Judgement Appeal from a judgment and order of the Court of the Judicial Commissioner (April 19, 1917), reversing a decree of the District Judge of Nimar, at Kandwa. The suit was brought by the first respondent and a purchaser from him, alleging that certain property in the possession of the appellant (since deceased) was joint family property, as to which the first respondent and his brothers (also respondents) were entitled to partition. The property, as described in the plaint, included two muafi villages, Nandia and Pangra, and two malguzari villages, Piplod and Jirwan. The main question in the appeal was whether the property was partible or whether the deceased appellant as the eldest son of the last holder had been entitled to it according to the rule of primogeniture. The family were Rajputs settled in the Nimar district, Central Provinces, for several centuries. The material facts (with a pedigree) appear from the judgment of the Judicial Committee. There was no dispute in the appeal that the eldest male representative of the eldest branch was entitled to the title of Rana and was installed on the gaddi, and there was evidence to show that the family had been a ruling family with a raj since the year A.D. 1300, or thereabouts, though its property at the present time was of a small amount. Umedsingh, the father of the principal parties, was shown to be the fourth eldest member of the family in succession to hold the property as impartible ; he died in 1892, and on his death the original appellant succeeded to the property and to the title of Rana and the gaddi. The first respondent was then a minor, but he attained his majority in 1898 ; he first raised a claim in 1908, in the Settlement Court which rejected it. The District Judge dismissed the present suit. He found that upon the evidence the appellant had established the alleged custom of primogeniture ; he particularly relied on the fact that the younger members of the family had acquiesced in the eldest male of the eldest male line holding the property in question, and had accepted grants for maintenance, for at least four generations. On appeal the Court of the Judicial Commissioner reversed the decision of the District Judge and remanded the suit. On appeal the Court of the Judicial Commissioner reversed the decision of the District Judge and remanded the suit. The learned judges recognized that no partition had taken place during the last four generations, but held that the conduct of the members of the family since Hatesing (great grandfather of the parties) succeeded to the gaddi would not in itself suffice to establish a custom of primogeniture and impartibility, even if they were prepared to hold, as they were not, that what was done was of right and not because of convenience. They said " It must also be established that the recent practice was followed, because it was the ancient practice. As we have endeavoured to show, it is impossible to say from the evidence on the record as to this particular family that there used not to be divisions of pro perty partaking of the nature of partition. Once it is held that there have from time to time been distributions of property partaking of the nature of a partition then we must hold that a suit for partition cannot be defeated, and in making the partition the only rule that a Court can follow is the ordinary rule of Hindu law, by which the rights of brothers are equal." In the course of their judgment the learned judges referred to their judgment in appeal No. 11 of 1911, which was reversed by the Judicial Committee (Rao Kishore Singh v. Mt. Gahenabai (July 29, 1919; unreported.)), citing the passage which is set out in the present judgment of the Judicial Committee. 1921. Feb. 7,8,10. Sir Erle Richards K.C. and E. B. Raikes for the representatives of the appellant. The earlier history of this family appears from Captain Forsyths Settlement Report made in 1868 and published in 1872. [Reference was made to the following paragraphs of the Report 34, 38, 43, 59, 111, 113, 117 to 119, 128, 135, 241, and 249.] The report establishes that the property was always held as an impartible zamindari, and that the shares in it allotted to junior members were given and held for maintenance, not by way of partition. The view expressed in Captain Mackenzies report (para. 32) that the junior members obtained shares by " some species of partition " is not correct. The view expressed in Captain Mackenzies report (para. 32) that the junior members obtained shares by " some species of partition " is not correct. The grants to them were in the nature of the jivai grants in a Rajput family considered in Pratapsing Shivsing v. Agarsingji Raisingji. (( 1918) L. R. 46 I. A. 97.) The judgment of the Board in Rao Kishore Singh v. Gahenabai (July 29, 1919; unreported.) shows that under Mahomedan rule the position of the Rajput chiefs was maintained ; the evidence in the present case establishes that the former estate of impartibility was not changed. In the last named appeal the Board reversed the decision of the Judicial Commissioners which they referred to in their present judgment; the evidence of custom in that case was of modern instances and was held sufficient. The evidence does not support the view of the Judicial Commissioners that the junior members rights to maintenance had grown into a right to partition; the shares allotted were considerably less than the shares which the grantees would have obtained by partition. [Reference was also made to Balwant Rao v. Baji Rao (( 1920) L. R. 47 I. A. 213.); and to Tods Rajasthan, 1914 ed., vol. i., p. 117, and vol. ii., p. 307.] De Gruyther K.C. and Parikh for the respondents 1 and 2. The evidence did not establish an ancient, invariable, and continuous custom of the family. The partitions which took place from time to time were inconsistent with impartibility; that view is supported by Captain Mackenzies report (paras. 