Judgement Appeal by special leave from a decree of the High Court (Aug. 21, 1896) affirming a decree of the District Judge of Bankura (Dec. 28, 1891) and dismissing the appellants suit. The suit was brought against the respondent Satrughan and others to recover in ejectment, alleging that the Raj in suit was an ancestral, joint, impartible estate called Dhalboom, which, according to (a) the Mitakshara law, (b) Regulation X. of 1800, (d) the local custom, and (d) the family custom, descended, failing a son of the last Raja Ram Chunder Dhal III., to the nearest and eldest of the heirs, and contending that Nityanund, the plaintiff, was such nearest heir and was entitled to the said estate. The respondent pleaded— (1.) That by family usage and local custom, the property of the family descended by the rule of lineal primogeniture. (2.) That in the said family it was a custom that the eldest son of the Raja for the time being got the title of Jubaraj, or Chota Raja. The second son got the title of Hikim, the third that of Bara Thakoor, the fourth that of Koer, the fifth that of Moosib, and all the rest took the title of Babu, and that the descendants of each took in succession by the rule of lineal primogeniture, and that this rule had been followed in the said family in all cases of succession. (3.) That the respondents grandfather was the second son of Raja Jagannath I., and the uterine brother of Raja Earn Chunder II., who succeeded his father, Raja Jagannath I., as Raja of Ghatsila, and that the respondent was, therefore, by the rule of lineal primogeniture, to be preferred to Nityanund, the plaintiff, who was a descendant of Raja Kamala Kant, the fourth son of Raja Jagannath I. The District Judge dismissed the suit. He observed that the appellant, who represented his grandfather Nityanund, the original plaintiff, claimed as the nearest and senior heir of the last owner, while the respondent claimed by the rule of lineal primogeniture, alleging that he represented a branch of the family elder to that of the appellant; and that it was admitted that the estate in suit was impartible, and that it had been proved that the family was governed by the Mitakshara law. He held that both by Mitakshara law and by family custom the succession was according to the rule of lineal primogeniture, and that the nearer in degree did not exclude the more remote. The High Court found that it had been proved that the custom of lineal primogeniture prevailed as well in this family as in other families of zemindars whose estates are included within the Jungle Mehals, and further, that Hikim Nursing, the grandfather of the respondent, was the second son of Raja Jagannath I., and that Kamala Kant, the appellants predecessor, was his fourth son; and they held further that, even if that had not been so, Nityanund would not be entitled to succeed to the said estate in the presence of the defendant Raja Iswar Chunder, who was descended from the elder son of the said Kamala Kant, and would therefore be preferred to him. Sir W. Rattigan, K.C., and C. W. Arathoon, for the appellant, contended that the respondent, on whom the burden of proof lay, had failed to prove that the custom of lineal primogeniture prevailed in the Dhalboom family. Not one instance of collateral descent to the nearest member of the eldest branch to the exclusion of the still nearer members of the younger branch had been proved. Many witnesses admitted ignorance of the customs and usages in this family, and made contradictions and varied statements as to the usage in their own families. They also contended that the statement made by Raja Chitreswar in 1845 and referred to in the judgment of their Lordships was a complete answer to the custom alleged, and had been misunderstood by the High Court. The instances of succession relied on by the Courts below in other families shewed succession in direct descent from father to son and grandson, and such descent is not necessarily dependent on a custom of lineal primogeniture applicable in cases of collateral relationship. The rule as to concurrent findings of fact does not apply; for a question of custom, such as this, altering the legal devolution of the family estate and ousting the application of the ordinary law, is one of a special character. This estate is in the district of Midnapore, and is included in the Jungle Mehals; and see Regulation X. of 1800, referring to Regulation XI. This estate is in the district of Midnapore, and is included in the Jungle Mehals; and see Regulation X. of 1800, referring to Regulation XI. of 1793, which only provides for impartiality in particular instances, and does not prescribe any special law of succession; so that in the absence of special custom the ordinary Hindu law must regulate the devolution of this estate. The real test is nearness of blood relationship, and in this case Nityanund is one degree nearer than the defendant see Maynes Hindu Law (last ed.), p. 542, s. 717; see also the Shivagunga Case (( 1863) 9 Moores Ind. Ap. Ca. 589.); Jogendra Bhupati v. Nityanund Mansingh (( 1890) L. R. 17 Ind. Ap. 128, 539, 588, 131.) ; Subramaniya Tandy a Chokka Talaver v. Siva Subramaniya Pillai (( 1894) Ind. L. R. 17 Madr. 316.) ; Menu, c. ix., v. 187; , Mitakshara, c. ii. s. 3, vv. 3 and 5; Vivada Chintamoni, p. 274, para. 3; p. 295. Jollys Tagore Law Lectures, 1883, p. 172, end of 1st para, rightly sums up the law of succession. The same principle applies under the Dayabhaga system. "When a family custom of descent to a single heir is proved to exist, the custom so proved supersedes the general law. The latter, however, still regulates all beyond the custom, including the principle on which such heir is to be selected see Neelkisto Deb Burmono v. Beerchunder Thakoor (( 1869) 12 Moores Ind. Ap. Ca. 523); Stree Rajah Yanumula Venkayamah v. Boochi Venkondora (( 1870) 13 Suth. W. E. P. C. 21); Maynes Hindu Law, s. 546. Then as to the establishment of a family custom, that is different from a territorial custom see Hurpurshad v. Sheo Dyal (( 1876) L. R. 3 Ind. Ap. 259,285.); Doorga Persad Singh v. Doorga Konwari.