Judgement Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 2 Appeal from a decree of the High Court (March 21, 1904) reversing a decree of the Subordinate Judge of Cuttack (September 27, 1899). The question raised and decided by the appeal was whether the succession to the property in suit was governed by the rule of lineal primogeniture or by the ordinary Hindu Mitakshara law. The pedigree set out in their Lordships judgment was found to be correct by both Courts and shews the relationship of the parties. In the year 1805 the property of the family consisted of two estates known as Killa Talmunda and Taluk Aranga. On July 29 in that year a settlement of the first-named estate was made in the name of Tri Bikram Das. He died in the year 1818, and the name of his son Jagannath Das was entered in his stead in the Government registers. This led to a suit by Sudarshan Das, the second son of Jugal Kishore Das, to recover possession from his nephew of a one-half share in the whole estate movable and immovable. The litigation ended in a compromise on February 2, 1822, by which, in lieu of his share of the whole estate, he was granted certain of the valuable movable property, some houses and lands, a sum of money in cash, and the Taluk Benahas in perpetuity subject to the payment of the net profit derived therefrom in excess of Rs. 550 per annum to Jagannath Das and his heirs. On the other hand Jagannath Das also agreed that he and his heirs should not sell, gift, mortgage, or lease the remaining portion of the estate without the consent of Sudarshan. In the year 1834 Jagannath Das and his brother Haladhar Das separated in mess. The former had contracted debts, and on March 28, 1837, an eight anna share in Killa Talmunda was sold in execution of a decree against him and purchased by Gobardran Das. On April 6, 1837, Haladhar Das instituted a suit in the Court of the Sadar Amin, at Balasore, to recover from Jagannath Das the remaining eight annas of Killa Talmunda, and on July 24, 1837, judgment was delivered in his favour. On April 6, 1837, Haladhar Das instituted a suit in the Court of the Sadar Amin, at Balasore, to recover from Jagannath Das the remaining eight annas of Killa Talmunda, and on July 24, 1837, judgment was delivered in his favour. The Court held that the estate was ancestral, that up to that date the expenses of both parties had been defrayed from the profits, and that Haladhar Das was entitled to an eight anna share. A separate suit was also instituted by him in the Court of the principal Sadar Amin of Cuttack to recover possession of an eight anna share in Taluk Aranga. The other eight annas was also sold in execution of decree. This litigation was also eventually compromised. On March 11, 1838, Jagannath Das executed an agreement; on March 14, 1838, he presented a petition to the Sadar Amin, at Balasore, setting out the terms of the compromise, and on the same date an order was made giving effect to its terms. On May 31, 1838, the principal Sadar Amin of Cuttack also made a decree in accordance with the compromise. The result was to award to Haladhar a four anna share in Killa Talmunda in absolute proprietary right. At the time of the settlement in 1842 Killa Talmunda was partitioned, and the eight anna share belonging to this family was constituted into a separate estate under the name of Mahal Shamsunderpur. Jagannath Das died in the year 1862, and was succeeded by his son Dinabandhu Das. He died in the year 1871, and the name of his eldest son, Harihar Prashad Das, was recorded in his stead in the revenue registers. At that time and for many years subsequently Dinabandhu Dass younger sons, Rama Kanta Das and Balabhadra Prashad Das (appellants Nos. 1 and 2), were minors. They all along lived in the family house and were supported from the joint estate. On August 18, 1885, Harihar Prashad Das died. A dispute at once arose in regard to mutation of Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 3 names. On June 3, 1887, an order was made by the Revenue Court directing the entry of Jugadanand Dass name, and on his death on August 18, 1892, the name of the respondent, Shamanand Das, was entered in his place. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 3 names. On June 3, 1887, an order was made by the Revenue Court directing the entry of Jugadanand Dass name, and on his death on August 18, 1892, the name of the respondent, Shamanand Das, was entered in his place. Thereupon the suit in which the appeal has arisen was instituted by the appellants, being brothers and nephews of Harihar, on August 16, 1897, in the Court of the Subordinate Judge of Cuttack against the respondent to recover possession of their shares in the joint estate of the family. The plaint sets out the facts as above stated. A written statement was filed in defence. The principal defences raised were that the estate was impartible, and the succession thereto governed by the rules of lineal primogeniture, and that certain of the properties claimed were not joint ancestral estate. The Subordinate Judge delivered his judgment on September 27, 1899. He considered that in the suit of Sudarshan he was successful, and that Harihar was partly successful in his suit, so that the custom was not shewn to have been invariably acted on. In regard to the various admissions of the parties that such custom existed, he thought some of them were not admissible in evidence, and generally that they did not prove the existence of the alleged custom. The learned judge observed " Regarding the oral evidence, I ought to state that it is of not much value. There was a mass of evidenced shew that the eldest son goes through the ceremony of ‘Abhishek, that the remains of the deceased Paharaj are removed in a particular way, and that after removal of the body the eldest son assumes the title of Paharaj. Now it is proved by the defendants own witness, the school sub inspector, that in Orissa the eldest son assumes a title which the younger sons do not do, although the latter participate in their fathers property. Thus the assumption of title does not prove the existence of the custom." The High Court (see I. L. R. 32 Calc. Now it is proved by the defendants own witness, the school sub inspector, that in Orissa the eldest son assumes a title which the younger sons do not do, although the latter participate in their fathers property. Thus the assumption of title does not prove the existence of the custom." The High Court (see I. L. R. 32 Calc. 6) decided that the enure was one which might be expected from the history of Orissa to be governed by the rule of primogeniture, that in the only instance before the British conquest of which there was evidence regarding succession the descent was from father to eldest son, and that since the occupation the claim of the eldest son to succeed