Judgement Consolidated Appeals (Nos. 102, 103, 104 of 1929) from two decrees of the Chief Court of Oudh (December 15, 1927) varying an original decree of a judge of that Court (January 4, 1927). The these appeals related to the succession to the Oudh taluqa of Gangwal, which had been granted to Raja Sitla Bakhsh Singh under a taluqdari sanad, his name being entered in lists 1 and 2 under s. 8 of the Oudh Estates Act, 1869. The last male holder was Raja Suraj Prakash Singh, who died in 1899, survived by two widows and by Dulahin Jadunath Kuar, the widow of his only son who had died in 1894. The three ladies above mentioned entered into an agreement whereby they were to possess the taluqa in succession to one another, five villages being set apart for the maintenance of the two not in possession. On the death in 1925 of the last survivor of the widows of Raja Suraj disputes arose, and the Deputy Commissioner took possession of the taluqa under s. 145 of the Code of Civil Procedure, except as to the five villages which were left in the possession of Dulahin Jadunath Kuar. In 1926 Raja Bisheshar Bakhsh Singh instituted the present suit in the Chief Court claiming the taluqa under s. 22, sub-s. 10, of the Oudh Estates Act, 1869, as amended in 1910; he alleged that he was the nearest male agnate to the last male holder according to the rule of lineal primogeniture. The defendants were (1.) Dulahin Jadunath Kuar; (2.) Lal Harihar Pratap Bakhsh Singh; (3.) Mahabir Singh. The last named was only a pro-forma party in the present appeals. Defendant No. 1 by her written statement alleged that Raja Sitla Bakhsh Singh by a will of April 30, 1869, had bequeathed the taluqa to his widow, who had assigned it to Raja Sitlas brother (Narpat Singh). She contended that the property thereby ceased to be under the Act of 1869, and that succession was governed by Hindu law, subject to the family custom of single heir succession; she relied also upon the above mentioned agreement of 1899 between herself and the widows of the last holder. Defendant No. 2 denied the plaintiffs title and claimed to succeed whether succession was under the Act or otherwise. The parties were Kshatriyas governed by the Mitakshara. Defendant No. 2 denied the plaintiffs title and claimed to succeed whether succession was under the Act or otherwise. The parties were Kshatriyas governed by the Mitakshara. The trial judge (King J.) held the will of 1869 was invalid for want of attestation, that succession was governed by the Act, and that the plaintiff was entitled to succeed according to its provisions. Upon appeals Stuart C.J. and Hasan J. varied the decree only by holding that the agreement of 1899 was valid as a family arrangement and that under it Dulahin Jadunath Kuar was entitled to the five villages for her maintenance. The appeals are reported at I. L. R. 3 Luck. 326. Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh The facts appear more fully from the judgments of the Judicial Committee. [Appeals Nos. 102 and 103.] 1930. Oct. 14, 16, 17, 20. Sir John Simon K.C., De Gruyther K.C., Dunne K.C., and Dube for defendant No. 1. The document of April 30, 1869, was an effective will although it was not attested. Both Courts held that it was a testamentary document. Sect. 19 of the Act, which by incorporating s. 50 of the Indian Succession Act, required the will of a u taluqdar" to be attested did not apply. " The meaning of " taluqdar " in the Act is defined by s. 2 to be any person whose name is entered in list 1 ; but when the will was made the list had been neither approved nor published. The Act cannot have been intended to impose a new condition for validity by reason of a list to be published at a later date. The provision as to supplementary lists enforces that view. The Chief Court treated the judgment of the Board in Mata Prasad v. Nageshar Sahai (( 1925) L. R. 52 I. A. 398.) as deciding that s. 19 applies to a will made before publication of the list. That, however, was merely assumed for the purposes of the judgment; the contrary view was not argued, because it would not have affected the rights of the parties having regard to the provisions of the Act. The judgment in Murtaza Husain Khan v. Mohammad Yasin Ali (( 1916) L. R, 43 I. A. 269.) does not deal with the present point. The judgment in Murtaza Husain Khan v. Mohammad Yasin Ali (( 1916) L. R, 43 I. A. 269.) does not deal with the present point. By analogy Mohammad Abdussamad v. Kurben Husain (( 1903) L. R. 31 I. A. 30.) supports this appellants contention. If the will of Raja Sitla was valid then under the Oudh Estates Act, 1869, the succession to Narpat Singh, who took as a transferee from Raja Sitlas widow, was not governed by the Act. The amending Act of 1910 did not operate to divest estates vested before it was passed. Upjohn K.C., Wallach, and A. P. Sen for the plaintiff. Both ss. 13 and 19 apply from the date of the passing of the Act; there is no ground for holding that they apply only after the list had been approved and published. The proviso that s. 19 is not to apply to wills made before the passing of the Act would be unnecessary if the appellants contention was correct. Having regard to s. 3, the sections with regard to the lists did not initiate the status of taluqdar, but merely afforded conclusive evidence whether a person was a taluqdar within the Act. The appellants reading of s. 2 makes it repugnant to s. 3. In Mata Prasads case (1) the Board, and both the lower Courts, held that the document in question was invalid for want of registration under s. 13; the position under s. 19 does not differ. In Murtaza Husain Khans case (L. R. 43 I. A. 269, 276.) the Board, referring to s. 3, held that a taluqdar whose name was in lists 1 and 2, but who died before they were prepared, was " unquestionably a taluqdar within the Act." The will was therefore invalid under s. 19 for want of attestation. Moreover it was never operative. The legatee never relied on it until the present suit fifty-five years after it was made. When Narpat Singh claimed the estate, the legatee claimed on the basis of intestacy. She did not transfer the estate to him, but recognized his title under the Act. On the cross-appeal (No. 103), defendant No. 1 was not entitled to the five guzara villages. The agreement of 1899, upon its true construction, gave her the villages only during the life of Itraj Kuar. She did not transfer the estate to him, but recognized his title under the Act. On the cross-appeal (No. 103), defendant No. 1 was not entitled to the five guzara villages. The agreement of 1899, upon its true construction, gave her the villages only during the life of Itraj Kuar. Further, the parties to the agreement could not bind the reversioners Rup Narain v. Gopal Devi.