# RAJ KUMAR MOHAN SINGH & ORS v. RAJ KUMAR PASUPATINAm SARAN SINGH & ORS

- **Citation:** [1970] 1 S.C.R. 428
- **Court:** Supreme Court of India
- **Decided:** 1969-04-29
- **Case number:** Civil Appeal No. 380 of 1965
- **Bench:** 1. C. Shah, V. RAMAswAMI, G. K. M!TTBll
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-kumar-mohan-singh-ors-v-raj-kumar-pasupatinam-saran-singh-ors-4801
- **Pages:** 7

## Headnote

B
Oudh Esraus Act 1 of 1869-Ss. 8 and 22(6) if ,.buttabk p,.sump.
lion exists thaJ non~tcluqdari estate also dtvolvu upon single heir as in
case o/ taluqdcri estate.
Section 8 of the Oudb Estates Act 1 of 1869 provided for the preparation of list! of taluqdars alid grantees, and another list of taluqdars whose
estates, according to the custom of the family on and before 13th February,
C
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 accordmce with the provisions of s. 22(6) upon the widow
of the deceued taluqdar for her life. Thereafter she adopted a son.
The
adopted son by •a deed of trust executed in August, 1932, settled certain
propenies.
By judgment dated April 19, 1968, this Coun declared that
the deed of trust of August, J 932 did nOI operate to settle any propeny
D
being pan 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 ~ was con1petcnt u11dcr the deed of settlement to dispose of the
property in the manner directed by that deed.
It \\'as also contended that
E
the widow of a taluqdar \\-'as not an "heir" ""·ithin the definition of th!.!
expttssion in the Act.
HELD : That even in the non-taluqdari estate left by the taluqdar
which devolved upon the widow, her 2dopted son, the senior, had so long
as the widow was alive no interest which he could transfer, alienate or
settle.
[433G]
It is well settled that where prope'rty devolves upon a single heir of a
taluqdar entered in the second list under s. 8 of the Act, there is a
rebuttablc 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 distinction bchveen taluqdari and non·taiuqdari estate and the presumption
merely gave effect to family custom.
[432E-F]
Rani Hur.ur Ara Bega1n and Anr. v. Deput,v Comm&sioner Gonda, L.R.
65 I.A. 397 followed.
Murtaza Husain Khan v. Mahomtd Ya<i11 Ali Khan, L.R. 43 I.A.
269;Thakur lshri Singh v. Baldto Singh, L.R. 11 I.A. 135, referred to.
CML APPELLATE JURISDICTION: Civil Appeal No. 380 of
1965.
Appeal from the judgment and decree dated May 23,
Of the Allahabad High Court, Lucknow Bench in
First
Appeal No. 70 of 1950.
1963
Civil
F
G
H
,
MOHAN SINGH v, SARAN SINGH (Shah, ],)
429
A
C .. B. Agarwala, lshtiaq 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.
B

