Judgment Case ID: 2628

Judgment:
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	 section Rehman and	 C. P. Lal	 for the appellants. section P. Sinha	 Mohammad Hussain and section section 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 section 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 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 section 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 section 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 section 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. vs Deputy Commissioner	 Gonda(.)	 the Judicial Committee held that the entry of a taluqdar in List 2 prepared under section 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 section 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 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 vs 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 vs 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 vs Baldeo Singh(3) a case of Hindu succession to a taluqdari held by a Hindu taluqdar. Counsel also invited our attention to section 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 section 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 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 section 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 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.

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