Baboo Beer Pertab Sahee, -Appellant; Maharajah Rajender Pertab Sahee-Respondent; and cross appeal, Maharajah Rajender Pertab Sahee, -Appellant, Baboo Beer Pertab Sahee, -Respondent [on APPEAL FROM THE HIGH COURT of JUDICATURE AT BENGAL.]

JurisdictionEngland & Wales
Judgment Date19 December 1867
Date19 December 1867
CourtObsolete Court (UK)

English Reports Citation: 20 E.R. 241

ON APPEAL FROM THE HIGH COURT OF JUDICATURE AT BENGAL.

Baboo Beer Pertab Sahee
-Appellant
Maharajah Rajender Pertab Sahee-Respondent
and cross appeal, Maharajah Rajender Pertab Sahee,-Appellant, Baboo Beer Pertab Sahee,-Respondent 1

Often quoted as The Hunsapore Case. See Periasami v. Periasami, 1878, L.R. 5 Ind. App. 61; Rajah Venkata Narasimha Appa Row Bahadur v. Rajah Narrayya Appa Row Bahabur, 1879, L.R. 7 Ind. App. 38; Mutta Vaduganadha Tevar v. Dorasinga Tevar, 1881, L.R. 8 Ind. App. 99; Rani Sartaj Kuari v. Rani Deoraj Kuari, 1887-8, L.R. 15 Ind. App. 51; Srimantu Raja Yarlagadda Mallikarjuna v. Srimantu Ruja Yarlagadda Durga, 1890, L.R. 17 Ind. App. 134; Zemindar of Merangi v. Sri Rajah Satrucharla Ramabhadra Razu, 1891, L.R. 18 Ind. App. 54; Bai Motivahoo v. Bai Mamoobai, 1897, L.R. 24 Ind. App. 104; Rao Balwant Singh v. Rani Kishori, 1898, L.R. 25 Ind. App. 54.