has been invariably upheld in spite of opposition. The Court found that in various instances that right was recognized, and that those instances were not merely statements of the custom, but a recognition of it as affecting the rights of those who made them. The material passages in the judgment of the High Court are as follows— " It undoubtedly lies heavily on the defendant to establish by clear and unambiguous evidence a rule like that of primo geniture in derogation of the ordinary Hindu law governing the devolution of property, and the defendant has attempted to discharge that onus by shewing that this rule has been in his family an ancient, continuous, and invariable rule. But before considering whether that attempt has been successful or not we have to notice a proposition enunciated by Dr. Rash Behary Ghose, who appeared for the plaintiffs, to the effect that the devolution of property must always be regulated by the lex loci, and that the only exception is to be found in the case of rajas and other great families. With reference to this proposition we need refer only to the case of Chowdhry Chintamun Singh v. Mussumat Nowlukho Konwari(( 1875) L. R. 2 Ind. Ap. 263.), decided by the Privy Council. With reference to this proposition we need refer only to the case of Chowdhry Chintamun Singh v. Mussumat Nowlukho Konwari(( 1875) L. R. 2 Ind. Ap. 263.), decided by the Privy Council. This was a case relating to a taluka, and in their judgment their Lordships observe It seems to their Lordships too late to question what is affirmed by many reported cases, that a custom of descent according to the law of primogeniture may exist by kulachar or family custom, although the estat may not be what is technically known either as a raj in the north of India or as a polliam in the south of Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das India. That decision was followed in an unreported case of this Court, A. 0. D. No. 148 of 1895, decided on August 25, 1899—a case which, like the present, came from Orissa. " It is true that by Regulation XI. of 1793 the Legislature, after referring to a custom which had grown up in considerations of financial convenience, and by which some of the most extensive zemindaris devolved entire to the eldest son, enacted that in future the landed property of all zemindars and independent talukdars should devolve on their death according to the ordinary rule of succession prescribed by Mahomedan or Hindu law. In a regulation, however, passed a few years later (X. of 1800) it was observed that a custom had been found to prevail in the jungle mahals of Midnapur and other districts by which the succession to landed estates invariably devolves to a single heir without the division of the property,’ and it was enacted that Regulation XI of 1793 shall not be considered to supersede or affect any established usage in the jungle mahals of Midnapur and other districts, by which the succession to landed estates, the proprietors of which may die intestate, has hitherto been considered to devolve to a single heir to the exclusion of other heirs of the deceased.’ "Furthermore, by s. 36 of Regulation XII. of 1805, passed two or three years after Orissa had come under British rule, it was enacted that all regulations in Bengal not superseded by the special rules laid down in that regulation were extended to and declared to be in force in the zillah of Cuttack, of which the present district of Balasore then formed a part, provided how ever that nothing herein contained shall be construed to authorize the division of the lands comprised in any estates in the zillah of Cuttack in which the succession to the entire estate devolves according to established usage to a single heir. In cases of this nature the Courts of justice are to be guided by the provisions contained in Regulation X. of 1800. “It is clear from these enactments that the Legislature, so far from abolishing in the district of Cuttack the rule of primogeni ture, expressly allowed it to prevail in cases in which by established usage succession to the entire estate devolves to a single heir. The rule, however, must have been in existence and must have been established by usage at the date of the regulation. Before the defendant can succeed he must also shew that it has not been departed from since that date. In Rajkishen Singh v. Ramjoy Surma Mozoomdar (( 1872) I.L. R. 1 Calc. 186.) the Privy Council observed Their Lordships cannot find any principle or authority for holding that in point of law a manner of descent of an ordinary estate, depending solely on family usage, may not be discontinued so as to let in the ordinary law of succession. Such family usages are in their nature different from a territorial custom which is the lex loci binding all persons within the local limits in which it prevails. It is of the essence of family usages that they should be certain, invariable and continuous, and well established discontinuance must be held to destroy them. This would be so when the discontinuance has arisen from accidental causes, and the effect can- . not be less when it has been intentionally brought about by the concurrent will of the family. It would lead to much confusion and abundant litigation if the law attempted to revive and give effect to usages of this kind after they had been clearly abandoned and the abandonment had been, as in this case, long acted upon. not be less when it has been intentionally brought about by the concurrent will of the family. It would lead to much confusion and abundant litigation if the law attempted to revive and give effect to usages of this kind after they had been clearly abandoned and the abandonment had been, as in this case, long acted upon. " Neither side profess to know the exact terms in which the grant of the property mentioned in the first schedule to the plaint was originally made, but on behalf of both the appellant and the respondents at the hearing of this appeal various passages were read out from two works of reference to shew the manner in which landed property in Orissa was held before the British occupation. The first of these works is an Account Geographical, Statistical, and Historical of Orissa Proper or Cuttack, by A. Stirling, Esquire. Of this work we have been able to secure from the Imperial Library a reprint. The second work is Hunters Statistical Account of Bengal, vols. xviii. and xix., which deals with the districts and tributary States of Orissa. Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 5 " Stirling, in describing the land tenures which formerly existed in the province, compares them with the feudal system of Europe, to which he thinks they bear a great likeness. On pages 60 and 61 of the reprint occurs the following passage — It is not improbable that many of the Orissa Khandaits and Bhunias first received estates during the twelfth century of the Christian era, in Raja Anang Bhim Deos time, who is said to have created sixteen Savants or Great Lords, but the tenure of the majority no doubt reaches back to a very remote antiquity. To describe a little more particularly their duties and offices I may observe that they were posted all round and along the frontiers of the Raj, with a view to defend it from the irruptions of neighbouring powers or the incursions and devastations of the savage inhabitants of the wild regions in the interior. .... In this point of view their situations and duties resemble much that of the Lords of the Marches in Europe, Nor is the above the only striking feature of analogy between the feudal lords of India and the western hemisphere. .... In this point of view their situations and duties resemble much that of the Lords of the Marches in Europe, Nor is the above the only striking feature of analogy between the feudal lords of India and the western hemisphere. The estates or jurisdictions of that class in Orissa were always called by the Hindus Gerhs and by the Mussalmans Killas or castles. " The word Bhunias occurring at the beginning of the above passage is explained by Stirling in a preceding sentence of the same paragraph to mean (with the similar term Bhuyan or Bhuman) a military chief, and to be derived from bhu, the earth, being therefore synonymous with bhupati, lord of the soil. At p. 301 of the 18th volume of the Statistical Account, Hunter describes the word as equivalent to zemindar (landlord). Now in the genealogical table put in by the defendant, the correctness of which has been accepted by the Subordinate Judge and has not been disputed in this Court, all the ancestors of both parties in the direct male line are invariably designated Bhuyan as one of their titles. Furthermore, one of the properties in dispute here is part of what was once known as Killa Talmunda, and in a petition (Ex. H) presented by Jagannath Das, an ancestor common to both parties, and through whom both parties derive title, the statement is made that this killa ‘like the zemindaris of the Rajas of Gadjats (forts) used during the domination of the Moghuls and Mahrattas and of former government to be occupied and possessed in the manner of Garhs. From these facts, read in connection with the passage above cited, the learned Advocate-General who appeared for the defendant appellant contended that his clients ancestors must have been military chiefs, and the nature of their duties must have rendered it necessary that the military fief should have descended to one person alone, who would naturally be the eldest son. That may have been so, but the facts hardly amount to more than a foundation for the favourable reception of evidence that primogeniture was the rule of the family with which we are concerned. A stronger basis for the inference sought to be drawn may, we think, be found in Hunters descriptions of the land tenure in Cuttack. That may have been so, but the facts hardly amount to more than a foundation for the favourable reception of evidence that primogeniture was the rule of the family with which we are concerned. A stronger basis for the inference sought to be drawn may, we think, be found in Hunters descriptions of the land tenure in Cuttack. At p. 129 of the 18th volume of the Statistical Account he enumerates a number of other taluks. The twelfth among these is Pahraj (corruption of Prabh, Raja), and the author at the end of the list goes on to say, These names are in fact titles given by the kings to the landholders themselves; but, in the fiscal papers of the Mahratta period, the taluks themselves were named in this way, as taluk Patnaik, taluk Srichandan, &c. The rights and privileges of the holders are the same as those of Chowdhuri talukdars. On turning to the account of taluk Chowdhuri,’ also on p. 129, we read The Chaudhuri seems to be a remnant of the old Hindu fiscal organization. In Orissa and Bengal he was the same as the " Des mukh " of other parts of India, coming next to the " Deshadhikari" in point of rank and position. He was an hereditary officer, exercising the chief police and revenue power over a certain specified tract of country, and he was also responsible for the revenue. Again turning to the defendants genealogical table as well as to the smaller one propounded by the plaintiffs, we find that all the ancestors of the parties in the direct male line were termed Paharaj and that this title is applied exclusively to the eldest son. According to the passage just quoted Paharaj was the title of a tenure as well as of the person holding it, and that person was an hereditary officer. If these premises are correct, they, coupled with the pedigree, tend to shew that the lands held by the Paharajes descended Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 6 only to the eldest son. If these premises are correct, they, coupled with the pedigree, tend to shew that the lands held by the Paharajes descended Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 6 only to the eldest son. "Whether in times previous to the British occupation Paharajes were landlords in the sense in which we use that term, or whether they were only officers of the Government charged with the collection of revenue, it is clear, from the accounts given by both Stirling and Hunter of the land tenures, that there were lands attached to and devolving with the office." Then, after concurring with the Subordinate Judge in rejecting certain documentary evidence, it held that he was right in holding that two documents (Exhibits Ka6, Ka7) were admissible as coming from the proper custody. " The earlier of the two documents is called a public appeal for evidence, and appears to have been drawn up by some public authority on the humble petition of Gopinath Paharaj Chowdhuri, the ancestor in the t male line of Jagannath. It records the fact that an old worm-eaten and worn-out Sanad of the Emperor Jahangir was shewn in the year 1137 to every gentleman and men of respectability and all residents and amlas and functionaries of the Sarkar. It then proceeds to state the contents of the Sanad, which is a grant of certain land in Banchas and other divisions to Chowdhuri Paharaj. The document concludes by reciting that the forefathers of this applicant discharged the duties of Chowdhuri of the said Sarkar in consideration of the nankar zemindaris, and that this applicant also keeps in attendance in the office of Thanadars and Amins and gets the revenue paid. " The later of the two documents now under consideration is dated 1156 Hijri, and it records the fact that Raghunath Paharaj is confirmed in the Chowdhuriship of the lands mentioned therein, which correspond to a large extent with those of the earlier documents. Raghunath was