Sadasiva Aiyar, J.
1. The question common to all these appeals is, whether the Karvetnagar Estate is inalienable by virtue of its tenure or by a custom under which the zemindar for the time being is prohibited from alienating any portion of the estate, except for purposes for which the manager of a joint Hindu family (not the father) is entitled as such manager to make valid alienations of the joint family property. On this question, I might at once say that I agree with the judgment to be pronounced by my learned brother, As it was, however argued with great strenuousness and persistence by Mr. Govindaraghava Aiyar for the appellant, I deem it appropriate to express my views on this point in my own words. As regards inalienability by virtue of the tenure, as soon as the military tenure under which the properties were held was put an end to, about 120 years ago, that is, when the British Government granted the lands to the zemindar under a quite different tenure with express powers of alienation and after imposing a liability on the lands to be attached and sold in exection of decrees passed against the grantee, the restraint on alienation without the permission of the overlord came to an absolute end. The analogy of the incident of impartibility attaching to some estates is absolutely misleading. Impartibility, according to the Privy Council decision in Sartaj Kuari v. Deoraj Kuari 15 I. A.P 51. leads logically to the existence of a power of alienability, and not to a Rule of inalienability.
2. Further, the custom of impartibility and of succession by a single owner are incidents attached not so much to the property held by a family as to the law governing that particular family (see Lord Macnaghten in the (Udayarpalayam's case) Kachi Kaliyana Rengappa Kalakka Thola Udayar v. Kachi Yuva Rengappa Kalakha Thola Udayar 28 M.K 508 in that case, the following passages occur:---'On the cession of the Carnatic, the British Government assured the Poligars, of whom the Poligar of Udayar was one, that they would enjoy every just and ascertained civil right, with a free exercise of the religious institutions and domestic usages of their ancestor.' One of the domestic usages, namely, succession according to rules of primogeniture was upheld in that case. In the case of zemindaris where succession by primogeniture prevails, though that domestic usage might have begun in the times when the head of the family was a military ruler and though that position had ceased at the time of the Permanent Settlement, the family law of succession by primogeniture was presumed to continue even afterwards. In short, it is a question of the family law of succession, and such law was held applicable even in the case of families of certain Mussalman zemindars. See Mohammad Afzal Khan v. Ghulam Kasim Khan 30 C.P 843 : 5 Bom. L. R. 486 : 30 L. A. 190 It is not really a question of succession to a particular property. It can never be argued that where portions of an impartible estate are alienated by a Zemindar governed by his family law of primogeniture to Hindus governed by the ordinary Hindu Law, succession to the portions so alienated is also governed by the law of primogeniture. If the proprietor of the Karvetnagar Estate was incapable by the custom of his family from alienating or binding by his debts any part thereof beyond his own lifetime, except under circumstances which would entitle the managing member of a joint family to do so, the enactment of Section 4 (1) of the Impartible Estates Act was superfluous so far as this estate was concerned. That the law of impartibility depends on the family custom of succession and not on the nature of the estate is also clear from the case of Durgadut Singh v. Maharaga Sir R. Rameshwar Singh Bahadur 4 Ind. Cas. 2 : 11 Bom. L. R. 901 which related to certain properties given to junior members of a Zemindari family for their maintenance. It was held in that case that it was proved that the family custom of primogenture and impartibility governed the succession to those properties also. (See pages 952 to 954 Pages of 36 C.---Ed.) As remarked by that eminent Judge (West, J.) see pages 272-273 of Bhau Nanaji Uipat v. Sundrabai 11 B. H. C. R. 249. In a good many cases, the question of family custom has been mixed up with that of the supposed impartible character of a raj or principality, and this has perhaps led to some little confusion in particular instances, but a careful examination of the cases will show that the special law of, descent has usually been put by the Privy Council, as in the case of Neelkisto Deb Burmono v. Beerchunder Thakoor 12 M. I. A. 523 : 2 Suth. P. C. J. 243. on the ground of ancient family custom whether the property was a raj or not. There are other oases like that of Ghirdharee Sing v. Koolahul Sing 2 M. I. A. 344. in which the fact that the estate was a raj was held not to involve the consequence that it was indivisible under a special law of inheritance applicable to that species of property; and generally it may be said that it is the family custom of descent, which, for juridical purposes, gives the property the character of a raj, and not anything in the estate itself, which determines the rights of pretenders to it. In a case in 7 Bengal Sudder Dewani Adaulat Reports, page 195, it was ruled that on a property which had descended in one family, according to a Rule of primogeniture, undivided, passing to another family in which no special Rule prevailed, it became partible according to the ordinary law. Thus viewed, all the numerous cases of property, regarded as impartible because partaking of the nature of a raj, are instances of the effect which the highest Court has given to family customs diverging from and, therefore, in a sense 'repugnant or antagonistic to the general law.' The prevalence in any part of India of a special course of descent in a family, differing from the ordinary course of descent in that place, of the property of people of that class or race, stands on the footing of usage or custom of the family. Soorendronath Roy v. Musammat Heeramonee Burmoneah 12 M. I. A. 81 : 2 Suth. P. C. J. 147 : 2 Sar. P. C. J. 372 In Rajkishen Singh v. Ramjoy Surma Mozoomdar I C. 19 W. R. 8 : 8 M. L. J. 151. the following observations occur