Judgement Appeal from a decree of the High Court (April 14, 1899) reversing a decree of the Subordinate Judge of Tirhoot (July 9, 1897) and dismissing the appellants suit. The prayer of the plaint, which was filed on July 26, 1895, was to recover the extensive Raj of Bettia and the properties belonging thereto, in all valued at about 550 lakhs of rupees, to which the appellant claimed to be entitled on the death, without issue, of Maharaja Sir Harendra Kishore Singh, which happened on March 26, 1893. It appeared that as far back as the sixteenth century a Raj, held by military service, existed, and was then ancient, called the Raj Reasut of Sirkar Champaran. It is mentioned in the Ain-i-Akbari, vol. ii. p. 155, as maintaining 30,000 infantry and 700 horse, and at that time included three pergunnahs—Simrown, Majhowa, and Maihsi— to which pergunnah Babra was afterwards added. The appellant claimed as the nearest surviving reversioner of the deceased, and he sued the defendant, who was the senior widow, for whom the respondent, as the surviving junior widow, was afterwards substituted, to recover possession of the estate. In his plaint, after charging that the property in question was an impartible Raj, consisting of the four estates of Majhwa, Simrown, Maihsi, and Babra, which by both family and local custom was governed as to its descent by the law of lineal primogeniture, and after setting out the pedigree, which is sufficiently stated in their Lordships judgment, he stated— 1. That upon the death of Raja Dhrub Singh, who had no natural-born son, the estate descended to Jugal Kishore, the son of Dhrub Singhs daughter, whom he had affiliated in his family according to the custom of the Bhuinhars, to which class he belonged, as his adopted son. 2. That the two pergunnahs of Maihsi and Babra and tuppa Duho Suho, forming part of the Raj, had been granted by Raja Dalip Singh, father of Dhrub Singh, to his brothers Prithi Singh and Satrajit Singh as " babuana," or maintenance grant for them and their families. 3. 2. That the two pergunnahs of Maihsi and Babra and tuppa Duho Suho, forming part of the Raj, had been granted by Raja Dalip Singh, father of Dhrub Singh, to his brothers Prithi Singh and Satrajit Singh as " babuana," or maintenance grant for them and their families. 3. That after his succession Jugal Kishore, having incurred the displeasure of the East India Company, who had by that time obtained the Dewani of Bengal, left British territory for some time, and that during his absence Raja Srikishen Singh, as representing the next senior branch of his family, was dignified by the East India Company with the title of Raja, and placed in possession of the Bettia Raj, and had been allowed to receive and enjoy the income of the estate; and that after the death of Satrajit, his son Abdhut Singh was associated by the Government with Srikishen in such holding. 4. That thereafter Raja Jugal Kishore returned into British territory, when the pergunnahs of Majhwa and Simrown were given back to and settled with him, and the babuana pergunnahs of Maihsi and Babra and the tuppa Duho Suho were settled with Raja Srikishen Singh , and Abdhut Singh as babuana grants. 5. That the estate thereafter descended according to the law of regular lineal primogeniture to the late Sir Harendra, upon whose death childless the same was taken possession of by his said senior widow adversely to the right heir, the appellants elder brother, Babu Sham Nundun Singh, upon whose death childless the right to the same vested in the appellant. This appellant then submitted that females were by custom excluded from succession, and that therefore Sheo Ratan Koer had not, as Sir Harendras widow, any right to succeed, but that the estate descended to him as the nearest male heir by the rule of lineal primogeniture. The answer of the defendant was 1. That the Raj of Bettia did not exist in the time of Raja Ugrasen Singh (who was the owner of the Raj Reasut or principality of Sirkar Champarun), but was created only about a century later than Raja Ugrasen, when it was conferred upon Raja Jugal Kishore Singh by the East India Company. 2. That the pergunnahs Maihsi and Babra were valuable pergunnahs, and were not held as maintenance grants with tuppa Duho Suho. 3. 2. That the pergunnahs Maihsi and Babra were valuable pergunnahs, and were not held as maintenance grants with tuppa Duho Suho. 3. That the customs of lineal primogeniture and of making maintenance or babuana grants did not prevail in the family. 4. That Jugal Kishore was not the adopted son of Dhrub Singh, but was only the daughters son of Dhrub Singh, and that he, acting adversely to his uncles, took possession of Sirkar Champarun, then con sisting of, amongst other properties, the said pergunnahs of Majhwa, Simrown, Maihsi, and Babra, and executed to the East India Company a kabalyat, or counterpart lease, for the entire Sirkar Champarun, and held possession thereof till A.D. 1765-66, when he took up arms against the British Government and fled to Bundelkhund, whereupon the whole of the said Sirkar Champarun was confiscated by the British Government. 