(( 1909) L. R. 36 I. A. 103.) The agreement was not valid as a family settlement; defendant No. 1 was not claiming the estate or any part of it. De Gruyther K.C. in reply upon appeal No. 102. Succession to a taluqdar dying before the publication of the list is regulated by the ordinary law, not by the Act Balraj Kunwar v. Jagatpal Singh (1( 1904) L. R. 31 I. A. 132.); Sheo Singh v. Raghubans Kunwar.(( 1905) L. R. 32 I. A. 203.) Upon appeal No. 103 he contended that defendant No. 1 was entitled to the five guzara villages upon the grounds of the judgment appealed from. No reply was called for as to appeal No. 103. Appeal No. 104 was argued on dates between October 20 and 29, 1930, the late E. B. Raikes K.C. Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 26 and Parikh appearing for the appellant Lal Harihar Pratap Bakhsh Singh (defendant No. 2). By the judgment upon appeals Nos. 102 and 103, appeal No. 104 was ordered to be re-argued. A report of the re-argument appears after that judgment, which here follows. 1930. Dec. 4. The judgment of their Lordships was delivered by LORD THANKERTON. These are three consolidated appeals from two decrees dated December 15, 1927, passed by the Chief Court of Oudh, which varied a decree, dated January 4, 1927, of a single judge of the same Court sitting as a Court of original civil jurisdiction. The plaintiff in the suit out of which these appeals have arisen was Raja Bisheshar Bakhsh Singh, and he is appellant in the second of these appeals (No. 103 of 1929). The plaintiff in the suit out of which these appeals have arisen was Raja Bisheshar Bakhsh Singh, and he is appellant in the second of these appeals (No. 103 of 1929). The defendants in the suit were (1.) Dulahin Jadunath Kuar (hereinafter referred to as u defendant No. 1 "), who is appellant in the first appeal (No. 102 of 1929); (2.) Lal Harihar Pratap Bakhsh Singh (hereinafter referred to as "defendant No. 2 "), who is appellant in the third appeal (No. 104 of 1929); and (3.) Mahabir Singh. The last-named is not a party to the first two appeals, as, by agreement with the plaintiff, the appeal which he had taken from the decree of the trial judge to the Chief Court was dismissed on March 15, 1927. In the suit the plaintiff claims possession of the taluqa Gangwal, consisting of sixty villages as set out in the schedule attached to the plaint, lying in district Bahraich and district Gonda, as the nearest male agnate according to the rule of lineal primogeniture of Raja Suraj Prakash Sing, the last male holder, who died in 1899, in terms of s. 22, sub-s.10, of the Oudh Estates Act, 1869, as amended by the Oudh Estates (Amendment) Act, 1910. In the suit the plaintiff also claimed certain other property, as to which no question arises in these appeals. Two main questions arise in the present appeals—namely, (a) Whether the succession is governed by the provisions of the Oudh Estates Act, which arises in the first appeal, and, if so, (b) whether the plaintiff is "the nearest male agnate according to the rule of lineal primogeniture" within the meaning of the Act, which arises in the third appeal. A minor question is raised in the second appeal as to certain villages, which the Chief Court held defendant No. 1 entitled to hold during her life, thereby varying the decree of the trial judge. Raja Sitla Bakhsh Singh was the first taluqdar of Gangwal, and his name was entered in lists 1 and 2, prepared in accordance with the provisions of s. 8 of the Act of 1869. The Act was passed on January 12, 1869, and in terms of s. 9 these lists were approved by the Chief Commissioner of Oudh on July 20, 1869, and published in the Gazette of India on July 31, 1869. The Act was passed on January 12, 1869, and in terms of s. 9 these lists were approved by the Chief Commissioner of Oudh on July 20, 1869, and published in the Gazette of India on July 31, 1869. On April 3, 1869, Raja Sitla wrote a letter to the Deputy Commissioner of Bahraich, in which he said " I beg to state that, firstly, I hope to have issues, and they will, after me, succeed me. In case there be no hope of issue, the two legally-wedded Ranis of mine are (malik) proprietors (of my estate). After my death, the Rani Sahebas have power. Share in the estate shall not be divided." It was not disputed before this Board that, as concurrently found by both Courts below, this document is of a testamentary nature. It was equally undisputed that this document was not attested as required by s. 19, which incorporated s. 50 of the Indian Succession Act, but the application of s. 19 was disputed. If this document was both valid and operative as a will, it was not disputed that its effect was to take the succession outside the operation of the Act, with the consequent failure of the plaintiffs case. Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh The defendants stand on the defensive and put the plaintiff to proof of his title to claim the estate. The question of the validity of the will depends on construction of the original Act of 1869, apart from its amendment by the Act of 1910. Both the Courts below have held that the will was invalid on the ground that it was not attested as required by s. 19 of the Act of 1869, the material part of which is as follows "19. Both the Courts below have held that the will was invalid on the ground that it was not attested as required by s. 19 of the Act of 1869, the material part of which is as follows "19. Sections 49, 50, 51, 54, 55, and 57 to 77 (both inclusive), and sections 82, 83, 85, and 88 to 98 (both inclusive), of the Indian Succession Act (No. X. of 1865), shall apply to all wills and codicils made by any taluqdar or grantee, or by his heir or legatee, under the provisions of this Act, for the purpose of bequeathing to any person his estate, or any portion thereof, or any interest therein Provided that marriage shall not revoke any such will or codicil Provided also that nothing herein contained shall affect wills