Judgement Consolidated Cross-Appeals from a judgment and decree of the Judicial Commissioner (September 8, 1909) which varied a decree of the Subordinate Judge of Barabanki (September 15, 1908). The plaintiff in the suit, Dwarka Pershad Singh, sued his elder brother Janki Pershad Singh and their mother for partition of certain villages enumerated in his plaint, claiming a third share as a member of a joint Hindu family governed by the Mitakshara law. The suit was contested by the defendant Janki Pershad Singh, who pleaded by his written statement that Rani Mau, comprising all the lands mentioned in the plaint, was a taluq subject to Act I. of 1869, and added " the property in suit is impartible; no partition can be made or ever has been made in this family in accordance with the custom." The first defendant died after the judgment appealed from and was represented by his infant son. The second defendant, the mother, was also dead, and no question remained as to her interest in the properties in suit. The material facts were shortly as follows. In and previous to 1857 one Autar Singh was the owner in possession of the ancient taluq Rani Mau, then comprising twenty-one villages. He was eighth holder in regular descent, the taluq having increased from nine villages of which it consisted in 1700. On the inoccupation of the Province of Oudh after the Mutiny, all rights in the soil of Oudh (with certain exceptions) were confiscated by Lord Cannings Proclamation of March 15, 1858. The Government by a circular letter to the taluqdars dated June 23, 1858, invited them to present themselves in Lucknow and to tender their allegiance, assuring them that upon their doing so within the time limited their lives and property would be assured and the estate formerly possessed by them confirmed see Sykes Compendium of Taluqdari Law, pp. 381, 382. Autar Singh failed to present himself within the time limited, and on August 7, 1858, eleven of his twenty-one villages, including five of the villages in suit, were settled by the Government with Raghubar and Nirmal Singh, and one village in suit was conferred on another person. As to the rest of the twenty-one villages, namely, nine villages, it appeared that certain collateral relatives of Autar Singh were allowed to engage for the revenue at the summary settlement in 1858. As to the rest of the twenty-one villages, namely, nine villages, it appeared that certain collateral relatives of Autar Singh were allowed to engage for the revenue at the summary settlement in 1858. On July 22, 1859, Autar Singh appeared and in a petition, after explaining the reason for his delay in coming forward, he prayed that a settlement of his property might be made with him. After his claim bad been considered the Chief Commissioner by & letter dated October 5, 1859, sanctioned the settlement with him of half the taluq, namely, nine villages. The Deputy Commissioner on October 13, 1859, ordered that a patta and kabuliyat in respect of the nine villages should be prepared for signature and that Autar Singh should be placed in possession. On that date accordingly a formal patta was executed in his favour by the settlement officers, and he executed a corresponding kabuliyat for all the nine villages collectively, and was placed in possession and signed a dakhil-nama. This settlement was made with him as malguzar. No formal sanad was issued to Autar Singh, but he was called on to make a declaration as to the law of descent applicable to his taluq, which he did on April 25, 1860, asking that it might " continue in his family entire arid without partition according to custom." Autar Singhs name was afterwards entered in the first list appended to Act I. of 1869 as taluqdar of the Rani Mau estate, and in the second list as a taluqdar "whose estate according to the custom of the family or before February 13, 1856, ordinarily devolved on a single heir." In the course of the regular settlement in 1865-6 the five villages above referred to as having formed part of the twenty-one villages comprised in the taluq, together with another village named Kamrauli, were settled with Autar Singh. In 1876 and afterwards he repurchased another village and certain sir lands which had belonged to the old taluq, and he further bought four more villages in suit, which had not formed part of it. Autar Singh died without issue in 1879 and was succeeded by his eldest nephew, who died in 1889 and was succeeded by his eldest son the defendant, whose name was entered in the register. Autar Singh died without issue in 1879 and was succeeded by his eldest nephew, who died in 1889 and was succeeded by his eldest son the defendant, whose name was entered in the register. It will therefore be