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PETITIONER: RAJ KUMAR MOHAN SINGH & ORS.

       Vs.

RESPONDENT: RAJ KUMAR PASUPATINATH SARAN SINGH & ORS.

DATE OF JUDGMENT: 29/04/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. MITTER, G.K.

CITATION:  1970 AIR   42            1970 SCR  (1) 428  1969 SCC  (2) 258

ACT: Oudh  Estates  Act 1 of 1869-Ss. 8 and 22(6)  if  rebuttable presumption  exists that non-taluqdari estate also  devolves upon single heir as in case of taluqdari estate.

HEADNOTE: Section 8 of the Oudh Estates Act 1 of 1869 provided for the preparation of lists of taluqdars and grantees, and  another list of taluqdars whose estates, according to the custom  of the  family  on and before 13th February,  1856,  ordinarily devolved upon a single heir.  The taluqdari estate of  Tiloi was  entered  in  the second list.  Upon the  death  of  the taluqdar and in the absence of any brother or a male  lineal descendant,  the  estate devolved, in  accordance  with  the provisions  of  s.  22(6) upon the  widow  of  the  deceased taluqdar  for her life.  Thereafter she adopted a son.   The adopted  son  by a deed of trust executed in  August,  1932, settled  certain  properties.  By judgment dated  April  19, 1968, this Court declared that the deed of trust of  August, 1932  did not operate to settle any property being  part  of the taluqdari estate and governed by the Oudh Estates Act of 1869. In  the present petition for review of the judgment  it  was contended  that even if the settlor had no interest  in  the taluqdari estate under the ordinary Hindu law, on  adoption, the  non-taluqdari  property  vested  in  him  and  he   was competent  under  the deed of settlement to dispose  of  the property  in the manner directed by that deed.  It was  also contended  that  the widow of a taluqdar was not  an  "heir" within the definition of the expression in the Act. HELD  :  That even in the non-taluqdari estate left  by  the taluqdar which devolved upon the widow, her adopted son, the settlor,  had  so, long as the widow was alive  no  interest which he could transfer, alienate or settle. [433G] it  is  well settled that where property  devolves  upon,  a single  heir of a taluqdar entered in the second list  under s. 8 of the Act, there is a rebuttable presumption that  the non-taluqdari estate also devolves upon him.  In the present case there was no reason to depart from that rule.  Prior to the enactment of the Oudh Estates Act 1869 there was no dis-

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tinction between taluqdari and non-taluqdari estate and  the presumption merely gave effect to family custom. [432E-F] Rani Huzur Ara Begam and Anr. v. Deputy Commissioner  Gonda, L.R. 65 I.A. 397 followed. Murtaza  Husain Khan v. Mahomed Yasin Ali Khan L.R. 43  I.A. 269;Thakur  Ishri Singh v. Baldeo Singh, L.R. 11  I.A.  135: referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 380 of 1965. Appeal  from the judgment and decree dated May 23,  1963  of the  Allahabad  High  Court, Lucknow Bench  in  First  Civil Appeal No. 70 of 1950.                             429 C.   B.  Agarwala, Ishtiaq Ahmad Abbasi, S. Rehman and, C.   P. Lal, for the appellants. S.   P.  Sinha, Mohammad Hussain and S. S. Shukla,  for  the respondents Nos.  1 and 3. The Judgment of the Court was delivered by Shah, J. By our judgment dated April 19, 1968, we passed the following order in this appeal : "It will be declared that the deed of trust executed by Raja Bishwanath on August 29, 1932, did not operate to settle any property being part of the taluqdari estate and governed  by the  Oudh Estates Act 1 of 1869, for the purposes  specified therein." The  Senior Raj Kumar applied for review of judgment on  the ground that the deed of trust dated August 29, 1932, settled properties non-taluqdari as well as taluqdari and the  Court at  the  earlier hearing did not make any order  as  to  the revolution of the non-taluqdari property.  Apparently at the earlier  hearing no argument on the matter now sought to  be raised  was advanced, though the hearing lasted for  several days.   We  have, however, granted review  of  judgment  and heard  the parties on the question whether a different  rule of  revolution prevails in respect of properties  which  are non-taluqdari. We  have  held that on the death of Raja  Surpal  Singh  the taluqdari estate of Tiloi vested in Rani Jagannath Kuar, and she  continued to hold the property as life owner  under  s. 22(7)  of the Oudh Estates Act, even after she adopted  Raja Bishwanath  Singh on February 21, 1901, and so long  as  she was  alive  Raja  Bishwanath Singh had no  interest  in  the estate  which  he  could  settle or  convey.   The  deed  of settlement was executed by Raja Bishwanath Singh during  the lifetime  of  Rani  Jagannath Kuar and did  not  operate  to convey  the  taluqdari estate.  Counsel for the  Senior  Raj Kumar contends that even if Raja Bishwanath had no  interest in  the taluqdari estate, under the ordinary Hindu  law,  on adoption  the  non-taluqdari property left  by  Raja  Surpal Singh  vested in Raja Bishwanath Singh and he was  competent under  the deed of settlement to dispose of the property  in the  manner  directed by that deed.  Counsel says  that  the revolution  of  non-taluqdari property is  governed  by  the rules  of Hindu law, and that on adoption of a son  by  Rani Jagannath Kuar her interest in the property was divested and the adopted son became the owner of the property. 430 Counsel  for  the  Junior  Raj  Kumar  resists  this  claim. Section 8 of the Oudh Estates Act 1 of 1869 provides for the preparation  of  lists of taluqdars and  grantees,  and  the second  list  prepared  under  that section  is  a  list  of taluqdars  whose  estates, according to the  custom  of  the