the son of Gopinath, and, if the documents stood alone, the Subordinate Judge might be right in thinking that they have no bearing on the question of primogeniture. " We have, however, on the record a genealogical table (Ex. Fl) filed by Jaykrishna Das Mahapatra in 1841 before the Collector. Raghunath was the son of Gopinath, and, if the documents stood alone, the Subordinate Judge might be right in thinking that they have no bearing on the question of primogeniture. " We have, however, on the record a genealogical table (Ex. Fl) filed by Jaykrishna Das Mahapatra in 1841 before the Collector. That table corresponds so far as it goes with the table filed by the defendant in the present case, and in it we find that Gopinath had besides Raghunath four sons, one of whom, Radha Charan, has left descendants. That statement in the pedigree is relevant under s. 32, sub-s. 5, of the EvidenceAct as being made by a member of the family (a second cousin of Raghunath) before any question arose as to the descendants of Gopinath, and we see no reason to doubt its accuracy. It is clear, then, that Raghunath obtained the Chowdhuriship formerly held by his father, and the lands appertaining to that Chowdhuriship, to the exclusion of his brothers. This is confirmed by Krishna Charan Das, the fifth witness for the defendant. This witness can trace back his descent to Radha Charan, brother of Raghunath, and he states that he had no share of ancestral properties; all he had was land for maintenance, which has descended to him from his ancestor Radha Charan." The High Court next came to the time of the British occupation and detailed the history of the family and of the property since that time with the result as follows — " To sum up then we find that the tenure is one which we might expect from the history of Orissa to be governed by the rule of primogeniture, that in the only instance before the British conquest of which we have evidence as to the succession we find that it descended from the father to the elder son, and that since the British occupation the claim of the eldest son to succeed has been invariably upheld in spite of opposition. “ Further we have proof that on more than one occasion the right of the eldest son to succeed to the property has been recognized by members of the younger branches no longer living. In 1841 Jaykrishna, already referred to, presented a petition (Ex. G) before the Collector in which he complained against Jagannath Paharaj for disturbance of possession of certain lands. In 1841 Jaykrishna, already referred to, presented a petition (Ex. G) before the Collector in which he complained against Jagannath Paharaj for disturbance of possession of certain lands. These lands, the petitioner stated, had been granted by Jagannaths ancestor Jagadananda, who Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 7 was the zemindar, in virtue of his being the eldest son, to his brother the petitioners ancestor Gokulanand. A somewhat similar petition (Ex. M) was presented to the Collector in 1843 by the same Jaykrishna and others, in which it was stated that the zemindari had been settled with the ancestors of the Paharaj owing to their belonging to the senior branch, whereas the ancestors of the petitioners held certain land as brothers share for maintenance. " These petitions, it appears to us, are particular instances within the meaning of s. 13 (b) of the Evidence Act, in which the custom of primogeniture was recognized. They are not merely statements of that custom, but are a recognition of the custom as affecting their own rights. " A further instance of recognition of the custom is afforded by the decision in a rent suit in 1830 (Ex. Z). In that decision it is recited that the defendant Prohlad Das and Jaykrishna Das, members of a younger branch, claimed exemption from rent on the ground that the land for which rent was sought had been granted as maintenance to their forefathers by the plaintiffs ancestors, who retained the zemindari on account of their representing the elder branch of the family. Again in a rent suit in 1878 Harihar refused to withdraw rent deposited in Court, because the deposit had been made to the credit of Harihars minor stepbrothers as well as of himself, whereas he alone was entitled to it. This is another instance not merely of statement of a claim, but of conduct by which the custom was asserted. We have also a petition (Ex. Kha) presented by Jagannath Das in 1843, in which he asserted that the zemindari of taluk Arang ‘is ancestral property, in which from the time of my forefathers up to the present time no brother has obtained any share,’ nor has any brother any such right in respect of any share. We have also a petition (Ex. Kha) presented by Jagannath Das in 1843, in which he asserted that the zemindari of taluk Arang ‘is ancestral property, in which from the time of my forefathers up to the present time no brother has obtained any share,’ nor has any brother any such right in respect of any share. Jagannath Das, who made this statement, is an ancestor through whom the plaintiffs claim, and the statement therefore is important as an admission of a fact in issue." The High Court concludes as follows "Considering the case as a whole, we are satisfied on the materials before us that the defendant has established that the rule of primogeniture has uninterruptedly governed the devolution of property in the family for a long period of time both before and after the British occupation. We accordingly allow this appeal and dismiss the suit with costs in all Courts." De Gruyther, K.C., and Eddis for the appellants, contended that the evidence on the record was insufficient to establish a custom that the succession to the property in suit passed to a single heir according to the rule of lineal primogeniture. The proceedings and litigation during the early part of the nineteenth century were set out in the record, and it was contended that throughout there was no suggestion at the time that the estate was impartible and descended to a single heir. On the contrary when Sudarshan Das sued, he claimed as younger son a half share, and a compromise was made on the footing of an equivalent thereto. Later on, in 1837, Haladhar Das, another younger brother, sued to recover his share of a part of the estate and succeeded, the Court holding that the estate was ancestral and that the plaintiff was entitled to a half share. A similar suit by him with reference to another portion of the same estate was compromised on the footing of his receiving a four annas share in absolute proprietary right. It appeared, no doubt, from the evidence that in Orissa the eldest son assumes a title which the younger sons do not, but that is no legal evidence of the rule of primogeniture regulating the succession to the family estate, particularly