32 to 44). Captain Forsyths report (para. 119) shows that the Moslem Government refused to recognize the Rajputs as feudal chiefs, but conferred on them the fiscal office of zamindars. When under British rule the fiscal office was abolished, the rajas ceased to have proprietary rights in the land, their rights were merely to the revenue. The settlement of 1865 was made with the then raja as having enjoyed the office ; the orders then made do not recognize any pre-existing proprietary right. The malguzari villages were first acquired at the settlement in 1856, and there was then no raj or watan to which they could attach. Captain Forsyths report (para. 241) shows that the watan lands were partible ; and in 1844 there was a partition of them between the four brothers. The malguzari villages were first acquired at the settlement in 1856, and there was then no raj or watan to which they could attach. Captain Forsyths report (para. 241) shows that the watan lands were partible ; and in 1844 there was a partition of them between the four brothers. [Reference was made to Adrishappa v. Gurushidappa(( 1880) L. R. 7 I. A. 162.); Parbati Kumari Debi v. Jagadir Chunder Dhobal (( 1902) L. R. 29 I. A. 82.); and Maynes Hindu Law, para. 469.] Sir Erle Richards K.C. in reply. The malguzari villages must be regarded as incorporated with the estate and subject to the custom Sarabjit Partap v. Indarjit Partap. (( 1904) I. L. R. 27 A. 203, 251, 252.) Para. 241 of Captain Forsyths report does not apply to Rajput families. The present suit does not relate to watan lands. April 21. The judgment of their Lordships was delivered by MR. AMEER ALI. This is an appeal from a judgment and decree of the Court of the Judicial Commissioner of the Central Provinces bearing date April 19, 1917, which, reversing the order of the District Judge of Nimar on the preliminary issue on which he had disposed of the suit, remanded the case for a further decision upon the merits. The present appeal to this Board is from that remand order. The facts of the suit have been set out at considerable length in the judgments of the two Courts in Indi. Their Lordships are thus relieved of the necessity of dealing with them at any length. The parties to the action, excepting the second plaintiff, are members of an old Rajput family settled in the district of Nimar for several centuries. Their possessions, which the Judicial Commissioners not without reason think must have been at one time considerable, have now dwindled to two revenue-free or muafi villages, Nadia and Pangra, two revenue-paying or malguzari villages, Piplod and Jirwan, and certain zirat and sir lands. The plaintiff, Badansingh, who is the younger brother of the principal and contesting defendant, Mahatabsingh, alleges that upon the death of their father Umedsingh in 1892, he along with Mahatab and another brother Nirbhesingh, who has since died, became entitled upon partition, as members of a joint Hindu family, each to a one-third share in the family property. The plaintiff, Badansingh, who is the younger brother of the principal and contesting defendant, Mahatabsingh, alleges that upon the death of their father Umedsingh in 1892, he along with Mahatab and another brother Nirbhesingh, who has since died, became entitled upon partition, as members of a joint Hindu family, each to a one-third share in the family property. He further alleged that his cause of action arose when he was ousted from joint possession in 1909, the defendant having turned him out of the family dwelling-house. He accordingly sued for a decree for partition and for possession of his share. The second plaintiff, who is the clerk of the pleader in the action and is admittedly financing the litigation, is the assignee from Badansingh of a 4-anna share in the revenue-free villages, the most valuable part of the family property. The suit was filed on September 20, 1910, and the sons of Nirbhesingh were made parties, as representing that branch of the family. The defendant Mahatab, whilst admitting that the properties were ancestral, denied the right of the plaintiff to obtain a partition. He alleged that by the custom that had prevailed in the family from time immemorial the property devolved on a single heir by the rule of lineal primogeniture, who alone was entitled to the gaddi and to the title of Rana which had existed in the family " from the time of Gourishah Badshah." He further alleged that by the custom of the family the junior members had a right only to maintenance and not to any share in the property. The principal controversy between the parties thus centred round this alleged custom, and the District