1855. BABOO GUNESH DUTT V. MAHARAJA SINGH and others. which alone appears to their Lordships to have any weight in this case,) but we give you evidence that SINGH with respect to one of those parties, Ram Singh, there joint possessor of this Zemindary, and we prove MOHESHUR it in this way:-Nurindur Singh was in possession as Raja, and during the time that he was in possession as Raja, from about 1745 down to 1752, we find several grants made by Ram Singh of property within the limits of this great Zemindary, most of them made for religious uses; but whether or not so made, it appears that one or two of those grants were subsequently confirmed by the Supreme Court. In the first place, it is quite consistent with possibility, and I should say with probability, that this Baboo would have, as the sons of the family always appear to have had, a Baboo's allowance, and that those grants were made out of that property which he held as Baboo, or out of other property which belonged to him in his individual character, and which was the subject of his own acquisition. But there is further evidence, that some of these grants were confirmed by Maharaja Nurindur; and with respect to others which were not confirmed, it is perfectly notorious to everybody acquainted with Bengal usage, that there is a very great reluctance on the part of the great proprietors to interfere with property so appropriated, whether with or without law; it is considered a sort of sacrilege so to do. I am not aware that there are any other circumstances established in the evidence in this case which is in the smallest degree inconsistent with that usage which is proved by the witnesses to have prevailed for this great length of time, or anything which can throw doubt upon the truth of that statement. But there is this, which really removes, as it appears to their Lordships, all doubt upon the case. This property was acquired about two hundred years ago; according to the case which the Appellant is compelled to insist upon, not only was it not subject to division, but it was left to descend without disposition; it was not capable of being made the subject of disposition so as to exclude divisibility. Now, is it possible that in a period of two hundred years there should have been no division of this estate, or at least no such division as finally to divide and separate one portion of it from another? It is absolutely impossible; and can anything more strongly illustrate that impossibility than this, that if the question he raises, whether the general Hindoo law prevails or not, be decided in his favour, this Zemindary would naturally be split into portions; the Appellant would take one portion, Basdeo Singh would take another half of the remaining half, and the Raja would be left with only one-fourth? Their Lordships, therefore, are quite unable to entertain any doubt, either as to the fact of its being a Raj, or as to the fact of the usage prevailing that the reigning Raja has the power of abdicating, and by deed assigning the Raj in favour of his eldest son or next immediate male heir; and we think that such usage is proved beyond all controversy to have prevailed in this country, and to have been acted upon in this instance. If that be so, it is not very important to enter into the consideration of the sunuds, which were commented upon by the Appellant's counsel, the different grants which are represented to have been VOL. VI. Y 1855. BABOO GUNESH DUTT SINGH บ. MAHARAJA MOHESHUR and others. SINGH 1855. BABOO SINGH บ. MAHARAJA and others. made, beginning with that by Maheeneth Singh in the year 1690, and continuing down to the present time. GUNESH DUTT Their Lordships are unable to find any reason to doubt the validity of these instruments, except with respect to one. With respect to that one, it is said, that that deed purports to bear date on the 12th of June, and that the Raja is proved to have died on the 9th of that month, and that, therefore, it could not be a genuine instrument. Well, the force of that argument depends, of course, entirely upon the accuracy with which these dates are given. Yet assuming that that instrument could not be genuine, upon which their Lordships in their present state of knowledge upon the subject are not able to pronounce any decided opinion, and striking that instrument. out of the case, all the others would remain unimpeached, and that which is the most important of all would so remain. Then, if there were no deed, the Raj would descend indivisible; but when we look at what has been done within the last one hundred years, there really seems to be scarcely room for the suggestion of a doubt that each of those different Rajas has actually adopted the custom contended for, whether reasonable or unreasonable; and, with respect to the deed in question, it would be unnecessary if that custom prevailed: and it may be observed, that though undoubtedly before the Regulation of 1793 such a deed was useful only if the Zemindar abdicated in his lifetime; yet, if he chose to retain the Raj, the deed was unnecessary as regards the Regulation of 1793; though it might possibly be important for other purposes. 1855. BABOO SINGH บ. MAHARAJA MOESHUR and others. SINGA If, therefore, the case stood only upon this, that the Appellant has totally failed in making out the divisibility of this inheritance, and the invalidity of the deed GUNESH DUTT of 1807, their Lordships would be clearly of opinion that he had failed altogether in the case; but as the property is of very great value, and as we have taken the somewhat unusual course of stopping the Respondent's counsel, it may be proper for us to advert to another point-namely, whether this deed of 1807 was assented to by Gobind Singh, so as to bind his son, the present Appellant? Now, that depends entirely upon this. That Gobind Singh held possession of this Pergunnah admits of no doubt; that he took possession and held it, or that it was held for him, during his minority, and that he held it for himself during his lifetime, and that after his death it was held for his son during his minority, and is held by him up to this very hour, as it appears by the Appellant's statement, are facts which admit of no doubt. The Appellant says, that is very true, but I do not claim that Pergunnah under the deed of 1807; if I do, no doubt I am out of Court: for the deed of 1807 allots it to me expressly as a Baboo allowance; but I claim it not as a Baboo allowance, but as a distinct and absolute grant made to me upon my investiture with the Brahminical thread; similar grants on other occasions having been made by Madhoo Singh in favour of his other sons, and I produce this deed, late it is true, in the course of these proceedings, many years after the contest had arisen-a deed, the like of which it never occurred to Kirut Singh to suggest or produce. It is in his replication, for the first time, he mentions a deed dated in the year 1855. BABOO GUNESH DUTT V. MAHARAJA SINGH and others. 1806, which purports to make this grant to Gobind Singh on the occasion, as the Appellant alleges, of his investiture with the Brahminical thread. Let us see what the evidence is upon this point. MOHESHUR He produces several witnesses to state that they saw this deed; some of them cannot read; some of them do not know the language; but they say that they saw the deed on the occasion of the investiture; that Madhoo Singh came out and declared that he had made that gift to his son, Gobind Singh. In the first place, these very witnesses swear, at least several of them do, that a similar grant was made in favour of Kirut Singh; and after the attention of the Appellant had been called to the fact that the grant to Kirut Singh was of a totally different character, in his replication he persists in that statement, and it is upon that issue that the parties go to evidence. Now, what is the evidence? The Appellant's counsel most candidly, as well as most judiciously, withdrew that from the consideration of their Lordships by stating, "We must admit that it was a mistake." A mistake! Why, it is a mistake which must have been within the knowledge of the parties at the time they made this allegation, for in the answer they were referred to the documents; and what are the documents? Why, among the documents is a grant of the Pergunnah of Dhurumpoor, a portion of this estate, but such a portion that it pays 18 lacs of rupees a-year for revenue to Government. This grant was made to Kishun Singh upon his birth. Whether any deed was executed upon the occasion does not appear. I rather think there was not: but upon |