5. That the title of Raja had not been in Raja Jugal Kishores absence conferred upon Babu Sri Kishen, and that the pergunnahs Maihsi and Babra had not been before Raja Jugal Kishores flight in the possession of Sri Kishen and Satrajit as maintenance grants. 6. That Raja Jugal Kishore having sued for pardon, the Government of India, on June 25, 1771, divided up Sirkar Champarun, and constituted Majhwa and Simrown the Raj Reasut of Bettia, and allotted the same to Raja Jugal Kishore as the first Raja of Bettia, and allotted the pergunnahs of Maihsi and Babra to the said Sri Kishen and Abdhut, descendants of Raja Guj Singh, since when the said allottees and their descendants have received and enjoyed the malikana (or landlords share of the income of the said properties) till the Decennial Settlement (A.D. 1789). 7. That at the time of the Decennial Settlement Raja Bir Kishore Singh, son of Jugal Kishore deceased, and Sri Kishen Singh applied for settlement with them respectively of the entirety of Sirkar Champarun to the exclusion of the other of them, when the then Governor-General, on September 22, 1790, ordered that, As the late President and Council thought proper to divide the zemindary of Champarun, allotting to Jugal Kishore the districts of Majhwa and Simrown, and to Sri Kishen and Abdhut Singh those of Maihsi and Babra," the heirs of the said persons respectively should be restored to the possession and management of the said districts. 8. 8. That there had not been since that time any community of interest or commensality between the respective families of the Raja Jugal Kishore and of Sri Kishen, the latter of whom had by arrangement with his uncle Satrajit obtained the entirety of the two pergunnahs of Maihsi and Babra. 9. That on May 6, 1808, Gunga Pershad, son of Sri Kishen, unsuccessfully sued Bir Kishore, son of Jugal Kishore, to recover the pergunnahs of Majhwa and Simrown (a part of Bettia), admitting that he had possession of Maihsi and Babra, the remaining part of Champarun Sirkar, and that that litigation was carried up to the Privy Council by the plaintiff, who was cast in every Court. 10. That on the death of Maharajah Anund Kishore, a descendant of Jugal Kishore, in 1838, the Raj Reasut of Bettia had gone to his brother, Maharajah Nawal Kishore, and not to the said Anunds widow; but she alleged that this was not on account of any custom prohibiting female succession, but was because the said Anund and his brother, Nawal Kishore, had been joint and undivided, and she denied the existence of any custom preventing females from taking the estate. 11. That no custom of lineal primogeniture existed in the said family. The question as to babuana maintenance from the Raj was, by the concurrent findings of both the Courts below, decided against the appellant. These findings necessarily followed from the undisputed facts that no documentary evidence was offered that any grants of Maihsi and Babra, by way of maintenance, had ever been made; and that on every occasion when Sri Kishen held, or claimed to hold, these pergunnahs he rested his claim upon a title to the whole Raj of Champaran, of which they formed part. The Subordinate Judge was of opinion that the Raj of Bettia was not, as contended by the respondent, a new Raj created by the East India Company after Jugal Kishores return from exile, but was in existence before the East India Company obtained the grant of the Dewani, and that Ugrasen was admittedly the Raja of " Sirkar Champarun," which name was used concurrently with that of " Bettia Raj " for the said estte. He held that the adoption of a daughters son was customary among the Bhuinhars (to which class or tribe the parties to this litigation belong), and that there was no illegality in adopting an only son—a ruling the correctness of which is now established by the case of Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma. (( 1899) L. R. 26 Ind. Ap. 113.) He found that Jugal Kishore had been in fact adopted by Raja Dhrub as his son. And upon the issues, which dealt with the law of succession to the Bettia Raj, he found "that the Raj has always been inherited by the eldest son to the exclusion of the junior male members and females, and by the next younger son in the event of the eldest dying without male issue." And he held, referring to the cases of Maharani Hira Nath Koer v. Babu Ram Narayan Singh (( 1872) 9 Beng. L. R. 274.), Chowdhry Chintamun Singh v. Nowlukho Konwari (( 1875) L. R. 2 Ind. Ap. 263.), and Raja Rup Singh v. Rani Baisni (( 1884) L. R. 11 Ind. Ap. 149; S.C. Ind. L. R. 7 Allah. 