Judgement Appeal from a decree of the Chief Court (Jan. 3, 1898) varying a decree of the District Judge of Dera Ismail Khan (Nov. 26, 1894), which had dismissed the respondents suit with costs, and directing that in lieu thereof the respondent do receive possession of the appellants recorded half-share in seven villages therein named; and further directing that the respondent do receive possession of the whole of another village named Dabarra, unless the appellant renounces all claim to an allowance made to him by the Government of Rs.5000 a year out of the respondents grant. Law. Rep. 30 Ind. App. 190 ( 1902- 1903) Sardar Muhammad Afzal Khan V. Nawab Ghulam Kasim Khan 89 These seven villages, named (1) Tank, (2) Hayat, (3) Budha, (4) Baloch, (5) Kaura, (6) Daggar, (7) Rukh Ranwal, formed part of an estate of which Nawab Shah Nawaz Khan died possessed on January 10, 1882. The rest of his estate included a jagir and pension of Rs.25,000, to which the respondent was admitted to be exclusively entitled, except so far as the Government had as regards the pension otherwise directed, and five other villages, of which both Courts held the appellant to be entitled to his recorded half-share—a decision from which the respondent did not cross appeal. The appellant was in entire possession of Dabarra under a gift from Nawaz Khan during his lifetime. The appellant is the sole surviving and younger son of Nawaz Khan. The respondent is the only son of Nawaz Khans predeceased elder son. On the death of the late Nawab, which occurred on January 10, 1882, it was (February 26 to March 8, 1882) agreed between the appellant and the respondent that mutation of names should be effected in their favour in equal shares—an arrangement which the Deputy Commissioner sanctioned on March 10, 1882. That arrangement continued, and in 1892-3 the Government again urged that amicable partition should be effected of the whole estate, excluding the jagir income. On February 1, 1892, the appellant petitioned for partition. On August 13, 1892, the respondent sued in the Revenue Court to enforce his claim to the appellants half-share. He was informed that the suit was, under s. 117, sub-s. 2, clause (b), of Act XVII. of 1887, cognizable by a Civil Court; and accordingly his plaint was returned to him. On February 1, 1892, the appellant petitioned for partition. On August 13, 1892, the respondent sued in the Revenue Court to enforce his claim to the appellants half-share. He was informed that the suit was, under s. 117, sub-s. 2, clause (b), of Act XVII. of 1887, cognizable by a Civil Court; and accordingly his plaint was returned to him. Thereafter, on February 3, 1894, the respondent sued in the Civil Court to recover (inter alia) the half-share of the said seven villages and the entire village of Dera, or Dabarra. He alleged that on the death of his father the Court of Wards took the management of his estate, as he was a minor thirteen years of age; that the appellant in those days got mutation of names in respect of half the disputed property, "whereas the plaintiff alone was the rightful owner of the whole of the pro perty according to the custom and practice of the family, the provisions Laid down in the sanads granted by Government, and the own statement of the deceased Nawab, entered in the shajra-nasab (pedigree table) "; that on his attaining majority and being released from the Court of Wards the defendant applied for partition, to which the plaintiff objected, and was referred by the Revenue Court to a civil suit. With regard to the title to the seven villages under appeal, it was alleged that they, together with all other villages the subject of the suit, had remained in the possession of the deceased Nawab " on account of his being the sahib-i-dastar of the family.1 " The whole of the property is owned by the sahib-i-dastar of the family, upon whom the title of Nawab is conferred. The same title has been conferred upon plaintiff." He denied the defendants title to anything but maintenance, and also the validity of his fathers alienation (if any) of village Dabarra to the defendant. In his written statement the appellant denied that the deceased Nawab was, according to the custom and practice of the family, the owner of the whole of the property now under appeal. He alleged that the seven villages were self-acquired by his father, and that Dabarra was his own. He denied the plaintiffs title as alleged. In his written statement the appellant denied that the deceased Nawab was, according to the custom and practice of the