at page 191: 'In the present case the estate was held directly from the Government, there being no intermediate lord. And it appears to their Lordships that, upon this settlement, any incidents of the old tenure, as a military jagir, requiring the render of services, if any such ever existed, were, as conditions of tenure, impliedly at an end; and that the Zemindari, so far as relates to tenure, was thenceforth held under the Government as an ordinary Zemindari free from any such conditions. The settlement would not, however, of itself, have operated to destroy a family usage regulating the manner of descent.... It would not, of itself, affect an existing family custom'. At page 195, their Lordships say that even the custom of impartibility could, without any violation of law, be put an end to by the conduct of the members of the family after the Permanent Settlement. They say: Their Lordships cannot find any principle or authority for holding that in point of law a manner of descent of an ordinary estate, depending solely on family usage, may not be discontinued, so as to let in the ordinary law of succession. Such family usages are in their nature different from a territorial custom, which is the lex loci binding all persons within the local limits in which it prevails'. These passages show that even as regards the family usage of succession by primogeniture, the family could revert to the ordinary law after the Permanent Settlement. As regards the question of inalienability without the Sovereign's sanction in case of military tenures, the reason for the restricted ownership ceasing as soon as the military service is dispensed with, the ordinary law governing impartible estates, involving the right of the holder of that estate to alienate at his pleasure' (which follows from there being no co-parcenary rights vested in the other members of the family) becomes at once applicable. In the Pittapuram case in Rama Krishna Rao v. Court of Wards 22 M.K 383. Mr. Mayne tried his best to argue that in the Madras Presidency, there was a special custom governing the impartible estates which were once held by military rulers, which custom attached the incident of inalienability to those estates (except for purposes for which the Mitakshara family manager is entitled to alienate). Their Lordships, however, without even calling upon the respondent's Counsel went through all the oases in Madras from the earliest case in Raja Row Vencata Niladry Row v. Vutchavoy Vencataputty Raz (1834) 3 Knapp. 23 and decided against the custom. It was very soon after this decision that the first temporary Act that preceded the Madras Impartible Estates Act was enacted. The evidence in this case, in my opinion, does not establish any custom of inalienability but indicates, on the other hand, that the ordinary law which vests the power of alienation in the Zemindar for the time being was followed by each successive Zamindar, though the son or the brother of a Zemindar sometimes claimed that the ordinary Mitakshara Law applied to the estate. He never suggested that any custom which was against the ordinary law as understood by him applied to the Zamindars. Their Lordships of the Privy Council say at page 396 that where a supposed custom has followed the ordinary law, as laid down by the Courts, though it was wrongly assumed to be the ordinary law, that supposed custom, which did not modify the understood general law and which had, therefore, not independently the force of law, cannot be recognised by Courts as a custom having the force of law, even after it is established that the supposed ordinary law which it was alleged to have followed was not the ordinary law. I, therefore, agree with the lower Court and with my learned brother that there was no proof of any family usage having been consciously followed, which was considered to be a special custom at variance with the ordinary Hindu Law.
3. As regards the argument based on Exhibit VII series in which the word 'Tanaka' is used, Ayling, J., says in Dakkata Tholap lli v. Sasanapuri Dali Seth 22 Ind. Cas. 524 that 'Exhibit A was intended by the parties to create a simple mortgage, I feel no doubt whatever. The word `Tanaka' which is twice used in the operative portion of the document is to my mind conclusive. The learned District Judge says: The word 'Tanaka' is always used to denote a mortgage', 'in Brown's Telugu Dictionary the only meanings given to the word 'Tanaka' are (1) a mortgage, (2) an assignment of land revenue, the latter meaning being obviously inapplicable in the present case.' In Patte Muhamad v. Davood 30 Ind. Cas. 569. Spencer and Kumaraswami Sastri, JJ., interpret the word Tanaka' occurring in the document in that case as mortgage. The interpretation sought to be put upon that word by Mr. Grovindaraghava Aiyar, when it occurs in Exhibit VII series, namely, that it meant only an assignment of revenue and not a mortgage cannot, therefore, be sustained. Far from these documents supporting the learned Vakil's argument that the Zemindar was disinclined to execute deeds of alienation intended to last beyond his lifetime, they support the conclusion that he treated the lands in his estate as his absolute property to be alienated according to his pleasure.
4. The learned Vakil next relied strongly on the decision in the Ammayanayakanur case Sivasubramania Naicker v. Krishnammal 18 M.K 237.. Even if certain observations of that decision have not got to ba re considered in the light of the Privy Council decision in Rama Krishna Rao v. Court of Wards 22 M.K 383 the Rule of succession applicable to that Zemindari was a quite exceptional one, namely, Dayathipattam, and the evidence let in in that case to show the nature of the estate held by each succeeding Zemindar was also of a very special character. The conclusion of fact arrived at in that case, in which the succession was not a succession governed by the ordinary Rule of primogeniture and where the evidence showed that each succeeding Zamindar expressly admitted that his Dayadees were co-parceners with him, cannot govern the consideration of the evidence in this case. Having thus dealt with the point common to all these cases, I shall now deal with the other particular questions arising in the appeals.
