Bookmark
PDF
Share
CaseIQ

Bhaoni v. Maharaj Singh

Allahabad High Court

Apr 5, 1881

Judgment

Subsequent
References

CaseIQ

Smart Summary (Beta)

Judgment Summary — Spankie, J. and Oldfield, J. (concurring)

Factual and Procedural Background

The opinion concerns a dispute over the inheritance of Dariao Singh, who died in 1860. The surviving family members mentioned in the opinion included his first wife Ganesh Knar, his second wife (the plaintiff) Bhaoni, his mother Raj Kuar, a sister Mahtab Kuar, three daughters, and Ajit Kuar (described as an alleged concubine) and her son Maharaj Singh (the defendant). After Dariao Singh's death, various entries and proceedings in settlement records occurred: Ganesh Knar was entered in the settlement record (referred to as occurring in 1868); on Ganesh Knar's death in 1871 Bhaoni, Raj Kuar and Maharaj Singh were recorded as heirs entitled to equal shares; Raj Kuar died 5 January 1873 and Maharaj Singh obtained entry for her one-third share on 22 March 1873.

There was earlier litigation and arbitration: in 1872 Maharaj Singh sued to set aside the 1871 settlement order and to establish his title to the whole property; arbitrators decided Raj Kuar (not Bhaoni or Maharaj Singh) was entitled, on grounds that Bhaoni had forfeited rights by "unchaste conduct" and Maharaj Singh was illegitimate. That suit was dismissed on 16 August 1872 and affirmed by the High Court on 21 July 1873. In 1874 the sister and daughters of Dariao Singh sued Bhaoni and Maharaj Singh as heirs of Raj Kuar; that suit was ultimately dismissed by the High Court on 3 March 1879, which held that Bhaoni's right had vested in her by law before any alleged misconduct.

Following these events, the plaintiff Bhaoni instituted the present suit on 18 September 1879 seeking two-thirds of Dariao Singh's estate (the shares previously recorded for Raj Kuar and Maharaj Singh under the 1871 settlement order). The defendant's principal defenses included pleas of limitation, finality of settlement orders as awards, estoppel by the plaintiff's conduct, and assertion of legitimacy or village custom entitling him to inherit. The Sub-ordinate Judge made findings on limitation, estoppel, legitimacy, and local custom; the plaintiff appealed.

Legal Issues Presented

Whether any portion of the plaintiff's claim is barred by limitation, specifically under Article 44 (Act IX of 1871) or Article 45 (Act XV of 1877), by treating the Settlement Officer's order of 15 November 1871 as an award under Regulation VII of 1822 requiring setting aside within three years.
Whether the plaintiff is estopped by her prior statements and conduct from disputing the defendant's title.
Whether Maharaj Singh is a legitimate son of Dariao Singh (by marriage in the gandharp form) or an illegitimate offspring of a concubine, and whether any village custom permits the offspring of a concubine to inherit.
Whether the Settlement Officer's order of 15 November 1871 (and related settlement proceedings) constitutes an "award" under Regulation VII of 1822.

Arguments of the Parties

Plaintiff's (Bhaoni) Arguments

The suit is not barred by the three years' limitation applicable to awards or similar proceedings.
Prior litigation and decisions are not conclusive against the plaintiff's right and do not negate the defendant's lack of title.
There is no estoppel arising from the plaintiff's conduct that should prevent her from bringing the present claim.
Maharaj Singh is illegitimate and therefore has no right of inheritance.

Defendant's (Maharaj Singh) Arguments / Sub-ordinate Judge's Findings Supporting Defendant

The defendant asserts adverse possession beyond the term of limitation.
The orders passed in 1871 and 1873 are final and conclusive as awards under the relevant regulation, and no suit was timely brought within three years to set them aside.
The plaintiff is estopped by her prior conduct and statements (including a statement of 23 June 1860 referring to Maharaj Singh as her heir; participation in partition applications; consent to his appointment as lambardar on 13 February 1876; and actions recognizing his title by applying to have property sold in execution of a decree against the defendant).
The defendant claims to be the legitimate son of Dariao Singh (or, if not legitimately born, that local custom in Pirthipur allows offspring of a dharoka/concubine to inherit). The Sub-ordinate Judge held that the gandharp form of union was a valid marriage and that local custom supported inheritance by such offspring.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct stages, applying the facts of the settlement proceedings and the applicable regulatory framework as described in the record:

Limitation and the character of the Settlement Officer's order.
The Court rejected the Sub-ordinate Judge's conclusion that any portion of the claim was barred under Article 44 (Act IX of 1871) or Article 45 (Act XV of 1877) by treating the Settlement Officer's order dated 15 November 1871 as an award under Regulation VII of 1822. The Court examined the administrative record of the settlement proceedings and found that the Deputy Collector initiated inquiries and recorded evidence and that the Settlement Officer disposed of the case "without making any inquiry" and on the evidence already taken by the Deputy Collector.

