Ranawat, J.:— This is an application under sec. 115 of the Civil Procedure Code. Thakur Raj Singh filed an application under sec. 372 of the Jaipur Page: 508Succession Act, in the court of the District Judge, Jaipur City for grant of a succession certificate in respect of certain debts and securities left by his father. Thakur Devisinghji of Chomu, who died on the 10th of April, 1947. It was claimed by the petitioner that he was entitled to succeed to the debts and securities left by his father on account of the custom and practice of the rule of primogeniture which was said to be applicable to the estate of the petitioner. The petitioner claimed that he was the eldest son of Thakur Devisinghji of Chomu and was thus entitled to a certificate in his favour. An objection was raised by Thakur Bharat Singh, one of the brothers of the petitioner, who admitted that the rule of primogeniture was applicable to the Thikana or the Jagir properties left by the late Thakur Devisinghji of Chomu but pleaded that the personal properties left by Thakur Devisinghji were governed by the principles of ordinary Hindu Law. He claimed an interest in the debts and securities in respect of which a certificate was prayed for by the petitioner. The District Judge on the 13th of July, 1949 framed three issues, out of which the second issue was as follows:—
“Whether the properties specified in the petition were made from the personal property of Thakur Devisinghji in which all the sons of Thakur Devisinghji were entitled to get equal shares.
2. The burden of proof of this issue was placed on Thakur Bharat Singh, the opposite party.
3. It is contended on behalf of Thakur Bharat Singh in this revision that the lower court acted with material irregularity in placing the burden of proof of this issue on him. According to him it was for Thakur Rajsingh to prove the special custom of primogeniture pleaded by him which entitled him to succeed to all the properties, whether Jagir or otherwise, left by Thakur Devisinghji.
4. This case first come for hearing before a single Judge of this court but it has been referred to a Division Bench for decision, as there were conflicting decisions of two single Judges of this court on the point whether a revision under sec. 115 C.P.C lies in a case where the onus of proof is misplaced by the lower court.
5. A preliminary objection has been raised by the opposite party that (1) no revision lies where burden of proof is wrongly placed by the lower court and (2) where the petitioner has not moved the lower court for reconsideration of the question of burden of proof. It may be pointed out that the lower court has applied its mind in allocating the burden of proof on one or the other of the parties and simply because a party has not moved the same court for reconsideration of its decision, it can not be said that he would be deprived from coming to this court. As regards the point whether revision lies in a case where burden of proof is wrongly placed by the lower court there are two conflicting judgments of this court. In Shankarlal v. Deenanath (1950 R.L.W 249) it was held by Gupta J. that a wrong allocation of burden of proof amount to a material irregularity in the meaning of sec. 115 C.P.C justifying interference in revision by the High Court. Reliance is placed in this judgment on A.I.R 1947 Patna 469 and 1948 Nagpur 285. In Harji v. Hastisingh (1951 R.L.W 1) it was observed by Dutt J. that the wrong allocation of the burden of proof constitutes a material irregularity and justified interference in revision but only in those cases which have been decided in the lower court and in which no appeal lies. Wrong allocation of burden of proof was not, according to him, a case decided in the meaning of sec. 115 C.P.C and it was therefore held that in such a case it should be after the final decision of the case that interference by the High Court in revision would be justified. In both the cases it was held that wrong allocation of burden of proof was a material irregularity in the meaning of sec. 115 C.P.C but the question which weighed with Dutt J. related to the point whether it was a case decided when the burden of proof was put wrongly by the trial court. It may be pointed out that a Page: 509Division Bench of this High Court in Dr. Niranjan Nath v. Sardar Mal (A.I.R 1950 Raj. 31) has held that the word “Case” in sec. 115 C.P.C should be construed to include the decision of any substantial question in controversy between the parties affecting their rights even though such order is passed in the course of the trial of the suit. In view of the definition of the term “case decided” accepted in A.I.R 1950 Raj. 31 a decision by which the burden of proof is placed on one party or the other is a case decided, because the rights of the parties are materially affected thereby and that is a question which is also at issue between the parties. It is not necessary to go much further on this point as the law has been correctly laid down by the aforesaid Division Bench judgment of this court. In Bir Babu v. Raghuber Babu (A.I.R 1947 Pat. 469), it has been observed as follows:— “the correct placing of the onus of proof is a vital point of procedure and an incorrect placing of onus may, therefore, amount to material irregularity……Ordinarily an interlocutory order is not capable of revision, particularly when there is another remedy available to the injured party, but where the order complained against is such as is calculated to cause irreparable loss to the injured party and there is no right of appeal and no remedy available to the party the order may be revised if the conditions laid down in sec. 115 C.P.C are satisfied…… Consequently where the effect of requiring the defendant to lead evidence seriously prejudices him by assuming without proof that the Hindu Law governs the family of the parties and deprives him of the very valuable right of adducing evidence in rebuttal of that adduced by the plaintiff, the prejudical effect of the procedure is not capable of remedy and the High Court ought to interfere in revision.
