse 125, which thus loses any binding authority. Their Lordships assume for the purposes of their judgment that Sir William Jones was mistaken in attributing the words interpolated in verse 122 to Kalluka Bhatta. But they observe that Sir William Jones version was probably founded on the tradition of the time at which he wrote, and has been accepted in the Indian Courts without question. "Communis error facit jus " is a sound maxim. Their Lordships, however, do not rely upon this consideration alone. The Judicial Commissioner has learnedly discussed the various translations which have been proposed by scholars and the interpretations given by them to the four verses in question and their relation to each other, and he refers to the opinion expressed by Dr. Jolly in his Tagore Lectures, 1883. The Judicial Commissioner concludes " As the correct translation of verse 123 is doubtful, and as Manus own answer to the question propounded by him in verse 122 cannot be clearly ascertained, it appears to me that the appellant has failed to establish satisfactorily his contention by the texts quoted by him." Their Lordships think this is firm ground for decision. The language of verse 125 is reasonably free from ambiguity, while the meaning of the previous verses is at the best ambiguous and doubtful. The plain language of the one ought not to be overridden or controlled by the obscure utterances in the other. They therefore think that no sufficient reason is shewn why they should not follow the two previous decisions of this Board, and that they ought to do so. They therefore hold that, according to Hindu law, the respondent, who represents the eldest son of his father, is entitled to succeed in preference to the appellant, who represents the younger son, though born of the first wife. Their Lordships will only add that this decision appears to them, as it did to their predecessors, to be in accordance with the religious tenets of Hindus. It is by the birth of nis first-born son that a Hindu discharges the duty which he owes to his ancestors and obtains spiritual benefits for himself, and, therefore, it is to that son that pre-eminence should be given. A subsidiary point was raised by the appellants counsel, namely, whether any difference is to be made in the succession to the movable property of Janki. No such point was raised by the plaint, in which the movable and other immovable pro perty is treated in the same category with the taluq itself, and the same considerations are treated as applicable to the whole property as one corpus. The fifth issue is whether the plaintiff is by law or custom entitled to the whole of the taluqa, with other property pertaining to it. And no issue is directed to any distinction between different portions of the property claimed. The District Judge held that the question did not arise, and if it did there was no evidence to shew that such property was subject to a different rule of devolution. He also referred to the case of Thakur Ishri Singh v. Baldeo Singh (( 1884) L. R. 11 Ind. Ap. 135, at p. 148.) before this Board. The Judicial Commissioner took the same view, and their Lordships entirely agree. They will, therefore, humbly advise His Majesty that the appeal be dismissed, and the appellant must pay the costs of it.