when it appears that the younger sons participate in their fathers estate. It appeared, no doubt, from the evidence that in Orissa the eldest son assumes a title which the younger sons do not, but that is no legal evidence of the rule of primogeniture regulating the succession to the family estate, particularly when it appears that the younger sons participate in their fathers estate. It was contended that certain statements by various members of the family in support of the case for impartiality were inadmissible for the reason that the question as to existence of the custom was already in dispute at the time that they were made. The evidence of what happened under native rule prior to the British conquest in 1803 failed to Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 8 establish a custom as alleged. The documentary grants by the native rulers related to offices rather than lands. They were removable at pleasure, and the nankar lands granted by way of remuneration were annexed to the office and no custom of succession was shewn. There were no circumstances here to raise any presumption of impartiality, such, for instance, as the estate being a raj. Consequently clear, unambiguous, and conclusive evidence was necessary. It was also contended • that the Bengal Regulations, and more particularly Regulation XI. of 1793 and Regulation XII. of 1805, s. 36, required the respondent to shew that the estate was governed by the custom of impartibility in the hands of the head of the family in 1805. In this he had failed, for the evidence shewed that the head of the family up to the date of the British settlement had no estate at all. He only held the lands in question as annexed to his office by way of remuneration. Reference was made to Toynbee on History of Orissa, p. 24 Stirling on Orissa and Cuttack, p. 2, paragraphs 6 and 7, pp. 65, 73, and 79 ( 1904 reprint of edition of 1822); Sir W. Hunters Statistical Account of Bengal, vol. 18, p. 301, 129. See also Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar. (( 1872) 14 Moo. Ind. Ap. 570, 588.) Sir R. Finlay, K.C., and Kenworthy Brown, for the respondent, contended that the judgment of the High Court was right for the reasons stated therein. 18, p. 301, 129. See also Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar. (( 1872) 14 Moo. Ind. Ap. 570, 588.) Sir R. Finlay, K.C., and Kenworthy Brown, for the respondent, contended that the judgment of the High Court was right for the reasons stated therein. With regard to the admissibility of the statements objected to by the appellants they referred to Butler v. Mount Garrett (( 1859) 7 H. L. C. 633.) ; Monkton v. Attorney-General ((1831) 2 Russ. & My. 147, 161.); In re Berkeley Peerage. ((1811) 4 Camp. 401.) It was a new point to which evidence had not been directed, that the lands were not the property of the family, but were held as remuneration for the performance of the chowdhuri duties. Even if Stirlings observations about chowdhuris were generally correct, they could not be taken to be applicable to the circumstances proved in this case. They referred to the Cuttack proclamation of September 15,1804, in Regulation XII. of 1805, Freeman v. Fairlie (( 1828) 1 Moo. Ind. Ap. 305, 343.), and Collector of Trichinopoly v. Lekkamani. (( 1874) L. R. 1 Ind. Ap. 282, 313.) The respondents case is that his ancestors were chieftains in Orissa and officers under the Hindu and Mahomedan Governments and owned the estate in suit, his father having been ninth holder in sole enjoyment thereof, and succeeding according to the rule of lineal primogeniture. The estate had never been the subject of partition in recognition of coparcenary right. It was contended on the evidence that neither Sudarshan nor Haladhar in obtaining maintenance received anything in recognition of their coparcenary right to partition. Reference was made to Mohesh Chunder Dhal v. Satrughan Dhal (( 1902) L. R. 29 Ind. Ap. 62.); Thakur Nitrpal Singh v. Thakur Jai Singh Pal. (( 1896) L. R. 23 Ind. Ap. 147,156.) De Gruyther, K.C., replied, referring to Miller v. Madhu Das. (( 1896) I. L.R. 19 Allah. 76, 92.) Sir R. Finlay, K.C., referred to Shahzadi Begam v. Secretary of State for India. (( 1907) L. R. 34 Ind. Ap. 194.) The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. The question for determination in this appeal is whether the succession to the estate to which it relates is governed by a family custom of succession by lineal primogeniture, or by the ordinary Hindu law. (( 1907) L. R. 34 Ind. Ap. 194.) The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. The question for determination in this appeal is whether the succession to the estate to which it relates is governed by a family custom of succession by lineal primogeniture, or by the ordinary Hindu law. The estate is considerable, the major portion of it being comprised in two mahals named Killa Talmunda and Taluk Aranga, situated in the district of Balasore, in the province of Orissa. The parties to the suit are members of the same family, the appellants representing a junior and the respondent the senior branch of it. The appellants were plaintiffs in the suit, in which they alleged that the family was an undivided family, governed by the Mitakshara school of Hindu law, and claimed partition of the family property under that law. The respondent, in his written statement, asserted that, " according to the custom obtaining in our family from a very remote period, the eldest Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 9 son of the eldest branch of the family becomes the malik of all properties, and his younger brothers are entitled to maintenance only without having any share in them." Upon the issue thus raised the Subordinate Judge of Cuttack found in favour of the plaintiffs, but his decision was reversed on appeal by the High Court at Calcutta. The family is a Brahmin family long established in Cuttack, members of which are proved to have held the office of Chowdhuri, under both the Mogul and the Mahratta rule. A great deal of information as to this office is to be found in an official minute by Mr. Stirling (Secretary to the Commissioner) on tenures in Orissa, dated October 10, 1821, to which their Lordships have been referred by counsel on both sides, and which appears to be a very carefully drawn and reliable document. According to this minute, under the government of the Gajpati native sovereigns, the country was divided for fiscal purposes into districts called Bissee and Khund, over each of which were placed two officers, one called Bissoee, or Khund-adipati (terms signifying chief of a division), and the other an accountant, called the Bhoee Mool. According to this minute, under the government of the Gajpati native sovereigns, the country was divided for fiscal purposes into districts called Bissee