Judgement Cross-appeals from a decree of the Chief Court varying a decree of the District Judge of Karnal (November 30, 1904). The question decided in this appeal was whether the property in suit devolved by the custom of primogeniture or by the Mahomedan law. The Kunjpura riasat was founded in 1748 by Najabat Khan, and in 1849 Nawab Muhammad Ali Khan, being seventh in descent, succeeded thereto and to the chiefship. Nawab Muhammad Khan died in 1886, leaving five sons, of whom the defendant-appellant Ibrahim Khan was the eldest and the two > respondents his only brothers surviving at the date of suit. In 1849, before Muhammad Khans succession, an order of the Government was made by proclamation issued by the Governor-General taking away all kinds of sovereign rights from the Nawab of Kunjpura, who nevertheless continued to be recognized as titular Nawab. Law. Rep. 39 Ind. App. 85 ( 1911- 1912) Nawab Ibrahim Ali Khan V. Nawab Muhammad Ahsan Ullah Khan 25 The Court of Wards took charge of the estate after the death in 1866 of Muhammad Khan and during the minority of the appellant, who, however, in 1900 assumed charge of ft, having then attained his majority. The respondents on May 22, 1903, sued him for partition, alleging their title under Mahomedan law to four fifth shares. The appellant pleaded that the family of the parties did not follow Mahomedan law, but custom. The custom was that only the eldest son became proprietor of the property left by his father, and the other sons received a maintenance allowance. The rule of primogeniture applied to the estate of Kunjpura; and it was not liable to partition. If, however, the Court found that any portion of the property in suit were partible, each of the plaintiffs was not entitled to more than one third thereof. The respondents replied that Kunjpura was not a State and that the eldest son had no preferential right, nor was the property in dispute incapable of partition. On the contrary the succession to it was governed by Mahomedan law, and it was liable to partition. According to that law the respondents were entitled to succeed to a four-fifth share of the property in dispute, not a two-third share as stated by the defendant. On the contrary the succession to it was governed by Mahomedan law, and it was liable to partition. According to that law the respondents were entitled to succeed to a four-fifth share of the property in dispute, not a two-third share as stated by the defendant. Even if Kunjpura were presumed to be a State, a fact which was not admitted, still the property in dispute could not be included in the State and was liable to partition. The District Judge dismissed the suit. He found that no property of any kind had ever been partitioned in the family of the parties and that the rule of primogeniture was proved to be the family custom of succession. The Chief Court affirmed this finding and upheld the custom alleged as regards all the property in suit which could be shewn to have formed part of the State of Kunjpura before 1849. But in regard to lands acquired after 1849 they thought the case was different. Their judgment is as follows— " The custom owed its rise and raison detre to the existence of the State and the exigencies of chiefship. A family custom, respected by the authorities and fully established as accompanying the chiefship, must be held to obtain as regards the estates of the chiefship as such. But when the chiefship ceased as an independent entity it was not only privileges but duties and liabilities also which were abrogated, and we do not think that lands and property acquired by the Nawab after 1849 with income, which he was admittedly competent to deal with as he pleased, can be held to be subject to the same rule of succession now as the land which once appertained to the chief as chief. And here also we can obtain valuable guidance from the case of Muhammad Afzal Khan v. Ghulam Kasim Khan (( 1903) L. R. 30 Ind. Ap. 190 ;I.L R. 30 Calc. 843.), quoted above and known as the Tank Case, decided by a Division Bench of this Court on 3rd January, 1898, and by their Lordships of the Privy Council on 15th May, 1903. Ap. 190 ;I.L R. 30 Calc. 843.), quoted above and known as the Tank Case, decided by a Division Bench of this Court on 3rd January, 1898, and by their Lordships of the Privy Council on 15th May, 1903. "It appears from the judgment of this Court, at p. 844 of I. L. R. 30 Calc, that there was a large amount of property in general of over 32,000 kanals (4000 acres), which the Nawab did not even claim to be subject to the special custom of primogeniture set up, although it had been acquired by the Nawabs, and there was also certain other property of small area which was claimed, but to which the rule of primogeniture was held not to apply. We would apply the same principle here, and we shall uphold the decision of the Lower Court and dismiss the claim as regards all the lands which were owned by the State as a State before 1849, and which we hold includes all the lands then in the Nawabs possession and so entered in the Settlement Records of 1852, and we shall decree their share to the plaintiffs of the remaining lands, holding that as regards