seen that the property in suit consisted of (1.) nine villages, part of the old taluq, conferred on Autar Singh in October, 1859; (2.) five villages, part of the old taluq, and the village of Kamrauli, settled at the regular settlement in 1865-6; (3.) property, part of the old taluq, subsequently purchased ; (4.) property, not part of the old taluq, subsequently purchased. On September 15, 1908, the Subordinate Judge delivered judgment. He held that the villages conferred in 1859 and the villages comprised in the regular settlement of 1865-6 constituted an estate within the meaning of Act I. of 1869, but that the lands subsequently purchased by Autar Singh were joint family property. By a mistake of fact he included in the latter class Kamrauli, which was settled in 1865-6. He accordingly made a decree in favour of the plaintiffs as to the lands purchased and Kamrauli, and dismissed the suit as to the rest of the property. Cross-appeals were preferred to the Court of the Judicial Commissioner. That Court delivered judgment on September 8, 1909, dismissing the appeal of the defendants, and varying the decree in favour of the plaintiff by giving him a half instead of one-third of the lands purchased. This variation was in consequence of the death of the mother, the second defendant. On the question whether the lands in respect of which the plaintiffs suit had been dismissed did or did not form a taluqdari estate within Act I. of 1869 the learned Commissioners differed in the view they took. The first Additional Judicial Commissioner was of opinion that they did not. He considered that, whatever was the status conceded to Autar Singh before and after the summary settlement in 1859, the settlement then made was made with him as malguzar and not as taluqdar, and that consequently, having regard to the authorities, he was not within s. 3 of Act I. of 1869 ; and further that Autar Singh was not within that section because the summary settlement was, as he held, made on October 13, 1859, when the patta and kabuliyat were signed, and therefore not within the period referred to in the section. Consequently in his view there was no estate within Act I. of 1869, and the succession was not governed by s. 22 of that Act. On the question of custom, however, he found that the presumption under s. 10 arising from the entry of Autar Singhs name in Lists I. and II., coupled with direct evidence (which he described as meagre), was sufficient proof of a custom that the estate descended to a single heir, and that the defendants being in possession the plaintiff had failed to prove that he was the single heir. As to the purchased villages he held that the custom being proved only with the help of the presumption arising from s. 10 applied only to the estate as existing in 1869, and that there was no evidence upon which he could find that Autar Singh intended to incorporate the purchased villages with the impartible estate. The second Additional Judicial Commissioner agreed that it was not the intention of the Government in 1859 to deal with Autar Singh as a taluqdar, but he considered that by entering his name in Lists I. and II. under Act I. of 1869, s. 8, he was then treated as being a taluqdar, and that having regard to s. 10 he was to be treated as a person with whom a summary settlement had been made as taluqdar. Further in his opinion the summary settlement was effectively made before October 10, 1859, the signing of the patta and kabuliyat being merely formalities. He therefore considered that the villages settled in 1858 and in 1865-3 constituted an estate within Act I. of 1869. In all other respects he agreed with the conclusions of the first Judicial Commissioner. Both judgments treated Kamrauli as among the purchased villages, whereas it was in fact settled in 1865-6. Both parties appealed. d Sir Erle Richards, K.C., and Kenworthy Brown, for the appellant (defendant.) The judgment appealed from was wrong in treating the villages purchased by Autar Singh after 1869 as partible. The family custom of impartiality was found by both Courts as applicable to the villages settled in 1859 and 1865-6, and that custom being established as to part of the family property, the onus is on those who seek to prove that it does not apply to particular property Thakur Ishri Singh v. Baldeo Singh (( 1884) 11 Ind. Ap. The family custom of impartiality was found by both Courts as applicable to the villages settled in 1859 and 1865-6, and that custom being established as to part of the family property, the onus is on those who seek to prove that it does not apply to particular property Thakur Ishri Singh v. Baldeo Singh (( 1884) 11 Ind. Ap. 135, at p. 148.) ; Jagdish Bahadur v. Sheo Partab Singh (( 1901) 28 Ind. Ap. 100, at p. 110.); Rajendra Bahadur Singh v. Rani Raghubans Kunwar. (( 1908) 11 Oudh Cases, 256, at p. 260.) The custom of descent of the family property was not affected by the annexation of the province Nawab Ibrahim Ali Khan v. Nawab Muhammad Ahsan Ullah Khan. (( 1912) L. R. 39 Ind. Ap. 85.) The purchased villages were merely accretions to the taluq and subject to the same custom of impartibility. This is more particularly so with regard to the villages which had before the Mutiny formed part of Autar Singhs taluq. The dispatches cited in the schedule to Act I. of 1869 shew that it was the policy of the Government that estates in Oudh were to be impartible where possible, but that the Government would not force impartibility upon estates when contrary to the family custom. The intention and effect of that Act must therefore be taken to favour impartibility. The village of Kamrauli, which was settled with Autar Singh in 1865-6, was included in the judgment among the purchased villages by an error of fact. De Gruyther, K.C., and Dube, for the respondent (plaintiff). No part of the property in suit constituted a taluqdari estate within Act I. of 1869, since the conditions laid down in s. 3 were not satisfied. The summary settlement with Autar Singh was not made between April 1, 1858, and October 10, 1859, notwithstanding the consent of the Chief Commissioner on October 5, 1859. Autar Singh was not bound by the settlement until the execution of the patta and kabuliyat on October 13, 1859. Moreover to bring any person within the operation of the clause the settlement must be made with him as taluqdar Widow of Shunker Sahai v. Rajah Kashi Pershad. (( 1877) L. R. 4 Ind. Ap. 198, at p. 205.) In both judgments it is found that the 1859 settlement was made with Autar Singh as malguzar. Sect. Moreover to bring any person within the operation of the clause the settlement must be made with him as taluqdar Widow of Shunker Sahai v. Rajah Kashi Pershad. (( 1877) L. R. 4 Ind. Ap. 198, at p. 205.) In both judgments it is found that the 1859 settlement was made with Autar Singh as malguzar. Sect. 10 does not apply unless the conditions laid down by s. 3 have been complied with. The settlements with Autar Singh constituted a new root of title and the Mitakshara rule applied to the descent of the taluq granted. The terms of the letter of October 10, 1859, set out in the schedule to Act I. of 1869, shew that the effect of the summary settlement was that a permanent title was "thereby acquired." That the intention of Act I. of 1869 was merely to carry out this principle appears from the Chief Commissioners letter of January 28, 1859 (see Papers relating to Oude, 1859), and the inclusion of the letter of October 10, 1859, in the schedule. See also Sykes Compendium, pp. 51 to 57. The evidence as to family custom rested on three descents only and was not sufficient to establish the custom of impartibility Hyder Hossain v. Mahomed Hossain (( 1872) 14 Moo. Ind. Ap. 401, at p. 404.); Bhau Nanaji Utpat v. Sundrabai (( 1874) 11 Bomb. H. C. 249, at p. 269.); Maynes Hindu Law, 7th ed., pp. 61 and 633. The judgment appealed from was right in holding that even if the family custom was proved it did not extend to the villages subsequently purchased. It was a question whether Autar Singh intended to incorporate these villages with the impartible estate Parbati Kumari Debi v. Jagadis Chunder Dhabal. (( 1902) L. R. 29 Ind. Ap. 82, at p. 98.) There was no evidence of any such intention. No inference can be drawn from the descent of the villages to Autar Singhs nephew, as at Autar Singhs death the nephew was a sole surviving child. Sir Erle Richards, K.C. (who was only called upon to reply as to the villages purchased after 1869). If the onus was on the defendants, which is denied, it should be held from the circumstances that Autar Singh intended that the villages purchased should form part of his impartible estate. The judgment of their Lordships was delivered by MR. AMEER ALI. If the onus was on the defendants, which is denied, it should be held from the circumstances that Autar Singh intended that the villages purchased should form part of his impartible estate. The judgment of their Lordships was delivered by MR. AMEER ALI. These are two consolidated appeals from a judgment and decree of the Court of the Judicial Commissioner of Oudh, dated September 8, 1909, and arise out of a suit brought by the plaintiff Dwarka Pershad in the Court of the Subordinate Judge of Barabanki, for partition of certain properties known as taluqa Rani Mau, in which he claimed a share as a member of a joint Hindu family governed by the Mitakshara law. The two defendants to this action were the