made before the passing of this Act....." Defendant No. 1, who is appellant in this issue, maintains that the provisions of s. 19 of the Act of 1869 with regard to the attestation of wills made by taluqdars did not apply to a will made before approval and publication under s. 9 of the lists prepared under s. 8, even though, as in the present case, at the time of his making the will, the taluqdars name was included in the lists made up for the purpose of subsequent approval and publication. This contention is based on the definition of taluqdar in s. 2, which is as follows "Taluqdar means any person whose name is entered in the first of the lists mentioned in section eight." The material portion of s. 8 is as follows " 8. Within six months after the passing of this Act, the Chief Commissioner of Oudh, subject to such instructions as he may receive from the Governor-General of India in Council, 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....." Sects 9 and 10 may also be conveniently cited here— "9. When the lists mentioned in section eight shall have been approved by the Chief Commissioner of Oudh, they shall be published in the Gazette of India. When the lists mentioned in section eight shall have been approved by the Chief Commissioner of Oudh, they shall be published in the Gazette of India. After such publication, the first and second of the said lists shall not, except in the manner provided by section thirty or section thirty-one, as the case may be, be liable to any alteration in respect of the names entered therein. If, at any time after the publication of the said lists, it appears to the Governor-General of India in Council that the name of any person has been wrongly omitted from or wrongly entered in any of the said lists, the said Governor in Council may order the name to be inserted in the proper list, and such name shall be published in the Gazette of India in a supplementary list, and such person shall be treated in all respects as if his name had been from the first inserted in the proper list. "10. No persons shall be considered taluqdars or grantees within the meaning of this Act, other than the persons named in such original or supplementary lists as aforesaid. 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." Defendant No. 1 maintained that there could not be a list within the meaning of the definition until at least the approval of the Chief Commissioner had been obtained, that the reference to lists in the definition was imperative and not merely evidentiary, and that the definition applied to s. 19 as fully as to any other section. The plaintiff, on the other hand, maintained that the reference to lists in the definition was merely evidentiary and that the Act applied, as from its passing, to every taluqdar who came within the terms of s. 3, which, apart from the definition, appears to be declaratory of the rights of an existing class. He further maintained that, even if the definition is Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 28 imperative, it was repugnant to the context of s. 19 and in particular to the proviso as to wills made before the passing of the Act. He further maintained that, even if the definition is Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 28 imperative, it was repugnant to the context of s. 19 and in particular to the proviso as to wills made before the passing of the Act. The plaintiff did not maintain that the provisions of s. 13 as to registration applied in the present case, as he was unable to say that the legatee was not a person excepted from the operation of the section. The history of events from the annexation of Oudh in 1856 up to the passing of the Oudh Estates Act in 1869, including the summary settlement, the preparation of lists of taluqdars and the granting of sanads to taluqdars was fully dealt with before their Lordships, and the plaintiff founded on the two orders of the Governor-General incorporated in the first schedule to the Act, but their Lordships are of opinion that the Act only recognized a statutory class of taluqdars, and that this is made clear by the provision of s. 10 that no persons should be considered taluqdars " within the meaning of this Act " other than the persons named in the original and supplementary lists. Further, their Lordships are of opinion that such lists, in the case of the original lists, did not become operative as lists until they had been approved by the Chief Commissioner, but that they became operative as from the date of such approval, the subsequent publication being merely public notification of the fact. The plaintiff founded on certain passages in the judgment of this Board, delivered by Mr. Ameer Ali, in Murtaza Husain Khan v. Mahomed Yasin Ali Khan, (L. R. 43 I. A. 269. 276.) In that case the original taluqdar, whose name appeared in lists 1 and 2 prepared under s. 8, had died in 1865, prior to the passing of the Act, and the property in dispute was not part of the taluqdari estate under the Act, it being undisputed that the taluqa fell under the provisions of the Act. It was held that, upon the death in 1899 of a subsequent taluqdar, the succession to his property, not forming part of his taluqdari estate, was subject to a rebuttable presumption that there was a family custom of descent to a single heir. It was held that, upon the death in 1899 of a subsequent taluqdar, the succession to his property, not forming part of his taluqdari estate, was subject to a rebuttable presumption that there was a family custom of descent to a single heir. In referring to the original taluqdar, Mr. Ameer Ali said "As already observed, a summary settlement of the Government revenue had been made with Jamshed Ali Khan on January 22, 1859, a taluqdari sanad was granted to him on October 17, 1861, and his name was entered as a taluqdar in the first of the lists. He had acquired, as declared by s. 3, a permanent, heritable and transferable right in his estate, and was unquestionably a taluqdar within the meaning of the Act. His death before the Act was passed into law makes no difference in his status or in his rights. The lists which the Chief Commissioner was directed to ‘cause to be prepared’ were obviously in course of preparation long before the passing of the Act; the limit of six months was clearly meant as a limit for their completion and not for their