Judge among the points for determination made this the first issue in the case. It is in these terms "Is there any custom of primogeniture in the family of the plaintiff 1 and defendants, and is defendant 1, for that reason, entitled to the whole of the family property to the exclusion of the plaintiff 1 ? " The following genealogical table will explain the relative position of the parties and of the collaterals who have been examined in the case. Rana Jaswantsingh | | Pitamba | Hatesin | Ratansi | Kesresi rsingh on the Raj gaddi in 1844. " The following genealogical table will explain the relative position of the parties and of the collaterals who have been examined in the case. Rana Jaswantsingh | | Pitamba | Hatesin | Ratansi | Kesresi rsingh on the Raj gaddi in 1844. gh (d. 1855) | ngh | ngh | | | | Naharsing h (d. 1869) | | Sabalsi ngh | | Amarsi ngh | | Nainsin gh | Jitsin gh | Bakta warsin gh | | Sawaisingh | | | | | | | | | | | | Bhimsi ngh | | Babu alias | Piaresi ngh | Nawalsingh | 2 daughters Bharat | | | | singh | | Umedsin | Hamir gh (d. 1892) | | | | singh | | Sheon athsing |h || Mahatab Badans singh ingh (defenda (plaintif nt 1)| f) Nirbhesi ngh (dead) | | || Dulesing Manoh Ramsi h arsingh ngh (defenda (defend (defen nt 2) ant 3) dant 4) A considerable body of evidence was produced on behalf of the defendant in support of the custom, and the District Judge examined it minutely in conjunction with the negative evidence on the plaintiffs side. He dealt first with the oral testimony and then discussed with equal minuteness the documentary evidence, referring only to that, as he says, " on which the parties had relied when arguing the case." The conclusions which he drew from the oral evidence are expressed in the following words " From the history of succession as shown by the oral evidence, it will be seen that the eldest son in each generation has succeeded to the gaddi and estate, while the younger members got land and pensions for maintenance. We find Hatesingh succeeding his elder brother Pitambarsingh, and his younger brothers and their sons remaining contented with maintenance. We next find Naharsingh, the eldest son, succeeding his father Hatesingh, and his two younger brothers and their sons remaining con tented with maintenance. We next find Umedsingh, the eldest son, succeeding his father Naharsingh, and his younger brother and his son remaining contented with maintenance. And it is many years after defendant 1 succeeded his father that his youngest brother has disputed the custom which has regulated the succession for so many years and for three previous generations. We next find Umedsingh, the eldest son, succeeding his father Naharsingh, and his younger brother and his son remaining contented with maintenance. And it is many years after defendant 1 succeeded his father that his youngest brother has disputed the custom which has regulated the succession for so many years and for three previous generations. Why should the younger brothers of Hatesingh, Naharsingh and Umedsingh have remained con tented with maintenance if there was no custom of primo geniture ? They remained quiet and their descendants are not asserting any claim to a share because the former knew, and the latter know, that only the eldest son succeeds to the gaddi and the estate and the title of Rana. " It is to be observed that the first plaintiff who started the case with the title of Rana attached to his name abandoned in the Court of the Judicial Commissioner any claim to the gaddi or to the title of Rana. The significance of this disclaimer does not appear to have been quite appreciated by the appellate Court. It predicates the existence of a gaddi to which appears to be attached the title of Rana, dating its origin according to the defendants case based on family tradition, to the Ghoree Kings who held Nimar in the 14th century. Dealing with the documentary evidence on both sides he considered it consistent only with one hypothesis, namely The existence of the custom against partibility. He summed up his conclusion in the following words " After a careful consideration of the evidence on both sides, I have no hesitation in finding the first issue in the affirmative." He accordingly dismissed the plaintiffs suit. On appeal the Judicial Commissioners have taken a different view. After analysing the evidence in great detail, they give their theory as to the status of this family. They say, " We have summed up what we believe to be the history of the subject in our judgment in first appeal No. 10 of 1911 already referred to." And then go on to observe " Again, when the head of the family became the holder of a hereditary fiscal office, it was still necessary to apply a rule of primogeniture for succession to the office. But now the once ruler of the family had become merely the representative of the family for the management of such property and the receipts of such perquisites as attached to the hereditary office. Thereupon the ordinary Hindu law began to be reinstated, and junior members asserted themselves as share holders. Still, while the ruling power recognised only the office holder, the ‘younger sons were still to some extent under his sway, and their shares at his disposal. But the recurring demand for shares, and the advance