1,), that the rule as to impartible Raj property under the Mitakshara law was to exclude females in the absence of proof of a custom to admit them, and that in this case, there being not a scintilla of evidence of any such custom to admit females, they must be excluded. He then took up the question whether the rule of primogeniture applied as well in cases of collateral as of direct succession, and he held, upon the evidence in this case and upon the authority of the Madras High Court in Naraganti v. Venkata Chalapati (( 1881) Ind. L. R. 4 Madr. 250.), that as between the parties in this case this appellant was entitled to succeed. As to the nature of the appellants interest in the Bettia Raj, he held that there had been no confiscation of Bettia, and that therefore, when Raj a Jugal Kishore was restored to his position, there was no regrant so as to constitute the property belonging to and forming the Raj his self-acquired or separate property, as was the case with the Shivagunga Estate, dealt with in 9 Moo. Ind. Ap. p. 539, with the Hunsapore Raj, dealt with in 12 Moo. Ind. Ap. Ind. Ap. p. 539, with the Hunsapore Raj, dealt with in 12 Moo. Ind. Ap. p. 1, and with the Nazvid Case, dealt with in L. B. 7 Ind. Ap. p. 38, in all of which cases he pointed out that there had been complete confiscation and a subsequent fresh grant; whereas in the Bettia Case there had been a continuous payment of malikana during all the time that Government retained possession of the said estate. He concluded that the East India Company did not effect any actual division in 1771 of the property belonging to the old Raj so as to prevent the younger branches of the family from claiming their rights in the Raj estate on the extinction of the elder branch. The two branches remained joint in the absence of proof of partition, and that consequently the appellants title by survivorship prevailed over the claim of the widow, which assumed that the Raj was her husbands separate estate. The High Court did not decide the question of Jugal Kishores adoption, but, assuming that he had become a member of the joint family, it decided that the Bettia Raj did not belong to the joint family, but was the separate estate of the deceased Sir Harendro, and that the appellant had no title as against his widow in possession. The High Court did not decide the question of Jugal Kishores adoption, but, assuming that he had become a member of the joint family, it decided that the Bettia Raj did not belong to the joint family, but was the separate estate of the deceased Sir Harendro, and that the appellant had no title as against his widow in possession. The High Court said, with regard to the action of Government in allotting the pergunnahs, "the question is not whether there was a confiscation, using that word in its technical or applied sense, but whether the East India Company seized the zemindaris of Sirkar Champaran, assumed dominion over them, and effected a division of the pergunnahs." And upon a review of all the evidence upon the question, they came to the conclusion that "the old military fief " was extinguished and the property seized and dealt with by Government as property forfeited to Government, " and that there was a division of the estate which had formed part of the Sirkar Champaran into two zemindaris." They said "It would appear that the Government was simply dealing with four pergunnahs, out of which it formed two zemindaris, and that the continuation of the Raj, as it existed in former times, was never in contemplation." With regard to the question " whether there was a separation quoad these properties so as to constitute them the separate properties of the several branches to whom they were allotted," they said " It is absolutely essential to the plaintiffs case that he should establish jointness of his branch of the family quoad the two pergunnahs in suit; without that, his case must fail." And, after referring to the suit which went on from 1808 to 1837, and which was finally dismissed by the Privy Council on the ground that the cause of action had arisen far more than twelve years before the suit, they say " We may take it upon this finding that Jugal Kishores branch of the family was found to have been in adverse possession for a long period of time; and it seems to us, that if not in 1771, when the division was made, or if not in 1791, when separate dowls were executed by the two parties for the properties allotted to them respectively, at any rate in 1837, the two pergunnahs Majhwa and Simrown became the absolute and separate property of Jugal Kishores branch of the family. It will be observed that in the suit of 1808, when Gunga Pershad, the son of Sri Kishen, claimed possession of these two pergunnahs, he never suggested that he had any coparcenary interest in these properties " ; and they held that the Government never intended to preserve in the other branches; of the " family any coparcenary interest in the two properties allotted to Jugal." With regard to the question of the exclusion of females from succession to the Raj, the High Court remarked " The Subordinate Judge has held, upon the evidence of certain witnesses mentioned in his judgment, that in this family, as in Darbhanga, Benares, and in several other places, the rule of lineal primogeniture obtains; but he has not expressed any definite opinion as to