Judgement Consolidated Appeals (No. 61 of 1937) from four decrees of the Chief Court made in its civil appellate jurisdiction (April 21, 1936) reversing two orders passed by a single judge of that Court in its ordinary original civil jurisdiction (February 27, 1935). 9 Law. Rep. 65 Ind. App. 397 ( 1937- 1938) Rani Huzur Ara Begam V. Deputy Commissioner, Gonda 150 Raja Mohammad Mumtaz Ali Khan, taluqdar of Utraula, was the husband of the first appellant, Rani Huzur Ara Begam. In 1928 he had sued Raja Saadat Ali Khan, taluqdar of Nanpara, and had obtained two decrees against him based upon an award made by the Commissioner of Lucknow Division, dated April 8, 1930, under which the decretal amount was to be paid by instalments to Raja Mumtaz Ali, who was authorized to apply for execution if payment was not made by the due dates. The last paragraph of the award ended as follows " Lastly, the payment of the annuity to the Raja "of Utraula will cease on his death. But should his death occur before the liquidation of the arrears amounting to "Rs.2,09,919 payment of these arrears will be completed to "his heirs.” The judgment debtor, Raja Saadat Ali Khan, who is one of the present respondents, failed to carry out the terms of the award, after paying a small portion of the decretal amount. In the meantime, Raja Mumtaz Ali Khan died on March 4, 1934, leaving as his heirs under Mahomedan law his widow, the appellant Huzur Ara Begam, his two minor sons, Raja Mohammad Mustafa Ali Khan and Iqbal Ali Khan, and his minor daughter, Rajkumari Fatma Begam. Shortly after the death of Raja Mumtaz Ali Khan the Court of Wards assumed the superintendence of the persons and properties of the two minor sons. On or about September 18, 1934, the widow, Rani Huzur Ara Begam, made two applications to a single judge of the Chief Court of Oudh at Lucknow for execution of the decrees obtained by her late husband against Raja Saadat Ali Khan. She alleged that her applications were made in her personal capacity as an heir of the late Raja, and as the guardian of her daughter, Fatma Begam, and were also for the benefit of the two minor sons who were under the superintendence of the Court of Wards. She alleged that her applications were made in her personal capacity as an heir of the late Raja, and as the guardian of her daughter, Fatma Begam, and were also for the benefit of the two minor sons who were under the superintendence of the Court of Wards. The judgment debtor and the Court of Wards filed objections to the execution applications, denying the applicants right to execute the decrees. They contended that the late Raja was governed by the provisions of the Oudh Estates Act, I. of 1869; that all his estate, consisting of his movable and immovable property, devolved upon his eldest son, Raja Mustafa Ali Khan, who was the sole heir under the law and family custom of single heir succession; and that the widow, the second son and the daughter were not entitled to succeed to any portion of the estate, or to any property whatsoever belonging to the late Raja, or to any share of the money due to him under the decrees obtained by him. The trial judge (Nanavutty J.) gave judgment in favour of the widow, declaring that she had the right as an heir to execute the decrees, and that no custom of single hen succession could be made applicable to movable property. Against that judgment, which was the same for both execution applications, the respondents, who were (i.) the Deputy Commissioner, Gonda, in charge of the Court of Wards, Utraula Estate, (2.) Raja Mohammad Saadat Ali Khan, the judgment debtor, and (3.) the Deputy Commissioner, Gonda, in charge of the estate of Iqbal Ali Khan, filed four separate appeals in the appellate side of the Chief Court. The Chief Court (King C.J. and Ziaul Hasan J.) held on the authority of Murtaza Husain Khan v. Mahomed Yasin Ali Khan ((19T6) L. R. 43 I..A. 269.) that there was a rebut table presumption that the family custom of single heir succession applicable to the estate was also applicable to the movable property in suit, and they remitted the case to the trial judge for a finding on the following issue “Has Rani Huzur Ara Begam rebutted the "presumption that the family custom of single heir succession, "which is applicable to the estate, is also applicable to the "property in suit?" The trial judge having returned a finding that the Rani had failed to rebut the presumption, the Appellate Court allowed the appeals and dismissed the applications for execution. 1938. June 23, 24, 27. J. P. Eddy K.C., M. H. Rashid and M. P. Srivastava for the appellants. Cyril Radcliffe K.C., W. Wallach and Hon. C. R. Russell for the Deputy Commissioner, Gonda, in 9 Law. Rep. 65 Ind. App. 397 ( 1937- 1938) Rani Huzur Ara Begam V. Deputy Commissioner, Gonda 151 charge of the Court of Wards, Utraula Estate. L. P. E. Pugh K.C. and S. Hyam for Raja Mohammad Saadat Ali Khan. C. Sidney Smith for the Deputy Commissioner, Gonda, in charge of the Estate of Iqbal Ali Khan. July 22. The judgment of their lordships was delivered by SIR SHADI LAL. Raja Mohammad Mumtaz Ali Khan, taluqdar of the Utraula Estate in the district of Gonda, of the Oudh Province, obtained, on April 22, 1930, against Raja Saadat Ali Khan, taluqdar of the Nanpara Estate, two decrees for the recovery of certain sums of money. These decrees were based upon an award made by the Commissioner of Lucknow Division on April 8, 1930. The award, after finding the amounts of money due to the taluqdar of Utraula, concluded as follows— "The payment of the annuity to the Raja of Utraula will "cease on his death. These decrees were based upon an award made by the Commissioner of Lucknow Division on April 8, 1930. The award, after finding the amounts of money due to the taluqdar of Utraula, concluded as follows— "The payment of the annuity to the Raja of Utraula will "cease on his death. But should his death occur before the "liquidation of the arrears amounting to Rs.2,09,919, payment "of these arrears will be completed to his heirs.” Raja Mohammad Mumtaz Ali Khan died on March 4, 1934, leaving him surviving four persons who were his heirs under the Mahomedan law; namely, his widow, Rani Huzur Ara Begam, his minor daughter, Rajkumari Fatma Begam, and two minor sons, Raja Mohammad Mustafa Ali Khan and Iqbal Ali Khan. On September 18, 1934, the widow, Rani Huzur Ara Begam, on