plaintiffs elder brother Janki Pershad and their mother Marjad Kuar, and as the mother, under the Mitakshara law, is entitled on the partition of ancestral property to an equal share with the sons for her life, the plaintiff asked for a decree in respect of a third share in the entire property included in the list attached to the plaint. The defendant Janki Pershad alone contested the suit, the ground of his defence being that the taluqa sued for was, under the provisions of Act I. of 1869, as also by custom governing the family, an impartible estate descendible to a single heir, to which the ordinary rules of the Hindu law of inheritance did not apply. The parties thus went to trial on two distinct issues, namely, whether the properties in suit belonged to a joint Hindu family and were subject to the incidents ordinarily attached to such properties, or whether they formed in whole or in part, under Act I. of 1869 or by custom, an impartible estate. A short history of the family will explain the reasons on which the Courts in India have proceeded in arriving at their conclusions. The nucleus of the taluqa in dispute is said to have been formed by one Sukh Shah. He owned nine villages, but the number increased to sixteen in the hands of his son and successor, Sakat Singh, who lived about the close of the eighteenth century. The nucleus of the taluqa in dispute is said to have been formed by one Sukh Shah. He owned nine villages, but the number increased to sixteen in the hands of his son and successor, Sakat Singh, who lived about the close of the eighteenth century. In 1856, when the British first occupied the kingdom of Oudh, the taluqa included twenty-one villages, and was held by Autar Singh, eighth in descent from Gulal Shah, the original ancestor of the parties and the grandfather of Sukh Shah. On the outbreak of the Mutiny Autar is said to have disappeared. Nor did he make his appearance on Lord Cannings famous Proclamation issued in March, 1858. The British authorities accordingly proceeded to make a settlement of his confiscated villages with third parties. But some time in July, 1859, Autar appeared before the authorities, explained the reason of his non-appearance before, and applied for a settlement of his villages. They were apparently satisfied with his explanation, and on October 5, 1859, an order was passed on his application, sanctioning the summary settlement with him of the remaining nine villages which had not been finally settled with others. The kabuliyat, however, was not signed by him until the 13th of that month. In the course of the regular settlement which followed shortly after, Autar obtained decrees for possession of six more villages. He was thus in possession of some fifteen villages when Act I. of 1869 was passed into law. Later on he acquired by purchase several other properties. Autar died in 1879 without issue and was succeeded in the possession of the properties by his nephew Jang Bahadoor, the eldest son of his brother Bisheshur. Jang Bahadoor died in 1889, leaving him surviving two sons, namely, the plaintiff and the defendant, Janki Pershad, the latter being the eldest. On Jang Bahadoors death Janki Pershad came into the possession of the entire property. The Subordinate Judge has held that the properties which were settled with Autar .in 1859, together with those decreed to him in the course of the regular settlement, form an " estate " within the meaning of Act I. of 1869 and are descendible to a single heir and are consequently impartible. The Subordinate Judge has held that the properties which were settled with Autar .in 1859, together with those decreed to him in the course of the regular settlement, form an " estate " within the meaning of Act I. of 1869 and are descendible to a single heir and are consequently impartible. But as regards the several properties Autar Singh acquired by purchase subsequent to the regular settlement the trial judge was of opinion that in the absence of evidence establishing an intention on his part to incorporate the subsequent acquisitions with the " estate " they must be held to be governed by the ordinary Hindu law of inheritance. He accordingly decreed the plaintiffs claim in respect of a one-third share in what he calls the "acquired" properties and dismissed the suit as regards the rest. Both parties appealed to the Court of the Judicial Commissioner of Oudh, which affirmed the decree of the Subordinate Judge with a modification in respect of the parties shares necessitated by the death of their mother Marjad Kuar, which became one-half each instead of one-third. The plaintiff and the defendant have both appealed to His Majesty in Council against the judgment and decree of the Appellate