Appeal No. 173 of 1910.
5. In the suit out of which this appeal has arisen, the 1st defendant contends that the mortgage-deed sued on has not been supported by consideration in respect of five of the items of consideration mentioned therein. The first of these items is a sum of Rs. 6,617-6-5 due to the 1st and 2nd plaintiffs' father under a decree in Original Suit No. 1 of 1885 on the file of the District Court of North Arcot which was passed against the Zemindar. The amount of the decree-debt was Rs. 6,581-0-10 on the date of the decree (25th February 1885), the decree providing for subsequent interest. About seven months before the date of the mortgage sued on (14th November 1890) the receipt, Exhibit VI, (19th February 1890) for Rs. 2,500 was filed in Court by the decree-holder. This sum of Rs. 2,500 covered a sum of Rs. 2,000 agreed to be paid to the decree-holder for the forbearance shown by him in not proceeding with the execution of the decree on a former occasion, that agreement not having had the Court's sanction. Section 257 (A) of the old Civil Procedure Code was as follows: Every agreement to give time for the satisfaction of a judgment-debt shall be void unless it is made for consideration and with the sanction of the Court which passed the decree and such Court deems the consideration to be under the circumstances reasonable'. 'Any sum paid in contravention of the provisions of this Section shall be applied to the satisfaction of the judgment-debt'. I think these are imperative provisions and Rs. 2,000, which has been admittedly paid under an agreement as consideration for grant of time (see Exhibits V and VI), ought to be treated as paid towards the decree. Out of the sum of Rs. 6,617-6-5, therefore, mentioned in Exhibit A, the sum of Rs. 2,000 and interest thereon at six per cent, per annum from date of Exhibit VI (19th February 1590) till date of suit bond (14th November 1890) should be deducted in defendants' favour. See also Venkata Subramania Ayyar v. Koran Kantian Ahmad 12 M. L. J. 113. The mortgage document is, however, good security for the balance of the decree amount see Tiramal Raju v. Pandla Muthial Naidu (18). The objections as to the other four items were not seriously argued and I agree with the District Judge that those objections cannot be sustained. It was next objected to the decree as drawn up in the lower Court that even simple interest at 12 per cent, per annum from the date of default mentioned in Exhibit A is a penal rate, the original rate being six per cent. The provision in Exhibit A for compound interest at 12 per cent, from the date of default is no doubt of a penal character, but I think the lower Court was justified in giving 12 per cent, simple interest from the date of default as a reasonable compensation for the breach of the contract to pay on the due date. Lastly, it was contended that the decree drawn up by the lower Court was wrong in form and might be construed as making the 1st defendant liable personally at once for the decree amount, as it begins by saying that 'the Court doth order and decree that the defendants do pay plaintiffs', etc. I think the decree ought to have followed the Form No. 4, Appendix D, of the Cede of Civil Procedure. The decree will be modified accordingly.
6. I must here state that the 11th and 12th grounds in the memorandum of appeal) namely, that the District Judge ought not to have excluded the time during which the estate was under the Court of Wards in calculating the period of limitation (as. regards the right to a decree for sale) and that the mortgage document has not been proved were not argued before us and very properly, seeing that there is nothing in those contentions. In the result, the appeal is partially allowed, the amount due to the plaintiffs being calculated after deducting Rs. 2,000 and interest thereon at six per cent, for about nine months from the sum mentioned as principal in Exhibit A. As this is only a slight modification of the lower Court's decree and as the mortgagee cannot be said to be guilty of dishonesty in claiming the whole sum mentioned in Exhibit A, I would order the appellant who failed on the principal contention as to. 'inalienability' to pay the respondents' costs in this appeal which can also be added to the mortgage amount. The consideration of the question whether the plaintiffs would be entitled to remedy against other properties if, under Clause (3) of Form No. 4, an application is made on the sale of martgaged properties, is premature and we express no opinion on it.
Appeal No. 182 of 1910.
7. The only question argued, when this appeal came up before this Court after submission of findings, is that the decree is not in proper form and might be construed as making the 1st defendant personally liable in the first instance. Let the decree be drawn up in proper form as directed in the connected Appeal No. 173 of 1910. The appellant will pay the plaintiffs' costs of the appeal.
Appeal No. 311 of 1914.