family, the owner of the whole of the property now under appeal. He alleged that the seven villages were self-acquired by his father, and that Dabarra was his own. He denied the plaintiffs title as alleged. He alleged that he had been put in possession of his half of the property when it was released from the Court of Wards; that the British Government had declared the whole of Tahsil Tank to be their property; that the headmen of the different villages were appointed lessees of the villages, Nawab Nawaz Khan being appointed lessees of the seven villages now under appeal, and he, the defendant, lessee of Dabarra. "At the time of the recent settlement the Government declared all the lessees of the villages in Tahsil Tank to be the proprietors of their respective villages. Similarly the deceased Nawab was declared to Law. Rep. 30 Ind. App. 190 ( 1902- 1903) Sardar Muhammad Afzal Khan V. Nawab Ghulam Kasim Khan 90 be the proprietor of the villages Nos. 1 to 7 and No. 9, while defendant was declared to be the proprietor of the village Dabarra." He denied that the Nawab acquired proprietary rights in these villages by virtue of his being sahib-i-dastar, and alleged that he was full owner, and that the proprietorship had no connection with the Nawabship. The title of Nawab was not conferred till 1857. He further alleged that the Court of Wards, as guardian of the plaintiff, had always admitted the defendants right, as noted in the official papers " "When plaintiff was released from the protection of the Court of Wards the Deputy Commissioner, with the sanction of the Government, put defendant in possession of the property according to the entries made in the official papers. This being so, plaintiff must be bound to abide by the acts of the Court of Wards." He further pleaded that plaintiffs claim was time-barred under art. No. 142 of the Limitation Act. The District Judge dismissed the respondents suit, finding that no special custom had been established which would give the respondent the right to the ownership of the disputed villages, including the seven under appeal, to the exclusion of the appellant. No. 142 of the Limitation Act. The District Judge dismissed the respondents suit, finding that no special custom had been established which would give the respondent the right to the ownership of the disputed villages, including the seven under appeal, to the exclusion of the appellant. The respondent, he said, "has by no means succeeded in proving that a custom of succession by primogeniture in his family exists." He further found "that the custom of the family is the general custom prevailing in the district—that is, all the sons share equally the property left by the father. It is not proved by the plaintiff that the ownership of the villages in dispute appertains to the title of Nawab—that is, to the head of the family." The Chief Court gathered from the official correspondence which occurred in 1873 that the Government of India would have restored proprietary right in the whole of the villages in Tank proper to the Nawab if it could have done so without causing injustice to others. It construed the grant of Rs.25,000 and the remission of Government revenue of those villages to be in a certain sense restoring him to his proprietary rights, but at the expense of Government and not at that of the leaseholders. The money grant was to be a compensation for the villages which he had lost by reason of their having been settled with others; he was to retain the seven which were his own and hold them in future revenue free. If the Nawabs rights in these had never been extinguished, they should in that case, in accordance with the family custom, devolve upon the eldest son. If, on the other hand, there was a regrant of them, there was nothing to shew that the Government intended to create a fresh grant subject to the ordinary law of inheritance. The intention was that the estate, that is, the seven villages under appeal, should descend integrally to the Nawab for the time being. But, it added, " in conclusion, we would note that the questions in dispute between the parties are questions of great nicety and difficulty, regarding which there is room for considerable difference of opinion. The intention was that the estate, that is, the seven villages under appeal, should descend integrally to the Nawab for the time being. But, it added, " in conclusion, we would note that the questions in dispute between the parties are questions of great nicety and difficulty, regarding which there is room for considerable difference