whether this evidence proves the custom of the exclusion of females. They go on later to say that the family having been, in their opinion, a divided one, the onus of establishing the custom relied upon was entirely upon the plaintiff, and had not been discharged. Haldane, K.C., and Cowell, for the appellant, contended that the High Court was wrong in holding that the East India Company had confiscated the Raj of Bettia in 1771. The evidence shewed that there had been neither confiscation nor forfeiture, but a mere temporary sequestration owing to the disturbed state of the district. Jugal Kishore, who had succeeded by an adoption which it was too late to question either in law or fact by the last owner, his maternal grandfather, was by virtue of the Government proceedings, which were minutely examined, confirmed in his Raj, two pergunnahs being divided off from the Raj and conferred upon collateral branches of the family. All parties took possession of the estates so allotted, and were in as of their former title as claimed with all its incidents. The contention, material to the appeal, was that the Raj which previously had been impartible and joint remained so notwithstanding the action of the Government. All parties took possession of the estates so allotted, and were in as of their former title as claimed with all its incidents. The contention, material to the appeal, was that the Raj which previously had been impartible and joint remained so notwithstanding the action of the Government. There was, therefore, a reversionary coparcenary title in the younger branches of the family to succeed on the extinction of the elder line, and the appellant became entitled in the events which had happened in preference to the widow of the last owner, whose succession depended on her husbands having been separately entitled, freed from the joint claims or suspended reversionary heirship of the collateral branches. Reference was made to Beer Pertab Sahee v. Rajender Pertab Sahee (( 1867) 12 Moores Ind. Ap. 1.), Chowdhry Chintamun Singh v. Nowlukho Konwari (L. R. 2 Ind. Ap. 263.), Muttu Vaduganadha Tevar v. Dorasinga Tevar (( 1881) L. R. 8 Ind. Ap. 99.), and the Shivagunga Case. (9 Moores Ind. Ap. 539.) But the main contention on which the suit had been originally framed, whatever might have been the course of decision in the Courts below, was that the title transmitted by Jugal Kishore to the deceased was to a Raj inheritable by the custom of male lineal primogeniture, which excluded widows and marked out the appellant as the next heir. The plaint had been framed on that view, issues were directed thereto, and the First Court had found in favour of the custom of succession having been by the rule of lineal male primogeniture, meaning thereby a descent to the nearest male heir in the nearest male line. That finding had not been controverted by the High Court. This was not the case of an impartible Raj, descendible to a single heir, in a course of succession prescribed by the Mitakshara, controlled only by a custom which operated for the limited purpose of selecting one heir where the ordinary law could have given it to more than one. It descended by a custom of lineal primogeniture as distinguished from primo geniture—a custom which superseded the ordinary law and prescribed descent to the nearest male heir in the nearest male line see 1 Strange, Hindu Law, pp. 198, 454, and Mohesh Chunder Dhal v. Satrughan Dhal. It descended by a custom of lineal primogeniture as distinguished from primo geniture—a custom which superseded the ordinary law and prescribed descent to the nearest male heir in the nearest male line see 1 Strange, Hindu Law, pp. 198, 454, and Mohesh Chunder Dhal v. Satrughan Dhal. (Ante, p. 62.) The evidence, oral and documentary, supported the finding of the First Court in favour of that custom. Upon the admissibility and sufficiency of that evidence reference was made to the Evidence Act (I. of 1872), ss. 48, 49, and s. 32, cl. 5. Asquith, K.C., Mayne, and Phillips, for the respondent, were not heard. Aug.-2. The judgment of their Lordships was delivered by Lord Davey. The dispute in this litigation relates to the succession to a large estate known as the Bettia Raj. The succession opened on the death of Maharaja Sir Harendra Kishore Singh, who died childless on March 26, 1893. On his death his elder widow Maharani Sheo Ratan Koer took possession of the estates, and on July 26, 1895, the present suit was commenced against her for the recovery of possession by the present appellant Ram Nundun Singh, claiming as the nearest male heir of the deceased Maharaja. The original defendant died after the commencement of the suit, and the present respondent, the second widow, was substituted as defendant. The Bettia Raj now consists of two pergunnahs—Simrown and Majhwa. But at the date when the East India Company became the rulers of Bengal, in 1765, what is now known as the Bettia Raj was included in a larger property called the Raj Reasut of Sirkar Champarun, which was an