The Court emphasised the requirements of Regulation VII and the role of the Settlement Officer as contemplated by section 23 of the Regulation: the Settlement Officer is to act as a Court of Civil Judicature, which implies that parties must be before him and there must be an opportunity to establish claims on evidence taken before that officer. The Court held that an order passed by the Settlement Officer upon a reference based on inquiries made by another officer, without the Settlement Officer himself taking evidence or affording the parties the required opportunity, lacks the element of judicial character necessary to constitute an "award" under the Regulation.

The Court characterized this defect not as a mere procedural irregularity but as one that "strikes at the root of the proceedings" and deprives the Settlement Officer's order of pretence to judicial authority. On that basis the Court concluded the 15 November 1871 order was not an award subject to the three-year limitation for setting aside such awards; accordingly, the limitation plea based on that theory failed.
Application to the later entry of 22 March 1873.
The Sub-ordinate Judge had held that there was no bar with respect to the order of 22 March 1873; the Court found that conclusion correct and the remarks regarding the non-award character of the earlier settlement order disposed of the primary limitation objection to maintaining the suit.
Estoppel and prior conduct.
While the Sub-ordinate Judge had relied on several acts and statements of the plaintiff to find estoppel (including a 23 June 1860 statement and various acts of recognition), the appellate consideration, in conjunction with the analysis of the settlement proceedings, led the Court to hold that the plaintiff was not estopped from bringing any portion of her claim. The Court stated that the earlier remarks dispose of the preliminary objections (which included estoppel), thereby allowing the plaintiff's substantive claim to be adjudicated further unless the defendant could show a superior right as a son of Dariao Singh.
Legitimacy, the gandharp form, and local custom.
The Court addressed the question whether Maharaj Singh was the legitimate son of Dariao Singh by a gandharp marriage between Dariao and Ajit Kuar, or whether Maharaj was illegitimate and could only inherit if a village custom permitted children of a concubine to succeed.

The Court concluded that Ajit Kuar was not married to Dariao Singh by any form of marriage recognised by Hindu law among Rajputs. It characterized the gandharp form, as contended by the defendant, as "nothing more nor less than concubinage" and observed that it had become obsolete as a form of marriage conferring the status of wife and legitimacy on offspring. The Court required that any local custom purporting to place illegitimate children on an equal footing with legitimate heirs must be well-established; it rejected the claimant's reliance on an entry in the village wajib-ul-arz alone as insufficient to alter the law of succession, noting that parties cannot by agreement alter succession law and that the record of such an entry is not conclusive evidence of a legally binding custom.

The Court also observed that the evidence of a custom having the force of law was conflicting, that the few instances cited by the Sub-ordinate Judge were of doubtful authority, and that the arbitration in the 1872 suit (which disallowed Maharaj Singh's claim for illegitimacy) and the conduct at the time of Dariao Singh's death (Ajit Kuar not claiming the right for Maharaj Singh then but postponing it) tended to show that the custom contended for was not recognised.
Conclusion of the analysis.
On the cumulative application of these points — that the settlement order of 15 November 1871 was not a judicial award subject to the three-year limitation; that estoppel and adverse possession did not bar the plaintiff's claim in the manner argued; and that legitimacy/local-custom arguments advanced by the defendant failed on the evidence and legal analysis — the Court found for the plaintiff.

Holding and Implications

Holding: The appeal was allowed; the decree of the lower Court was set aside; and the plaintiff's claim (seeking the two-thirds share of Dariao Singh's estate that had been recorded for Raj Kuar and Maharaj Singh under the 1871 settlement order) was decreed with costs.

Implications:

The direct consequence for the parties is that the plaintiff succeeds in her claim for the two-thirds share of the estate that she sought and recovers costs.
The Court held that the Settlement Officer's order dated 15 November 1871 did not amount to an award under Regulation VII of 1822 and therefore was not subject to the three-year limitation for setting aside awards; as a result the defendant's limitation defence based on that theory failed.
The Court rejected the contention that the gandharp form constituted a legitimate marriage conferring legitimacy on Maharaj Singh, and rejected the claim that an insufficiently proved village custom placed illegitimate children on an equal footing with legitimate heirs.
The opinion did not present or rely upon cited judicial precedents to establish the points summarized above; it rests on interpretation of the settlement procedure, the Regulation provisions (including s. 23), and the factual record of prior proceedings. The opinion does not expressly purport to establish a broad new legal precedent beyond the ruling on these particular facts.