initiation. In fact, it is beyond dispute now that Jamshed Ali and his heirs and successors to the estate are such taluqdars." No argument arose in that case as to whether the deceased taluqdar became a taluqdar within the meaning of the Act as soon as it passed or only on approval of the lists, and, in their Lordships opinion, either view is consistent with the general expressions sed in this passage. As regards s. 19, their Lordships consider that operative effect should be given, if a reasonable construction so permits, to every provision of a statute, and that to apply the definition of taluqdar to s. 19 so as to limit its operation to wills made after the approval of the lists would have the effect of rendering the proviso as to wills made before the passing of the Act purposeless ; they are therefore of opinion that the definition is to that extent repugnant to the context and is inapplicable. It follows that, in their Lordships opinion, the provisions of s. 19 applied to wills made after the passing of the Act by taluqdars of the statutory class prescribed by s. 10, and that it applied to the will here in question, so that, being unattested as required by s. 50 of the Indian Succession Act, 1865, it was invalid as a will. It therefore becomes unnecessary to consider whether, on the assumption that it was a valid will, it Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 29 ever became operative or was abandoned by the legatee, Raja Sitlas widow, as to which a separate argument was raised. With regard to the plaintiffs pedigree, there are concurrent findings of fact by the Courts below to the effect that the plaintiff has proved his pedigree, and their Lordships see no reason for disturbing these findings, which establish that, in blood relationship, the plaintiff is the nearest blood relation according to the rule of lineal primogeniture of the last male holder of the taluqa. But this leaves open the issue in the third appeal, in which defendant No. 2 raises a point of law on the construction of s. 22, sub-s.10, of the 1869 Act as amended by the Act of 1910. In the first appeal defendant No. 1 also sought to raise a question whether a village called Rajapur Grant was comprised in the taluqa, though no such point was raised in her case of appeal, but, even if it were not too late to raise the point, their Lordships were not prepared to disturb the concurrent findings of fact by the Courts below that the taluqa consisted of the sixty villages claimed in the plaint, including the village of Rajapur Grant. In the second appeal (No. 103 of 1929) the plaintiff takes objection to the variation of the decree of the trial judge made by the Chief Court, in that they held that defendant No. 1 was entitled to remain in possession during her life of five villages of which she was in possession under an agreement dated June 29, 1899. Raja Sitla, the original taluqdar, died in 1885, leaving surviving him his widow, Rani Sukhraj Kuar, and hi3 half-brother, Narpat Singh. Raja Sitla, the original taluqdar, died in 1885, leaving surviving him his widow, Rani Sukhraj Kuar, and hi3 half-brother, Narpat Singh. Under a compromise of a suit raised by the latter against the former, Narpat Singh was declared to be the absolute owner of the entire estate of Gangwal, and the Rani was allowed to remain in possession of five villages by way of " guzara," besides some other property, which is not in issue in these appeals. Narpat remained in possession of the taluqa of Gangwal until his death in 1892, when he was succeeded by his son, Raja Suraj Prakash Singh, who died in 1899, having been predeceased by his only son, Mahesh Bakhsh Singh. Raja Suraj Prakash Singh was survived by (a) Rani Sukraj Kuar, Raja Sitlas widow, who died in 1922 ; (b) Rani Itraj Kuar, the senior widow of Raja Suraj Prakash Singh, who died in 1925, and on whose death the present dispute arose ; (c) Rani Abhiraj Kuar, the junior widow of Raja Suraj Prakash Singh, who died before 1925; and (d) defendant No. 1, the widow of Mahesh Bakhsh Singh, the predeceasing son of Raja Suraj Prakash Singh. On June 29, 1899, an agreement was entered into between the two widows of Raja Suraj Prakash Singh and defendant No. 1, the material portion of which is as follows " Whereas Raja Suraj Prakash Singh, taluqdar of Gangwal, died childless and intestate, while we, i.e., Rani Itraj Kuar, the first widow, Rani Abhiraj Kuar, the second widow, Dulahin Saheba, viz., Jadunath Kuar, widow of Bachcha Mahesh Bakhsh Singh, the son of the late Raja, and Rani Achal Raj Kuar, the mother of the deceased Raja, are the heirs, and now we, by mutual consultation, have decided that the mutation of taluqa Gangwal, districts Bahraich and Gonda, and purchased pattis chaisar, etc., be effected in favour of Rani Itraj Kuar and, during her (Itraj Kuars) life, Rani Abhiraj Kuar Musammat Dulahin Jadunath Kuar, and Rani Achal Raj Kuar, the mother of the deceased Raja, having received the following bhaiyai villages, which have always remained in the possession of the heirs to the estate and also were held for a long time by Raja Narpat Singh during the Shahi rule, should support themselves because this bhaiyai right now belongs to Rani Abhiraj Kuar and Musammat Dulahin Jadunath Kuar, the heirs to the estate, who, after me, Rani Itraj Kuar, shall gradually become the successors." As Rani Sukraj and Rani Abhiraj Kuar died in the lifetime of Rani Itraj Kuar, defendant No. 1 was in possession of the "guzara" villages at the time of Rani Itraj Kuars death is 1925. Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 30 The Chief Court held that the agreement was a reasonable family settlement, made for the purpose of settling controversies as to the mutation of names consequent on the death of Raja Suraj Prakash Singh, and they further said " Prima facie a provision for maintenance must be deemed to be intended to enure for the lifetime of the grantee Rameshar Baksh Singh v. Arjun Singh.