ancient impartible Raj comprising in addition to pergunnahs Simrown and Majhwa two other pergunnahs called Maihsi and Babra. According to the pedigree in the case, as to which there is no dispute between the parties, the Sirkar Champarun was formerly held by Raj a Guj Singh, who died in 1694, leaving Dhalip Singh, his eldest son and successor to the Raj, and two other sons named Pirthi Singh and Satrajit Singh. The appellant is descended in the direct line from Pirthi Singh. Raja Dhalip Singh died in 1715, and was succeeded by Raja Dhrub Singh, who died in 1763 without sons, but leaving a daughter. The appellant is descended in the direct line from Pirthi Singh. Raja Dhalip Singh died in 1715, and was succeeded by Raja Dhrub Singh, who died in 1763 without sons, but leaving a daughter. On the death of Raja Dhrub Singh his daughters son Raja Jugal Kishore Singh entered into possession of he Sirkar Champarun, and was in possession thereof at the date when the East India Company assumed the government of the province. At the same date the junior branches of Raja Guj Singhs family were represented by Srikishen Singh, son of Pirthi Singh, and Abdhut Singh, son of Satrajit Singh. Whether Raja Jugal Kishore had any title to succeed his maternal grandfather is a matter in dispute. In the course of a litigation at the beginning of the last century Srikishens son and representative alleged he was a mere usurper without title, and the son and successor of Jugal Kishore alleged he had been adopted by his grandfather, or had become his lawful son by some customary mode of affiliation. In this litigation the parts have been changed. The appellant now relies on the adoption of Jugal Kishore, and it is necessary for him to do so in order to make out his title as agnate to Sir Harendra. The respondent, on the other hand, denies any adoption or affiliation by which Jugal Kishore became his grandfathers lawful son. The late Sir Harendra was a descendant in the direct line from Raja Jugal Kishore. It is not denied by the respondent that the Bettia estate is and has always been treated as an impartible Raj; but the appellant contends that, according to the custom of the family, it descends to male heirs only in a course of lineal primogeniture in exclusion of females. He also contends alternatively that the Bettia estate was the joint family property of the predecessors of the late Sir Harendra and himself, between whom there had been no division of estate, and he is therefore entitled to succeed as coparcener by right of survivorship in exclusion of the widows of Sir Harendra, the family being governed by the law of the Mitakshara. The respondent, on the other hand, contended that the Bettia estate, consisting of the pergunnahs Simrown and Majhwa, became and was the self-acquired separate property of Raja Jugal Kishore by grant from the Government in the circumstances now to be stated. The respondent, on the other hand, contended that the Bettia estate, consisting of the pergunnahs Simrown and Majhwa, became and was the self-acquired separate property of Raja Jugal Kishore by grant from the Government in the circumstances now to be stated. On the accession of the East India Company to the government of Bengal, Raja Jugal Kishore offered some resistance to their authority, and the companys troops were dispatched to enforce his submission. Raja Jugal Kishore fled into the neighbouring State of Bundelkhund, and his estates were seized and placed under the management of the companys officers. The exact date on which the flight of Raja Jugal Kishore took place is in dispute. It is variously stated to be October 4, 1765, or the beginning of the year 1766, or even the year 1767. It is only of importance for its bearing on the genuineness of a document put in by the appellant which purports to be a perwana from Lord Clive bearing a date corresponding to January 12, 1766. This document purports to direct payment of an annuity to Raja Srikishen Singh, who is described as the "proprietor and zemindar of Sirkar Champarun," in addition to the "malikana sadusi and zemindari perquisites." Another perwana purporting to bear a date corresponding with April 8, 1769, was also put in by the appellant. This is a document addressed to the " Mokasuddis of pergunnahs Majhwa, &c, of Sirkar Champarun," directing payment of an annuity of the same amount to Raja Srikishen Singh, again described as proprietor and zemindar of the said Sirkar stated to have been for some time past settled upon him. It incidentally describes the Sirkar as consisting of four pergunnahs—Majhwa, Maihsi, Simrown, and Babra. The authenticity of these documents is disputed by the respondent. It is unnecessary now to express any opinion on their genuineness, or to fix the exact date of Raja Jugal Kishores flight. Certain it is that prior to the year 1771 Srikishen had found favour with the Government, and was placed in possession of the zemindari of Sirkar Champarun on some temporary settlement or as farmer of revenue. On June 15, 