and Khund, over each of which were placed two officers, one called Bissoee, or Khund-adipati (terms signifying chief of a division), and the other an accountant, called the Bhoee Mool. On the introduction of Todur Mulls revenue settlement, under the Mogul government, somewhere about A.D. 1850, Mr. Stirling says " The titles of Khund-adipatiand Bissoee became lost entirely in the more familiar designation of Chowdree (chief), a word introduced from Bengal and Upper India, though, probably, not unknown before in the province, and the Bhoee Mool received the appellation of the canoongoe willaity (country or provincial canoongoe). The portion of the pergunnah under the more immediate charge of each was called talooka, and the managers generally talookdars." There does not appear to have been any change in the position of these officers under the Mahratta government, and Mr. Stirling came to the conclusion that there exists " ample ground for asserting [that] the Mogul and the Mahratta talookdars, who formerly managed and collected the revenues of so considerable a proportion of the district with the designation of chowdrees and canoongoes, were the hereditary revenue and police officers of the old Hindoo government under another name." The remuneration of these officers appears to have been an assignment of rent-free land called "nankar," and the right to certain perquisites or russooms. As regards the ownership of land Mr. As regards the ownership of land Mr. Stirling observes " The chowdree has been generally off-hand assumed to have been a proprietor of land, though the word is obviously only a title given to the head officers (or talookdars) of a pergunnah, and which in modern times has been adopted by the headman of nearly every hereditary art, profession, and bazaar.....Nobody, I believe, ever supposed for a moment that the person called canoongoe by the Moguls was other than a mere servant of Government, though succeeding by regular inheritance to his office.....There is obviously no more reason to assume that the chowdrees or chiefs of pergunnahs were the proprietors of the land comprised in them than that the canoongoe talookdars were—a conclusion from which most minds would probably revolt, however predisposed to see an absolute European landlord in every superior revenue manager connected hereditarily with the soil." But as regards the offices held by both chowdrees and canoongoes Mr. Stirling goes on to say " Their tenures were certainly generally heritable, though cases of removal were of frequent occurrence, and all the larger holders found it convenient to obtain a sunnud of appointment, or, say, of confirmation, on succeeding to their inheritance. The very unscrupulous manner in which the right of ouster was exercised by the native rulers, as is obvious from the frequent occurrence of the word tughueyyoor (or change) in the sunnuds, might lead to a conclusion unfavourable to their acknowledged title to transmit hereditarily, and furnishes, at all events, a strong ground of presumption that they were regarded as officers of trust, liable to be called to account for their conduct." But, he concludes, " it is my decided opinion that, from the hereditary character prevading so Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 10 remarkably all the institutions of the Hindoos, they at all times possessed an imperfect title of property in their offices, which was distinctly admitted and recognized by the practice of the Mogul government." In the light of these general considerations, their Lordships have carefully examined the evidence produced by the respondent in support of his claim. It consists mainly of two ancient documents, as their Lordships are unable to attach much importance to admissions made in recent years by members of the family. It consists mainly of two ancient documents, as their Lordships are unable to attach much importance to admissions made in recent years by members of the family. The first of these documents is called an " Appeal of Gopinath Paharaj Chowdhuri to the Public for Testimony." The date is wanting, but it must have been written at some time between A.D. 1729 and 1745. It is addressed to all officials, ryots, and cultivators of Sarkar Biro—which is presumably the talooka of the applicant—and recites that " A Sanad of former ages of the time of the Emperor Jahangir bearing the seal of Rashid Beg Khan granting for salary 155 batis of land as nankar, subject to service as Chowdhuri of the aforesaid Sarkar, has become very old and owing to the paper being worm-eaten and worn out, it was not capable of being preserved for future time; therefore, in 1137 Amli (A.D., 1729) it was shown to every gentleman, to men of respectability and all residents and amlas and functionaries of the said Sarkar. It was therefore requested that "those acquainted with the facts " will " prove the document as well as the fact that the forefathers of this applicant from past ages discharged the duties of Chowdhuri of the said Sarkar in consideration of the nankar zemindari and that this applicant also keeps in attendance in the office of Thanadars and Amins and gets the revenue paid." It does not appear whether anybody complied with the request that he should " record his evidence on this paper "; but on the back is an indorsement, " 155 batis of land under former Sanads assigned as nankar has been confirmed and granted to Chowdhuri Paharaj," and particulars of the land are given. The second document is a Sanad dated in A.D. 1745 and granted to the eldest son of the Gopinath just mentioned. It is addressed to the Mutsuddis and other functionaries of the mahals described in the schedule, and recites that " the office of Chowdhuri under Sanads of former officials was for ages vested in (the ancestors of) Raghunath Paharaj. Now he has appeared before his Honour, and has made a representation, and his loyalty, truthfulness, and his services have become disclosed. Therefore he is appointed as before to the office of Chowdhuri of the said mahals. Now he has appeared before his Honour, and has made a representation, and his loyalty, truthfulness, and his services have become disclosed. Therefore he is appointed as before to the office of Chowdhuri of the said mahals. It is required that you will conduct all business of the said pergunnahs as before in consultation with him and by his advice .... and you will leave to him all that is customary for the Chowdhuri and in respect of the nankar as was the practice before. The said Chowdhuri is required that he will not in the slightest degree omit to fulfil his duties loyally and for the benefit of the Sarkar and for the welfare of ryots. He will appropriate the profits of the dastur and nankar lands as before, and he will pay the proper rent of the jaghirdars under him year by year