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family  on  and  before  the 13th  day  of  February,  1856, ordinarily  devolved  upon  a single  heir.   The  taluqdari estate of Tiloi was entered in the second list.  By s. 10 of the Act .it is provided : "No persons shall be considered taluqdars or grantees within the meaning of the 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.’ Section  22  of  the  Act  prescribes  a  special  mode   of succession to intestate taluqdars and grantees.  By cl.  (6) of  S.  22  in  default of any brother,  or  a  male  lineal descendant,  the  estate  devolves upon  the  widow  of  the deceased taluqdar or grantee, heir or legatee, for her life- time  only,  and by cl. (7) on the death of the  widow,  the estate  devolves upon such son as the widow shall, with  the consent  in writing of her deceased husband,  have  adopted, and his male lineal descendants.  The Tiloi Estate which was a taluqdari estate, therefore, devolved upon Rani  Jagannath Kuar  and  she held that estate during her  life-time.   The rule  of Hindu law that on the adoption of a son by a  widow to  her  deceased husband, the estate vests in  the  adopted son, is by the express provisions of cls. (6) & (7) of s. 22 of  the Oudh Estates Act inapplicable to taluqdari  estates. That  was  so held in our earlier judgment dated  April  19, 1968, and on that account the claim of the Senior Raj  Kumar to  take the taluqdari estate under the deed  of  settlement ’was negatived. It  was  decided  by the Judicial  Committee  of  the  Privy Council  that  it will be presumed  that  the  non-taluqdari estate of a taluqdar governed by the Oudh Estates Act, 1869, is  governed by the same -rules which govern  succession  to the  taluqdari estate.  In Rani Huzur Ara Begam and Anr.  v. Deputy  Commissioner, Gonda(.), the Judicial Committee  held that  the entry of a taluqdar in List 2 prepared under S.  8 of the Oudh Estates Act, 1869, which raises an  irrebuttable presumption  of  single  heir succession  to  the  taluqdari property -also raises a presumption, rebuttable by  evidence proving  a  different rule of revolution,  that  the  family custom  of ,single heir succession applicable to the  taluqa governs the suc- (1)  L.R. 65 I.A. 397. 431 cession  to the non-taluqdari property, movable as  well  as immovable,  of the taluqdar.  In that case the  taluqdar  of Utraula  Estate  obtained  decrees  for  recovery  of  money against  a  debtor.  The taluqdar died  on  March  4,  1934, leaving him surviving a widow, a daughter and two sons.  The widow  on  behalf  of herself and as  the  guardian  of  her daughter  filed  applications for execution of  the  decrees obtained by the taluqdar.  The execution was resisted on the ground  that  the  widow and the daughter had  no  right  to enforce  the  decrees because the right to the  decrees  had devolved upon the eldest son who was under the Oudh  Estates Act the, sole heir under the law and family custom of single heir succession.  The Board upheld the contention raised ,by the judgment-debtor.  They observed :               "Now,  the taluqdar of the Utraula  Estate  is               named  in  list 2 of  the  taluqdars  prepared               under S. 8 of the Oudh Estates Act, 1 of 1869,               whose  estate, according to the custom of  the               family   on  or  before  February  13,   1856,               ordinarily   devolved  upon  a  single   heir.               Section  10 of the statute provides  that  the