1771, Mr. Golding, the supervisor of Sirkar Sarun, addressed a letter of that date to the Board of Revenue at Patna. Certain it is that prior to the year 1771 Srikishen had found favour with the Government, and was placed in possession of the zemindari of Sirkar Champarun on some temporary settlement or as farmer of revenue. On June 15, 1771, Mr. Golding, the supervisor of Sirkar Sarun, addressed a letter of that date to the Board of Revenue at Patna. The writer speaks of Sirkar Champarun as being in a state of desolation and ruin, and suggests the readmission of Raja Jugal Kishore as a means of its recovery. He adds "As the plan for settling Sirkar Champarun is now under consideration, I think it necessary to mention that the pergunnah Maihsi, which pays at present about a fourth part of the rents but is not equal to that in extent, was not formerly a part of the zemindari of the Bettia Raj. The inhabitants there, I am informed, were active against Jugal Kishore at the time of his expulsion, and would be now highly disgusted to be placed again under him. I would therefore propose that this district be given to the management of Raja Srikishen and Babu Abdhut Singh, the other branch of Raja Dhrub Singhs family who remained attached to the Company when Jugal Kishore was disaffected and drove out of the country." The judges in the High Court have discussed and commented on the correspondence which ensued on Mr. Goldings letter with the Council at Patna and the Committee of Revenue at Calcutta, and also the important correspondence which took place in the subsequent years 1789 to 1791 with a fullness which renders it unnecessary for their Lordships to traverse the same ground in any detail. They will, therefore, content themselves with stating the results. The Government determined to allot the zemindari of Majhwa and Simrown pergunnahs to Raja Jugal Kishore, and to leave Babra and Maihsi in possession of Srikishen and Abdhut Singh. The Patna Council announced this decision to Mr. Golding in their letter of July 24, 1771, in the following terms— "The Committee of Revenue having approved of the reinstatement of Raja Jugal Kishore, we have now granted to him the zemindari of Majhowa and Simrown pergunnahs, and have settled his revenue as follows " — The revenue settlement was of the entire Sirkar for three years, and certain estimated sums were deducted on account of Babra and Maihsi. Raja Jugal Kishore consented to execute a kabulyat on these terms for pergunnahs Majhwa and Simrown, and was put into possession, but, having failed to pay the Government revenue, he was again dispossessed in the following year. Srikishen and Abdhut refused to execute a kabulyat for the two other pergunnahs alone, and they were also dispossessed. The entire Sirkar thus passed into the posses sion of the Government, and was held by farmers of revenue on temporary settlements until the year 1791. Raja Jugal Kishore received an allowance for maintenance from the Government, and died in 1783 or 1785 leaving a son, Bir Kishore Singh. On October 10, 1789, Mr. Montgomerie, the then Collector, addressed a letter of that date to the Revenue Board asking for advice as to the settlement of Sirkar Champarun. In that letter he mentioned that Srikishen Singh and Bir Kishore Singh were competitors for the zemindari. The Government in the first instance directed a mofussil settlement of Sirkar Champarun to be made for one year only, and reserved their decision as to the future settlement of the district. And on September 22, 1790, the Governor-General in Council (Lord Cornwallis being then the Governor-General) addressed the following letter to the Board of Revenue— " It appearing from our proceeding that the late Raja Jugal Kishore was driven out of the country for acts of rebellion, and upon his being allowed to return into the companys dominions, that the late President and Council thought proper to divide the zemindari of Champarun, allotting to Jugal Kishore the districts of Majhwa and Simrown, and to Srikishen Singh and Abdhut Singh those of Maihsi and Babra, we direct that the heirs of the late Raja Jugal Kishore and Srikishen Singh and Abdhut Singh be respectively restored to the possession and management of the above districts (with the exception of such parts thereof as may belong to other zemindars or taluqdars, being the proprietors of the soil, who are to pay their revenues immediately to the Collector of the district), and that the decennial settlement be concluded with them agreeably to the General Regulations." Both parties were dissatisfied with this decision. Bir Kishore Singh claimed to be entitled to the entire Sirkar Champarun, but in obedience to the orders of the Governor-General he took possession of the two pergunnahs allotted to him, and gave in his agreements for the settlement of them, and at the same time he expressed his hope to be put in possession of the other two pergunnahs also. Srikishen and Abdhut also claimed the entire estate on the ground that Raja Jugal Kishore was