those the personal law of the parties, that is the Muhammadan law, must apply, as it is clear that no other custom has been shewn to govern Law. Rep. 39 Ind. App. 85 ( 1911- 1912) Nawab Ibrahim Ali Khan V. Nawab Muhammad Ahsan Ullah Khan 26 succession in the family." The defendant obtained from the Chief Court leave to appeal from so much of its decree as granted the plaintiffs claim to property acquired after 1849. The plaintiffs were granted by Order in Council special leave to cross-appeal from that part of its decree which dismissed their claim in respect of all the property inherited by the late Nawab from his ancestors. De Gruyther, K.C., and Ross, for the appellant, contended that on the evidence it was proved that the rule of primogeniture prevailed in the Kunjpura family as a custom having the force of law in regard to all the property in suit. No distinction could be drawn between the property inherited by the late Nawab and that which he acquired since 1849. Those acquisitions formed a part of the impartible estate and descended in the same manner and by the same legal custom. No distinction could be drawn between the property inherited by the late Nawab and that which he acquired since 1849. Those acquisitions formed a part of the impartible estate and descended in the same manner and by the same legal custom. Reference was made to the Tonk Case, Muhammad Afzal Khan v. Ghulam Kasim Khan (L. R. 30 Ind. App. 190; I. L. R. 30 Calc. 843.); Masseys revised edition ( 1909) of his History ( 1890) of the Chiefs of the Punjab, pp. 14, 15, and 18; Sundaralingarsawmi Kamaya Naik v. Ramasawmi Kamaya Naik (( 1899) L. R. 26 Ind. Ap. 55.) ; the Bettia Raj Case, Ram Nundun Singh v. Janki Koer (( 1902) L. R. 29 Ind. Ap. 178, 193.); the Hunsapore Case, Beer Pertab Sahee v. Rajender Pertab Sahee. (( 1867) 12 Moo. Ind. Ap. 1, 18, 33) The principle of the Tonk Case (1), it was contended, was inapplicable to the facts of this case, and three decisions were referred to in which accretions were held to form part of the impartible estate and governed by the custom of descent applicable thereto Lakshmipathi v. Kandasami (( 1892) I. L. R. 16Madr. 54, 59.); Sarabjit Partap Bahadur Sahi v. Indarjit Partap Bahadur Sahi (( 1906) I. L. R. 27 Allah. 203, 251.); Kachi Kaliyana Rengappa v. Kachi Yuva Rengappa. (( 1905) L. R. 32 Ind. Ap. 261, 265, 268.) See also Thakur Johri Singh v. Baldeo Singh.(( 1884) L. R. 11 Ind. Ap. 135, 148.) Sir R. Finlay, K.C., and 0Gorman, for the respondents, contended that on the evidence the appellant had failed to establish a custom of primogeniture in the Kunjpura family. The consequence of that failure is that the family is governed by the Mahomedan law under which the property in suit is partible, and the respondents are entitled to four fifths of it. It was shewn that none of the property in suit was at any time held by the chief as chief, nor did it belong to the State. Reference was made to an unreported settlement case dated August 27, 1852, dismissing a claim for a share in mauza Sharafabad, Kunjpura, and holding that the zamindari rights therein did not belong to the State but were divisible amongst all the grantees descendants according to Mahomedan law. Reference was made to an unreported settlement case dated August 27, 1852, dismissing a claim for a share in mauza Sharafabad, Kunjpura, and holding that the zamindari rights therein did not belong to the State but were divisible amongst all the grantees descendants according to Mahomedan law. They referred also to the sanad of 1748 and to the official list given in the record of the biswadari villages owned by the Kunjpura State. In any event in 1849, when the State was deprived of its independence and its chief was reduced to the status of a private citizen, all the property then in his hands became thenceforth private estate no longer subject to a custom, if any, which had previously attached to it, but subject to the ordinary rules of succession of Mahomedan law. And as regards all property acquired after 1849 no previous family custom could apply. It was acquired by him in his capacity as a private citizen and was governed by the rules of Mahomedan law. There was no evidence of any custom of primogeniture relating thereto, and no reason why previous custom to that effect relating to other property under other circumstances should apply. The cases cited on the other side were examined and distinguished. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by MR. AMEER ALI The sole question for determination involved in these two appeals relates to the rule of succession applicable to the Kunjpura State lying in what are called the Cis-Sutlej districts of the Punjab. Law. Rep. 39 Ind. App. 85 ( 1911- 1912) Nawab Ibrahim Ali Khan V. Nawab Muhammad Ahsan Ullah Khan 27 The Kunjpura riasat lies about one hundred miles to the north of Delhi, in the district of Karnal, and was founded in the first half of the eighteenth century by an Afghan soldier of fortune of the name of Najabat Khan, who, like many other adventurers, native and foreign, had taken advantage of the troublous times when the whole fabric of the Mogul Empire had fallen to pieces to carve out a small principality for himself. In 1748 he obtained a sanad from the Afghan conqueror Ahmed Shah Abdali, also called Durani, then in the height of his power in Northern India, granting him a hereditary jagir of the villages, 149 in number, of which he was in possession at the time. In 1748 he obtained a sanad from the Afghan conqueror Ahmed Shah Abdali, also called Durani, then in the height of his power in Northern India, granting him a hereditary jagir of the villages, 149 in number, of which he was in possession at the time. The villages were declared to be inam, or revenue free, and he was to enjoy thenceforth the revenue payable to the Imperial Government, subject to the obligation of maintaining order in his ilaqa or possessions. It is not disputed that the chiefship has from the time of Najabat descended in the male line to a single heir, and that heir has been invariably the eldest son, save in one instance, where the deceased rais left no issue, and was succeeded by his eldest surviving brother. Nawab Muhammad Ali Khan, the seventh in descent from Najabat Khan, succeeded to the chiefship in the year 1849. He died in 1886, leaving several sons, three of whom only are now surviving, namely, the defendant Ibrahim Ali Khan, the eldest, and the two plaintiffs, respondents in the first appeal. He left also three daughters, but both parties are agreed that by the custom of the family they receive no share in his inheritance. The defendant was a minor at the time of his fathers death, and during his minority the Court of Wards managed the estate. In 1900 he attained majority and assumed charge of the properties. The plaintiffs claim that under the Mahomedan law, which they allege governs the succession in their family, they are entitled to shares in the Kunjpura estate, and they brought this suit against the defendant in the Court of the District Judge of Karnal for partition, possession, and " rendition of accounts." The defendant contested the action on the allegation that the estate of Kunjpura was an impartible riasat or principality which had been recognized as such by the sovereign power, and which had descended under the custom governing the family by the rule of primogeniture, and that the younger male members had no title beyond a claim to reasonable maintenance. It will be noticed that both parties allege the existence of a custom at variance with the Mahomedan law with regard to succession in their family; the plaintiffs restrict it to the exclusion of females from inheritance, whilst the defendant asserts that it extends to the younger male members. It will be noticed that both parties allege the existence of a custom at variance with the Mahomedan law with regard to succession in their family; the plaintiffs restrict it to the exclusion of females from inheritance, whilst the defendant asserts that it extends to the younger male members. The District Judge found in favour of the custom alleged by the defendant and dismissed the plaintiffs suit. On appeal the learned judges of the Chief Court have affirmed the view of the District Judge in respect of all property that appertained to the riasat prior to 184P holding that the custom set up by the defendant, which they found established, clearly applied to it. But they were of opinion that as in that year the Government withdrew from the chiefs of Kunjpura the quasi-sovereign powers they had hitherto exercised, " the chiefship ceased as an independent entity," and consequently lands and property acquired by the Nawab after 1849 were not subject to the same rule of succession as was applicable to " lands which once appertained to the chief as chief." In this view they decreed the plaintiffs claim in respect of their shares under the Mahomedan law in Law. Rep. 39 Ind. App. 85 ( 1911- 1912) Nawab Ibrahim Ali Khan V. Nawab Muhammad Ahsan Ullah Khan 28 the latter properties. Both parties have appealed from the decree of the Chief Court, The defendant contends that the learned judges are in error in drawing a distinction between the properties held before and those acquired after 1849, and that the custom, the existence of which has been found by both the Courts in India, applies to all property. The plaintiffs on the other hand urge that the custom alleged by the defendant, on whom the onus lay, has not been established; and that in any event the effect of the withdrawal in 1849 from the chiefs of all civil and criminal powers was to reduce their status to that of private citizens, subject to their ordinary personal law. That, in substance, represents the contentions of the parties before this Board. The Chief Court has traced the history of the Kunjpura family with much care and discrimination. That, in substance, represents the contentions of the parties before this Board. The Chief Court has traced the history of the Kunjpura family with much care and discrimination. Their Lordships do not, therefore, propose to discuss the evidence at any length, for they find it established beyond doubt that the estate of Kunjpura has, ever since the time of Najabat, descended to a single heir, who has been recognized as the chief of an impartible riasat, which is the Arabic or Mussulman synonym