8. The suit out of which this appeal has arisen was brought (by the sons of the usufructuary mortgagee who obtained the mortgage document Exhibit II from the then Zemindar of Karvetnagar) to establish the plaintiffs' right to enjoy the villages mentioned in item 1 of the plaint schedule (including the forests and jungles in those villages) as part of the property usufructuarily mortgaged under Exhibit N and for a permanent injunction against the defendants, of whom the principal defendant is the 5th defendant (the minor Zemindar of Karvetnagar), from interfering with the plaintiffs' enjoyment of the forests and jungles and of the produce therefrom and for other minor reliefs. The special defence raised in this case is that the poramboke, waste and the forests attached to the villages of Pillaiyarkuppam and Kannikapuram were excluded from the usufructuary mortgage, that the forests and porambokes were not put in possession of the mortgagee (the plaintiffs' father) and that they have been all along in the enjoyment of the Zemindar. Exhibit U mortgages about one hundred villages, and it begins by saying that for the sum of Rs. 25,000 odd, the said one hundred villages with the hamlets, tanks, kasams, channels, fruit trees, gardens, forests, forest poramboke, road-cess, etc., income, mountain and mountain leases are secured. Then it says that ninety-two villages of the one hundred villages are secured without possession, while the remaining eight villages (including the 'two villages in dispute) are mortgaged usufructuarily. In the latter half of the document (which, I might say, has not been translated or printed for pur use) the names of the villages are mentioned but the additions found in the first part, namely forests produce, etc., are not repeated. It was, therefore, argued that the forests and forest produce were intended to be excluded from the usufruct to be taken by the mortgages. I find myself unable to accept this argument, especially as it is expressly stated in the document that the mortgagee was to enjoy all the incomes realisable from the above eight villages, which include the two villages in dispute. I also agree with the lower Court that the evidence in the case establishes that though the Zemindar tried to let to others the produce of the forests in these two villages himself (the income from the said villages being comparatively trifling), the mortgagee was able to secure his possession of the produce by himself letting it to his own licensees. The lower Court's decree declaring the plaintiffs' right and securing future possession by injunction and granting the small amount of damages claimed was, therefore, right and this appeal is dismissed with costs.
Appeal No. 356 of 1913.
9. The 1st defendant (the minor Zemindar) is the appellant in this case. The only ground argued in this case was the 14th ground besides, of course, the common ground of inalienability. That 14th ground is as follows:
10. 'Admittedly there being no personal liability for the payment of the amount found due, the decree directing that the defendants do pay the plaintiffs the amount decreed is not sustainable in law'. For reasons given in Appeals Nos. 173 and 182 of 1910, I would order the decree to be drawn up in the correct form, and it being admitted in this case that the personal liability is barred, the 3rd Clause of form No. 4, Appendix D, need not be produced in the decree in this case.
Appeal No. 48 of 1914.
11. The suit out of which this appeal has arisen was brought on a mortgage document marked as Exhibit FF on remand and is dated 8th June 1894 and was executed by the then Zemindar in favour of G. Gurusawamayya and E. Saravana Pillai, who were employed under him as zemindari servants and agents (Manager and Deputy Manager of the zemindar). In order to protect himself from his creditors, the zemindar had executed a nominal lease of about 106 villages in favour of these two mortgagees in January 1890 under Exhibit XXIV. The lease was a purely benami transaction and the nominal lessees were (as I said) his servants and chief officers who had, as such, to make collections from the tenants cultivating the lands in the village?, to pay the peishcush of Rs. 12,000 to Government and to account to the zemindar for the balance. In order to keep up the appearance of a real lease, these agents had sometimes to pay the peishcush of Rs. 12,000 due to Government even before collections to that extent had been made and to recoup themselves out of the collections afterwards made. The mortgage document sued on (Exhibit FF) was executed for Rs. 54,763-12-11. Out of this amount, I find from the account statement Exhibit XXV that Rs. 16,544-15-1 was connected with this nominal ijara transaction. Out of that sum Rs. 16,541-15 1 again, Rs. 13,478-5-9 appears to be the principal amount alleged to be due on the accounts as between the zemindar and his agents in respect of the management of the 106 villages (see page 202 of the printed paper), the remaining Rs. 3,066-9 4 being charged as interest The zemindar (2nd defendant in this suit) contended in his written statement, paragraph 7, as follows:---'The said Gurusawmiah and Saravana Pillai occupied fiduciary position towards the late Raja Bommaraja Bahadur in respect of the said lease of 106 villages and the amounts realized thereunder. This defendant submits that the suit mortgage-deed was executed on the basis of the accounts outstanding between the said Raja Bommaraja Bahadur Varu and the said Gurusawmiah and Saravana Pillai. If only the true state of accounts had been disclosed to the said Raja Bommaraja Bahadur inclusive of those relating to the said lease as it was their duty to have done, the amount payable, if any at all, would have been considerably less than the amount for which the mortgage-deed was executed and to the extent of this difference, as shown in the schedule hereto, the mortgage-deed had no consideration.' On this plea, the question