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.
Appeal allowed.