of the Hindu word raj ; and that attempts by junior members of the family to obtain shares in the riasat properties have invariably failed. The two instances on which the plaintiffs rely as shewing allotment of shares to junior cadets of the family appear to their Lordships to be clearly opposed to their contention. The first is the case of Karam Sher, the second brother of Gulsher Khan, third in descent from Najabat, who obtained, under circumstances that cannot be ascertained at this distance of time, several villages which were separated from the jagir, and are still held by his descendants. There is nothing, however, to shew that the villages Karam Sher received bore any relation to the share he would have been entitled to on partition under the Mahomedan law. Nor does it appear or is even alleged that Gulsher Khans brothers other than Karam Sher obtained any share of the family properties. In 1851, whilst the Dastur-ul-amal or settlement records of these villages were in course of preparation, Nizam Ali Khan, the son of Karam Sher, applied to have his name entered as jagirdar of the villages in question. His application was resisted by Nawab Muhammad Ali Khan, who was then the rais of Kunjpura, on the ground that the villages held by the applicant had been given to him for maintenance, and that they should revert to the chief on his (the applicants) death without male issue. His application was resisted by Nawab Muhammad Ali Khan, who was then the rais of Kunjpura, on the ground that the villages held by the applicant had been given to him for maintenance, and that they should revert to the chief on his (the applicants) death without male issue. The Commissioner of the Cis-Sutlej States, within whose jurisdiction Kunjpura lay, after recording the Nawabs objection, made the following recommendation to Government—" I think that all the villages and land possessed by the younger branches of the family should be held and recorded to be component parts of the chiefs integral estate, that while the present incumbents or any of their descendants are living the chief be altogether debarred from disturbing or interfering with their possession, and that, on failure of issue in any branch, the lands composing the maintenance (guzarah) of that branch revert to the chiefs integral estate, in place of lapsing to the Government, as they would do, were they severed from that estate. The Dastur-ul-amal would thus be drawn in the name of the Nawab Kais (the chief)." The Commissioners view was accepted and affirmed by Government on October 31, 1851, and the final order was passed by him on November 17 following. It is clear, therefore, that neither the Government nor the chief ever recognized that the villages received by Karam Sher were in lieu of his share by right of inheritance under the Mahomedan law. On the other hand it was alleged on the first opportunity that offered itself that the villages had been granted to Karam Sher and his male descendants for maintenance, and that they were to revert to the riasat on the extinction of his male line, and this contention was accepted and affirmed by the Government, The other instance is that of Ghulam Muhay-ud-din Khan. Gulsher died in 1864, leaving several sons, of whom the eldest, Rahmat Khan, succeeded to the riasat. Quarrels then broke out between him and his second brother Ghulam Muhay-ud-din about the latters claim for maintenance, which at last Law. Rep. 39 Ind. App. 85 ( 1911- 1912) Nawab Ibrahim Ali Khan V. Nawab Muhammad Ahsan Ullah Khan 29 became so violent that the British authorities, who had in the year 1806 assumed charge of the Cis-Sutlej districts, were compelled to interfere. Rep. 39 Ind. App. 85 ( 1911- 1912) Nawab Ibrahim Ali Khan V. Nawab Muhammad Ahsan Ullah Khan 29 became so violent that the British authorities, who had in the year 1806 assumed charge of the Cis-Sutlej districts, were compelled to interfere. The dispute between Rahmat Khan and Ghulam Muhay-ud-din was referred to the arbitration of the Resident at Delhi, Mr. Metcalfe (afterwards Sir Theophilus Metcalfe), and Mr. Fraser. As a result of the arbitration Ghulam Muhay-ud-din obtained a number of villages yielding a considerable income. Upon the evidence their Lordships have no hesitation in agreeing with the Chief Court that he received them in lieu of maintenance. In fact some years later, when a younger brother applied for maintenance out of the properties in the possession of Rahmat Khan and Ghulam Muhay-ud-din respectively, the latter objected to his being made liable on the ground that he himself had obtained for maintenance the villages held by him, and he was accordingly exempted from the obligation of contributing towards the younger brothers maintenance. Ghulam Muhay-ud-din died in 1841, and a claim was put forward on behalf of his minor son, Muhammad Yar Khan, to the possession of all the villages that had been held by him. But a part only was assigned to Muhammad Yar Khan for his maintenance* whilst the rest reverted to the chiefship. As already observed, these two cases, far from supporting the plaintiffs allegation, appear to their Lordships to be quite opposed to it. No other evidence has been referred