was raised generally whether the suit mortgage-deed was not supported by consideration. The zemindar's contention was that far from Rs. 13,000 principal plus Rs. 3,000 odd (interest), total Rs. 16,000 odd, having been due on the date of Exhibit FF to the two mortgagees, on a calculation of receipts and expenditure relating to the 106 villages, Rs. 38,641-9-0 would be found to have been then due by the said agents to the Rajah in the matter of the receipts from the above ijara villages, which the agents failed to account to the zemindar, and that there was, therefore, want of consideration for the plaint mortgage-deed to the extent of the Rs. 16,00) and odd entered in the statement Exhibit XXV, Which was the basis of Exhibit FF. Though in the written statement it is contended that the whole of the difference of Rs. 50,000 and odd between the statement of accounts in Exhibit XXV and the statement of accounts attached to the written statement should be deducted from the consideration of Exhibit FF, it is quite clear that the 2nd defendant could attack the consideration for the mortgage-deed only in respect of the Rs. 16,000 and odd mentioned in it as part of its' consideration. The learned Subordinate Judge refused to go into this question of partial failure of consideration, on the ground that if complete and true accounts had not been rendered by the mortgagees on the date of Exhibit FF in the matter of the ijara transaction, that was a separate transaction that a separate suit for account should be brought by the 2nd defendant and that he could not be allowed to raise it as a defence to the suit on the mortgage bond Exhibit FF. I am unable to accept as sound the above reasoning of the learned Subordinate Judge. Here were two confidential agents obtaining a mortgage-deed from their principal not only for amounts due to them on other loan transactions but also on account of a debt of Rs. 16,000 and odd alleged to be due to them for principal and interest in the matter of their management of 106 villages nominally leased to them. They were in a fiduciary position with regard to all sums of money received by them from the estate and were bound to render accounts. If they falsely represented that on the balance of the account the sum of Rs. 16,000 was due to them, then the Zemindar would be entitled to have the account re-opened in a suit against them. Does the fact that the amount has become the consideration for a mortgage prevent the raising of this defence in a suit by the mortgagees? There is no doubt that it is open to a mortgagor to show that there has been an actual failure of consideration in respect of part of the consideration and that the mortgage is good for the balance Chinnayya Rawutan v. Chidambaram Chetti 5 Ind. Jnr. 356. and Tirumal Raju v. Pandla Muthial Naidu (18) it is also clear that an attaching creditor can question the correctness of the whole account on which a mortgage of the attached property is founded vide Rajani Kumar Bass v. Gaur Kishore Shaha 12 C. W. N. 761. There seems to be, therefore, no principle which gives the consideration for a mortgage a position any higher than that of an ordinary bond debt, the transfer of interest being by way of security only. It follows, therefore, that if circumstances are proved which would entitle an obligor to go behind a settled account, he is equally entitled to plead that the consideration based on that account has never been received.
12. The lower Court ought, therefore, to have allowed evidence to be adduced on the question of failure of consideration for Exhibit FF in respect of this Rs. 16,000 odd, and is now directed to take evidence adduced on both sides on this question and submit its findings within four months from the receipt of records. Ten days will be allowed for filing objections.
Napier, J.
13. These are appeals in Original Suits Nos. 34 of 1907 and 12 of 1908 in the District Court of North Arcot and Original Suit No. 18 of 1911, Original Suit No. 86 of 1911 and Original Suit No. 95 of 1911 in the Court of the Subordinate Judge of North Arcot. Appeals Nos. 173 and 182 of 1910 come before us on return of the finding; the other three are heard now for the first time. The issue on which the finding was called for is the same as one of the issues framed in the other three suits and it is with that issue that I propose to deal. The issue is as follows;---Whether the Karvetnagar Estate is inalienable by virtue of its tenure or the custom pleaded. The custom pleaded is as follows:--- Inalienability except for purposes for which the manager of a joint Hindu family can, as such manager, alienate joint family property.' With regard to the tenure there is no dispute. The zemindar was originally a semi-independent Poligar holding an impartible raj on the terms of paying an annual tribute to the Nawab of Arcot and supplying a military force. There is no doubt that the Poligar was originally a petty chieftain who gradually improved his position, so his origin is different to that of other classes of zemindars who were in many cases mere tax-collectors for the ruling power. In the year 1792 the East India Company took over the control of the dominions of the Poligars of Venkatagiri, Kalahasti and Bommarajapalayam (the earlier name of Karvetnagar) from the Nawab under treaty with him, and by a later treaty of 1801 these semi-independent kingdoms became merged in British territory, losing their quality of raj. A year later in 1802 the Poligars became zemindars and sanads were issued to them. The history of these proceedings and the nature of the settlement made at that time has been fully explained in Appeal No. 62 of 1913 reported as Secretary of State v. Rajah of Venkatagiri 25 Ind. Cas. 266. It is sufficient to say that the settlement was based on the commutation of service and military tribute and not on the revenue of the raj and that the sanad shows material divergence from the ordinary sanad in consequence.