(( 1900) L. R. 28 I. A. 1.) In the present case the provision was to cease earlier, but only in the event of the grantee coming into the possession of the estate. We are unable to discover anything in the document to justify the interpretation that it was to cease on the death of Rani Itraj Kuar, and during the lifetime of the grantee, when the succession to the estate is withheld from her on a ground not contemplated by the settlement." Their Lordships find themselves unable to agree with this construction of die agreement, as, in their opinion, the words "during her (Itraj Kuars) lifetime" do not qualify the antecedent part of the provision, but qualify the subsequent part of the provision, under which alone defendant No. 1 has any claim to the "guzara" villages. It follows that defendant is not entitled to retain possession of these villages, and it is unnecessary to consider whether the settlement was valid and reasonable. The third appeal involves a question of construction of the Oudh Estates Acts of general importance, which does not appear to their Lordships to have been clearly or adequately placed before either of the lower Courts, and, in view of the importance and difficulty of the question, their Lordships feel that it will be more satisfactory to have this appeal reheard before a fuller Board. Until the advice to be humbly tendered by their Lordships to His Majesty in respect of the third appeal is determined, it will not be possible to settle the terms of the order in respect of the first two appeals. [Appeal No. 104.] 1932. Jan. 12, 14, 15, 18, 19, 20. Dunne K.C. and Parikh for the appellant, defendant No.2. The trial judge found, and the evidence established, that the propositus was of the Vaiyaghra gotra, whereas the plaintiff stated in evidence that he himself was of the Atri gotra, and his advocate subsequently contended that the propositus was of the Atri gotra. In ascertaining under s.22, sub-s.1, who is the nearest male agnate of the last holder the personal law of the parties has to be applied Raghuraj Chandra v. Subhadra Kunwar.(( 1928) L. R. 55 I. A. 139.) The parties being Hindus governed by the Mitakshara, and the plaintiff being of a gotra different from that of the propositus, he was not the nearest male agnate. The findings that the plaintiff was the nearest blood relation mean that he was so according to the order of nature and apart from the question of the gotra. The findings that the plaintiff was the nearest blood relation mean that he was so according to the order of nature and apart from the question of the gotra. In the case of a Hindu the word "agnate" represents "gotraja sapinda," who under the Mitakshara has a preferential right of inheritance Mitakshara, c. 2, s. 5, translated in Lulloobhoy Bappoobhoy v. Cassibai.(( 1880) L. R. 7 I. A. 212, 234, 235.) The judgment of the Board in Bhyah Ram Singh v. Bhyah Ugur Singh (( 1870) 13 Moo. I. A. 373.) shows that identity of the gotra is an essential element in the preferential right. In Maynes Hindu Law the term agnates is used as representing the gotra j a sapindas, the term " cognates " being used by him (also by Colebrooke) to represent the binnagotra sapindas, i.e., those outside the gotra Maynes Hindu Law, 1st ed., para.425; 6th ed., para.502; see also Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar.(( 1914) L. R. 41 I. A. 290, 306, 307.) Every Hindu of necessity knows the gotra to which he belongs Debi Pershad Chowdhry v. Radha Chowdhrain (( 1904) J, R, 31 I. A. 160, 167.); Golapchandra Sarkar Sastri, Hindu Law, 6th ed., p. 88. It is not for this appellant to account for the difference in the gotras. [Reference was made also to Matsya Puranam, translation 1917, Part II., pp. 196, 199, 201.] Upjohn K.C. and De Gruyther K.C. (with them Wallach) for the plaintiff-respondent. It was not pleaded that the gotra of the plaintiff differed from that of the last male holder ; the case made and negatived by both Courts being that Jugraj Singh, through whom the plaintiff Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 31 claimed, died without issue. The alleged difference of gotra was not fully raised or investigated at the trial, and was not established. Both Courts in India having found in favour of the pedigree filed by the plaintiff, the onus was upon the defendant to establish a difference of gotra. For the reasons given by Stuart C.J. it is doubtful whether the gotra of the Gangwal family was Vaiyagrhi. The statement of the plaintiff that his gotra was Atri meant only that his gotra was that of the Gangwal family. For the reasons given by Stuart C.J. it is doubtful whether the gotra of the Gangwal family was Vaiyagrhi. The statement of the plaintiff that his gotra was Atri meant only that his gotra was that of the Gangwal family. The parties being Kshatriyas not Brahmans the adoption of a gotra at some period was possible. The word "agnate" used in s.22, sub-s.10, according to the well settled usage of the English language, means merely a relation exclusively through males Johnsons Dictionary, s.v. "agnate"; Sir Henry Maine, Ancient Law, ch. 5. The meaning of the word is not affected by the personal law. It is only in considering whether a person is a relation that his personal law affects the matter. In the case of a Hindu a person may by adoption pass notionally into or out of the category of relations, but the judgment in Raghuraj Chandra v. Subhadra Kunwar (L. R. 55 I. A. 139.) does not warrant the introduction of a consideration of the gotra in its Brahmanical sense based upon a mythical descent from a rishi. By judgments of the Board dealing with the Hindu law of inheritance "gotra" means merely the paternal stock Rucheputty Dutt Iha v. Rajunder Narain Rae (( 1839) 2 Moo. I. A. 133, 149.) ; Bhyah Ram Singh v. Bhyah Ugur Singh (13 Moo. I. A. 373, 391, 392.); Ramchandra Martand Waikar v. Vinayak Venkatesh Kothekar (L. R. 41 I. A. 290, 299.) ; see also Wilsons Glossary, s.v. " gotra " ; and West & Buhler, Hindu Law, 3rd ed., vol. i., pp. 114, 129. Evidence as to a difference in the gotras is material only so far as it raises an inference that the plaintiff or one of his line had been adopted out of the family. But no suggestion to that effect was made in the suit. In 1868 in proceedings by the plaintiffs father against the first taluqdar (Raja Sitla Bakhsh Singh) the then defendant accepted the pedigree put forward and admitted that the then plaintiff was a relation. The plaintiffs father had then rached an age which precluded a subsequent adoption. If the plaintiff himself had been adopted out of the family it would have been well known, and evidence of it would have been forthcoming in this suit. The plaintiffs father had then rached an age which precluded a subsequent adoption. If the