not a member of the family and had no title to the estate, as " by the Hindu Shastra the female branch is not entitled to a share of the estate, much less the whole." They accordingly at first refused to give in their kabulyats for the pergunnahs Maihsi and Babra; but on Mr. Montgomeries advice they ultimately did so under protest, and were placed in possession of those two pergunnahs. Separate dowl settlements of Government revenue on the mehals in pergunnahs Majhwa and Simrown, and on those in pergunnahs Maihsi and Babra, were made with and accepted by Bir Kishore and by Srikishen and Abdhut respectively. The Sirkar Champarun was thus divided de facto into two distinct zemindaries, to be held by the grantees at revenues allotted to each of them separately, In the year 1808 Gunga Pershad Singh, the son and successor of Srikishen, who had died in the interval, commenced an action in the Provincial Court of Patna against Bir Kishore Singh to recover possession of pergunnahs Majhwa and Simrown. By his plaint he claimed the Sirkar of Champarun through his father Srikishen, who he alleged was entitled to it as next heir male of Raja Dhrub Singh, and also under an alleged deed of conveyance executed by the last-named Raja of the Rajgi and milkiut of the estate comprising the whole of the aforesaid Sirkar in favour of Srikishen. In his defence Bir Kishore alleged that Raja Dhrub Singh had adopted Jugal Kishore and given him the tilak of the Rajgi, and put him in possession of the entire Sirkar Champarun. The suit was dismissed on the ground that the cause of action was barred by limitation, and the decree was ultimately affirmed on that ground by this Board. (1 Moores Ind. Ap. The suit was dismissed on the ground that the cause of action was barred by limitation, and the decree was ultimately affirmed on that ground by this Board. (1 Moores Ind. Ap. 482.) On these facts the High Court has come to the conclusion that the two pergunnahs Majhwa and Simrown, which are now known as the Bettia Raj, became the separate property of Bir Kishore Singh, free from any coparcenary rights of succession of the branches of the family then represented by Srikishen and Abdhut. They rightly say that the question is not whether there was a confiscation—using that word in its technical or applied sense—but whether the East India Company seized the zemindaries of Sirkar Champarun, assumed dominion over them, and effected a division of the pergunnahs. They point out that Lord Cornwalliss letter of September 22, 1790, states in the clearest terms that Jugal Kishore was driven out of the country for acts of rebellion, and thus shews the basis of the action then taken by the Government. The facts of the present case are in some respects similar to those in the Hunsapore Case (12 Moores Ind. Ap. 1,), dealt with by Lord Cornwallis about the same time; but they differ in this respect—that the grantee in that case was not the dispossessed Raja, but a member of a junior branch of his family. Their Lordships, however, think that equally in this case the grant of the two pergunnahs should be treated as proceeding from the grace and favour of the Government in exercise of its sovereign authority. The Government held itself at liberty to divide the Sirkar into two portions, and to grant one portion away from the heir of the former owner of the estate, and it was equally at liberty to grant the whole away from him, though from reasons of policy it preferred to extend its favour to him in a certain measure. It cannot be doubted that the grant of Maihsi and Babra to Srikishen and Abdhut was a direct exercise of sovereign authority, and proceeded from grace and favour alone, and, if so, it is difficult to avoid the conclusion that the reinstatement of the heir of Raja Jugal Kishore in a portion of his fathers former estate also bore that character. Following the judgment of this Board in the Hunsapore Case (12 Moores Ind. Ap. Following the judgment of this Board in the Hunsapore Case (12 Moores Ind. Ap. 1.), their Lordships think that the present Bettia Raj must be taken to have been the separate and self-acquired property of Bir Kishore Singh, though with all the incidents of the family tenure of the old estate as an impartible Raj. The appellant alleged in his plaint in this suit that Raja Dhalip Singh granted the two pergunnahs Maihsi and Babra and tuppa Duho Suho in pergunnah Majhwa to his brothers Pirthi Singh and Sarajit Singh by way of maintenance and babuana for themselves and their families. His object, of course, was to explain away the division of the Sirkar Champarun originally proposed by Mr. Golding in 1771, and carried into effect by Lord Cornwalliss direction in 1791. He would thus represent that what was done in 1791 was but the restoration of the old order in all respects. This alleged babuana grant is heard of for the first time in the present litigation, and both Courts below have held that the allegation is unsupported by evidence. Indeed, the evidence shews that Raja Jugal Kishore was