Judgement Consolidated appeals from a decree of the Court of the Judicial Commissioner (May 4, 1906) modifying a decree of the Subordinate Judge of Sitapur (June 18, 1905). The principal question raised in the appeal was as to the right of succession to the property of one Mannu Singh, who died on May 24, 1896. The claimants were Jote Singh, his brother, and the appellants Chokhey Singh and Gajraj Singh, his nephews, the sons of a deceased brother. Under the; ordinary Hindu law applicable, Jote Singh was the nearest heir and entitled to succeed to the whole estate, but, notwithstanding this fact, mutation of names was made by order dated November 5, 1896, in the following manner eight annas in the name of Jote Singh; eight annas in the names of Chokhey Singh and Gajraj Singh, the former, being the elder, having a slightly larger share. The mutation was made in this form by arrangement between all parties, the reason being that Chokhey Singh and Gajraj Singh, though excluded from inheritance by the ordinary law, claimed to be entitled to the whole estate under an oral will of Mannu Singh and as joint in estate with him, and also claimed one half by custom of succession in the family as opposed to the Hindu rules of inheritance. After mutation of names the parties remained in possession of their respective shares, and later a perfect partition of the estate was effected in accordance with the provisions of Act XVII. of 1876. On November 24, 1904, the respondent Jote Singh sued to recover possession from the appellants of an eight-anna share of Mannu Singhs estate. He claimed title as next heir, and alleged that his consent to the mutation proceedings was given under a misconception of law. In defence a written statement war- filed, and it was pleaded that by custom nephews were not excluded by brothers, that a valid compromise had been made at the time of the mutation proceedings, and that Jote Singh was estopped from asserting his present claim. The Subordinate Judge decreed in favour of the respondent, holding that the dispute as to title was not settled by a compromise as alleged by the appellants ; that the succession was not governed by special custom; and that the respondent was not estopped from asserting title under the ordinary Hindu law. The Subordinate Judge decreed in favour of the respondent, holding that the dispute as to title was not settled by a compromise as alleged by the appellants ; that the succession was not governed by special custom; and that the respondent was not estopped from asserting title under the ordinary Hindu law. The appellate Court by their decree affirmed this decision in all respects except as regards one village named Bihat Biram, as to which they decided that the appellants plea of estoppel must be allowed. The appellants appealed therefrom on the ground that the suit should have been totally dismissed, the respondent on the ground that his title to the village of Bihat Biram should have been also decreed thereby. De Gruyther, K.C., and J. Redwood Davies, for the appellants, contended that, notwithstanding concurrent findings of the Courts below, there was sufficient evidence to establish the compromise under which they were entitled to a half-share in the property in suit. The respondent was estopped by his conduct and by the provisions of the Oudh Land Revenue Act (XVII. of 1876) from claiming any portion of the property in suit which had been allotted to the appellants. The respondents cross-appeal ought to be dismissed, for the appellate Court was right on the grounds stated in the judgment in holding that at least estoppel applied to so much of the suit as related to Bihat Biram see ss. 68, 73, 74, and 75; Muhammad Imam Ali Khan v. Sardar Husain Khan. (( 1898) L. R. 25 Ind. Ap. 161.) Sir R. Finlay, K.C., and Ross, for the respondent, Jote Singh, contended that estoppel had no more application in the case of the village of Bihat Biram than to the rest of the suit, and that the First Court was right in decreeing it in toto. In the partition proceeding relied upon the respondent expressly reserved his right to question by suit the title claimed by the appellants, and the possession allotted to them was subject to the result of such suit. The village of Bihat Biram stood on the same footing with respect to estoppel as the rest of the property sued for. Reference was made to s. 219 (b) and (e) of the Act, and to ss. 89 and 68. De Gruyther, K.C., replied. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. The village of Bihat Biram stood on the same footing with respect to estoppel as the rest of the property sued for. Reference was made to s. 219 (b) and (e) of the Act, and to ss. 89 and 68. De Gruyther, K.C., replied. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. The suit out of which these appeals arise relates to the right of succession to the property of one Mannu Singh, who died childless on May 24, 1896. The property consists of shares in some thirty villages in the district of Sitapur, in the province of Oudh. The claimants are Jote Singh, the only surviving brother of the deceased, and Chokhey Singh and Gajraj Singh, his nephews, the sons of a brother who had predeceased him. It is not disputed that, under the ordinary Hindu law applicable to the family, Jote Singh was the nearest heir and entitled to succeed to the whole estate. His nephews, however, sought to defeat his claim on various grounds. They alleged that they had been joint with Manna Singh during his lifetime, and that he had made an oral will in their favour. Both Courts in India found against them on these points. They set up a family custom whereby brothers and brothers sons are entitled to succeed together, but they entirely failed to establish such a custom. They further asserted a compromise—and this was the only ground argued before their Lordships—under which they claimed to have acquired a half-share in the estate by agreement with Jote Singh. There is no doubt that by an order of November 5, 1896, mutation of names in respect of Mannu Singhs property was effected in the following manner, namely, one half into the name of Jote Singh and one half into the names of Chokhey Singh and Gajraj Singh, the former, being the elder, having a slightly larger share. But this mutation of names by itself confers no