REPORTS OF CASES heard .and determined by the Judicial Committee and the Lords of the Privy Council, on Appeal from the Supreme and Sudder Dewanny Courts in the East Indies, 1867-69. By edmund F. mooee, Barrister-at-Law. Vol. XII. BABOO BEER PERTAB SAHEE,-Appellant; MAHARAJAH RAJENDER PER-TAB SAHEE-Respondent; and cross appeal, MAHARAJAH RAJENDER PERTAB SAHEE,-Appellant, BABOO BEER PERTAB SAHEE,-Respondent * [Dec. 6, 7, 9, 10, and 19, 1867]. On appeal from the High Court of Judicature at Bengal. The Zemindary of Hunsapore in Behar is an impartible Raj, which by family usage and custom descended, for many generations, on the death of each successive Rajah, to his eldest male heir, according to the rule of primogeniture, subject to the burthen of making Babooana allowances to the junior members of the family for maintenance [12 Moo. Ind. App. 18]. In the year 1767, F., the then reigning Rajah of Hunsapore, having rebelled against the British Government, was expelled by force of arms, and the Raj confiscated by Government, who kept possession of the same for upwards of twenty years, and ultimately, in 1790, granted the Raj to C., a younger member of the family of F., on whom, some years afterwards, the Government conferred the title of Rajah. Held,-that, although the Zemindary was to be treated as the self-acquired estate of C., yet that the grant being from the ruling power, in the absence of evidence of the intention of the Grantors to the contrary, carried the incidents of the family tenure as a Raj, as the Government's intention must be taken to have been to restore the estate as it existed before its confiscation, with no change other than that as affected F. and his descendants, and was not, therefore, the creation of a new tenure, but simply a change of tenant, by the exercise of a vis major [12 Moo. Ind. App. 36]. Held further, that the title of Rajah is not absolutely essential to the tenure of a Raj [12 Moo. Ind. App. 36]. Ben. Reg. XI. of 1793, does not affect the succession by special custom, of a single male heir to a Raj, or subject it to the ordinary Hindoo law of succession [12 Moo. Ind. App. 36, 37]. * Present: Members of the Judicial Committee,-The Right Hon. Lord Cairns, the Right Hon. Sir James "William Colvile, the Right Hon. Sir Edward Vaughan Williams, and the Right Hon. Sir Richard Torin Kindersley. 241 XII MOORE IND. APP., 2 BABOO BEER PERTAB SAHEE Although there is no mention in the ancient Hindoo Treatises of a testamentary disposition, yet modern authorities have determined, that a Hindoo has testamentary power, which can be exercised by him, at least within the limits which the Hindoo law prescribes to alienation by gift inter vivos [12 Moo. Ind. App. 37, 38]. Where the Mitacshara prevails, a Hindo without male descendants may dispose by Will of his separate and self-acquired property, whether moveable or immoveable. If there be male descendants, he may by Will dispose of self-acquired moveable property, subject to the restriction, that he cannot wholly disinherit any one of such descendants [12 Moo. Ind. App. 38]. Whether, by the Benares school of Hindoo law, a Hindoo can by Will make an unequal distribution of self-acquired immoveable property without the consent of his male descendants? Quaere [12 Moo. Ind. App. 38]. If a party founds his title on a nuncupative Will, it is incumbent on him, in so uncertain a foundation as spoken words, to allege in the pleadings with the utmost precision, as well as to prove, the words on which the party relies, and every circumstance of time and place [12 Moo. Ind. App. 28]. The subject of the first appeal related to the successions to the Zemindary or Baj of Hunsapore, in the Zillahs of Sarun and Goruckpore, in the District [2] of Behar, of which Maharajah Chutterdharee Sahee died seized, and raised two principal questions: first, whether the estate was by family custom and usage a Raj, impartible and indivisible, descending to a single male heir to the exclusion of the co-heirs; and secondly, as to the power of the Maharajah, according to the Hindoo law of the Benares school, to make a testamentary disposition of a Raj to one member of his family to the prejudice of his other male descendants and co-heirs. The second, or cross appeal, was confined to such parts of the High Court's decree which directed an allowance of Rs. 1000 per mensem [3] to Baboo Beer Pertab Sahee, for maintenance as a member of the family, the non-admission of the verbal appointment of the Respondent as the successor to the estate, an alleged nuncupative Will of the late Maharajah, and lastly, with respect to the costs awarded. The history of the case was as follows :- The Raj of Hunsapore, an ancestral ancient Tributary Principality, was, by the evidence in the suit, traced back as being held as an entire estate in the same family for upwards of two hundred years. The common ancestor was Rajah Beer Sein, and each successive possessor of the Raj, during the whole of that period, had been a sole male heir of the Rajah last seized, and the eldest or nearest in the line of succession, without a single instance of the succession of the relations of any heir succeeding as co-parceners or joint heirs to the ancestral estate. The other members of each successive Rajah being entitled only to an allowance out of the estate for maintenance and support. This course of descent to the rights in the Raj continued uninterruptedly down to one Rajah Futteh Sahee, who, having rebelled against the British Government, was, in the year 1767, expelled from his possessions by force of arms, and the Raj confiscated and taken possession of by the East India Company. From that period until the year 1790 the Raj remained in their possession, and they leased the same to Farmers. In that year the East India Company, after repeated applications by members of the deposed Rajah's family for its restoration, by a Firman granted the Raj to Chutterdharee Sahee, the representative of a younger branch of the family, and put him, then a minor, in possession, and afterwards conferred on him the title of Rajah. Rajah Chutterdharee [4] Sahee had issue two sons, who predeceased him. The eldest, Ram Sahee, left two Sons, Ongur Pertab (the Respondent's Father), and Baboo Deoraj Sahee, him surviving, and the younger Son, Putthee Paul Sahee, also left two Sons, named Telluck-dharee Sahee and the Appellant, Baboo Beer Pertab Sahee. Ongur Pertab had issue a Son, the Respondent, Maharajah Rajender Pertab Sahee, whom it was alleged, Maharajah Chutterdharee Sahee, the day before his death, verbally appointed to succeed to the Raj as his heir, and installed him as Rajah. It appeared, that the Maharajah afterwards executed a written Will, or testamentary disposition, dated the 16th of March, 1858, shortly before his death, appointing the Respondent, Maharajah Rajender Pertab Sahee, his great-grandson, his sole heir and successor 242 V. MAHARAJAH RAJENDER PERTAB SAHEE [1867] XII MOORE IHD. APP., B to the Raj. Disputes having arisen as to the Respondent's right of succession, an investigation took place before the Deputy Collector of the District where the estate was situate, who made an Order to the effect, that the Raj had devolved on the Respondent, and his name, as proprietor, was thereupon entered on the Government Records. This Order was affirmed by the Commissioner. Summary suits were also instituted under Act, No. XIX of 1841, for appointment of a Curator; and under Act, No. XX. of 1841, for a certificate of administration, and the Judge, Mr. Atherton, on the 22nd of May, 1858, declared the Respondent entitled, and his possession, as successor to Rajah Chutterdharee Sahee, was confirmed by a judgment of the late Sudder Dewanny Adawlut, on the 26th of August, 1858. Some time afterwards Government conferred on the Respondent the title of Maharajah. [5] In consequence of these proceedings the suit, out of which the principal appeal arose, was commenced in March, 1859, in the Zillah Court of Sarun, by the Appellant and his Brother, Tilluckdharee Sahee, (who afterwards withdrew from the suit), as two of the Grandsons and joint heirs of Maharajah Chutterdharee Sahee, against the Respondent, Ongur Pertab, his Father (who waived and surrendered his rights by inheritance in favour of his Son, the Respondent), Deo raj, his Uncle, and others, to dispossess the Respondent of a moiety of the above-mentioned Raj or Zemindary, and for a declaration by the Court, that the Raj or Zemindary was liable to division and partition, as ordinary immoveable and moveable property by the Hindoo law, and also seeking as subsidiary to the former, to set aside the summary proceedings under the Acts, Nos. XIX. and XX. of 1841, as well as the Orders of the Revenue authorities for recording the Respondent's name in the Books of the Government Collector as sole proprietor of the Raj. The principal questions raised by the suit were, first, whether the Zemindary, which was admitted to have been an ancient family Raj, and had descended through...

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