## Text

RAJ KUMAR MOHAN SINGH & ORS.
v.
RAJ KUMAR PASUPATINAm SARAN SINGH & ORS.
April 29, 1969
[1. C. SHAH, V. RAMAswAMI AND G. K. M!TTBll, 11.J
B
Oudh Esraus Act 1 of 1869-Ss. 8 and 22(6) if ,.buttabk p,.sump.
lion exists thaJ non~tcluqdari estate also dtvolvu upon single heir as in
case o/ taluqdcri estate.
Section 8 of the Oudb Estates Act 1 of 1869 provided for the preparation of list! of taluqdars alid grantees, and another list of taluqdars whose
estates, according to the custom of the family on and before 13th February,
C
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 accordmce with the provisions of s. 22(6) upon the widow
of the deceued taluqdar for her life. Thereafter she adopted a son.
The
adopted son by •a deed of trust executed in August, 1932, settled certain
propenies.
By judgment dated April 19, 1968, this Coun declared that
the deed of trust of August, J 932 did nOI operate to settle any propeny
D
being pan 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 ~ was con1petcnt u11dcr the deed of settlement to dispose of the
property in the manner directed by that deed.
It \\'as also contended that
E
the widow of a taluqdar \\-'as not an "heir" ""·ithin the definition of th!.!
expttssion in the Act.
HELD : That even in the non-taluqdari estate left by the taluqdar
which devolved upon the widow, her 2dopted son, the senior, had so long
as the widow was alive no interest which he could transfer, alienate or
settle.
[433G]
It is well settled that where prope'rty devolves upon a single heir of a
taluqdar entered in the second list under s. 8 of the Act, there is a
rebuttablc 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 distinction bchveen taluqdari and non·taiuqdari estate and the presumption
merely gave effect to family custom.
[432E-F]
Rani Hur.ur Ara Bega1n and Anr. v. Deput,v Comm&sioner Gonda, L.R.
65 I.A. 397 followed.
Murtaza Husain Khan v. Mahomtd Ya<i11 Ali Khan, L.R. 43 I.A.
269;Thakur lshri Singh v. Baldto Singh, L.R. 11 I.A. 135, referred to.
CML APPELLATE JURISDICTION: Civil Appeal No. 380 of
1965.
Appeal from the judgment and decree dated May 23,
Of the Allahabad High Court, Lucknow Bench in
First
Appeal No. 70 of 1950.
1963
Civil
F
G
H
,
MOHAN SINGH v, SARAN SINGH (Shah, ],)
429
A
C .. B. Agarwala, lshtiaq 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.
B
The Judgment of the Court was delivered by
c
D
E
F
G
H
Shah, 1. 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 !lot
opera~ .to settle any property being part of the taluqdari estate and governed by the Oudh Estates Act 1 of
1869, for the purposes sirecified therein."
The Senior Raj Kumar applied for review of judgment on the
ground that the deed of trust dated August 29, 1932, settled pro·
perties . non-taluqdari as well as taluqdari and the Court at the
earlier hearing did not make any order as to the devolution 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 difierent rule of devolution prevails in respect of pro·
perties which. 11re non-ta/uqdari.
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 J agannath Kuar and
did not operate to convey the taluqdari estate. Counsel for the
Senior Raj Kumar contends that even if Raja Bishwanath had no
ipterest in the ta/uqdari estate, under the ordinary Hindu Jaw,
on adoption the non-taluqdari property left by Raja Surpal Siiigh
veste<I 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 devolution of nonta/uqdari property is governed by the rules of Hindu law, and
that on adoption of a son by Rani J agannath Kuar her interest
in the property was divested and the adopted son became the
owner ol. the property,
•30
SUPREME COURT REPORTS
(1970] I S.C.R.
Counsel for the Junior Raj Kumar resists this claim. Section 8
·Of the Oudh Estates Act I of 18 69 provides for the preparation
of lists of ta/uqdars 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 ta/uqtlari
estate of Tiloi was entered in the i.econd list. By s. I 0 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 tah judicial notice of
the said lists and shall regard them as conclusive evidence that the persons named therein are such raluqdars
or grantees.'
Section 22 of the Act prescribes a special mode of succession to
intestate ta/uqdars and grantees.
By cl. ( 6) of s. 22 in default
A
B
c
of any brother, or a male lineal descendant, the estate devolves
D
upon the widow of the deceased ta/uqdar 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 mRle lineal descendants. The Tiloi Estate which was a raluqdari estate, therefore, devolved upon Rani Jagannath Kuar and
E
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
els. (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
F
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-ta/uqdari estate of a ra/uqdar
governed by the Oudh Estates Act, 1869, is governed by the same
rules which govern succession to the taluqdari estate. In Rani
G
Huzur Ara Begam and Anr. v. Deputy Commissioner, Gonda('),
the Judicial Committee held that the entry of a ta/uqdar in List 2
prepared under s. 8 of the Oudh Estates Act, I 869, which raises
an irrebuttable presumption of single heir succwion to the rafuqdari property also raises a presumption, rebuttable by evidence
proving a different rule of devolution. that the family custom of
H
single heir succession applicable to the taluqa governs the suc-
(1) L.R. 65 I.A. 397.
....
A
B
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D
E
F
G
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"1
Oi
MOHAN SINGH V. SARAN SINGH (Shah, J.)
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 emorce the decrees because the right to the
decrees had. cbvolved upon the eldest son who was under the Qudh
Estates Act the sole heir under the law and family custom of
single heir succession. The Board upheld the contention raise<
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, I of 1860, whose estate, according to the
custom of tl!.e family on or before February 13, 1856,
ordinarily devolved upon a single heir.
Section 10 of
the statute I 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 irrebutlable presumption in
favour of 1;he 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 (:oming within the ambit of the statute. It
does not apply to any property which is not comprised
in the estate or tal'-lqa. What is the rule which governs
succession· to non-taluqdari property ? If immovable·
property forμUng part of the taluqa is governed by the
custom of si.Dgle 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 tha this taluqa is governed by the rule of devo1 ution on a single heir, it raises also a presumption that
the family custom applying to a taluqa governs also
the succession to non-ta/uqdari immovable. property."
432
SUPREME COUl.T REPORTS
[1970] 1 S.C.R.
Coumel for the Senior Raj Kumar contended that the rule
eDllllCiated by the Judicial Committee in Rani H uzur Ara
BegllM s case( 1) applies only to Muslims and has no application
to Hindus.
Counsel submitted that in Murraza Husain Khan v.
Mohomed Yarin Ali Khan(') 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 u,uder the Mahomedan law, ancestral and
self-acquired properties are sul>Ject to the same rule of descent,
and that in the caso of self-acquired property of a Hindu ta/uqdar,
the presumed 'custom only affects the succession upon proof that
the property was incorporated with the ta/uqa, either by intention
of the owner or by family custom. It is true that in Rani H uzur
.Ara Begam's case( 1) the dispute related to the succession to the
estate held by a Muslim ta/uqdar, but the Board '11· that case
relied upon the observations at p. 148 in Thakur lshri Singh v.
Baldeo Singh( 8)-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 that where property
devolves upon a single heir of a ta/uqdar entered in the second
list, there is a presumption that the non-taluqdari estate also
devolves upon him and we see no reason to depan 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 ta/uqdari and non-ta/uqdari estates and the presumption 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 wiofe Rani Jagannath Kuar and by
virtue of the custom, she must be presumed to have remained
life owner of the non-ta/uqdari estate also.
The customary rule
may undoub,tedly be rebutted by evidence to the contrary, but at
no stage of the hearing of this orotracted trial was the contention raised that if the Senior Raj Kumar had under the deed of
(I) L.R. 65 I.A. 397.
(2) L.R. 43 I.A. 269.
(3) l.R. 11 I.A. 135,
c
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p
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MOHAN SINGH V. SARAN SINGH (Shah, J.)
433
A
settlement interest in the non-ta/uqdari 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
8
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 1 agannath
Kuar on the death of her husband and the estate enured during
c
her life-time.
She also inherited the non-taluqdari estate. Technically she may not be called an "heir" under the Act, but that is
irrelevant in determining wbether 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 perD milted 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
E
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 ~state 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
F'
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.
G
H
We, therefore, declare that even in the non-taluqdari estate
left by Raja Surpal Singh which devolved upon his widow Rani
J agannath 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 wd 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
,34
SUPREME COURT REPORTS
(1970] 1 S.C.R.
the High Court in respect of issues Nos. 14 & 15.
The reason
is obvious : in the Trial Court the defendants agreed that ao 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.
A
B