of socialism in the family, due to education and the evanescence of all real authority in the head, made permanent partitions of estate necessary. The subsistence which the younger brother once received as a favour from the lord of the manor now became a share claimed by him as a right, ever increasing in quantum towards that equality which is favoured by the ordinary Hindu law from which only the particular circumstances had for a time diverted enjoyment of the family property." The particular litigation (Appeal No. 11 of 1911) to which they refer related to the neighbouring estate of Bhamgurh, where the head of the family or chief is styled Rao and not Rana, as in the present case. This family is not pure Rajput, having intermarried in the long course of ages with the Bhils, the highest of the aboriginal races in that part of India. The family is thus called Bhil-halla. They also have a gaddi, and from the public records produced in this case, particularly Captain Forsyths report and the Gazetteer of the Nimar District published under the authority of Government, it is clear that the two families of Bhamgurh and Piplod (with which the present case is concerned) are intimately associated. The chief of Bhamgurh, it is stated, instals the Rana of Piplod on the gaddi and places the teka or mark of chiefship on his forehead. It may be mentioned by the way that the Piplod family belong to the Chohan clan of Rajputs which played a distinguished part in the history of mediaeval India, and that the title of Rana is the same as that borne by the Maharaja of Odeypur who is styled Maharana. In early Mahomedan history he bore the title of Rana. In the Bhamgurh case, the identical question relating to the custom of impartiality was raised in the same form as here. In early Mahomedan history he bore the title of Rana. In the Bhamgurh case, the identical question relating to the custom of impartiality was raised in the same form as here. The District Judge, a different officer from the judge in the present case, had found the issue in favour of the custom. The Court of the Judicial Commissioner, composed of the same judges who have decided the present case, proceeding on the theory already referred to, came to a different conclusion and held against the existence of the custom of impartiality in regard to the Bhamgurh estate. On appeal to the Board, their Lordships in reversing the judgment of the Judicial Commissioners quoted the very passage referred to and observed as follows " It is unnecessary to determine whether this reasoning would be sound as applied to any case. It is sufficient to say the facts which it assumes and upon which it is based do not exist in the present case." The decision of the appellate Court makes it necessary to consider once more whether the reasoning in question applies to the facts of the case now before the Board. Having regard solely to the question relating to custom, it seems to their Lordships that two distinct periods of time should be kept in mind—namely, that before the establishment of British rule in this part of the country and that subsequent to its acquisition - by the East India Company. The District of Nimar with the adjacent territories or such portion of it as belonged to Scindia was taken over by the British between 1823 and 1825 for purposes of management. In 1844, says Mr. Morris, the Chief Commissioner of the Central Provinces in 1870, the sequestration was confirmed by the treaty of Maharajpur. There was a settlement in 1856 for twenty years, which was revised in 1866. In connection with this settlement the task of preparing a comprehensive record of the conditions prevailing in the District was entrusted to Captain Forsyth. His report on the revenue settlement of Nimar embodies the result of a searching inquiry into the customs and traditions among the tribes and clans inhabiting the soil and the system of taxation and administration under the former rule. His account of the principal Rajput families of the district is not the least interesting feature of the report. His report on the revenue settlement of Nimar embodies the result of a searching inquiry into the customs and traditions among the tribes and clans inhabiting the soil and the system of taxation and administration under the former rule. His account of the principal Rajput families of the district is not the least interesting feature of the report. It is not disputed that this particular family of Chohan Rajputs migrated from their original homes under the pressure of Mahomedan arms into what is now called the Central Provinces. They established themselves in the Nimar District where they have lived ever since, with the exception of one short interlude in the reign of Ala-ud-din Khilji towards the end of the 13th century. It may safely and reasonably be assumed that they carried with them to their new homes the customs and institutions to which they were subject in the land of their birth. Colonel Tod, who, for many years in the early part of the 19th century, was Political Agent to the Governor -General in Rajputana, in his valuable work on the Rajputs writes as follows "It may be of use in future negotiations to explain the usages which govern the different States of Rajputana in respect to succession. The law of