according to ancient usage, and he will make such endeavours as will make manifest his great loyalty and services daily, even more than before, then he will get his reward." On the back of the Sanad is an indorsement, " Chowdhuris office confirmed in favour of Raghunath Paharaj Chowdhuri," and particulars of fifteen mahals, which do not correspond with those mentioned in Gopinaths document, or those in dispute in this suit. These documents have been recited at length because, as already observed, they form the only reliable evidence of the status of the family under successive native governments. In the opinion of their Lordships they fall far short of establishing the claim of the respondent. They shew, indeed, that the office of Chowdhuri was held for many generations by a member of the family, and that to the holder of that office certain lands were assigned as a part of his remuneration. But the grant was of an office only, and to an individual, to be held during good behaviour. It was clearly revocable at the pleasure of Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das the sovereign, by whom it might be conferred, not merely on the eldest son, but upon any member of the family, or, indeed, on anybody. In the nature of things, the office could only be held by one person at a time, and, as Mr. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das the sovereign, by whom it might be conferred, not merely on the eldest son, but upon any member of the family, or, indeed, on anybody. In the nature of things, the office could only be held by one person at a time, and, as Mr. Stirling points out, such offices were " generally heritable " ; but these considerations, though they may suggest a presumption, are not sufficient to establish a right. For this purpose the evidence must be clear and unambiguous, which, in this case, it is not. Besides, it is hard to see how a family custom of succession to an estate not absolutely owned by the family could ever have existed. So far, therefore, as relates to the period of native rule in Cuttack, the case of the respondent fails. It remains to inquire whether, after the British conquest, there was any recognition of the existence of such a custom, either by the family or by the Government. The conquest of Cuttack took place in 1803, and by a proclamation dated September 15, 1804, the British Government declared its intention to adopt " such a plan for the settlement of the landed revenue of the province .... as may be most conducive to the prosperity of the country and to the happiness of the inhabitants." With this view it was ordered that a settlement of the land revenue should be " concluded in all practicable cases with the zemindars, or other actual proprietors of the soil (unless when disqualified by notoriously bad character or other good and sufficient cause) for the period of. one year," on the expiration of which further settlements would be made " with the same persons (if willing to engage, and they shall have conducted themselves to the satisfaction of Government) " for further periods of three, four, and three years respectively at gradually enhanced rates. one year," on the expiration of which further settlements would be made " with the same persons (if willing to engage, and they shall have conducted themselves to the satisfaction of Government) " for further periods of three, four, and three years respectively at gradually enhanced rates. At the end of these eleven years, in 1822, a permanent settlement would be " concluded with the same persons (if willing to engage, and they have conducted themselves to the satisfaction of Government, and if no others who have a better claim shall come forward) for such lands as may be in a sufficiently improved state of cultivation to warrant the measure on such terms as Government shall deem fair and equitable." In the following year Regulation XII. of 1805 was passed, confirming and explaining this proclamation, from ss. 2 and 4 of which it appears that the first settlement was made with the persons in possession of the lands, and that the settlement extended to " the Mogulbundy territory of the zillah of Cuttack," in which the lands now in suit are situated; and by s. 36 it was provided that " nothing herein contained shall be construed to authorize the division of the lands comprised in any estates in the zillah of Cuttack, in which the succession to the entire estate devolves, according to established usage, to a single heir," in which cases Regulation X. of 1800 was to apply, and the Courts were directed to give effect to " the local custom of the country." Generally, however, these newly-formed estates were declared to be descendible like other descriptions of property to all the heirs of the deceased proprietor, according to the Hindu or Mahomedan law of inheritance, as the case might be, and to be liable to partition when devolving on two or more heirs. Regulation XI. of 1816, which exempts certain tributary estates in Cuttack from partition, does not appear to apply to the estate in question in this suit. It will have been noticed that in the proclamation the settlement is to be made " with the zemindars or other actual proprietors of the soil." In Mr. Regulation XI. of 1816, which exempts certain tributary estates in Cuttack from partition, does not appear to apply to the estate in question in this suit. It will have been noticed that in the proclamation the settlement is to be made " with the zemindars or other actual proprietors of the soil." In Mr. Toynbees Sketch of the History of Orissa from 1803 to 1808 (p. 26) an explanation is given as to the persons included in the designation of zamindars " During the confusion which ensued between 1801 and the British acquisition of the province in 1803, if; seems most probable that the chowdharis, kanungos, mokadams, and other persons entrusted with collections in estates held khas, or who had given agreements to the amils to pay the lump sums due from other lands, assumed the title of zamindar, and claimed to hold the land itself in virtue of hereditary right, valid or invalid, as the case may be, to collect its rents. Broadly speaking, there fore, the zamindars of Orissa were, at the time of the British acquisition, either principal Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 12 mokadams with a hereditary right of collection, but without any right, title, or interest in the land itself; or Government officers, chiefly chowdharis and kanungos, in Charge of collections." It now becomes necessary to trace the history of the family and their estate after the adent of the British Government, and this history will be more easily understood by reference to the subjoined pedigree— Jugal Kishore Das. | | | Tribikram Sudarshan Das. Das. | | | | | Jagannath Haladhar Das. Gadadhar