Judgement Appeal (No. 69 of 1920) from a judgment and decree of the Court of the Judicial Commissioner (January 2, 1917) affirming a decree of the Subordinate Judge of Partabgarh (February 25, 1915). The suit related to the succession to an Oudh estate of large value called Mahal Tajpur upon the death intestate of the holder in 1907. The estate had been granted in 1863 by a sanad by which on an intestacy it was to descend to the nearest male heir according to the rule of primogeniture. The grantees had been entered in lists 1 and 4 prepared under s. 8 of the Oudh Estates Act (I. of 1869), list 4 being " a list of the taluqdars to whom the provisions of s. 23 are applicable/ Sect. 23 provides " Except in the cases provided for by s. 22 the succession to all property left by taluqdars and grantees and their heirs and legatees, dying intestate, shall be regulated by the ordinary law to which members of the intestates tribe and religion are subject." The suit was instituted by the appellant who was entitled to the estate if the rule of succession laid down in the sanad applied. The first defendant (now the first respondent) was the widow of the deceased taluqdar and was in possession. She pleaded (inter alia) that the succession provided in the sanad was nullified by Act I. of 1869, and that she was the rightful heir under s. 23 of that Act. The remaining defendants (respondents), who were other members of the family, also denied the claim of the plaintiff (appellant). The facts of the case appear from the judgment of the Judicial Committee. The Subordinate Judge dismissed the suit. He held that the estate being in list 4 the " ordinary law " referred to in s. 23 did not include the provisions of the sanad. He found that the custom of male lineal primogeniture alleged by the plaintiff was not made out; he therefore found it unnecessary to record any finding whether the estate was impartible or not. On appeal the decision was affirmed. The first Judicial Commissioner held that the " ordinary law " in s. 23 included the sanad. He found that the custom of male lineal primogeniture alleged by the plaintiff was not made out; he therefore found it unnecessary to record any finding whether the estate was impartible or not. On appeal the decision was affirmed. The first Judicial Commissioner held that the " ordinary law " in s. 23 included the sanad. His reasoning appears substantially from the passage cited in the judgment of the Judicial Committee; he pointed out also that if a custom of impartibility can be established in respect of an estate in list 4 a rule of primogeniture imposed by a sanad could not be excluded. He found, however, that by the custom of the family widows succeeded before the sanad was granted, and that though the sanad gave a new title to the grantees, the custom was preserved by the family and maintained. He said that in the absence of evidence to show that the custom of the family was one of pure lineal primogeniture (as the plaintiff alleged) and that a widow was excluded, the plaintiff was not entitled to succeed. The second Judicial Commissioner held that the succession was not controlled by the sanad, but was governed by the " ordinary law " as defined by the Oudh Laws Act (XVIII. of 1876)—namely, custom and Hindu law. He found, upon an elaborate consideration of the evidence, that if the plaintiff had established that the estate was impartible, he had failed to prove that widows were excluded, and he said that to his mind the defendant had proved the contrary. 1922. March 17, 20, 21. Dunne K.C. and Kenworthy Brown for the appellant. The appellant was indisputably the nearest male heir according to the rule of primogeniture; he was accordingly entitled to succeed under the sanad. The words "the ordinary law" in s. 22, clause 11, of the Oudh Estates Act (I. of 1869) have been held by the Board to include the rule of succession laid down in a primogeniture sanad granting the estate Debi Baksh Singh v. Chandrabhan Singh (( 1910) L. R. 37 I. A. 168.); see also Sitla Baksh Singh v. Sital Singh. (( 1921) L. R. 481. A. 228, 238, 240.) There is no reason why the similar words in s. 23 should not have the same effect. (( 1921) L. R. 481. A. 228, 238, 240.) There is no reason why the similar words in s. 23 should not have the same effect. Brij Indar Bahadur Singh v. Janki Koer (( 1877) L. R. 5 I. A. 1, 13.), in which the Board referred to the sanad being superseded by the Act, related to an estate in list 2, and was distinguished on that ground in the decision of the Board in Debi Baksh Singhs Case. (( 1910) L. R. 37 I. A. 168.) Parbati Kunwar v. Chandarpal Kunwar (( 1909) L. R. 36 1. A. 125.) arose under list 4, but was decided on a finding as to the custom; the record of the appeal shows that there was a sanad, but neither party to the appeal relied on the sanad, because under it both, being females, would have been excluded. The provision of list 3 for those taluqdars to whom primogeniture sanads had been issued, does not indicate that in estates entered in list 4 the sanads under which they are held are not to apply. Entry in list 3 involved the special limitations of succession provided by s. 22, clauses 1 to 10, whereas by entering the estate in list 4 the primogeniture sanad by s. 23 was left unaffected