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                           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  prime  facie               reason  why  immovable property which  is  not               comprised  in  the  taluqa  should  follow   a               different rule.               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 this taluqa  is               governed by the rule of revolution 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." 432 Counsel  for  the Senior Raj Kumar contended that  the  rule enunciated  by  the Judicial Committee in   Rani  Huzur  Ara Begam’s   case(1)  applies  only  to  Muslims  and  has   no application  to Hindus.  Counsel submitted that  in  Murtaza Husain  Khan  v.  Mahomed Yasin Ali Khan(2)  Mr.  Ameer  Ali delivering  the  judgment of the Board  explained  that  the reason  of the rule is that the presumed custom  applies  to the  acquired property of a Muslim taluqdar since under  the Mahomed  an law, ancestral and self-acquired properties  are subject to the same rule of descent, and that in the case of self-acquired  property  of a Hindu taluqdar,  the  presumed custom  only  affects  the succession upon  proof  that  the property  was  incorporated  with  the  taluqa,  either   by intention of the owner or by family custom.  It is true that in Rani Huzur Ara Begam’s case(2) the dispute related to the succession to the estate held by a Muslim taluqdar, but  the Board in that case relied upon the observations at p. 148 in Thakur  Ishri  Singh  v. Baldeo  Singh(3)-a  case  of  Hindu succession to a taluqdari held by a Hindu taluqdar.  Counsel also  invited our attention to s. 23 of the  Oudh  Taluqdars Act,  but  we see no inconsistency between  the  presumption that non-taluqdari property also devolves upon a single-heir and the terms of s. 23 of the Act. Counsel for the Senior Raj Kumar contends that the  decision of the Judicial Committee gives no reasons in support of the view  taken by the Board and should be reconsidered by  this Court.   We are unable to agree with that  contention.   The rule  has  apparently been settled for the last  many  years

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that  where  property  devolves  upon a  single  heir  of  a taluqdar entered in the second list, there is a  presumption that the non-taluqdari estate also devolves upon him and  we see  no  reason to depart from that rule.  To  do  so  would result in upsetting settled titles.  Prior to the  enactment of  the  Oudh Estates Act, 1869, there  was  no  distinction between taluqdari and non-taluqdari estates and the presump- tion  merely  gives  effect to  family  custom.   There  is, therefore,   a  presumption,  unless  rebutted,  that   non- taluqdari property of a taluqdar entered in List 2  devolves by  the  custom of the family upon a single  heir.   On  the death of Raja Surpal Singh his entire estate devolved,  upon his  wife Rani Jagannath Kuar and by virtue of  the  custom, she must be presumed to have remained life owner of the non- taluqdari  estate also.  The customary rule may  undoubtedly be rebutted by evidence to the contrary, but at no stage  of the  hearing  of this protracted trial  was  the  contention raised that if the Senior Raj Kumar had under the deed of (1) L.R. 65 I.A. 397.         (2) L.R. 43 I.A. 269. (3)  L.R. 11 I.A. 135.                             433 settlement interest in the non-taluqdari estate even if  his claim to the taluqdari estate under that deed failed to take effect. It was then urged that in any event the widow of a  taluqdar is  not an "heir" within the definition of the, Act.  It  is true that in the interpretation clause in the Act an  "heir" means a person who has inherited or inherits otherwise  than as  a widow or a mother, an estate or portion of  an  estate whether before or after the commencement of the Act.  But we fail  to appreciate the bearing of this definition upon  the question  in  issue.  By virtue of s. 22(6) of the  Act  the taluqdari.  estate devolved upon Rani Jagannath Kuar on  the death of her husband and the estate enured during her  life- time.  She also inherited the non-taluqdari estate.  Techni- cally  she  may not be called an "heir" under the  Act,  but that is irrelevant in determining whether in the  devolution of  the taluqdari and non-taluqdari estates different  rules prevail. Counsel  then  contended that though the  argument  was  not raised  at an earlier stage, the Senior Raj Kumar should  be permitted to amend his pleading to contend that there was  a -custom  in the family under which non-taluqdari estate  did not  devolve upon a single heir.  This case is more than  22 years old and we do not think that we would be justified  at this date in allowing the parties to raise a new  contention and  give it a fresh lease of life.  On the record there  is evidence relating to devolution of the estate since the time of Raja Jagpal Singh to whom the Tiloi Estate was granted by the  Government,  and it has never been suggested  that  the non-taluqdari  estate devolves otherwise than upon a  single heir. Counsel  also  contended  that even if leave  to  amend  the written statement be not granted to the Senior Raj Kumar the Court  may  review  the evidence and hold  on  the  evidence already on the record that such a custom did prevail in  the family.  Our attention has, however, not been invited to any reliable evidence on this part of the case. We, therefore, declare that even in the non-taluqdari estate left by Raja Surpal Singh which devolved upon his widow Rani Jagannath Kuar for her life-time, Raja Bishwanath Singh  had on  August  29, 1932, no interest which he  could  transfer, alienate or settle. Counsel for the Senior Raj Kumar finally submitted that  the Trial  Court did not decide issues Nos. 14 & 15 relating  to

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the  rights of Rani Aditya Binai Kumari-defendant No.  4-and Rani  Fanindra Rajya Lakshmi Devi-defendant No. 5-and  these issues should be decided.  No argument was advanced before 434 the  High  Court in respect of issues -Nos. 14  &  15.   The reason is obvious : in the Trial Court the defendants agreed that  no  findings should be recorded on those  issues.   We cannot  at this stage enter upon the trial of issues  which, it was agreed, had to be tried in another suit. The Senior Raj Kumar will pay the costs of this hearing. R.K.P.S. 435