Das. | Das. | | | Dinabandhu Gokulanand Das. Das. | | | | Ha r ih a r Rama Balabhadra Pr a s ha d Kanta Das. Prashad Das. Das. | | | | | | | | | Jugadanand Shamanand Sachitanand Shamsunder Ra j Narayan Das. Ram Das. Das. Das. Das. Prashad Das. From their pedigree it appears that Jugal Kishore left two sons, Tribikram and Sudarshan, the elder of whom, Tribikram, entered into successive engagements with the British Government from 1805 to 1818, when he died. The second of these engagements, for three years from 1805 to 1808, is printed in the record, and is dated July 29, 1805. Das. Prashad Das. From their pedigree it appears that Jugal Kishore left two sons, Tribikram and Sudarshan, the elder of whom, Tribikram, entered into successive engagements with the British Government from 1805 to 1818, when he died. The second of these engagements, for three years from 1805 to 1808, is printed in the record, and is dated July 29, 1805. It is addressed to the ryots, cultivators, mokadams, and sarbarakars of Killa Talmunda, and recites that Bir Bikram Paharaj, according to usual custom, and in consideration of good services rendered by him in 1804, and also in consideration of the fact that he had " signed the settlement decision for 1213 to 1215 Amli for an annual jumma of Rs.1154.13.5 .... and duly submitted the kabuliyat and kistbundi in this Court, is confirmed." No inference can be drawn from this document, which is in common form, and is limited, as might be expected, to the grantees liability for the revenue demand. Tribikram died in 1818, and by an order of the Collector of the district, dated March 11, 1818, " the zemindari was recorded in the name of Chowdhuri Jagannath Das, son of the deceased, and the revenue was realized from him by the Government." Thereupon Tribikrams younger brother, Sudarshan, filed a suit claiming " a half share of the zemindaris belonging to the estate " of his grandfather and father, and a half share of the cash and value of movable properties belonging to the estate of his father. This suit was compromised upon terms which secured to the claimant far more than the maintenance allowance to which he would have been entitled had the succession to the estate been governed by the rule of lineal primogeniture, and which further bound his nephew and his heirs Law Rep. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 13 neither to sell nor in any way to hypothecate the zamindaris without the consent of the younger branch of the family. 36 Ind. App. 49 ( 1908- 1909) Rama Kanta Das Mahapatra v. Chowdhuri Shamanand Das 13 neither to sell nor in any way to hypothecate the zamindaris without the consent of the younger branch of the family. This condition, however, soon seems to have been broken, for it appears from Government records that in 1837 one Gobardhan Das purchased a half share in the zamindari at an auction sale, and that subsequently Haladhar Das, the younger brother of Jagannath Das, brought a civil suit in respect of the other half share and obtained a decree, " and thereafter he, the said (Haladhar) Das, o! his own accord, gave out of the same a four annas share to Chowdhuri Jagannath Das, and made a petition for the remaining four annas share being recorded in his own name." This was accordingly done, and the zamindari was entered in the Government records as the zamindari of Chowdhuri Jagannath Das Paharaj and Haladhar Das and Gobardhan Das by an order dated July 27, 1842. It should be noted here that Haladhar, as a matter of fact, brought two suits, one for a half share of Killa Talmunda and the other for a half share of Taluk Aranga, and obtained ex parte decrees in both suits, in the absence of his brother from the district; but a final agreement was made on his brothers return, in which it is admitted that " there is no practice in the family about partition on account of a brothers share," and Haladhar, as the result of the litigation, merely obtained a four annas share in the zamindari of Killa Talmunda "on account of his maintenance allowance," and relinquished his claim to any share in Taluk Aranga, and all other movable and immovable properties possessed by the defendant, and to the costs of the suit. Jagannath died in 1862, leaving an only son, Dinabandhu, so that in this instance no question of primogeniture could arise. Dinabandhu died in 1871, leaving three sons, one by his first wife, named Harihar, and two by his second wife, named Rama Kanta and Balabhadra, the present appellants, both of whom were minors at the time of their fathers death. Jagannath died in 1862, leaving an only son, Dinabandhu, so that in this instance no question of primogeniture could arise. Dinabandhu died in 1871, leaving three sons, one by his first wife, named Harihar, and two by his second wife, named Rama Kanta and Balabhadra, the present appellants, both of whom were minors at the time of their fathers death. Harihars name was entered on the revenue registers without objection ; and on his death in 1885 his widow Saraswati Debi applied for registration of her name as mother and next friend of her infant son Jugadanand. The present appellants objected on the ground of their being joint owners of ancestral property, in answer to which the applicant asserted that the law of primogeniture applied to the family. The Revenue Court declined to go into the question and decided the case upon a technical ground, referring the parties to the Civil Court for the determination of the question of custom. This suit was thereupon brought. The Subordinate Judge found that the custom was not proved. The High Court held it established that " the rule of primogeniture has uninterruptedly governed the devolution of property in the family for a long period of time both before and after the British occupation." Their Lordships have already stated their reasons for holding that no family custom, properly so called, existed during the period of native rule. As regards the subsequent period it is clear that, whenever the holder of the estate died leaving more than one son, the right of the eldest son was challenged in the Courts, and the litigation invariably ended in a compromise under which the younger sons obtained a share of the estate very much in excess of the maintenance to which, had the custom existed, they would have been entitled. The evidence entirely fails, in their Lordships opinion, to give to the alleged custom the character of certainty which is essential to its validity; J and, this being so, it seems to their Lordships that the decision C of the High Court cannot be supported, and they will humbly advise His Majesty to reverse that decision and in lieu thereof to direct that the decree of the Subordinate Judge be confirmed and the appeal to the High Court dismissed with costs. The appellants must also have their costs of this appeal.