behalf of herself and as guardian of her daughter, filed in the Chief Court of Oudh two applications for execution of the two decrees. The total amount for which execution was sought was Rs.185,925-2-8 with reference to one decree, and Rs.11,43,227-5-4 with reference to the other decree. The applications expressly stated that they were made by the widow in her personal capacity and as guardian of her minor daughter, and also for the benefit of the two minor sons. The judgment debtor challenged the right of the widow to execute the decrees obtained by her husband. Her right was disputed also by the Deputy Commissioner of Gonda who, as the representative of the Court of Wards, was in charge of the persons and properties of the two minor sons. He asserted that under the law and the family custom of single heir succession the estate of Raja Mohammad Mumtaz Ali Khan, including his rights under the decrees, devolved on his elder son Raja Mohammad Mustafa Ali Khan alone; and that neither the widow nor his other children were entitled to succeed to any portion of his estate. He accordingly denied the right of the applicant to execute the decrees. Now, the taluqdar of the Utraula Estate is named in list 2 of the taluqdars prepared under s. 8 of the Oudh Estates Act, I. of 1869, whose estate, according to the custom of the family on or before February 13, 1856, ordinarily devolved upon a single heir. Sect. Now, the taluqdar of the Utraula Estate is named in list 2 of the taluqdars prepared under s. 8 of the Oudh Estates Act, I. of 1869, whose estate, according to the custom of the family on or before February 13, 1856, ordinarily devolved upon a single heir. Sect. 10 of the statute provides that the Court shall take judicial notice of the said list and regard as conclusive the fact that the person named therein is such taluqdar. In other words, there was a pre-existing custom attaching to the estate on which its inclusion in list 2 was based. There is, therefore, an irrebuttable presumption in favour of the existence of the custom of the family by which the estate devolves on a single heir, but the provision as to the conclusiveness of the custom is confined to the estate coming within the ambit of the statute. It does not apply to any property which is not comprised in the estate or taluqa. What is the rule which governs succession to non-taluqdari property ? If immovable property forming part of the taluqa is governed by the custom of single heir succession, there is no prima facie reason why immovable property which is not comprised in the taluqa should follow a different rule. 9 Law. Rep. 65 Ind. App. 397 ( 1937- 1938) Rani Huzur Ara Begam V. Deputy Commissioner, Gonda 152 Indeed, it has been decided by this Board that there is a presumption that the rule as to succession to a taluqa governs also the succession to non-taluqdari immovable property Murtaza Husain Khan v. Mahomed Yasin Ali Khan. (( 1916) L. R. 43 I. A. 269.) It must, therefore, be taken as a settled rule that, whereas the entry of a taluqdar in list 2 is conclusive evidence that his taluqa is governed by the rule of devolution on a single heir, it raises also a presumption that the family custom applying to a taluqa governs also the succession to non-taluqdari immovable property. The only difference is that, while in the case of taluqdari estate there is an irrebuttable presumption in favour of the rule of devolution on a single heir, the presumption in the case of non-taluqdari immovable property may be rebutted by evidence proving a different rule. The only difference is that, while in the case of taluqdari estate there is an irrebuttable presumption in favour of the rule of devolution on a single heir, the presumption in the case of non-taluqdari immovable property may be rebutted by evidence proving a different rule. The question then arises whether there is any other rule in the matter of succession to the non-taluqdari movable property left by the taluqdar. As observed in Thakur Ishri Singh v. Baldeo Singh (( 1884) L. R. 11 I. A. 135, 148.) " their Lordships consider that "the District Judge in this case is quite right when he argues "from the law relating to the taluka to the law relating to "all the other family property, and says there is a presumption "from the actual decisions relating to the taluka that the "family property followed the same law, or rather, as he puts "it accurately, there is no evidence to show that the other "family property followed a line of devolution different from "that of the taluka." Their Lordships attention has been invited to s. 7 of the Act, which provides that if a taluqdar or grantee desires that any elephants, jewels, arms or other articles of movable property belonging to him should devolve along with his estate, he should make an inventory thereof and deposit it in the office of the Deputy Commissioner of the district wherein his estate is situated. Thereupon the articles mentioned in the inventory shall be enjoyed and used by the person who under, or by virtue of, the Act may be in actual possession of the said estate. It is argued that the necessity for making this special provision for the devolution of heirlooms mentioned in the inventory arose because the Legislature contemplated that movable property of a taluqdar would devolve, not on a single heir along with the estate, but upon the persons who might be his heirs under the ordinary law. Their Lordships think that the object of the section was to enable the taluqdar to ensure that the heirlooms mentioned in the inventory should pass along with the estate in all circumstances, but it does not warrant the inference that the Legislature intended that the descent of movable property, for which no inventory was made, should be governed by the ordinary law. The result is that the non-taluqdari property, immovable as well as movable, is governed by the custom applicable to the taluqa, as there is no evidence to prove a custom to the contrary. The judgment of the Court of Appeal, dissenting from that of the single judge, of the Chief Court of Oudh, must, therefore, be affirmed. Their Lordships will accordingly humbly advise His Majesty that these consolidated appeals should be dismissed, with costs to be paid to the respondent the Deputy Commissioner as representing the elder son, Raja Mustapha Ali Khan, the owner of the Utraula estate.