in possession of all four pergunnahs at the time of his flight or expulsion. It is unnecessary, therefore, to say more about it. Their Lordships will now consider the evidence on the question whether by the custom of this family females are excluded from inheritance. The Subordinate Judge decided this issue in favour of the appellant, but the High Court reversed that finding. At their Lordships bar learned counsel for the appellant endeavoured to shift the burden of proof on the respondent. His argument was that when once you admit a custom as of impartibility you are outside the common law, and it lies upon those who maintain any particular right as of females to take by inheritance to prove it. The answer to this argument lies on the surface Neelkisto Deb Burmono v. Beerchunder Thakoor. (( 1869) 12 Moores Ind. Ap. 523, 542.) "Where a custom is proved to exist it supersedes the general law, which, however, still regulates all outside the custom." There is no inconsistency between a custom of impartibility and the right of females to inherit, as may be illustrated by the well-known Shivagunga Case (9 Moores Ind. Ap. (( 1869) 12 Moores Ind. Ap. 523, 542.) "Where a custom is proved to exist it supersedes the general law, which, however, still regulates all outside the custom." There is no inconsistency between a custom of impartibility and the right of females to inherit, as may be illustrated by the well-known Shivagunga Case (9 Moores Ind. Ap. 539.), and therefore the general law must prevail unless it be proved that the custom extends to the exclusion of females. There is no instance in this family in which the alleged custom prevailed. It is true that the Maharaja Nawal Kishore Singh, grandfather of the late Sir Harendra, succeeded his brother, who died childless, in preference to the latters widow, and in a petition for mutation of names he described himself as having succeeded the late Maharaja according to the custom obtaining in the family. But it appears that he was joint in estate with his brother, and therefore was entitled to succeed him in the family property by survivorship. The documentary evidence consists of awards of two Rajas made in an arbitration as to the succession to an estate of Balia, said to be situate in the same part of the country. The arbitrators found that there was a custom prevailing in the family then in question for a brother to succeed to a Raja dying childless, which proves nothing material to the present case. But one of the arbitrators stated that a similar custom prevailed in the families of Rajas of that part of the country; and the other one, Raja Tejmal, spoke of the custom obtaining " in the family of Rajas of position of olden times." The oral evidence consists of—(1.) the depositions of certain Rajas; (2.) the deposition of the appellant himself; and (3.) that of other witnesses. The evidence of the Rajas is perfectly general, and there is a complete absence of any condescendence on particulars. The evidence of the Rajas is perfectly general, and there is a complete absence of any condescendence on particulars. Two of these witnesses on cross-examination admitted that they did not know personally any instance in which a female had been excluded from the guddi in the estates referred to in their examination-in-chief; and a third admitted he knew nothing of Bettia, and had said that the custom prevailed there " because the custom of all the impartible Rajes must be one and the same ; and a fourth said that " in the whole Presidency of Bengal females are not allowed by custom to sit on the guddi." This evidence, like the statement in Raja Tejmals award, seems to prove too much. On the other hand, at least one instance was given in one of the neighbouring estates where a female had sat upon the guddi. Their Lordships need not refer at length to the evidence of the other witnesses. They none of them speak with any particularity to a custom prevailing in this family, and in some cases their means of knowledge are deficient. Their Lordships agree with the High Court that there is not sufficient evidence of a custom to exclude females from inheritance affecting the Bettia Raj. There remains only the issue whether Raja Jugal Kishore was adopted by his maternal grandfather Raja Dhrub Singh, or became his son and a member of his family by some customary mode of affiliation. The determination of this issue against the appellant would be fatal to his case, because in that case he would not be able to prove that he was of the same family as the late Sir Harendra. The learned judges have not found it necessary for the decision of the present case to decide this issue, and their Lordships agree with them in thinking that it is the better course not to do so, because the same issue may hereafter arise for decision between different parties. The appellants case, however, fails on other grounds, and their Lordships will therefore humbly advise His Majesty that the appeal ought to be dismissed. The appellant will pay the respondents costs.