(( 1878) L. R, 5 Ind. Ap. 149,160.) Asquith, K.C., and Branson, for the respondent, Satrughan Dhal, contended that the question of custom was one of fact to which the rule relating to concurrent findings applied. There are concurrent findings of the Courts below that the succession in the family was by custom according to the rule of primogeniture. Ap. 149,160.) Asquith, K.C., and Branson, for the respondent, Satrughan Dhal, contended that the question of custom was one of fact to which the rule relating to concurrent findings applied. There are concurrent findings of the Courts below that the succession in the family was by custom according to the rule of primogeniture. Apart from that rule, they contended that on the evidence the High Court was right in affirming the finding of the lower one, and that accordingly the respondent, who was descended from the second son of Raja Jagannath I., who originally took the settlement of the estate from the British Government in 1777, was entitled in preference to the appellant, who was descended from the fourth son. Apart from custom, the High Court was right in ruling that where an estate descends to a single heir then by the Mitakshara law descent follows the rule of lineal primogeniture. Having regard to the well-established principle of Mitakshara joint ownership, of coparcenary dating from birth, and succession being determined by survivorship rather than by inheritance, the title in case of succession to a single heir must vest in one who, if the estate were partible, would be entitled to demand partition. The preferential right can only be determined in one of three ways—(1.) nearness in blood relationship ; (2,) seniority in age; (3.) seniority of stock from which the claimant is descended. The rule Lald down in Naraganti Achamma Garu v. Venkatachalapati (( 1881) Ind. L. R. 4 Madr. 250.) is the right one, namely, that where as in impartible estates the right of exclusive possession passes from one line of descent to another, it devolves in the absence of proof of special custom of descent on the nearest coparcener in the senior line, and not necessarily on the coparcener nearest in blood. See also Muttuvaduganadha Tevar v. Periasami (( 1892) Ind. L. R. 16 Madr. 11; S.C. in appeal,), where it is Lald down by the High Court with the approval of the Privy Council that if an impartible estate devolves on the eldest of three sons by the custom of primogeniture to the exclusion of the others, the preference due to seniority of birth is not a mere personal privilege, but a heritable interest which descends to his lineal heirs as his representatives. The elder sons right to exclude his brother when once established is continued to his lineal male heirs, and the senior stock must be exhausted before a junior stock can be resorted to. The custom, so far as it derogates from law in this case, applies simply to the mode of enjoyment; as regards the mode of devolution, it is in affirmance of or agreement with the law. Sir W. Rattigan, E.G., replied. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The only question on this appeal is whether the Calcutta High Court was right in holding that lineal primogeniture is the rule of succession in the Dhalboom family, whose headquarters are at Ghatsila. There were other questions raised in the suit, but they have all been finally determined. In the Court of first instance the District Judge of Bankura seems to have come to the same conclusion. He found that the rule of succession in the family was lineal primogeniture "in a limited form." He did not, however, explain what he meant by that qualification, and no satisfactory explanation of it has been offered. The High Court, considering that the question was merely a question of fact on which they agreed with the Lower Court, properly declined to give leave to appeal. This Board, how ever, under the circumstances, recommended that special leave should be given. All the evidence that was adduced in the lower Court was Lald before their Lordships, and the case was very ably argued on behalf of the appellant. But their Lordships see no reason to differ from the conclusion at which the High Court arrived. It will therefore not be necessary for their Lordships to deal with the matter in any detail. The property in dispute is undoubtedly an impartible Raj which descends upon a single heir. The last owner, Raja Bam Chundar Dhal III., died on January 5, 1887, without issue. On his death the eldest line of descent from Raja Jagannath I., who took settlement of the estate from the Government in 1777, became extinct. The property in dispute is undoubtedly an impartible Raj which descends upon a single heir. The last owner, Raja Bam Chundar Dhal III., died on January 5, 1887, without issue. On his death the eldest line of descent from Raja Jagannath I., who took settlement of the estate from the Government in 1777, became extinct. A contest then arose between the respondent Satrughan Dhal, the eldest male lineal descendant of the second son of