of opinion. The fact that the grants were tenable during the pleasure of the British Government, and are conditional upon good conduct and loyal service, caused us to hesitate about admitting plaintiffs claim to the villages in Tank proper, for it is evident that if the grant is resumed the Nawab for the time being will be a personage of little or no importance. His position will be that of an ordinary land owner and not that of a chief; but the Courts must pass their judgments on the evidence efore them, and must not be influenced by the consideration of improbable contingencies. As a matter of policy it is probably important that the Nawabs position should be strengthened as much as possible." With regard to Dabarra, the District Judge found that it " was given in farm to the defendant, and he thereby afterwards acquired proprietary rights in it, and that it did not belong to Shah Nawaz Khan, and he (Shah Nawaz Khan) relinquished all his rights (if any) in favour of defendant. The plaintiff is, therefore, now estopped from denying the title of the defendant." The judgment of the Chief Court upon this point was "We look upon Dabarra as an appanage conferred on defendant as a younger son of the chief for his subsistence, and as such he is entitled to Law. Rep. 30 Ind. App. 190 ( 1902- 1903) Sardar Muhammad Afzal Khan V. Nawab Ghulam Kasim Khan 91 keep it. Rep. 30 Ind. App. 190 ( 1902- 1903) Sardar Muhammad Afzal Khan V. Nawab Ghulam Kasim Khan 91 keep it. Probably he is not full proprietor, and any alienation effected by him would not enure beyond his lifetime, at all events as against the chief; but it is not necessary for us to decide the point." It then referred to the grant of Rs.5000 to the defendant by the Government out of the grant of Rs.25,000 " which ought to have descended integrally to the plaintiff." It held that s. 4 of the Pensions Act, 1871, prevented interference with the arrangement made by the Government, " but as it was illegal and in contravention of the sanad, we consider that we are entitled to call on the defendant to elect which maintenance he will take—that provided by his father, or that provided by the Government. He is not entitled to keep both Dabarra and Rs.5000 per annum. It is hardly necessary to say that he can have no possible claim to retain the whole of Dabarra along with one-half of the other villages. His father assigned the villages to him for his maintenance, and the assignment would never have been made if he had contemplated the possibility of his succeeding to a half-share in the other villages." It accordingly gave the plaintiff a decree for possession of Dabarra, subject to a condition that it should not be executed if within six months the defendant elected to keep it and to forego all claim to the grant of Rs.5000 per annum. Asquith, K.C., and De Gruyther, for the appellant, contended that the proprietorship vested in Nawaz Khan of. the seven villages under appeal by virtue of the settlement proceedings in 1854 was heritable according to the local custom as concurrently found by both Courts. On the other hand, no custom of impartibility or of succession by primogeniture was either alleged or proved. No special family custom had been proved under which these villages could be said to be appurtenant to the Nawabship. It was not the intention of the parties to the sanad of January 29, 1874, or of the settlement of 1854, that these villages should be so appurtenant. The intention. of the Government was to create a new tenure subject to the ordinary law of inheritance, and not to reinstate Nawaz Khan in any portion of his ancestral rights. It was not the intention of the parties to the sanad of January 29, 1874, or of the settlement of 1854, that these villages should be so appurtenant. The intention. of the Government was to create a new tenure subject to the ordinary law of inheritance, and not to reinstate Nawaz Khan in any portion of his ancestral rights. The respondent had not shewn any title to eject the appellant by virtue of any grant or sanad from the British Government. No custom had been proved under which the respondent was entitled to eject the appellant from his inherited half-share of these seven villages. Reference was made to Punjab Laws Act IV. of 1872, ss. 40, 43, 44, and 47, as amended by Act XII. of 1878, ss. 5, 6. As regards Dabarra, the respondent is by concurrent findings of the Court not entitled to recover the half-share; and the appellant is entitled to retain the whole of it unfettered by the condition that the respondent