Court. The plaintiff contends that the lower Courts were wrong in holding that the properties in respect of which his suit has been dismissed form an " estate " within the meaning of the Act and are, consequently, impartible; whilst the defendant urges that the properties, a half share of which has been decreed to the plaintiff, being accretions to the " estate " or taluqa, are equally impartible. As regards the contention of the plaintiff, the first point to determine is the meaning which the Legislature has attached to the word " estate" with reference to properties coming within the purview of Act I. of 1869, and that meaning must be gathered so far as possible from the enactment itself. The term "estate" is defined in s. 2 to mean "the taluqa or immoveable property acquired or held by a taluqdar or grantee in the manner mentioned in section 3, section 4, or section 5, or the immoveable property conferred by a special grant of the British Government upon a grantee." And "taluqdar " is declared to mean a person whose name is entered in the first of the lists mentioned in s. 8. Sect. Sect. 3 declares that " Every taluqdar with whom a summary settlement of the Government revenue was made between the first day of April, 1858, and the tenth day of October, 1859, or to whom, before the passing of this Act and subsequently to the first day of April, 1858, a taluqdari sanad has been granted, shall be deemed to have thereby acquired a permanent heritable and transferable right in the estate comprising the villages and lands named in the list attached to the agreement or kabuliyat executed by such taluqdar when such settlement was made, or which may have been or may be decreed to him by the Court of an officer engaged in making the first regular settlement of the province of Oudh, such decree not having been appealed from within the time limited for appealing against it, or, if appealed from, having been affirmed." Sect. 8 provides that "Within six months after the passing of this Act, the Chief Commissioner of Oudh .... shall cause to be prepared six lists, namely— " First.—A list of all persons who are to be considered taluqdars within the meaning of this Act. " Second.—A list of the taluqdars whose estates, according to the custom of the family on and before the thirteenth day of February, 1856, ordinarily devolved upon a single heir." The rest of the section is immaterial for the purposes of this case. Sect. 22 lays down the rules relating to intestate succession to the estates of taluqdars whose names have been entered in the second, third, or fifth of the lists mentioned in s. 8. In the first instance it declares that if any taluqdar whose name is so entered were to die intestate as to his estate, such estate shall descend " to the eldest son of such taluqdar or grantee, heir or legatee, and his male lineal descendants, subject to the same conditions and in the same manner as the estate was held by the deceased." It is common ground that "a summary settlement of the Government revenue" was made with Autar Singh in respect of nine villages " between the 1st day of April, 1858, and the 10th day of October, 1859." Their Lordships are not omitting from consideration the fact that the kabuliyat was not executed until October 13. To this they will advert later. To this they will advert later. It is also admitted that he obtained decrees in respect of six other villages in the first regular settlement of the province, and that his name was entered in the lists prepared under the statutory provisions of s. 8. It is clear, therefore, that Autar was not only a taluqdar, but that his taluqa acquired by virtue of the above recited proceedings was an "estate" within the meaning of the Act. One of the learned judges in the Court below has considered that the execution of the kabuliyat after the time-limit mentioned in s. 3 deprived Autar Singhs taluqa of the character of an estate defined in the statute, although in his conclusion he agreed with the Subordinate Judge in holding that it was impartible property. His view may shortly be summarized as follows as the principal villages included in the taluqa were not acquired either under a grant or a summary settlement made between the two dates mentioned in s. 3, the property did not constitute an " estate " defined in s. 2 ; but as it appeared in the evidence that the taluqa had ordinarily devolved upon a single heir on and before February 13, 1856, it must be treated as an impartible estate descendible under the rules of devolution provided in s. 22. The other learned judge held in substance that under the circumstances of the case it may fairly be assumed that the summary settlement with Autar was made before October 10, 