primogeniture prevails in all Rajput sovereignties ; .... the inconclusive dicta of Menu on this as on many other points, are never appealed to by the Rajputs of modern days ; custom and precedent fix the right of succession, whether to the gaddi of the State or to a fief in the eldest son.....Seniority is, in fact, a distinction pervading all ranks of life, whether in royal families or those of chieftains." (The Annals and Antiquities of Rajasthan, vol. ii., p. 307, first published in 1832.) In this connection, Captain Forsyths observations in his report (para. 3) deserve notice " The Rajputs brought with them the institutions of their race. Each chief remained independent, if he could, or became the feudal vassal of a stronger, still the lord and master of his domain, but rendering military service for his fief. 3) deserve notice " The Rajputs brought with them the institutions of their race. Each chief remained independent, if he could, or became the feudal vassal of a stronger, still the lord and master of his domain, but rendering military service for his fief. The succession to the gaddi (throne) was by primogeniture, but all descendants or cadets of the house were provided for by assignments from the productive lands of the chiefship, to be held also on tenure of military service ; and so the sub-infatuation proceeded, until the Rajputs themselves began to till the land. Then personal military service became impossible except on rare occasions, and a rent in kind took its place as the condition of tenure. Still the land held by each cultivator was his property, subject to the payment of this rent. This is also shown by the terms of all early grants of arable lands made by the Rajput princes as religious endowments, in which the rents only are assigned and the Crown tenants are enjoined to pay the same to the assignees." This clearly was the custom which the Rajput settlers brought with them and it remained intact throughout the Mahomedan rule. The historian Ferishta clearly indicaes that until the close of the Ghori and Farookee rule the feudal system among the chiefs of Nimar from whom the kings of those, dynasties chiefly drew their armies was fully maintained. This tract of country was incorporated in the dominions of Akbar about the end of the 16th century. His Institutes and all the contemporaneous records show that beyond relieving the cultivating classes from the burdens to which they had been subjected under their former rulers, altering the assessment of rent and revenue to Lighten its incidence, and improving the administration, he left untouched the domestic and internal institutions of the people, the chiefs as well as the masses. In his work on " The Highlands of Central India," Captain Forsyth gives in a few graphic sentences the pith of Akbars policy " The impetus given to the development and civilisation of the dark regions of India by the wise rule of that greatest of eastern administrators can never be overrated. In his work on " The Highlands of Central India," Captain Forsyth gives in a few graphic sentences the pith of Akbars policy " The impetus given to the development and civilisation of the dark regions of India by the wise rule of that greatest of eastern administrators can never be overrated. Before the absorption into his Empire of the minor Hindu and Mahomedan States, their history is one of a continuous lawlessness and strife and the further we investigate, the more certainly we perceive that political order, the supremacy of law, sound principles of taxation, a wise land system, and almost every art of civilized government owe their birth to this enlightened ruler. His treatment of these unsettled wilds and their people was marked with the same political wisdom. While, in the surrounding countries, which had already been in a measure reclaimed by Hindu races, he everywhere broke up the feudal system, under which strong government and permanent improvement were impossible, he asked no more from the chiefs of these waste regions than nominal submission to his Empire, and the preservation of the peace of the realm. Those on his borders he converted into a frontier police, and the rest he left to administer their country in their own fashion. Acknowledgement of his supremacy he insisted on, however ; and in case of refusal sent his generals and armies who very soon convinced the barbarous chiefs of their power-lessness in his hands. The influence of his power and splendour rapidly extended itself over even this remote region. The chiefs became courtiers, accepted with pride imperial favours and titles, and in some cases were even converted to the fashionable faith of Islam." This policy of non-interference with the internal and domestic institutions of the chiefs and the people was wisely maintained throughout the Mogul rule, and was hardly disturbed even in the Mahratta times. In tracts largely settled by new and industrious immigrants from other parts of India he converted the feudal chief into a fiscal officer. Forsyth (Report, para. In tracts largely settled by new and industrious immigrants from other parts of India he converted the feudal chief into a fiscal officer. Forsyth (Report, para. 119) thus sums up the general result of Akbars policy " The feudal domination of the lord of the tract, or