should recover it from him if he elected to forego the grant of Rs.5000 per annum. Sir W. Rattigan, K.C., and C. W Arathoon, for the respond ent, contended that the Chief Court was right. There had been no confiscation and regrant, and therefore the old proprietary rights continued. Those rights were acquired by Katal Khan and Sarwar Khan by conquest, and were of the nature of exclusive ownership of impartible estate. Nawaz Khan was restored to possession in 1847 in recognition of his hereditary right. The history of the family shews the invariable descent from father to his eldest son to the exclusion of the younger sons. Lineal primogeniture and impartibility should therefore be presumed or held to be established. Mutta Vaduganadha Tevar v. Dorasingha Tevar (( 1881) L. R. 8 Ind. Ap. 99, 112,115) and Thakur Nitrpal Singh v. Jai Singh Pal (( 1896) L. R. 23 Ind. Ap. 147, 151,) were referred to. See Elphinstones Cabul, vol. ii. pp. 62, 66; Sir Herbert Edwardes Year on the Punjab Frontier, pp. 351, 370; Masseys History of Punjab Chiefs, p. 572; Settlement Report of Dehra Ismail Khan District, pp. 118, 122. All the holders of this property were recognised as ruling chiefs, and one was allowed to succeed see Gunesh Dutt Singh v. Moheshur Singh. (( 1855) 6 Moores Ind. Ap. Ca. 351, 370; Masseys History of Punjab Chiefs, p. 572; Settlement Report of Dehra Ismail Khan District, pp. 118, 122. All the holders of this property were recognised as ruling chiefs, and one was allowed to succeed see Gunesh Dutt Singh v. Moheshur Singh. (( 1855) 6 Moores Ind. Ap. Ca. 164,189,190,191) The absence of peaceable succession did not alter the position see Hunsapore Case (( 1867) 12 Moores Ind. Ap. Ca. 1.); Mutta Vaduganadha Tevar v. Dorasingha Tevar. (L. R. 8 Ind. Ap. 99, 115,116.) There has never been any partition in this family or of this estate. The course of decision shewed that in families of this kind confiscation did not interfere with the impartible nature of an estate or its mode of devolution see Beer Per tab Sahee v. Rajender Per tab Sahee (12 Moores Ind. Ap. Ca. 1, 29, 36.); Periasami v. Law. Rep. 30 Ind. App. 190 ( 1902- 1903) Sardar Muhammad Afzal Khan V. Nawab Ghulam Kasim Khan 92 Periasami (( 1878) L. R. 5 Ind. Ap. 61); Bhagwan Singh v. Secretary of State for India (( 1874) L. R. 2 Ind. Ap. 38.); Srimantu Raja Yarlagadda Mallikarjuna v. Srimantu Raja Yarlagadda Durga (( 1890) L. R. 17 Ind. Ap. 134.) ; Lakshmipathi v. Kandasami (( 1892) Ind. L. R. 16 Madr. 54. 57); Choudhri Makbal Husain v. Lalta Pershad (( 1901) L. R. 28 Ind. Ap. 169, 177.); Ram Nundun Singh v. Janki Koer. (( 1902) L. R. 29 Ind. Ap. 178.) As for the gift of Dabarra to the appellant, that was invalid unless it was shewn to have been accompanied with posses sion see Ameeroonnissa Khatoon v. Abedoonnissa Khatoon (( 1874) L. R. 2 Ind. Ap. 87,104.); Khajooroonissa v. Roushun Jehan (( 1876) L. R. 3 Ind. Ap. 291.); Mogulsha v. Mahamad Sahib (( 1887) Ind. L. R. 11 Bomb. 517.); Meher Ali v. Tajudin (( 1888) Ind. L. R. 13 Bomb. 156.); Lala Gowri Sunker Lal v. Janki Pershad. (( 1889) L. R. 17 Ind. Ap. 57, 61.) De Gruyther replied. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. Shah Nawaz Khan, Nawab of Tank, died on January 10, 1882, leaving him surviving a grandson, Ghulam Kasim Khan (the son of his elder son, Muhammad Akbar, who had predeceased him), and a son, Muhammad Afzal Khan. (( 1889) L. R. 17 Ind. Ap. 57, 61.) De Gruyther replied. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. Shah Nawaz Khan, Nawab of Tank, died on January 10, 1882, leaving him surviving a grandson, Ghulam Kasim Khan (the son of his elder son, Muhammad Akbar, who had predeceased him), and a son, Muhammad Afzal Khan. At the time of the Nawabs death the grandson was thirteen years of age, and the son about twenty-three years old. Upon their joint application the Nawabs estate was transferred into their two names, as proprietors in equal shares; but this mutation is not relied on, as Ghulam Kasim Khan was then a minor, and the Nawab having died in debt the management of his property was undertaken by the Court of Wards. On October 6, 1882, the Government of India sanctioned the appointment of Ghulam Kasim Khan, the grandson of the late Nawab, to be the successor " to the title and position of Nawab and Chief of Tank, and also to the entire jagir and cash assignment enjoyed by the late Nawab," subject to a deduction of certain emoluments "for the maintenance of the son and the two widows left by Shah Nawaz Khan." The young Nawab attained his majority in 1892, and the