plaintiff himself had been adopted out of the family it would have been well known, and evidence of it would have been forthcoming in this suit. It was rightly held that the evidence with regard to the respective gotras was insufficient to outweigh the direct and overwhelming evidence of relationship. The true conclusion is that there was a mistake as to the gotras. Dunne K.C. replied. March 8. The judgment of their Lordships was delivered by LORD THANKERTON. In accordance with the view expressed in the judgment of this Board dated December 4, 1930, the issue raised in the third appeal has been reheard before a fuller Board. By that judgment it was decided that the succession to the taluqa Gangwal is governed by the Oudh Estates Act and in particular by s. 22, sub-s. 10, which, as amended in 1910, is as follows "(10.) Or in default of or on the death of such mother, then to the nearest male agnate according to the rule of lineal primogeniture, subject as aforesaid.” The last taluqdar was Raja Suraj Prakash Singh, and the plaintiffs pedigree shows Bhaya Partap Singh as their common ancestor, and in accordance with the previous judgment the plaintiff must be held to have established that, in blood relationship, he is the nearest male blood relation according to the rule of lineal primogeniture of Raja Suraj, the last male holder of the taluqa. It is clear from the context that this finding relates to physical blood relationship and does not exclude the possibility—raised by the issue in the third appeal —of the legal right of succession, so far as expressed as blood relationship, having been lost, e.g., by adoption. The sole question in the third appeal is whether the plaintiff has proved that he is an "agnate" of the propositus within the meaning of s.22, sub-s.10; if so, he is admitted to be the nearest male agnate according to the rule of lineal primogeniture. Law. Rep. 59 Ind. App. The sole question in the third appeal is whether the plaintiff has proved that he is an "agnate" of the propositus within the meaning of s.22, sub-s.10; if so, he is admitted to be the nearest male agnate according to the rule of lineal primogeniture. Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 32 In the first place, their Lordships are clearly of opinion that the meaning of "male agnate" for the purposes of the section cannot be determined without recourse to the ordinary-law which would govern the succession apart from the statute—in this case the Hindu law of succession according to the rules of the Mitakshara. The term "agnate" is not a term of art in the English legal system; in the English language, though not in frequent use, it is a known term, used to indicate relationship on the fathers side or exclusively through males. In their Lordships opinion, it is a word expressive of relationship, similar to "son" or "brother," to which the rule of construction laid down in Raghuraj Chandra v. Subhadra Kunwar (L. R. 55 I. A. 139.), falls to be applied. The only express prescriptions of the Act relative to " male agnate " are that it denotes only legitimate relatives (s. 2), and that it applies only to najib-ul-tarfain, i.e., those of noble birth on both sides (s. 21). Subject to these qualifications, the meaning of "male agnate" falls to be ascertained by the personal law of the individual to whom the succession is to be established. Turning to the law of the Mitakshara, their Lordships have no doubt that "male agnate" denotes a "gotraja-sapinda," as to which an authoritative exposition is to be found in Bhyah Ram Singh v. Bhyah Ugar Singh.(13 Moo. I. A. 373, 390.) Sir Robert Phillimore, in delivering the judgment of this Board, says "The Mitakshara, in the 5th and 6th sections of the second chapter recognizes two successive classes of heirs first, gentiles; next bandhoos; after them it places certain special persons, and after these last the State, the ultimus haeres. Whatever descent prevails, and even where the States takes by escheat, the duty of some ceremonial performance to the deceased is still enjoined. The family is the cherished institution of Hindoos. Whatever descent prevails, and even where the States takes by escheat, the duty of some ceremonial performance to the deceased is still enjoined. The family is the cherished institution of Hindoos. Individual separate ownership is less the subject of the general remarks of commentators on the Hindoo Law than the associated aggregate community, the family. In this respect an analogy is observed between family ownership and that of the old village community. Consequently, family union or connection derived from a common head, the founder of the family, may reasonably be regarded, amongst a patriarchal people, as the source of the entire class from which a succession of heirs may be derived. Again, as males are preferred to females in succession, from religious reasons, this same class may be reasonably subject to the condition that the descent be generally derived from males, who, for the same reason, may obtain a constant preference. The text of the whole of the 5th and 6th sections of the 2nd chapter of the Mitakshara is in the strictest conformity to these principles. The gentiles, or gotraja (from the gotra) are described as descending from one common stock, a male, and derived generally through males, as forming a family, though embracing, possibly, many families, and such original bond of union is regarded as necessary to the constitution of the gotra. These conditions are all that are stated as necessary to the constitution of the class of gentiles. As regulating preference of succession amongst them, the law of succession amongst gentiles classifies them further, as sapindas and samanodacas; the first it treats as prior to the second, but excludes neither, within limits wide enough to include the present plaintiffs. As the plaintiffs, then, in this case show a common ancestor, a gotra, a community of family, a descent which extended to the deceased and themselves, they appear to satisfy every condition of the text." From this it is clear that, in order to qualify as a male agnate, or gotraja-sapinda of the propositus, the plaintiff must satisfy two conditions—namely (a) that he is of the same gotra, or, as it may be expressed, of a common patriarchal stock and (b) that he is a sapinda of the deceased, that is, connected by blood through a common ancestor, the connection being traced through males. It is now settled that sapinda-ship under the Mitakshara law arises from the community of corporal particles, and is not dependent on the right to participate in the offering of funeral oblations; the latter may be of importance in settling the order of preference of heirs in the same class, but is not relevant in a question of exclusion from a class of heirs Lulloobhoy Bappoobhoy v. Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 33 Cassibai (L. R. 7 I. A. 212.) ; Ramchandra Martand Walkar v. Vinayak Venkatesh Kothekar.(L. R. 41 I. A. 290.) It may further be noted that the bandhus, or cognates, have a technical meaning in the system of the Mitakshara and signify the bhinna-gotra sapindas, that is, those belonging to the same gotra or family Ramchandras case. The pedigree of the plaintiff in the present suit shows his community of corporal particles with the propositus through a common ancestor, Bhaya Partap Singh, traced through males, and, to that extent, the pedigree has been held proved, as already stated. He has, therefore, satisfied one of the two requisite conditions, i.e., that he is a sapinda of the propositus; but the main issue in the third appeal is whether the plaintiff has proved that he satisfies the other condition —namely, that he is of the same patriarchal stock or gotra. In the absence of challenge on this point, it might well be that proof by the plaintiff that he was a sapinda of the propositus would be sufficient to raise a presumption that he was also gotraja, but, on his being challenged by defendant No. 2 on this point, it is for the plaintiff to satisfy the Court that he complies with this condition also, before he can succeed in his claim to the succession. Defendant No. 2 maintains in this appeal that it is established on the evidence that the gotra of the propositus was Vaiyaghra, and the plaintiffs gotra being admittedly Atri, they cannot be related as agnates (gotraja sapinda) under the Mitakshara law, and that, in any event, the plaintiff has failed to prove that the propositus, like himself, belonged to the Atri gotra. The plaintiff maintains that the evidence sufficiently establishes that he was of the same gotra as the propositus, but that, if this conclusion is not justified, the case should be remitted for further inquiry on this point, as the issue was not fairly or fully raised in its present form at the trial or in the Courts below. It was ultimately agreed by both parties (a) that, if in fact the propositus was of the Vaiyaghra gotra and the plaintiff was of the Atri gotra, this difference of gotra necessarily led to the conclusion that the plaintiff is not an agnate, i.e., gotraja sapinda, of the propositus, and (6) that such difference of gotra could only be accounted for by adoption into a different gotra of the plaintiff or one of his paternal ancestors since the common ancestor, Bhaya Partap Singh. In the previous judgment their Lordships expressed the view that this issue had not been clearly or adequately placed before either of the lower Courts, and, after reconsideration before a fuller Board, their Lordships are confirmed in this .view. The question of gotra was not raised in the pleadings, written or oral. Defendant No. 2 put the plaintiff to the proof of his pedigree, and his only express contention was that Jugraj Singh, the younger son of Bhaya Partap Singh, died childless. The only issue that could be held to cover this point was No. 7, which is as follows "Is the plaintiff the nearest heir under the Act by the rule of lineal primogeniture to Suraj Prakash Singh, or under the custom applicable to the family?" At the trial, gotra was first mentioned during the cross-examination of the plaintiff, when he stated "My gotra is Atri gotra"; he was not further examined on this point by either side. It is next referred to in cross-examination, for defendant No. 2, of two witnesses for defendants 1 and 3 (D. W. 15 and D. W. 18), and is dealt with by a series of witnesses for defendant No. 2. About halfway through this latter body of witnesses a statement by plaintiffs counsel is recorded to the effect that the plaintiff did not admit that the gotra of the Gangwal family was Vaiyaghra, but that the Gangwal family belonged to Atri gotra. About halfway through this latter body of witnesses a statement by plaintiffs counsel is recorded to the effect that the plaintiff did not admit that the gotra of the Gangwal family was Vaiyaghra, but that the Gangwal family belonged to Atri gotra. It seems reasonably clear from the judgment of the trial judge that difference of gotra was only used before him as affecting the question whether Jugraj Singh had died childless, in other words, as Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh 34 involving a break in the blood relationship of the plaintiff with Jugraj Singh. There appears no trace of an argument that, granted the blood relationship, the difference of gotra would still negative the plaintiffs claim to be the nearest agnate. The learned trial judge held it proved by the defendants witnesses that the Gangwal taluqdars were of the Vaiyaghra gotra, though he thought that this conclusion was weakened by the fact that that point was not put to the plaintiff or his witnesses in cross-examination ; he also thought it possible that the plaintiff might have stated his gotra incorrectly, or his ancestors might have forgotten to what gotra they belonged and then taken whatever gotra was suggested by their "prohits" or priests. On consideration of Sarkar Sastris Treatise on Hindu Law and Dr. Gours Hindu Code, he came, apparently reluctantly, to the conclusion that it is possible that persons descended in the male line from a -common ancestor can belong to two different gotras, and stated " whatever the explanation of the difference of gotras may be, I am not prepared to accept this difference as conclusive proof that the plaintiff and his family are not agnatic relations of the taluqdars of Gangwal in the manner claimed. Counsel for defendant No. 2 should have put his case to the plaintiff in cross-examination. Probably he feared that if he did so the plaintiff might be able to explain the apparent difficulty. Counsel for defendant No. 2 should have put his case to the plaintiff in cross-examination. Probably he feared that if he