tuppa, over all its villages was thus generally abolished ; but in lieu of it the chiefs, besides retaining the headship (as patels) of the villages actually in their own occupation, were further generally constituted the hereditary zamindars, or fiscal officers, of their tracts (vide para. 113) with huqs (rights) of considerate value in the shape of percentages of revenue, collections and dues from the practisers of trades, etc." Constant references will be found in the documentary evidence to the pergana zamindar of Piplod indicating his position in the fiscal system of the Moguls. Before coming to the modern history, so to speak, of the 3 family, it may be useful to refer to some observations in the Nimar Gazetteer. It first states that " the District contains a number of families of long standing, some of whom enjoyed important positions under native rule." It then goes on to say "So far as can be ascertained succession goes by primo geniture in the families of the Mandlois of Khandwa, the Rana of Piplod, the Rao of Mandhata, the Thakur of Jaswari, the Thakur of Ghatakheri, the Rana of Punasa, the Thakur of Khandwa, the Mandloi of Beria and the Maslai, Bhamgarh and Selda families. On succession to the gaddi or headship of the house representatives of these families are marked with a teka or badge on the forehead and sometimes presented with a sword, and the investiture may be carried out by custom by the head of another house. Thus the investiture of the Rana of Piplod is performed by the Rao of Bhamgarh. Rajput landholders usually have the titles of Rana or Thakur, and Bhilalas those of Rao or Rawat." This particular family is again referred to in para. 100 " Among the Rajputs the Chohan family of the Rana of Piplod is the most ancient, and the ancestors of the family are believed to have been at Asirgarh in the 12th century when it was sacked by Ala-ud-din Khilji. The family regularly resort to Asirgarh to pay their devotions to their tutelary goddess Artapari, whose shrine is in the fort. The family regularly resort to Asirgarh to pay their devotions to their tutelary goddess Artapari, whose shrine is in the fort. Rana Mahatab-singh [the defendant in this suit] is about 40 years old and has four villages of which two are held revenue-free." These references seem sufficient to show that the custom which this family brought from its ancient home continued for a long course of ages. Is there anything to lead to the conclusion that it was at any time abandoned or interrupted and that the family has ceased to be under the custom ? One fact is obvious, that had the ordinary Hindu law prevailed in the family, it would long ago have merged in the general population, and there would have been no gaddi and no Rana. It is the custom and custom alone which seems to their Lordships to have kept it intact. The pedigree set out at the beginning of this judgment goes back to Jaswantsingh, who died somewhere in the forties and was succeeded on the gaddi by his eldest son Pitambarsingh. The defendant has, however, produced a genealogy which traces the family for twenty-four generations and is in accord with what Captain Forsyth says in his report (para. 43). The correctness of this genealogy does not appear to have been disputed and it was admitted in evidence apparently without objection. Pitambarsingh had three brothers, Hatesingh, Ratansingh and Kesresingh. In 1844 there seem to have been some differences among the brothers regarding their " watandari" and " huqs." The matter appears to have been referred to the Political Agent, and at his instance or suggestion it was submitted to arbitration, when an arrangement was arrived at under which the four brothers divided the income arising from various sources and the zirat lands in some of the villages, leaving absolutely intact to Pitambarsingh " the zirats and villages which are in the pergana and belong to the raj." This arrangement is embodied in exhibit 1 D. 36, dated August 14, 1844. The ground on which these villages forming the principal landed property of the family were left in the hands of the eldest brother is sufficiently indicative of the character and right in which he took them. The three younger brothers claimed no share in them. The ground on which these villages forming the principal landed property of the family were left in the hands of the eldest brother is sufficiently indicative of the character and right in which he took them. The three younger brothers claimed no share in them. For a proper apprehension of the contentions in this case it is necessary to mention what these " watandari " rights and " huqs " are. It has been from ancient times customary almost throughout India for the superior holder of the soil whether he was a feudal " baron," as Captain Forsyth calls these Rajput chiefs, or principal fiscal officer appointed by Government, to levy certain dues, the nature of which can be judged from the list in exhibit 1 D. 36. In Bengal, these dues or cesses were called abwabs ; in the Central Provinces and the Bombay Presidency, " huq," an Arabic word meaning " dues " or " right." Akbar appears to have reduced the capricious levy of these " dues," and regulated the system. These dues were made part of the emolument attached to the office, and as the office