estate was released from the superintendence of the Court of Wards. His uncle thereupon claimed partition, basing his claim on the mutation proceedings; but the Revenue Court declined to enter into the question of title, and referred the parties to the Civil Court. The present suit was, therefore, instituted in February, 1894, the respondent being plaintiff and the appellant defendant. The claim was to recover the half-share of Shah Nawazs property entered in the defendants name in 1882, on the ground that, "according to the custom and the practice of the family," the whole of it belonged to the chief for the time being as head of the family and by virtue of his chiefship. The claim was to recover the half-share of Shah Nawazs property entered in the defendants name in 1882, on the ground that, "according to the custom and the practice of the family," the whole of it belonged to the chief for the time being as head of the family and by virtue of his chiefship. The defendant, in his written statement, denied the custom, and asserted that "in matters relating to succession the parties family has always been bound by Mahomedan law." It is now admitted that the Mahomedan law does not apply, and that the decision of the claim depends upon the custom existing in the family— that is to say, whether the estate goes with the chiefship, as alleged by the plaintiff, or devolves according to the custom of the district, under which, the defendant asserts, the property would be divided between the son and grandson of the late Nawab in equal shares. The District Judge found that the plaintiff had failed to prove the special custom alleged by him and dismissed the suit. The Chief Court of the Punjab, on appeal, reversed this decision, and gave the plaintiff a decree for possession of defendants recorded half-share in seven villages, namely, (1) Tank, (2) Hayat, (3) Budha, (4) Baloch, (5) Kaura, (6) Daggar, and (7) Rukh Ranwal. As to an eighth village, Dabarra, the Court gave the plaintiff a decree for possession, (with this proviso, that the decree will not be executable if, within six months from this date, defendant renounces all claim to the Law. Rep. 30 Ind. App. 190 ( 1902- 1903) Sardar Muhammad Afzal Khan V. Nawab Ghulam Kasim Khan 93 allowance of Rs.5000 per annum made to him by Government out of plaintiffs grant. If he either refuses or fails to renounce such claim within such period, then plaintiff will be entitled to execute his decree." The present appeal is against both branches of this decree. A great body of evidence, both oral and documentary, was adduced as to the history of Tank and its rulers prior to the British annexation of the Punjab, from a consideration of which the Chief Court arrived at the following conclusions— "1. The country known as Tank proper belonged to the chief for the time being, who was both ruler and proprietor. "2. The country known as Tank proper belonged to the chief for the time being, who was both ruler and proprietor. "2. Succession devolved upon the eldest son of the chief, the members of his family being entitled to maintenance only." In these conclusions their Lordships concur. The history of the chiefs of Tank, as shewn in this record, was marked by many vicissitudes. Originally independent, they became tributary in turn to the Afghans and the Sikhs; they were sometimes in power, and sometimes in exile; but, so far as the evidence extends, the succession to the chiefship went always in the line of primogeniture, except in one instance, in which the eldest son was set aside on the ground of insanity. And with the chiefship went the ownership of the lands of the ilaka. As Sir John Lawrence observes, in a memorandum of March 17, 1854 " Previous to the expulsion of the father of Shah Nawaz, he was virtually the chief and the landed pro prietor of the whole of Tank. All other classes had been reduced to complete subjection." When the settlement of the country was made, after the introduction of British rule in 1849, it was the policy of the Government to recognise the occupiers of the soil as the proprietors of their respective lands; and although Shah Nawaz Khan asserted a proprietary title, by virtue of his chiefship, to all the villages—sixty-seven in number—which formed the pergunnah of Tank, his claim was eventually admitted in regard to seven only, namely, (1) Tank, (2) Baloch, (3) Budha, (4) Kaura, (5) Hayat, (6) Daggar, and (7) Dabarra. These are the villages now in dispute; the eighth, Rukh Ranwal, being a tract of grass land used for grazing horses and appurtenant