Appeal allowed.

Show all summary ...

Spankie, J. and Oldfield, J. (concurring):— The plaintiff (Bhaoni) is the second wife of Dariao Singh, who died in 1860, leaving surviving him his first wife Ganesh Knar, his second wife Bhaoni his mother Raj Kuar, sister Mahtab Kuar, and three daughters; also Ajit Kuar alleged to be his concubine and her son Maharaj Singh defendant and respondent in this case. On the death of Dariao Singh in 1868 Ganesh Kuar was entered in the settlement record, and when she died in 1871 the plaintiff and Raj Kuar and Maharaj Singh were recorded as heirs and entitled to equal shares; Raj Kuar died on the 5th January, 1873, and Maharaj Singh obtained entry of his name in respect of her one-third share on the 22nd March, 1873. It appears also that in 1872 Maharaj Singh sued the plaintiff (Bhaoni) and Raj Kuar to set aside the order of the settlement officer passed in 1871 declaring those ladies entitled to a third share each in the estate, and to establish his own title to the whole of the property left by Dariao Singh. The matter in dispute was referred to arbitration, and the arbitrators decided that Raj Kuar, and not Bhaoni or Maharaj Singh, was entitled to the property, on the ground that Bhaoni had forfeited her right by unchaste conduct, and that Maharaj Singh was illegitimate. The suit brought by Maharaj Singh was in consequence dismissed on the 16th August, 1872, and the decision was affirmed by the High Court on the 21st July, 1873. Subsequently in 1874 the sister and daughters of Dariao Singh sued Bhaoni, plaintiff in this case, and Maharaj Singh, defendant in this case, to recover the property left by Dariao Singh, and to set aside the order of the settlement officers; they sued as heirs of Raj Kuar. This suit was ultimately dismissed by the High Court on the 3rd March, 1879 which held that the right of inheritance to her husband Dariao Singh's estate had vested in Bhaoni by law long before she was guilty of misconduct, and in her presence as heir to Dariao Singh none of the plaintiffs had any right to succeed to the estate. Raj Kuar having died in 1873 and Maharaj Singh having obtained entry of his name in respect to the one-third share which she had obtained under orders of the Settlement Officer in 1871, the plaintiff (Bbaoni) has brought this suit which was instituted on the 18th September, 1879, for two-thirds of the estate of Dariao Singh, namely the shares which had been given to Raj Kuar and Maharaj Singh by the order of the Settlement Officer in 1871. The defence of Maharaj Sirgh is that he has held adversely to the plaintiff beyond the term of limitation; that the orders passed in 1871 declaring his right to on-third and in 1873 in respect of his right to Raj Kuar's share have become final and conclusive as awards, no suit having been brought within three years to set them aside; that plaintiff is estopped by her conduct from disputing his title; that he is the legitimate son of Dariao Singh, and assuming him to be the son of a concubine (dharoka), he is entitled to succeed according to the custom of the village. The Sub-ordinate Judge has held that the defendant has not been in adverse possession for twelve years, but that the suit; so far as it refers to the one-third share which the defendant obtained under the order of the 15th November, 1871 is barred by limitation of three years, that order being an award which has not been set aside. He held that the plaintiff is estopped by her conduct from bringing this claim. He refers to her statement of the 23rd June, 1860, to the effect that Maharaj Singh is her heir; to her recognizing his right by applying for partition of the one-third share she obtained under the order of the Settlement Officer dated the loth November, 1871; and her consent to his being appointed lambardar dated the 13th February, 1876, and her recognition of his right to the two-thirds in suit by appyling to have it sold in execution of a decree against the defendant. He further held that Maharrj Singh is the son of Dariao Singh by Ajit Kuar his concubine, and the marriage in the gandharp form is valid; and that he is also entitled to succeed by the custom in Pirthipur according to which the offspring of a dharoka (concubine) inherits. The plaintiff appeals on the ground that the suit is not barred by the three years' limitation; that the previous litigation is conclusive of the plaintiff's right and of the absence of any title in defendant; that there is no estoppel; and that Maharaj Sing is illegitimate and has no right of inheritance.