became hereditary the representative of the family who took up the office took it with the obligation of using the perquisites for the maintenance of the family. The old zamindars were placed in the same position. Again in the Deccan when the zamindar was appointed as a fiscal officer, lands were granted to him by way of additional emolument under the name of watan, the income arising from such lands being called by the same name. Again as the office became hereditary, the lands came into the hands of the next holder with the same obligation. Captain Forsyth describes the origin of these watans in para. 133. It is contended in this case that when the zamindar of Piplod was deprived of his office, the custom of impartibility ceased to have operation. It would appear that the family had some watan lands and the expression " watan" occurs at least in that document. It is to be observed that in 1866, as shown in Captain Forsyths order, to which reference will be made later, there was no " watandar patel" in these mouzas. In other words there was no separate fiscal officer holding watan lands by virtue of his office. It is to be observed that in 1866, as shown in Captain Forsyths order, to which reference will be made later, there was no " watandar patel" in these mouzas. In other words there was no separate fiscal officer holding watan lands by virtue of his office. Thus the duty of realizing the watan and huqs devolved on the zamindar. Besides, the mere cessation of services to which watan lands are attached, which are by custom impartible, does not ordinarily destroy that custom. This view is in accord with the decision of the Bombay High Court in Ramrao v. Yeshvantrao (( 1886) I. L. R. 10 Bom. 327.), where it was held that " discontinuance of services attached to an impartible watan does not alter the nature of the estate and make it partible." There is a further answer to the respondents contention the present suit does not relate to watan or huqs ; it is with respect to property declared in 1844 to belong to the raj, which all the parties recognized to be an existing fact. The penultimate clause (27) of exhibit 1 D. 36 shows exactly the position of Pitambar in relation to the custom in dispute. As the holder of the raj and the representative of the family, the duty is laid on him to defray the contingent village expenses such as " expenses for guests, charities, tika dakhoda and other miscellaneous expenses." It is stated significantly "the other three brothers have nothing to do with these things." The report of the official deputed by the political agent to ascertain whether the differences between the brothers were settled throws no further light on the controversy. The subsequent conduct of the parties to the arrangement leads irresistibly to the conclusion that the acquiescence of all Jaswants descendants until the present dispute, to the ancestral property being held by one member and he the eldest in the direct male line, must have been due only to a long-established custom. Pitambarsingh died without leaving any male issue; he was succeeded on the gaddi and in the possession of the raj estate by the next oldest brother Hatesingh, and no question seems to have been raised by Ratan or Kesre. On this point the evidence of Ratansinghs son, Jitsingh, the eldest surviving male member, is most material. He states " Rana Jaswantsingh was my grand father. On this point the evidence of Ratansinghs son, Jitsingh, the eldest surviving male member, is most material. He states " Rana Jaswantsingh was my grand father. He had four sons, namely, Pitambar, Hatesingh, Kesre and my father in order of seniority. Jaswant and Pitambar died before I was born. I only saw Hatesingh, Kesresingh and my father. Pitambar had no issue. Hatesingh was on the gaddi and owner of all the estate, when I came to remember anything. My father and Kesre got no share in the estate, but only got maintenance allowance and land for cultivation. When the settlement was made by Government, my father and Kesre each got Rs. 50 yearly pension 30 bighas land for cultivation in Piplod, and a house for residence. The rest of the family estate went to the eldest branch, which was represented in my time by Hatesingh." On Hatesinghs death in 1855 his eldest son Naharsingh succeeded to the gaddi. Naharsingh was alive when Captain Forsyth was carrying out his settlement. In his report he refers to Nahar in these terms " Others [of the Chohans who had escaped the sword of Ala-ud-din Khilji] are said by tradition to have returned to the Asir hills and to have founded the family of which Rana Naharsingh, zamindar of Piplod pargana, is the representative." The significance of the word " representative" can hardly be overlooked. Nahar died in 1869, and besides two sons, Umedsingh and Hamirsingh, left two brothers, Sabalsingh and Amarsingh. Of them Jitsingh says as follows " On Naharsinghs death, his eldest son, Umedsingh, got the gaddi and estates. Umedsingh died in Sambat 1948. Sabalsingh and Amarsingh made no dispute about their shares either with Naharsingh or with Umedsingh. They lived joint with both of them up to the time of Umedsinghs succession; about a year after Umedsinghs succession his uncles separated from him. When Sabalsingh and Amarsingh separated from Umedsingh