Jagannath I., and the original plaintiff, Nityanund Dhal (now represented by the appellant), who was descended from the fourth son of Jagannath I., but was nearer by one degree to the person from whom descent was traced. The Dhalboom family is one of a group of families whose ancestors originally came from the north-west of India and established themselves by conquest in that part of Bengal which is known as the Jungle Mehals. Some of these families, like the Dhalboom family, are now governed by the Mitakshara law, and others by the Daya Bhaga. But there are intermarriages between them. In all the Raj descends on a single heir. These families, or, at any rate, the more important of them, keep up a sort of semi-royal state, and dignify the heir apparent and those in immediate succession with titles of honour which denote precedence. Thus in the Dhalboom family the eldest son of the ruling Raja takes the title of Jubaraj, the second that of Hikim, the third that of Bara Thakoor, the fourth that of Koer, the fifth that of Musib, and the remaining sons that of Babu. It cannot be disputed that according to the kulachar or custom in this family, and those belonging to the same group, a grandson whose father is dead succeeds to the grandfathers estate in preference to a surviving uncle. But it was contended on the part of the appellant that this does not prove that the rule of lineal primogeniture applies in cases of collateral relationship. Standing alone it might not be sufficient to establish the point, though it has an important bearing on the question. Then it was said that there is no instance of a case of descent among collaterals on all fours with the present. That is quite true. Of course, such cases must be exceedingly rare. Standing alone it might not be sufficient to establish the point, though it has an important bearing on the question. Then it was said that there is no instance of a case of descent among collaterals on all fours with the present. That is quite true. Of course, such cases must be exceedingly rare. On the other hand, there is no instance of a collateral relation in a junior line nearer in degree being preferred to the descendant of an elder line. The High Court relied on the oral evidence, which was very fully discussed in the Court of first instance. There was abundant evidence to shew that it was well understood in the family, and in families belonging to the same group, that no descendant of a younger branch could take until all the elder branches were exhausted. But there again no witness was able to point to an actual instance in which, in cases of collateral relationship, the rule had either been followed or departed from. The evidence, of course, would have been much stronger if the witnesses had been able to cite instances confirming their view. But still the evidence is not to be disregarded. The High Court relied principally on certain decrees relating to disputes in families, belonging to the same group, in which it was decided that the rule of succession was lineal primogeniture. These decrees do not, of course, bind the parties to the present suit, but they go a long way to shew the prevalence of the custom among families having a common origin, and settled in the same part of the country. Lastly, the High Court relied on the precedence conferred or marked by the titles of honour given to the sons of the reigning Raja in order of seniority, a precedence which would naturally be attached to the lines of descent traced from them. All these various considerations point in one direction, and in one direction only. The principal argument on behalf of the appellant apart from the obvious argument that no one of these considerations would be sufficient of itself was founded on a statement or return made in answer to an official requisition on a printed form by the grandfather of the last owner, Chitreswar II., when he was the ruling Baja. The principal argument on behalf of the appellant apart from the obvious argument that no one of these considerations would be sufficient of itself was founded on a statement or return made in answer to an official requisition on a printed form by the grandfather of the last owner, Chitreswar II., when he was the ruling Baja. Their Lordships think that the learned judges of the High Court were right in treating this as an important document, and also in declining to accept it as laying down any positive rule of succession in the family. It is a clear statement of succession as regards the Bajas own sons. In dealing with more remote relations the Baja does not seem to have arranged the members of his family in any intelligible order of succession. He puts a person who was one generation distant from him before a person who was two generations distant, but immediately afterwards he puts a person who was four generations distant before two persons only two generations distant. And indeed the heading of the column in which the relationship of these persons is stated does not seem to require that the names entered therein should be arranged according to their order of succession to the estate. The heading simply requires that there should be written "how many sons, how many brothers and brothers sons, the zemindar has, and amongst them who are near and who are remote, and by how many generations remote, with particulars.” Their Lordships therefore, agreeing with the High Court, will humbly recommend His Majesty that this appeal should be dismissed. The appellant will pay the costs of the first respondent, who alone defended this appeal.