to suggest that there has ever been a division of the estate in accordance with the rules of the Mahomedan law since the time of Najabat Khan. It was, however, contended on behalf of the plaintiffs that although the jagir may be impartible and descendible by the rule of primogeniture, the zamindari rights in the villages comprised in the jagir cannot be so treated in the absence of clear evidence of custom applicable to them. In support of this contention reliance was placed on the dictum of Mr. Lawrence (afterwards Lord Lawrence) pronounced in 1852 in a case which had come before him as a member of the Board of Administration. Janbaz Khan and Shahbaz Khan, two younger sons of Rahmat Khan, had preferred a claim for shares in the zamindari rights in one of the villages appertaining to the Kunjpura estate. Lawrence (afterwards Lord Lawrence) pronounced in 1852 in a case which had come before him as a member of the Board of Administration. Janbaz Khan and Shahbaz Khan, two younger sons of Rahmat Khan, had preferred a claim for shares in the zamindari rights in one of the villages appertaining to the Kunjpura estate. Their application was dismissed by the Commissioner. On appeal to the Board Mr. Lawrence expressed himself as of opinion " that zamindari rights did not belong to the State, that, like other movable or immovable property, it should be given by right of inheritance according to Muhammadan law, and that all the descendants of Nawab Rahmat Khan, who had acquired this zamindari, had rights in it." The other members appear to have concurred in this view. But the final decision was made dependent on the determination of the question whether Janbaz and Shahbaz had ever been in possession of the shares which they claimed should be recorded in their names. They were found, however, never to have been in possession, and their claim was finally dismissed. The opinion of Mr. Lawrence, however deserving of respect, affords, therefore, little assistance in deciding the question whether the zamindari rights are subject to a different rule of succession from the jagir. The opinion was, in the result, ineffective, and seems never to have been accepted or acted upon in the course of the constant claims the junior members of the family have put forward to a share in the estate. The decisions in the later cases lay down in explicit terms that the zamindari rights belong to the riasat. Similarly, it is recorded in the wajib-ul-arz that " the entire biswadari, zamindari, and jagirdari rights are possessed by the Nawab." Any other conclusion would not only be inconsistent with the policy which the Government has maintained for nearly a century towards these riasats, but in the end would prove positively destructive to the chief ships. It remains, however, to consider whether the view taken by the Chief Court with regard to the rule of succession to acquisitions made by the chiefs after 1849 is well founded. After holding that the custom set up by the defendant Nawab is made out as regards all property which can be shewn to have formed part of the State before 1849, the learned judges proceed to say Law. Rep. 39 Ind. App. After holding that the custom set up by the defendant Nawab is made out as regards all property which can be shewn to have formed part of the State before 1849, the learned judges proceed to say Law. Rep. 39 Ind. App. 85 ( 1911- 1912) Nawab Ibrahim Ali Khan V. Nawab Muhammad Ahsan Ullah Khan 30 " As regards lands subsequently acquired we think the case is different. The custom owed its rise and raison d’etre to the existence of the State and the exigencies of chiefship. A family custom, respected by the authorities and fully established as accompanying the chiefship, must be held to obtain as regards the estates of the chiefship as such. But when the chiefship ceased as an independent entity, it was not only privileges but duties and liabilities also which were abrogated and we do not think that lands and property acquired by the Nawab after 1849, with income, which he was admittedly competent to deal with as he pleased, can be held to be subject to the same rule of succession now as the land which once appertained to the chief as chief." Their Lordships regret to be unable to follow the reasoning on which the view expressed by the learner! judges proceeds, or assent to the conclusion at which they have arrived. There is nothing to shew that the Government, in withdrawing the civil and criminal powers the chiefs had hitherto exercised, intended to make any alteration in their status or to vary the rule which had governed the succession to the Kunjpura estate. The withdrawal of those powers was no doubt due to the needs of administration, but that circumstance cannot affect the custom under which the entire estate descended by the rule of primogeniture to a single male heir. On the whole their Lordships are of opinion that the appeal of the defendant Ibrahim should be decreed and the plaintiffs suit dismissed, They will accordingly humbly advise His Majesty to discharge the decree of the Chief Court, and to restore that of the District Judge, dismissing the plaintiffs suit. The plaintiffs will pay the costs of these appeals.