14. Mr. Govindaraghava Aiyar who represents the present zemindar in all these suits admits that there was, during the peroid when the Poligar was semi-independent under the Nawab, a condition arising out of the tenure which forbade alienation either of the whole or any part of the raj without the sanction of the Nawab, the overlord. But he contends that there was in addition a custom of inalienability as pleaded and that that custom remained in existence after the treaty of 1801 and after the Permanent Settlement, of 1802 and has continued to the present time. He seeks to fortify his argument as to the possibility of the existence of the custom concurrent with the inalienability owing to tenure by the analogy of the custom on which impartiality is based. And he has invited our attention to a long series of cases which, he contends, support the proposition that impartibility of either a raj or an estate is linked with the tenure and ennres after the alteration of the tenure. He has accordingly examined the decisions in Naragunty Lutchmeedavamah v. Vengarna Naidoo 9 M. I. A. 66; Katama Natchiar v. Rajah of Shivagunga 9 M. I. A. 539.; Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee 12 M. I. A. 1; Collector of Trichinopoly v. Lukkamani 1 I. A. 282; Mutta Vaduganadha Tevar v. Dora Singha Tevar 8 I. A. 99 : 1 Ind. Dec. 757.; Mullik rjana v. Durga 13 M.K 406. (the Udayarpalayam case) Kachi Yuva Rangappa Kalakka Thola Udayar v. Kachi Kalyana Rangappa Kalakka Thola Udayar 11 M.L.J. 191. the Ramnad case 24 M.K 613 note. (the Udayarpalayam case) Kachi Kaliyana Retigappa Kalakka Thola Udayar v. Kachi Yuva Rengappa Kalakka Thola Udayar 28 M.K 508 Ram Nundun Singh v. Janki Koer 29 I. A. 178.; Mohammad Afzal Khan v. Ghulam Kasim Khan 30 C.K 843 quoting the passages which he relies on for his contentions. On the other side, it is contended by Mr. Rangachary that impartibility arises out of a family custom as to succession, not out of tenure, and that, therefore, the custom of impartibility may well continue after the change of tenure, but that the prohibition against alienation without the sanction of the overlord arises solely out of the tenure, that no family custom could have existed side by side with that prohibition and that when the prohibition was removed, the ordinary right of alienation came into existence.
15. I do not think it necessary to examine the accuracy of these alternate contentions because undoubtedly Mr. Govindaraghava Aiyar has been unable to prove the existence of any such custom prior to the cession by any evidence whatsoever. We must begin to seek this custom in the history of the dealings with this estate by the zemindars after the date of the Permanent Settlement. Now it is perfectly obvious why the claim of custom is put forward in the form of which Mr. Govindaraghava Aiyar contends for. It is well Known that prior to the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari 10 A.P 272. the view was taken in the Courts of this Presidency that after the Permanent Settlement these impartible estates were inalienable except for certain purposes. The basis of this doctrine has shifted during the history of decisions, a fact which was pointed out and relied on by the Privy Council in the Pittapur case, Rama Krishna Rao v. Court of Wards 22 M.K 383 when the Board finally negatived the contention. Undoubtedly, the decision in Sartaj Kuari v. Deoraj Kuari 10 A.P 272 was unwelcome to the Courts of this Presidency and an attempt was made, in Court of Wards v. Venkata Surya Mahipati Ramakrishna Rao (31) before the High Court and in Rama Krishna Rao y. v. Court of Wards 22 M.K 383 before the Privy Council, to differentiate the impartible estates in this Presidency from those governed by the decision in Sartaj Kuari v. Deoraj Kuari 10 A.P 272 on the ground of a territorial custom. That plea failed and in consequence the Legislature intervened with the Impartible Estates Act, II of 1904. Now the attempt is renewed on the basis of the family custom pleaded here based on the language used by their Lordships in Sartaj Kuari v. Deoraj Kuari 10 A.P 272 The inalienability of the estate depends upon custom, which must be proved, or, it may be in some cases, upon the nature of the tenure'. Mr. Govindaraghava Aiyar has argued that the Permanent Settlement was not intended to alter the tenure or the custom, as Government were not seeking revenue but only seeking to disarm the Poligars, and he relies on the decisions in Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee (24) (the Udayarpalayam, case) Kachi Yuva Rangappa Kalakka Thola Udayar v. Kachi Kalyana Rangappa Kalakka Thola Udayar (28) and (the Udayarpalayam case) Kachi Kaliyana Rengappa Kalakka Thola Udayar v. Kachi Yuvi Rengappa Kalakka Thola Udayar 28 M.K 508 for the proposition that although it was undoubtedly open to the British Government to make any alteration it chose in the nature of the tenure, it must be shown affirmatively that they intended to do so at the time. It may be doubted whether this proposition is an accurate statement of the law since the decision of the Privy Council in Secretary of State v. Bai Rajbai 30 Ind. Cas. 303 It is there held that the conditions of the tenure prior to cession cannot be presumed to have continued and that it rested on the claimant to show that the manner in which the estate has been treated by the British Government indicated that Government intended to preserve the prior incidents vide Seshachala Chetty v. Para Chinnasami 40 Ind. Cas. 909 But even if this proposition is sound, it is difficult to see how it could help the mortgagor. We are referred to the sanad Exhibit II (a), and it is argued that Article 7 only relieved the Zemindar of a disability but did not otherwise alter the tenure. The tenure was, however, in fact altered, the military service, the foundation of the tenure, being dispensed with; and as there is no evidence of a custom of inalienability other than that arising out of the tenure, there is no material on which a Court could decide that the alleged custom continued. It is contended by Mr. Rangachary that the sanad shows clearly that the condition of inalienability was removed and intentionally removed, because its ratianale had ceased with the abolition of the service. As put by my learned brother in the course of the argument, 'The raj was inalienable without the sanction of the ruling power; By the sanad the sanction was given.' The sanad recites the removal of the military service, the obligation to furnish troops and maintain forts and garrisons, and the commutation of that duty for an equivalent to be paid in money. Article 7 reads as follows:---'You shall be at full liberty to transfer without the previous consent of Government, or of any other authority, to whomsoever you may think proper either by sale, gift, or otherwise, your proprietary right in the whole or any part of your zemindari and such transfers shall be valid, provided that they be not repugnant to the Muhammadan or Hindu Laws far to the Regulations of the British Government.'