6. E.S.S.S Varisai Muhammed Rowther v. Marungapuri State (A.I.R 1939 Madras 644) and 1950 Calcutta 87 are the cases which lay down the same principle as has been laid down by the Patna case referred to above. The learned counsel of the opposite side has cited Manickavachakam Chettiar v. The Official Receiver, Nagapatam (A.I.R 1939 Madras 733) in his favour in which it has been held that the fact that the question which way the burden of proof is to be thrown is wrongly decided is not a ground for interference in revision. It was held in this Madras case that in misplacing the onus of proof the subordinate judge did not act perversely. The decision in A.I.R 1939 Madras 733 is against A.I.R 1939 Madras 644 wherein an opposite view has been held to be correct. We are of the opinion that wrong allocation of burden of proof amounts to a material irregularity in the exercise of its jurisdiction where it causes irreparable loss to a party and deprives him of the right to produce his evidence before the court. The Law in Shankarlal v. Deenanath (1950 R.L.W 249) has been correctly laid down. Preliminary objection is therefore, disallowed.
7. In the present case, the learned District Judge has adopted a wrong procedure in putting the burden of proof on the opposite party Th. Bharat Singh relating to issue No. 2. The case of the petitioner Th. Raj Singh was that there was a custom according to which he was entitled to claim the debts and securities left by his father Th. Devisinghji and ordinarily it was for the petitioner to prove the custom alleged by him. The opposite party Th. Bharat Singh cannot lead any evidence in the rebuttal of the existence of the custom if he is asked to lead evidence in the first instance. After the evidence shall be closed by Th. Bharat Singh, it would be open to the petitioner to put his evidence relating to the existence of the special customs alleged by him. The opposite party then shall be deprived from putting any evidence in rebuttal regarding the custom alleged by the petitioner. Placing the burden of proof wrongly on the opposite party will, therefore, in the present case irreparable damage to the case of the opposite party. According to the law of procedure, the court below ought to have placed the burden of proof on the petitioner for proving the special custom alleged by him. Under these circumstances, placing I the burden of proof wrongly constitutes a material irregularity in the meaning Page: 510of sec. 115 C.P.C which would justify interference by this court. Where a wrong procedure is adopted by a subordinate court in the matter of allocation of burden of proof, it is evident that the court acts with material irregularity in the exercise of its jurisdiction because it adopts a wrong procedure in the course of trial which materially affects the decision of the case. We are in agreement with the observations of Gupta J. in Shankarlal v. Deenanath (1950 Rajasthan Law Weekly 249) and hold that wrong allocation of bruden of proof amounts to a material irrregularity in the exercise of jurisdiction justifying interference in revision by the High Court under sec. 115 of the Code of Civil Procedure. The learned District Judge assumed the existence of the special custom pleaded by the petitioner, which was not proper. The petitioner had to prove the existence of the custom pleaded by him, when it was not admitted by the opposite party so far as the personal properties of the deceased were concerned. In the absence of the special custom pleaded by the petitioner, all the sons of the deceased would be equally entitled to succeed to the properties left on the death of their father. Moreover the point that the properties specified in the petition were made from the personal properties of Th. Devi Singhji was not the case of any one of the parties and the court had no reason to embark upon any enquiry as to the origin and the history of the property left by Th. Devisinghji. What was contested by the opposite party was that the properties specified in the petition were the personal properties of the deceased and that succession to those properties was governed by the ordinary law applicable to the parties. It was, therefore, necessary for the lower court to place the burden of proving the special custom on the petitioner Th. Rajsingh. In changing the onus of proof, it would be necessary to make some changes in the language of the issue. Ordinarily it is not for this court to frame the issues or recast their language but in order to allocate the burden of proof correctly, in the present case, it appears necessary to change the language of the issue so that the points of dispute may be brought out precisely and the burden of proof relating to each may be put on the party on whom it should ultimately rest. The language of issue No. 2, should therefore, be as follows:—
(4) Whether the properties specified in the petition of Th. Raj Singh are part jagir properties and if not whether under the custom of primogeniture, he is entitled to succeed to these properties to the exclusion of the other sons of Th. Devisinghji. Burden of proof is on the petitioner Th. Raj Singh.
8. This revision application succeeds and the language of issue No. 2 is changed as laid down above and the burden of its proof is put on the petitioner Th. Raj Singh.
Sharma, J.:— I agree with the order proposed by my learned brother Ranawat J. The common point between the parties is that jagir descends according to the custom of primogeniture to the eldest son of the deceased jagirdar. There is no agreement between the parties that the property in dispute is a part of jagir property. It is, therefore, necessary for Thakur Raj Singh to prove that the property in dispute is a part of jagir property if he wishes to succeed on the admission of Thakur Bharat Singh that jagir property devolves according to the custom of primogeniture. It case Thakur Raj Singh seeks to apply the rule of primogeniture to other properties of his father also, he has to prove a custom to that effect. The burden of proving both these allegations is upon Thakur Raj Singh and in framing the issue which the learned District Judge has framed and placing the burden on Th. Bharat Singh, he has commited a material irregularity in the exercise of his jurisdiction. The issue proposed by my learned brother point out clearly what facts are necessary for Th. Raj Singh (applicant in the lower court) to prove before he can be held entitled to the property in dispute to the exclusion of his other brother and correctly allocates burden of proof.