to Tank. Their Lordships agree with the Chief Court that the effect of this settlement was not to create a fresh estate subject to the ordinary law of inheritance, but to continue to the chief for the time being, as it were jure corona, the proprietorship of the villages which had been founded by his ancestors, and the succession to which had theretofore been regulated by the custom of the family. This view is supported by what took place in 1875, when, as the result of considerable negotiation, the Government of India conferred upon Shah Nawaz Khan, as an hereditary jagir, a cash allowance of Rs.25,000 per annum, together with the land revenue of the seven villages above mentioned, to be "held on condition of good service, and descend from the Nawab integrally to the successor in the direct male line who may be selected by the Government as most competent." In sanctioning this grant the Governor-General in Council expressly recognised that " the status accorded to the occupiers of the soil" under the regular settlement could not be altered, and accordingly made no change in the position in which the Nawab already stood in regard to the proprietorship of these villages, as distinguished from their liability to payment of Government revenue. Upon the terms of this arrangement being communicated to Shah Nawaz Khan, he " expressed a wish that separate provision might be made for his younger son, Muhammad Afzal Khan, in the event of the elder son, Muhammad Akbar Khan, being selected by Government to succeed him as Nawab and Jagirdar at a future time " ; and he was informed, in reply, that " he himself had always stated it to be the rule in the Katti Khel family that the head of the family should alone arrange what provision should Law. Rep. 30 Ind. App. 190 ( 1902- 1903) Sardar Muhammad Afzal Khan V. Nawab Ghulam Kasim Khan 94 be made for junior members. Rep. 30 Ind. App. 190 ( 1902- 1903) Sardar Muhammad Afzal Khan V. Nawab Ghulam Kasim Khan 94 be made for junior members. Such being the case, the authorities saw no cause to deviate from what was acknowledged by the Nawab himself to be the recognised and established custom of his house." In pursuance of this suggestion, Shah Nawaz Khan, on June 23, 1876, applied to the settlement officer that the name of his son Muhammad Afzal Khan should be entered as proprietor of the village of Dabarra, " so that he may remain in possession of it and enjoy the whole of its produce, while I will have nothing to do with the village " ; and the order upon this application was " that an entry should be made according to the request of the Nawab, who, in the capacity of a Jagirdar, will hold the village as before." The Chief Court held that, under these proceedings, Dabarra became " an appanage conferred on defendant as a younger son of a chief for his subsistence, and as such he is entitled to keep it" ; but the learned judges considered that as the Government, on the death of Shah Nawaz Khan, transferred Rs.5000 of his cash allowance to the defendant, they were " entitled to call upon the defendant to elect which maintenance he will take—that provided by his father or that provided by the Government.* Their Lordships can discover no ground for putting the defendant to this election; the cash allowance and the assignment of the village arise from different sources, and are independent of each other; and without expressing any opinion as to the permanency or otherwise of the alienation of Dabarra, their Lordships consider that, as regards Dabarra, the conditions imposed by the decree of the Chief Court cannot be supported. Their Lordships will humbly advise His Majesty that the decree of the Chief Court, so far as it directs that the plaintiff should receive possession of defendants recorded half-share in the villages of (1) Tank, (2) Hayat, (3) Budha, (4) Baloch, (5) Kaura, (6) Daggar, and (7) Rukh Ranwal, be confirmed and the appeal dismissed; and so far as it relates to possession of Dabarra that the appeal should be allowed, and the defendant declared entitled to the benefit of the grant of the village for his maintenance made by Shah Nawaz Khan without renouncing his claim to the allowance of Rs.5000 per annum made to him by Government; and that in other respects the decree of the Chief Court should be confirmed. As the respondent has succeeded as to the greater part of his claim, the appellant must pay to the respondent three-fourths of his costs of this appeal, and the respondent must pay to the appellant one-fourth of his costs thereof with the usual set-off.