16. Article 8: 'Your zemindari will be liable to be sold either wholly or in part in satisfaction of a decree of Court.'
17. Article 10: Although you will have free right and liberty to transfer, by sale, gift or otherwise, any part of your zemindari not repugnant to the Regulations of Government, yet it shall not be competent for you to form any part of your land into a separate estate unless the public assessment amounts to the annual sum of 500 star pagodas.'
18. Mr. Rangachary cortends that these articles indicate the removal of the necessity for sanction. Mr. Govindaraghava Aiyar argues, contra that the words in Articles 7, being only a reproduction of paragraph 8 of the Regulation and being inserted in sanads to all Zemindars, cannot have special reference to the sanction, and he calls in aid the language of Article 2 where it is stated that the military service is commuted for an equivalent to be paid in money by you and your posterity' With regard to Mr. Govindaraghava Aiyar's first contention it may be that in other zemindaris dealt with in identical language there had not been a prohibition against alienation without sanction, but, in my opinion, that cannot limit the effect of the words. Bearing in mind that this was the creation of an estate in land' in substitution for an existing raj and applying the principle that it is entirely within the province of Government to create conditions on which the estate is to be held, it is to my mind impossible to contend successfully that these words did not create a new estate with the incidence of alienability for the benefit of the Zemindar. It is true that the Sudder Adaulat Court had at different times construed the sanad as creating an estate analogous to an estate-tail or as a settlement on the zemindar for life with remainder to his heirs and successors in perpetuity [vide the history of these decisions set out in the judgment of the Board in Rama Krishna Rao v. Court of Wards 22 M.K 383. But those views were subsequently abandoned and have been declared by the Privy Council to be unsound. As to his contention on Article 2 it is sufficient to point out that those words did not create an 'estate' and that they must be read with Article 15, under which the Zemindar is 'authorised and empowered to hold in perpetuity and his heirs, successors and assigns at the permanent assessment herein named the zemindari of Bommarajapalayam'. Mr. Govindaraghava Aiyar further argued that the rights of the Poligars had been recognised in the treaty and could not be cut down by the language of the sanad. With regard to this, the answer is that the short period of a few months between those two events is not sufficient to create new rights and that the Regulation passed in 1802 prior to the sanad contains the same words. There still remain the words 'provided that such transfers shall not be repugnant to the Hindu Laws.' No argument has been addressed to us by either side on these words, but it is to be noted that since the decision in Rama Krishna Rao v. Court of Wards 22 M.K 383 it must be held that an absolute power of alienation is in accordance with the Hindu Laws. There is indeed no reservation of custom in the sanad or in paragraph 8 of the Regulation and for this reason, I should be strongly inclined to doubt whether the Court could take into consideration any custom prior to the cession. But as I have held no such custom was proved, there is no necessity to decide this point.
19. Coming now to the history of the zemindari after the settlement, we have to see whether the alleged custom is made out. The first difficulty in the way of the appellant is this. Up till the decision in Sartaj Kuari v. Deoraj Kuari 10 A.K 272 : 15 I. A. 51 : 6 Ind. Dec. 182. it was held by the Courts of this Presidency that an impartible zemindari was inalienable except for special reasons. The proposition is stated in Pareyasami v. Saluckai Tevar 8 M. H. C. R. 157. as follows at page 177 speaking of the Palayaput of Padamathur, an ancient impartible zemindari : 'We think that the zemindar should be regarded as possessing only the qualified powers of disposition of a member of a joint family with such further powers, or it may be with such restrictions, as spring from the peculiar character of his ownership and that these powers fall short of a right of absolute alienation of the estate'. The language used in Bhavanamma Garu v. Ramasami Garu 1 Ind. Dec. 969. the date of which is 1881, is as follows:---Assuming, therefore, that the zemindari of Devarakota is an impartible estate belonging to a joint Hindu family, descending to a single heir at a time to the exclusion of the rest of the family, that the Zemindar for the time being is not competent to bind his successors by a permanent grant of property forming part of his estate, and that an alienation made by him in circumstances which would not ordinarily render it binding on a joint Hindu family could not enure beyond the grantor's life, the question for decision is whether the grant now in dispute ceased to be in force on the death of the late zemindar.' On these decisions, the law, as understood then, was practically what is contended for now as arising by custom. Is it possible for a custom to exist which is in accordance with the law as then understood? It has been held by a Bench of this Court in Sivasubramania Naicker v. Krishnammal (16) that such a custom can be proved. But I doubt whether this view is good law in the face of the language used by the Privy Council in Rama Krishna Rao v. Court of Wards 22 M. K 383 : 8 Ind. Dec. 276. There Mr. Mayne was contending for a territorial custom and their Lordships use the following language: 'The supposed custom followed the law.... The custom now relied upon did not modify the law. It had no force independently of the law.' It is difficult to see how a practice in accordance with law can be relied on as a custom, for the essence of a custom is in its being some special usage modifying the law. If this argument is sound, the whole of Mr. Govindaraghava Aiyar's case on custom must go, for it was only in 1899 that the right of free alienation was definitely laid down by the Privy Council and the old law declared to be bad.