by those limitations. The grantees were entitled to elect to come under list 4 and s. 23. Under s. 3 of the Crown Grants Act, 1895, the sanad controlled the succession Sheo Singh v. Raghubans Kunwar. (( 1905) L. R. 32 I. A. 203 ; see also ( 1918) L. R. 451. A. 134,141.) Assuming that the sanad applies, the alleged custom would have the strange effect of restoring one of the incidents of the Hindu law of succession which was expressly made inapplicable by the terms of the sanad. Further, even if the estate was impartible the succession was by survivorship, therefore the appellant as the senior in line was entitled Baijnath Prasad Singh v. Tej Bali Singh. (( 1921) L. R. 48 I. A. 195.) De Gruyther K.C. and Dube for the respondents. The last contention for the appellant clearly fails, because having regard to the general confiscation the estate was self-acquired property ; further the case proceeded on the basis that the family was divided. The sanad does not apply. (( 1921) L. R. 48 I. A. 195.) De Gruyther K.C. and Dube for the respondents. The last contention for the appellant clearly fails, because having regard to the general confiscation the estate was self-acquired property ; further the case proceeded on the basis that the family was divided. The sanad does not apply. The words of s. 23 are clear, and preclude reference to the sanad in list 4 cases. The title does not rest upon the sanad but upon the summary settlement see letter of October 10, 1859, para. 2 (Sch. I. to Act I. of 1869) Lists 2 and 3 are exhaustive of the estates which by custom or the sanad are governed by primogeniture. Inclusion in list 4 shows that the succession was not to be by primogeniture; under s. 9 the grantees could have transferred the estate to list 3 if they wished the sanad to apply. The pronouncement in Brij Indars Case (( 1877) L. R. 5 I. A. 1, 13.) that the sanad was wholly superseded by the Act should be given effect to in the present case. Debi Bakhshs Case (( 1910) L. R. 37 I. A. 168.) arose not under list 4 but under list 5, and was therefore one in which under the Act itself primogeniture was to be the rule. The respondents are substantially supported by the decision in Parbati Kunwars Case (L. R. 36 I. A. 125.), since that arose under list 4 and s. 23, but was decided on custom without reference to the sanad. [Reference was also made to the further cases mentioned in the judgment in Sitla Baksh Singh v. Sital Singh (L. R. 48 I. A. 228.) and to Sykes Taluqdari Law.] Dunne K.C. replied. May 12. The judgment of their Lordships was delivered by VISCOUNT CAVE. This is an appeal by the plaintiff in the suit from a decree of the Court of the Judicial Commissioner of Oudh affirming a decree of the Subordinate Judge of Partabgarh by which the plaintiffs suit was dismissed. The question raised is as to the title to an estate in Oudh of considerable value known as the Mahal Tajpur.par Lai Ajodia Bakhsh, the ancestor of the plaintiff, belonged to a family of Bisen Thakurs long settled in the district of Partabgarh, and was the owner of an estate called Kundrajit or Shamspur. The question raised is as to the title to an estate in Oudh of considerable value known as the Mahal Tajpur.par Lai Ajodia Bakhsh, the ancestor of the plaintiff, belonged to a family of Bisen Thakurs long settled in the district of Partabgarh, and was the owner of an estate called Kundrajit or Shamspur. At the time of the Mutiny, this family had four branches representing the descendants of the four sons of Lal Ajodhia Bakhsh ; the first branch being represented by Thakurain Baijnath (a widow), the second by Lal Chhatarpal, the third by Lal Surajpal and the fourth by Lal Chandrapal. On the annexation of Oudh in 1856, this estate, with the remainder of the soil of the Province, was confiscated by the British Government, which assumed the right (as stated in Lord Cannings Proclamation of March 15, 1858) to dispose of it in such manner as it thought fitting. Lal Chhatarpal had taken action against the British Government, but Thakurain Baijnath had been loyal; and ultimately by a sanad, which is undated but which appears from other documents to have been executed in the year 1863, the Chief Commissioner of Oudh under the authority of the Governor-General granted the estate of Kundrajit to the above-named four persons, Thakurain Baijnath, Lal Chhatarpal, Lal Surajpal and Lal Chandrapal, and their heirs, subject to the usual conditions as to the surrender of arms and loyalty to the British Government. The sanad was in the form then commonly adopted and contained the following clause " It is another condition of this grant that, in the event of your dying intestate or of any of your successors dying intestate, the estate shall descend to the nearest male heir according to the rule of primogeniture, but you and all your successors shall have full power to alienate the estate, either in whole or in part by sale, mortgage, gift, bequest, or adoption to whomsoever you please." Chhatarpal appears to have objected to the sanad on the ground that he was alone entitled to the whole estate, but it was ultimately accepted by him and by the other grantees. On the passing of the Oudh Estates Act (Act I. of 1869), the four grantees above named (bracketed together) were entered