Andrew Scoble, J.
1. Shah Nawaz Khan, Nawab of Tank, died on January 10, 1882, leaving him surviving a grandson, Ghulam Kasim Khan (the son of his elder
son, Muhammad Akbar, who had predeceased him), and a son, Muhammad Afzal Khan. At the time of the Nawab''s death the grandson was
thirteen years of age, and the son about twenty-three years old. Upon their joint application the Nawab''s estate was transferred into their two
names, as proprietors in equal shares; but this mutation is not relied on, as Ghulam Kasim Khan was then a minor, and the Nawab having died in
debt the management of his property was undertaken by the Court of Wards.
2. On October 6, 1882, the Government of India sanctioned the appointment of Ghulam Kasim Khan, the grandson of the late Nawab, to be the
successor ""to the title and position of Nawab and Chief of Tank, and also to the entire jagir and cash assignment enjoyed by the late Nawab,
subject to a deduction of certain emoluments ""for the maintenance of the son and the two widows left by Shah Nawaz Khan.
3. The young Nawab attained his majority in 1892, and the estate was released from the superintendence of the Court of Wards. His uncle
thereupon claimed partition, basing his claim on the mutation proceedings; but the Revenue Court declined to enter into the question of title, and
referred the parties to the Civil Court. The present suit was, therefore, instituted in February, 1894, the respondent being plaintiff and the appellant
defendant. The claim was to recover the half-share of Shah Nawaz''s property entered in the defendant''s name in 1882, on the ground that,
according to the custom and the practice of the family,"" the whole of it belonged to the chief for the time being as head of the family and by virtue
of his chiefship. The defendant, in his written statement, denied the custom, and asserted that ""in matters relating to succession the parties'' family
has always been bound by Mahomedan law."" It is now admitted that the Mahomedan law does not apply, and that the decision of the claim
depends upon the custom existing in the family- that is to say, whether the estate goes with the chiefship, as alleged by the plaintiff, or devolves
according to the custom of the district, under which, the defendant asserts, the property would be divided between the son and grandson of the
late Nawab in equal shares.
4. The District Judge found that the plaintiff had failed to prove the special custom alleged by him and dismissed the suit. The Chief Court of the
Punjab, on appeal, reversed this decision, and gave the plaintiff a decree for possession of defendant''s recorded half-share in seven villages,
namely, (1.) Tank, (2.) Hayat, (3.) Budha, (4.) Baloch, (5.) Kaura, (6.) Daggar, and (7.) Rukh Ranwal. As to an eighth village, Dabarra, the Court
gave the plaintiff a decree for possession, ""with this proviso, that the decree will not be executable if, within six months from this date, defendant
renounces all claim to the allowance of Rs. 5000 per annum made to him by Government out of plaintiff''s grant. If he either refuses or fails to
renounce such claim within such period, then plaintiff will be entitled to execute his decree."" The present appeal is against both branches of this
decree.
5. A great body of evidence, both oral and documentary, was adduced as to the history of Tank and its rulers prior to the British annexation of the
Punjab, from a consideration of which the Chief Court arrived at the following conclusions:
1. The country known as Tank proper belonged to the chief for the time being, who was both ruler and proprietor.
2. Succession devolved upon the eldest son of the chief, the members of his family being entitled to maintenance only.
6. In these conclusions their Lordships concur. The history of the chiefs of Tank, as shewn in this record, was marked by many vicissitudes.
Originally independent, they became tributary in turn to the Afghans and the Sikhs; they were sometimes in power, and sometimes in exile; but, so
far as the evidence extends, the succession to the chiefship went always in the line of primogeniture, except in one instance, in which the eldest son
was set aside on the ground of insanity. And with the chiefship went the ownership of the lands of the ilaka. As Sir John Lawrence observes, in a
memorandum of March 17, 1854: ""Previous to the expulsion of the father of Shah Nawaz, he was virtually the chief and the landed proprietor of
the whole of Tank. All other classes had been reduced to complete subjection.