did so the plaintiff might be able to explain the apparent difficulty. I think it is impossible to explain away the admissions made by Raja Sitla Bakhsh Singh and his mukhtar to which I have referred above." The admission referred to was made in a suit in 1868 by Sheo Nath, the plaintiffs father, against Raja Sitla, the first taluqdar of Gangwal, claiming that certain villages had been given as bhayai to the plaintiffs ancestors; in his answer the Raja stated, " The plaintiffs do belong to the defendants family, but these villages were not given to them as a bhayai, i.e., portion. Defendants ancestors gave Gularia to plaintiffs ancestor in 1244 as jagir." The learned judge also referred to the conduct of Rani Itraj Kuar in 1900, when Sheo Nath Singh made an application to have the estate taken under the Court of Wards on the ground of mismanagement by Rani Itraj Kuar and the detriment to himself as next reversioner, and the omission of the Rani to suggest that Sheo Nath Singh was in no way related to the taluqdars family and therefore had no locus standi to present the application. The learned trial judge concludes "In my opinion, therefore, the plaintiff has satisfactorily established his agnatic relationship to Raja Suraj Prakash Singh in the manner set forth in his pedigree." Their Lordships are satisfied that the admissions of Raja Sitla and conduct of Rani Itraj Kuar do not involve any admission as to identity of gotra between the two families. The Chief Court, in their judgment, say "On the question of the plaintiffs relationship with Raja Sitla Bakhsh Singh" [? Raja Suraj Prakash Singh] " the case put forward and argued before us on behalf of Lal Harihar Pratap Bakhsh Singh, the defendant-appellant in appeal No. 19, is that Jugraj Singh, the second son of Bhaya Partap Singh, died issueless, or at least that the plaintiff has failed to prove that he is the descendant of Jugraj Singh. It was not disputed that Jugraj Singh was one of the two sons of Bhaya Partap Singh. It was not disputed that Jugraj Singh was one of the two sons of Bhaya Partap Singh. We agree with the trial Court that the plaintiff has succeeded in establishing the fact that he is the descendant of Jugraj Singh according to the line of descent indicated in the pedigree above set forth. The evidence seems to be overwhelming and there is no evidence worth the name in rebuttal." After dealing with the evidence, including the admissions of Raja Sitla about 1868, the learned judges state "In agreement with the trial Court, we therefore hold that the plaintiff has succeeded in establishing the fact that he is an agnate of the late Suraj Prakash Singh." It is obvious that the word " agnate " is loosely used in that finding, for after disposing of a question as to the seniority of the plaintiffs line, which was not in dispute before this Board, the judgment proceeds " Against the broader question of relationship, which we have decided in agreement with the trial Law. Rep. 59 Ind. App. 173 ( 1931- 1932) Dulahin Jadunath Kuar V. Raja Bisheshar Bakksh Singh Court in favour of the plaintiff, the only argument advanced on behalf of the defendants and particularly Lal Harihar Pratap Bakhsh Singh, defendant No. 2, is that the plaintiff and Raja Suraj Prakash Singh could not be held to be related to each other, in spite of all the evidence to the contrary, on the ground that the two belonged to different gotras. On the face of it the argument is highly technical and its pursuit has landed us into the region of Hindu tradition." After quoting the first part of the passage cited above from the judgment of this Board in Bhyah Ram Singhs case (13 Moo. I. A. 373, 391.), the learned judges state "Technically and prima facie, therefore, if the plaintiff and the taluqdar of Gangwal are descended from a common ancestor, they should have one and the same gotra." Differing from the trial judges view of the evidence as to the gotra of the taluqdar of Gangwal, the learned judges considered that the matter was not free from doubt, and suggested that there were two meanings of gotra, one technical and the other popular. They seek to attribute to the plaintiffs use of the term "gotra" a so-called popular meaning as referring to his being a Sombansi, and they conclude as follows "On these grounds we are unable to give effect to this argument as sufficient to outweigh the direct and positive evidence as to the relationship of the two families." As already indicated, their Lordships are of opinion that gotra has only one meaning, and they find it difficult to believe that, if the question now raised had been clearly in issue ab initio, there would have been any difficulty in producing evidence to identify beyond judicial doubt or speculation the gotras of the plaintiff and of Raja Suraj Prakash Singh. Their gotras must be well known to relatives who attended the sradh ceremonies, at which the gotra of the three paternal ancestors is recited, and such evidence is conspicuous by its absence. There should be no need to resort to the "region of Hindu tradition." Their Lordships are therefore of opinion that the case should be remitted to the Chief Court, in order that the plaintiff may have the opportunity of establishing the identity of his gotra with that of Raja Suraj Prakash Singh ; upon this issue his success or failure in his claim to the taluqa will now depend. In accordance with the previous judgment of this Board, dated December 4, 1930, and this judgment, their Lordships will humbly advise His Majesty as follows That the decree of the trial judge dated January 4, 1927, be recalled except in so far as it dismisses the plaintiffs claim in respect of the property mentioned in schedules B, C, E and F appended thereto, that the decrees of the Chief Court in Civil Appeals Nos. 19 and 24 of 1927 be recalled ; that the first appeal (No. 102 of 1929) be dismissed, the appellant (defendant No. 1) to pay the plaintiffs costs of the appeal and of Civil Appeal No. 24 of 1927 ; that the second appeal (No. 103 of 1929) be allowed, the appellants costs to be paid by defendant No. 1 ; that the third appeal (No. 104 of 1929) be allowed without costs, and the case be remitted to the Chief Court as above proposed, the costs of all parties in the trial Court, of the parties in Civil Appeal No. 19 of 1927, and of further procedure to be adjudged by the Chief Court.