as owners of Kundrajit in list 1 and list 4, as prepared under s. 8 of the Act. On the passing of the Oudh Estates Act (Act I. of 1869), the four grantees above named (bracketed together) were entered as owners of Kundrajit in list 1 and list 4, as prepared under s. 8 of the Act. There appears to have been no reason why they should not have been entered in list 3 as owners of an estate regulated by the rule of primogeniture; but they may have preferred not to be subject to the special rules of succession which, under s. 22 (clauses 1 to 10) of the Act, apply to estates entered in that list. In any case, this is now immaterial, as the estate must be dealt with according to the rules regulating estates entered in list 4. In or about the year 1872, Kundrajit was divided into four mahals, which were allotted to the four branches of the family, Mahal Tajpur being allotted to Chhaterpal. The effect of this partition was that this mahal was held by Chhatarpal alone as an impartible taluq on the terms of the sanad and of the Act of 1869. Chhatarpal died on October 19, 1899, and was succeeded by his son Lal Ram Kinkar. On the death of the latter without issue on October 6, 1907, his widow, the first respondent, Thakurain Harnam Kuar, took possession of Tajpur and the lands then held with it. Thereupon, the appellant, Babu Badri Narain Singh, who was the son of Chhatarpals eldest brother and was the nearest male heir in line and degree, claimed to be entitled to the succession ; and on his right being disputed he commenced, in 1913, the present suit against Thakurain Harnam Kuar and other members of the family for possession of Tajpur and other lands. By his plaint, he claimed possession (a) under the terms of the sanad, (6) by an alleged family custom of succession by male lineal primogeniture, and (c) under a will executed by Chhatarpal on September 6, 1899. This will, having been executed less than three months before the death of Chhatarpal, is now admitted to have been inoperative (under s. 13 of the Act of 1869) to pass the estate, and it need not be further referred to. This will, having been executed less than three months before the death of Chhatarpal, is now admitted to have been inoperative (under s. 13 of the Act of 1869) to pass the estate, and it need not be further referred to. The suit was heard by the Subordinate Judge of Partabgarh, who held that the alleged custom was not proved, and that having regard to s. 23 of the Act of 1869, under which the succession on intestacy to a taluqdari estate entered in list 4 is to be " regulated by the ordinary law to which the members of the intestates tribe and religion are subject," the succession in this case was to be regulated not by the sanad but by the law of the Mitakshara. He accordingly held that the widow of Lal Ram Kinkar was entitled to succeed, and dismissed the suit. On appeal the Judicial Commissioners differed on the question whether the sanad applied ; but they agreed in holding that there was an established custom in the family that the widow should succeed, and that this custom continued not withstanding the forfeiture and regrant of the estate, and they accordingly affirmed the decision of the Subordinate Judge. Against this decision the present appeal was brought. It is not and cannot be disputed that, if the rule of succession laid down in the sanad of 1863 is to have effect, the appellant as the nearest male heir is entitled to the succession ; and in the argument for the respondents, the principal 3tress was laid upon the contention which prevailed with the Subordinate Judge—namely, that the effect of s. 23 of Act I. of 1869 was wholly to displace the rule of succession prescribed by the sanad and to substitute for it the ordinary rules of succession prevailing among Hindus who are subject to the law of the Mitakshara. This contention was disposed of by the first Judicial Commissioner in manner appearing by the following extract from his judgment " The meaning of the words ordinary law has been the subject of much discussion in this case. It could not merely imply the personal law of the intestates tribe and religion, because the personal law applicable to Hindus and Muhammadans has, in many instances, been modified and is controlled by the Indian statutes. It could not merely imply the personal law of the intestates tribe and religion, because the personal law applicable to Hindus and Muhammadans has, in many instances, been modified and is controlled by the Indian statutes. In the case of Hindus, for instance, the personal law of Hindus is controlled and governed in some respects by the Caste Disabilities Removal Act (XXI. of 1850), the Hindu Widows Remarriage Act (XV. of 1856), the Hindu Wills Act (XXI. of 1870) and the provisions of the Transfer of Property Act (IV. of 1882), and the Crown Grants Act (XV. of 1895), wherever they are applicable. In the case of Muhammadans, the provisions of the Muhammadan Law are similarly con trolled and governed in some respects by the Transfer of Property Act (IV. of 1882), wherever they are applicable. It cannot, therefore, be said that a reference to the ordinary law in s. 23 is merely meant to imply the personal law uncontrolled by custom or acts of the Indian Legislature. As pointed out by Lord Hobhouse