1859. In their Lordships judgment the less technical construction seems more in accord with the true intent of the enactment. It is easily conceivable that a settlement might be made within the time-limit, and yet the formal documents connected therewith might not, owing to causes beyond the control of the person with whom the settlement is made, be executed until later. The law must be absolutely explicit that non-execution within the time is fatal to the right which it expressly gives before it can be so construed. The law must be absolutely explicit that non-execution within the time is fatal to the right which it expressly gives before it can be so construed. Clause 3, which declares the right a taluqdar acquires in villages and lands settled with him, states that " he shall be deemed to have acquired thereby " (that is by the summary settlement) " a permanent heritable and transferable right in the estate comprising the villages and lands named in the list attached to the agreement or kabuliyat executed by such taluqdar when such settlement was made." The right the taluqdar is declared to have acquired comes into existence with the settlement, the rest of the clause merely describes the properties with respects to which it takes effect. If the settlement was directed, on October 5, to be made with Autar Singh, the delay in the signing of the formal documents would not affect the right he acquired thereby, as the execution of the agreement would relate back to the time when the settlement was in fact made. The authorities charged with the execution cf the duties imposed by s. 8 of the Act do not appear to have considered that the delay which had occurred in the signing of the kabuliyat affected Autar Singhs rights in the properties settled with him in 1859, or differentiated him from the other taluqdars ; and although the settlement had been made with him as malguzar, he was, in fact, included as a taluqdar in the general lists prepared under the section, and the property of Rani Mau was entered against his name as the estate in his possession. Sect. 10 of the Act provides that "the Courts shall take judicial notice of the said lists and shall regard them as conclusive evidence that the persons named therein are such taluqdars or grantees." Their Lordships have no hesitation in holding that the properties settled with Autar Singh in 1859, together with those of which he obtained possession under decrees passed in his favour in the course of the regular settlement, constitute an "estate within the meaning of the Act, and are consequently impartible. The defendants appeal relates to that portion of the lower Courts decree which, affirming the order of the Subordinate Judge, awarded to the plaintiff a half share in the properties subsequently acquired by Autar Singh. The defendants appeal relates to that portion of the lower Courts decree which, affirming the order of the Subordinate Judge, awarded to the plaintiff a half share in the properties subsequently acquired by Autar Singh. Janki Pershad has died since the institution of this appeal, and he is now represented by his minor son Dharaband Singh. It is contended on his behalf that by the custom of the family these acquisitions became part of the original estate and are, therefore, not subject to the ordinary rules of inheritance. Both the Courts in India have come to the conclusion that the evidence is insufficient to establish the alleged custom, and no adequate reason has been shewn to induce their Lordships to take a different view. The only other point that remains to be considered is whether the lands subsequently acquired were as a matter of fact incorporated with the taluqa. As has been pointed out by this Board in the case of Parbati Kumari Debi v. Jagadis Chunder Dhabal (L. R. 29 Ind. Ap. 82.), the question whether properties acquired by an owner become part of " the ancestral estate for the purpose of his succession" depends on his intention to incorporate the acquisitions with the original estate. The Courts in India have concurrently found against the defendant on this point, and their Lordships see no reason to differ from their conclusion. Both Courts appear, however, to have fallen into an error in respect of one property, Kamrauli, for a half share of which they have made a decree in favour of the plaintiff. It is admitted on his behalf that Kamrauli is one of the villages for which Autar Singh obtained a decree in the regular settlement proceedings. The decree of the lower Court must, therefore, be varied by the elimination of Kamrauli. Subject to this variation both appeals will be dismissed, each party bearing his own costs. And their Lordships will humbly advise His Majesty accordingly.