7. When the settlement of the country was made, after the introduction of British rule in 1849, it was the policy of the Government to recognise the
occupiers of the soil as the proprietors of their respective lands; and although Shah Nawaz Khan asserted a proprietary title, by virtue of his
chiefship, to all the villages-sixty-seven in number--which formed the pergunnah of Tank, his claim was eventually admitted in regard to seven only,
namely, (1.) Tank, (2) Baloch, (3.) Budha, (4.) Kaura, (5.) Hayat, (6.) Daggar, and (7.) Dabarra. These are the villages now in dispute; the eighth,
Rukh Ranwal, being a tract of grass land used for grazing horses and appurtenant to Tank. Their Lordships agree with the Chief Court that the
effect of this settlement was not to create a fresh estate subject to the ordinary law of inheritance, but to continue to the chief for the time being, as
it were jure coronae, the proprietorship of the villages which had been founded by his ancestors, and the succession to which had theretofore been
regulated by the custom of the family.
8. This view is supported by what took place in 1875, when, as the result of considerable negotiation, the Government of India conferred upon
Shah Nawaz Khan, as an hereditary jagir, a cash allowance of Es. 25,000 per annum, together with ""the land revenue of the seven villages above
mentioned, to be"" held on condition of good service, and descend from the Nawab integrally to the successor in the direct male line who may be
selected by the Government as most competent."" In sanctioning this grant the Governor-General in Council expressly recognised that ""the status
accorded to the occupiers of the soil"" under the regular settlement could not be altered, and accordingly made no change in the position in which
the Nawab already stood in regard to the proprietorship of these villages, as distinguished from their liability to payment of Government revenue.
9. Upon the terms of this arrangement being communicated to Shah Nawaz Khan, he ""expressed a wish that separate provision might be made for
his younger son, Muhammad Afzal Khan, in the event of the elder son, Muhammad Akbar Khan, being selected by Government to succeed him as
Nawab and Jagirdar at a future time ""; and he was informed, in reply, that ""he himself had always stated it to be the rule1 in the: Katti Khel family
that the head of the family should alone arrange what provision should be made for junior members. Such being the case, the authorities saw no
cause to deviate from what was acknowledged by the Nawab himself to be the recognised and established custom of his house."" In pursuance of
this suggestion, Shah Nawaz Khan, on June 23, 1876, applied to the settlement officer that the name of his son Muhammad Afzal Khan should be
entered as proprietor of the village of Dabarra, ""so that he may remain in possession of it and enjoy the whole of its produce, while I will have
nothing to do with the village ""; and the order upon this application was ""that an entry should be made according to the request of the Nawab, who,
in the capacity of a Jagirdar, will hold the village as before."" The Chief Court held that, under these proceedings, Dabarra became ""an appanage
conferred on defendant as a younger son of a chief for his subsistence, and as such he is entitled to keep it""; but the learned judges considered that
as the Government, on the death of Shah Nawaz Khan, transferred Rs. 5000 of his cash allowance to the defendant, they were ""entitled to call
upon the defendant to elect which maintenance he will take--that provided by his father or that provided by the Government."" Their Lordships can
discover no ground for putting the defendant to this election; the cash allowance and the assignment of the village arise from different sources, and
are independent of each other; and without expressing any opinion as to the permanency or otherwise of the alienation of Dabarra, their Lordships
consider that, as regards Dabarra, the conditions imposed by the decree of the Chief Court cannot be supported.
10. Their Lordships will humbly advise His Majesty that the decree of the Chief Court, so far as it directs that the plaintiff should receive
possession of defendant''s recorded half-share in the villages of (1.) Tank, (2.) Hayat, (3.) Budha, (4.) Baloch, (5.) Kaura, (6.) Daggar, and (7.)
Rukh Ranwal, be confirmed and the appeal dismissed; and so far as it relates to possession of Dabarra that the appeal should be allowed, and the
defendant declared entitled to the benefit of the grant of the village for his maintenance made by Shah Nawaz Khan without renouncing his claim to
the allowance of Es. 5000 per annum made to him by Government; and that in other respects the decree of the Chief Court should be confirmed.
As the respondent has succeeded as to the greater part of his claim, the appellant must pay to the respondent three-fourths of his costs of this
appeal, and the respondent must pay to the appellant one-fourth of his costs thereof with the usual set-off.