in a case of list 2 the effect of clause 11 of s. 22 is simply to refer the parties to the law which would govern the descent of the property when the special provisions of the Act are exhausted, and such ordinary law would include custom Narindar Bahadur Singh v. Achal Ran. (( 1893) L. R. 20 I. A. 77.) In Parbati Kuar v. Chandrapal Knar (L. R. 36 I. A. 125.) Lord Collins applied the same rule to a case of list 4, governed by s. 23. In other words, when the special rules of succession laid down in s. 22 are exhausted and s. 22, clause 11, is reached, or when s. 23 is applicable, the situation governing the succession has to be found apart from the Act, that is, in the ordinary law applicable as if Act I. of 1869 had not been passed. In other words, when the special rules of succession laid down in s. 22 are exhausted and s. 22, clause 11, is reached, or when s. 23 is applicable, the situation governing the succession has to be found apart from the Act, that is, in the ordinary law applicable as if Act I. of 1869 had not been passed. That ordinary law would include not only custom but also a sanad, where the sanad contains a rule of succession which is enforceable by Act." Their Lordships agree with the reasoning and conclusion of the first Judicial Commissioner; and indeed no other conclusion is consistent with the decisions of this Board in Narindar Bahadur Singh v. Achal Ran (( 1893) L. R. 20 I. A. 77.) ; Debi Bakhsh Singh v. Chandrabhan Singh (L. R. 37 L A. 168.); and Sitla Baksh Singh v. Sital Singh. (L.R.48 I. A. 228.) These decisions clearly establish that the " ordinary law " referred to in the Act is the law which would govern the parties apart from the statute and includes any sanad giving title to the property in dispute. It is true that these decisions were rendered with reference to clause 11 of s. 22, and not with reference to s. 23 of the Act; but the terms of the latter section are precisely similar to those of s. 22, clause 11, and their Lordships see no sufficient reason for giving to them a different construction. It may be added that the Oudh Estates (Amendment) Act, 1910, has no application to this case, which arose before that Act was passed. It may be added that the Oudh Estates (Amendment) Act, 1910, has no application to this case, which arose before that Act was passed. An argument was founded, as in the cases cited, upon the dictum of the Board in the judgment delivered by Sir Barnes Peacock in Brij Indar Bahadur Singh v. Janki Koer (L. R. 5 I. A. 1, 13.), that in that case " the limitation in the sanad was wholly superseded by Act I. of 1869, and that the rights of the parties claiming by descent must be governed by the provisions of s. 22 of that Act." But it must be remembered that in that case (which arose under list 2) the contest was between the female heir of the grantee (a widow) and the heir of her late husband, neither of whom could claim under the sanad; and this being so, the case is no authority for the view that the effect of s. 22, clause 11, or of s. 23 of the Act, was wholly to destroy the rules of succession laid down under sanads which had been so recently granted. Probably the dictum means no more than this, that the Act supersedes the sanad where the two are in conflict. Reliance was also placed on the case of Parbati Kunwar v. Chandarpal Kunwar (L. R. 36 I. A. 125.), which arose under list 4 ; but that case was argued (doubtless for good reasons) without any reference whatever to the sanad, and cannot, therefore, be taken as an authority on the question now under discussion. In their Lordships opinion, this argument fails. With regard to the question of custom, the decision of the Judicial Commissioners appears to have been founded on certain instances in which the members of the family of Lal Ajodhia Bakhsh were succeeded by their widows; but all these instances, with one exception, occurred before the forfeiture of the estate in 1856 and the grant of a new title upon the conditions laid down in the sanad; and they cannot be used to set up a rule of succession directly contrary to the terms of the sanad under which the estate is now held. The Crown Grants Act of 1895, s. 3, enacts that all provisions, etc., contained in a grant " shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding," and full effect was given to this enactment in Sheo Singh v. Rani Raghubans Kunwar. (L. R. 32 I. A. 203.) The exception was in the case of the widow of Surajpal, one of the grantees under the sanad of 1863, who appears to have been allowed to take possession of his estate to the exclusion of his male heirs; but this single instance, which is unexplained, is wholly insufficient to establish a custom binding on another branch of the family. This argument, therefore, also fails, and the appellants title prevails. For the above reasons their Lordships will humbly advise His Majesty that this appeal should be allowed ; that the decree of the Court of the Judicial Commissioner and the decree of the Subordinate Judge should be set aside; and that the appellant should be held entitled to possession of Mahal Tajpur with any accretions thereto and to an account and payment of mesne profits. The respondents will pay the costs of the appellant in both Courts and his costs of this appeal.