I am of opinion that the Sub-ordinate Judge has wrongly held that any portion of this claim is barred by limitation under art, 44, Act IX of 1871, or art. 45, Act XV. of 1877, as the order of the Settlement Officer dated the 15th November, 1871, is not an award under Regulation VII of 1822 which it was necessary to set aside within three years under the Limitation Act. On referring to the proceedings in the settlement department, we find that, on the death of Ganesh Kuar, the Settlement Deputy Collector instituted inquiries as to who should be recorded in her place, and Bhaoni (plaintiff), Raj Kuar and Maharaj Singh (defendant) preferred claims. The Deputy Collector after making inquiry, recorded a proceeding to the effect that Ganeih Kuar, who was proprietor in possession, had left as her heirs Raj Kuar, her mother-in-law, Bhaoni, and Maharaj Singh described as the son of Dariao Singh by his mistress Ajit Kuar. The Deputy Collector, after referring to the proceedings taken on Dariao Singh death, when Bhaoni and Raj Kuar had consented to alive the name of Ganesh Knar to be entered, with the understanding that Bhaoni should be recorded at her death and Maharaj Singh after Bhaonfs death as the last heir, proceeds to record that the dispute before him was between Raj Kuar, Bhaoni, and Maharaj Singh. The first named set up her own right, alleging Maharaj Singh was illegitimate. Bhaoni claimed that she should succeed under the arrangement made in 1860, and Maharaj Singh claimed to be the heir and disputed any title on the part of Bhaoni by reason of her an chastity. The Deputy Collector finally records that he is unable to come to any con elusion on the question of which party is in possession; and referred the case to the Settlement Officer with these words: “The circumstances of joint possession are not clear; the case is an intricate one; and criminal eases, between the parties are apprehended and it is observed that they keep up with them a large following with the view of disturbance; it is absolutely necessary that final orders be passed by the Settlement Officer.” The papers appear to have been sent to the Settlement Officer, who without making any inquiry disposed of the case on the evidence taken by the Deputy Collector of Settlement, and held that all the three claimants had joint possession of Dariao Singh's property, and it was proper that the names of each to equal shares should be substituted for that of Ganesh Kuar, and the order was passed to that effect, and it was intimated that, unless they settled their claims in the Civil Court or by arbitration, before the khewat came to be prepared, it would be prepared according to the above directions. This proceeding, however, of the Settlement Officer does not constitute an award under Regulation VII. of 1822. It does not appear to have been made after opportunity given to the parties to establish their respective claims before the Settlement Officer or upon evidence taken by that officer. The Regulation contemplates that the Settlement Officer shall act as a Court of Civil Judicature (s. 23). He must have the parties before him and give them opportunity for establishing their claims, and must adjudicate on evidence taken before him, nod an order passed like the one before us upon a reference made by some other officer oil inquiries instituted by him has no element of a judicial character, a as to give the order the authority of an award under the Regulation. The defect is not one of mere irregularity of procedure, but it strikes at the root of the proceedings before the Settlement Officer and takes from them all pretence to be of a judicial character. The Sub-ordinate Judge has rightly hold that there is no bar to the claim with reference to the order of the 22nd March, 1873. (After holding that the plaintiff was not estopped by her acts and conduct from bringing any portion of her claim, and that her claim was not barred with reference to the decisions in the former suits, nor by the adverse possession of the defendant for twelve years, the learned Judge continued). The above remarks dispose of all the preliminary objections to the maintenance of the suit; and the plaintiff will have a right to the property as widow of Dariao Singh, unless the defendant can show a better right as the son of Dariao Singh. It is quite clear that his mother Ajit Kuar was not married to Dariao Singh by any form of marriage recognised by Hindu law among Rajputs. The marriage by the gandharp form, which it is contended is valid, is nothing more nor less than concubinage, and has become obsolete as a form of marriage giving the status of wife and making the offspring legitimate; and the contention that the legitimate son can inherit under the custom of the village and family is not established. Such a custom is opposed to the general law and must be well-established before we can recognise it. There is an entry in the wajib-ul-arz of the village that “in this village a mistress treated as a wife and the child of a mistress shall also have a right to transfer property and to obtain and receive property.” In regard to this, all that need be said is that it does not necessarily place illegitimate children on an equality with legitimate as heirs; and if that is the intention, it is ineffectual, as parties cannot by agreement alter the law of succession and if this record be regarded as evidence of a custom, it is not conclusive. The few instances referred to by the Sub-ordinate Judge in which illegitimate children may have succeeded are of doubtful authority, and would not go far to establish the custom contended for. The evidence that any such custom having the force of law exists is conflicting, and the fact that in the suit of 1872 the arbitrators disallowed Maharaj Singh's claim on the ground of illegitimacy, and Ajit Kuar never claimed the right for him at Dariao Singh's death, but permitted it to be postponed till after the death of his two wives, goes far to show that such a custom is not recognised. The decree of the lower Court should be set aside; and the appeal allowed, and the claim decreed with costs.