LexTIKAIT HARGOBIND PRASAD SINGH versus SRIMATYA PHALDANI KUMARI
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.. ' _...,.,...., .. S.C.R. SUPREME COURT REPORTS TIKAIT HARGOBIND PRASAD SINGH ti. SRIMATYA PHALDANI KUMARI. [SAIYID FAZL Au, MEHR CHAND MAHAJAN, and VIVIAN BosE JJ.] 153 Gkatwali tenures-Birbhum ghatwals--Succession-Widouls right to succeed in preference to nearest male agnate when family is joint -Custom-Hindu law-Regulation XXIX of 1814 . Held by the Full Court-Amongst the Birbhum ghatwals, when the holder of a ghatwali dies leaving a widow but no direct lineal descendants;, the widow succeeds in preference to the , nearest male agnate, even though the family may be a joint family. Per MAHAJAN and BosE JJ.-The Mitakshara rule that the property inherited by a person from his immediate paternal ancestors becomes ancestral in his hands, and his sons, grandsons and great-grandsons acquired a right in it at the moment of their birth has no application to Birbhum ghatwali tenures. The word "descendents" is used in Regulation XXIX of 1814 loosely in the sense of "heirs" and does not mean lineal descendants. FAzL ALt (-Custom and usage are important factors governing succession to ghatwali property, and while in some cases custom may develop on the lines of Hindu law 'relating to succession owing to 'repeated instances of tacit and unquestioned applica- tion of the law, in other cases succession to ghatwali property may be governed not entirely by Hindu Jaw but by such law as modified in ,certain respects by usage and custom. Eulbati Kumari v. Maheswari Prasad (A.I.R. 1923 Pat. 453) distinguished. CML APPELLATE JmusmCTioN : Civil Appeal No. 87 of 1950. Appeal from the Judgment and Decree dated 8th February, 1949, of the High Court of Judi- cature at Patna (Manohar Lall and Mahabir Prasad JJ.) in Appeal ~o. 38 of 1946 arising out of decree dated the 18th December, 1945, of the Subordinate Judge of Deoghar in Title Suit No. 1 of 1939. B. C. Dey (S. C. Ghose, with him) for the appellant. M. C. Sctal.vad (Kanhaiyaji, with him) for the re,s.. pond~nt. 1951 Nov. 29. 154 SUPREME COURT REPORTS [19521 1951 Tik_ait Hargobind Prasad Singh 1951. November 29. The Judgment of Mehr Chand Mahajan and Vivian Bose JJ. was delivered by Mahajan J. Fazl Ali J. delivered a separate judgment. v. Sri1natya Phaldani Ku'nlari. Mahajan f. MAHAJAN J.-The question involved in the appeal , relates to the right of succession to six Birbhum ghat- walis governed by Regulation XXIX of 1814, annexed to Gaddi Pathrol and lying within Tapasarath in the Santhal Parganas. The genealogy of the contestants appears from the following pedigree table :- Digbijoy Singh I .-----~~~~~~~~~~~~~~--... G hi . . 1.s. . I . 1 I . uro an Smgh Kanha1 1ngh Bhairo Singh i Ba ram Singh (Ghatwal) I I I Pratar Singh I I ·s· h . I I . Banwart mg Pitambar Katku Singe Bharat Singh (Died (Ghatwal) issueless) I Kharagdhari Singh (Ghatwal) I . Ram Chandra Smgh (Ghatwal) I r- 1 Brijbehari Singh (Ghatwal) K · I d s· . nshna Prasa 1ngh (Ghatwal) I ---.. I Sarju Prasad Singh (Original plaintill) Hargobind Prasad Singh (Substituted plaintifl) ,.~.~~~~~~~~ I Kali Prasad Singh (Ghatwal) I Pha ldani Kumari (Defendant) I I Durga Prasad (Died issueless) Tikait Kali Prasad Singh, the last gaddidar of Pathrol, died in the year 1935. He belonged to the Baisj..Chaurasi clan. On the 29th November, 1935, the ... ' • .. ' .. ~. - S.C.R. SUPREME COURT REPORTS 155 Commissioner of Bhagalpur Division recognized· Smt. Phaldani Kumari as the next ghatwal and entitled to be maintained in poosession of the ghatwali estate. On the 30th November\ 1936, Sarju. Prasad Singh brought the suit out of which this appeal arises in forma pau- peris in the court of · the Subordinate Judge of Deoghar for possession of the ghatwalis. In paragraphs 7, 8 and 10 of the plaint it was alleged that the ghat- walis in suit were joint family property and were im- . partible by custom ; that succession to them was governed by the law of lineal primogeniture ; that the females and persons claiming through them were altogether excluded from inheritance. It was claimed that the late Tikait Kali Prasad Singh and the plaint- iff were members of a joint Mitakshara family and that he alone as the eldest member of the eldest sur- viving line of the descendants of the common ancestor was entitled to succeed to them. The defendant in her written statement deni
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