proprietary title, and it was therefore sought to prove that it was the result of a valid compromise made at the time of the mutation proceedings, and that Jote Singh was thereby estopped from asserting his present claim. Both Courts in India have found as a fact that there was no such compromise, and their Lordships see no reason to dissent from the conclusion at which they arrived. Both Courts in India have found as a fact that there was no such compromise, and their Lordships see no reason to dissent from the conclusion at which they arrived. It was, however, argued before their Lordships that the Courts below had not given sufficient attention to a document (exhibit A 1) signed by the three claimants in the mutation proceedings, in which it is stated that "Jote Singh, own brother of the deceased, is in possession of half of the haqqiat of the deceased, and Chokhey Singh and Gajraj Singh in equal shares, after deducting the jethansi right of Chokhey Singh at the rate of 4 per cent., are in possession of the other half of his share. There is no other legal heir except the deponents. The mutation in respect of the deceaseds share in all the villages should be allowed and nobody has any objection thereto." There is no reference in the document to any compromise, and it does not appear to their Lordships that it contains any words that can be construed as amounting to an abandonment by Jote Singh of his legal rights. It is merely a statement of the facts as they existed in regard to the possession of the property —the main point considered by the revenue authorities upon applications for mutation of names—and, by its silence as to a compromise, tends to support the conclusion that no compromise was ever made. The Courts in India concurred in holding that, as regards twenty-nine of the villages in which Mannu Singh was a sharer, Jote Singh was entitled to succeed him as his heir according to Hindu law, but as regards one village, Bihat Biram, they differed. That village had been the subject of partition proceedings under the Oudh Land Revenue Act (Act XVII. of 1876), and the Judicial Commissioner held that, as a portion of Mannu Singhs share in Bihat Biram was allotted to Chokhey Singh and Gajraj Singh at the partition, Jote Singh was estopped from now claiming it. The Subordinate Judge had held that there was no such estoppel. of 1876), and the Judicial Commissioner held that, as a portion of Mannu Singhs share in Bihat Biram was allotted to Chokhey Singh and Gajraj Singh at the partition, Jote Singh was estopped from now claiming it. The Subordinate Judge had held that there was no such estoppel. The judgment of the learned Judicial Commissioner upon the point is in these terms " In 1900 one Jote Singh (not the plain tiff) applied for partition of one of the thokes in the village, whereupon the plaintiff presented a petition (see exhibit A 17) praying that his entire interest in the village should be separated from that of the applicant Jote Singh as well as from the shares of the present defendants, and this was done, with the result that the defendants were allotted a separate patti, which includes the share now in dispute, and their father, Bhikam Singhs, share in the village as one of the sons of Mitan Singh. " The effect of the decree of the Court below is to give the plaintiff a portion of the patti allotted to the defendants at the partition. The defendants, no doubt, conducted their case at the partition on the assumption that they were entitled to half the share of Mannu Singh, junior, and it seems impossible now to put them back into the position which they occupied before the partition, for the partition dealt with the shares of other persons besides those of the parties to the present suit. " Moreover, in the partition the plaintiff had an opportunity, of which he should have availed himself, of objecting to the defendants title (see s. 74 of Act XVII. of 1876, the Revenue Act which was then in force). Had he raised the question then, it would have been disposed of before the partition. In my opinion, it is too late now for the plaintiff to claim that portion of Mannu Singhs share in Bihat Biram which was allotted to the defendants at the partition. It appears to me that as to this the plaintiff is estopped." The learned Judicial Commissioner appears to their Lordships to have been under a misconception on two points of fact. It appears to me that as to this the plaintiff is estopped." The learned Judicial Commissioner appears to their Lordships to have been under a misconception on two points of fact. If the order of the Revenue Court in the partition proceedings be looked at, it will be found that it divides the village into two thokes, the first of which, thoke Hathi Singh, is partitioned among five families, none of whom are parties to this suit; while the second thoke, Bhawani Singh, is divided between the parties to this suit in almost equal proportions. -The shares of no other persons are therefore affected by the partition order. In the second place, it appears from exhibit No. 58, an application filed by Jote Singh in reply to the objections taken by Chokhey Singh and Gajraj Singh in the partition proceedings, and dated December 20, 1902, that Jote Singh asked that " the share of Mannu Singh should be divided at present according to possession, and a separate suit will be filed in a competent Court as regards the title in respect of the property of Mannu Singh." The Revenue Court appears to have given effect to this application, for no inquiry under s. 74 of Act XVII. of 1876 was made, and the question of title was left to be decided by the civil Court in Jote Singhs present suit, which was filed on November 24, 1904. In the opinion of their Lordships the grounds of estoppel relied on by the learned Judicial Commissioner both fail. Their Lordships will humbly advise His Majesty that the appeal of Chokhey Singh and Gajraj Singh should be dismissed and the cross-appeal of Jote Singh allowed; that the decree of the Judicial Commissioner should be discharged, and the decree of the Subordinate Judge restored except as to costs, Chokhey Singh and Gajraj Singh paying Jote Singhs costs in both Courts. The appellants Chokhey Singh and Gajraj Singh will pay the costs of Jote Singh in both the appeal and the cross-appeal.