they got 15 bighas land at Piplod for cultivation. Sabalsingh and Amarsingh made no dispute about their shares either with Naharsingh or with Umedsingh. They lived joint with both of them up to the time of Umedsinghs succession; about a year after Umedsinghs succession his uncles separated from him. When Sabalsingh and Amarsingh separated from Umedsingh they got 15 bighas land at Piplod for cultivation. They laid no claim for a share.” Jitsinghs evidence regarding the fact that his father had no share in the estate but only possessed a field or zirat land is corroborated by the schedule attached to the sanad granted to him (Ratan) in 1865 which only mentions a field of 36 bighas and confirms him in its possession as " freehold inam." In the same year a sanad was granted to Nahar, in the schedule to which the two muafi villages are mentioned as his " jaghir " mouzas. The sanad is in common form, but the powers it gives to the grantee are of a wide character on its face inconsistent with the right of any co-sharer. Naharsingh had obtained in 1856 a settlement of the revenue directly with him in respect of the two revenue-paying villages of Piplod and Jirwan. When a new settlement was set on foot in 1866, his application for a renewal of the settlement was opposed by an outsider who, or whose ancestors, had farmed the land some years before. The settlement officer dismissed the latters claim " and conferred the whole pro prietary right in mauza Piplod on the present holder Rana Naharsingh." Among the grounds on which he made the settlement were that he was " pargana zamindar " and that there was no " watandar patel " (fiscal officer in the village) ; the same was done in the case of Jirwan. In this instance, the settlement officer described the position of Naharsingh in terms which should not be passed unnoticed. After stating that there is no "watandar patel in the mauza" he goes on to say " The present holder holds the position of pergana zamindar, and is still the chief man in the pergana and an honorary magistrate. In this instance, the settlement officer described the position of Naharsingh in terms which should not be passed unnoticed. After stating that there is no "watandar patel in the mauza" he goes on to say " The present holder holds the position of pergana zamindar, and is still the chief man in the pergana and an honorary magistrate. I consider the facts of his being in possession for the past 10 years with 10 more of his lease to run and of his being descended from Rana Jaswantsingh, who held the mauza before the claimants family had anything to do with it, coupled with his hereditary position in the pergana, to give him a superior claim." Naharsingh died in 1869 and was succeeded by his eldest son Umedsingh. On Umeds death, in 1892, the property attached to the gaddi came into the possession of the defendant Mahatabsingh, and his name was accordingly entered in the Revenue records without any objection on the part of any member of the family. Soon after Umeds death there arose differences between Mahatab and his uncle Hamir regarding the latters maintenance ; the dispute was referred to arbitration, the chief arbitrator being the Rao of Bhamgarh. The award bears date August 9, 1892, there is no trace in the reference to arbitration or in the award that there was any claim on the part of Hamir to a share in the property. On Hamirs death his sons endeavoured to enforce by a suit the provisions of the award against Mahatab, but it was finally held that the rights created thereunder were personal to Hamir. The respondents refer to certain statements of Umed and Mahatab inconsistent with the continued existence of the custom alleged by the defendant. Their Lordships agree with the appellate Court in not attaching too much weight to statements made under dubious circumstances and for dubious reasons. Some stress was also laid on Captain Mackenzies report. With respect to this document their Lordships wish to associate themselves with the remarks of the Board in the Bhamgarh case. Their Lordships have carefully reviewed the evidence furnished by the ancient traditions of the family and their recent history, and are forced to dissent from the theory on which the Judicial Commissioners base their decision. That theory proceeds on a priori reasoning of a speculative character. Their Lordships have carefully reviewed the evidence furnished by the ancient traditions of the family and their recent history, and are forced to dissent from the theory on which the Judicial Commissioners base their decision. That theory proceeds on a priori reasoning of a speculative character. The judgment omits from consideration in the appraisement of the case the existence of the family as an entity through so many centuries, which entity could only survive destruction and disintegration with the help of such a family custom. The traditions relating to its continued observance, without dispute, until Badansingh came under the influence of his co-plaintiff are consistent with the proved facts. Their Lordships are of opinion that the judgment and decree under appeal should be reversed and the order of the District Judge restored with costs here and in the appellate Court in India. And their Lordships will humbly advise His Majesty accordingly.