20. I will, however, deal with the evidence that has been put before us to establish this custom. The references to the Exhibits are taken from the printed papers in Appeal No. 48. The question is whether there has been established a custom of non-alienation except for purposes binding on the family. Before dealing with the evidence, it is well to note that Mr. Rangachary for (he defendants, in answer to a question put to him from the Bench, stated his contention as to the effect of the evidence to be this: That each Zemindar in succession ignored the law as then undoubtedly supposed and treated the Zemindari as alienable by him to whatever extent he chose, Mr. Govindaraghava Aiyar has invited our attention to various documents such as resumptions of in(sic)m, correspondence between the Zemindar and the Collector, protests by the members of the Zemindar's family, statements by the Zemindar himself, etc., as supporting the supposed custom and we have carefully examined all these documents. Exhibit VII series are relied on to show that where he assigned the revenues, he did not mortgage the estates themselves and only assigned the revenues for his own life. Exhibit VII is translated as follows: 'The two villages of Samantavada and Aravasi are mortgaged for the payment;' but it is contended that the word used is Tanaka' and that it does not mean mortgage. We are informed by the Bench clerk and a reference to the dictionaries supports the view, that the word 'Tanaka' does convey the idea of security on the property, and it is certainly to be noted that there is nothing in any of these documents to suggest that the security was only to enure for the lifetime of the grantor. The fact that there was no power of sale inserted in the document is no argument, because powers of sale are not usually inserted into mortgages. He next relies on a series of letters. The first is Exhibit XII', from the Zemindar to the Collector in 1842. It has reference to an inam granted by the Zemindar's predecessor which the Zemindar has resumed. It refers to the inam as being contrary to custom, On examination of the letter, it appears that the Zamindar was complaining of the grant of a thriving and populous village on a permanent lease for very small beriz, which, he says, is contrary to the custom, or more accurately, contrary to the usual regulations. This complaint appears in three places in the letter. There is no suggestion that according to the custom of the family, there is no power to grant any inam except for necessary purposes. The next is also a letter to the Collector of the game year with reference to a kattubadi amara inam, which the Zamindar claims to have the runt to resume, There is no plea of the alleged custom and it is admitted that inams of this glass can be resumed at will. The next is in 1848 and has reference to a choultry inam. Here the Zemindar puts forward the claim: Even if our predecessors had the right to give it out of the income, it can hold good only for their lifetime, but we, the reversioners, are not bound by such grants.' The letter, though signed by the Zemindar, is obviously drafted by a lawyer and on a careful analysis it is clear that he relies on his right to redeem after the Zemindar's death, not on any family custom, but on the language of the sanad', the decrees of the Courts and the acts of the Legislature. A part of the letter is taken up with the contention that the right of resumption is vested in the Zemindar and not in Government, a position that has quite lately been upheld by this Court in Secretary of State v. Rajah of Venkatagiri (21). The next is Exhibit IX. There the Zemindar does object to the grants of the inams which are 'contrary to the Hindu Law and the Laws and adverse to reversionary heirs.' He does not say 'contrary to the family custom', and he complains that the grants were made without considering the difficulties that would ensue. The letter ends by the claim to resume as the Brahmins have behaved meanly'. It is difficult to see how this can be put forward as evidence of the custom, for if he thought the alienation to be contrary to the Hindu Law, he was only expressing the view then taken by the Courts. Exhibit VI, which is in the year 1859, is a protest sent to the Zamindar, Venkata Perumal Rain, by his younger brother and the gist of the whole complaint is that the estate is ancestral and not the self-acquired property of the Zemindar, that he is a coparcener entitled to a share and that the Zemindar has no right to alienate the estate for his debts. Here, again, there is no word about custom. He makes an extravagant claim of a right to partition and bases his objection to the alienations on that. The next is Exhibit XV of 1881 written by the son to the then Zamindar complaining of the debts and alienations. It is a long, rambling document and nowhere contains any reference to the supposed custom. The next series of documents are orders on petitions connected with the inams. They assert the power of resumption but nowhere deny the right of the Zemindar's predecessors to grant. Much reliance is placed on Exhibit XIV as being a recognition of the sons' right. It is an agreement entered into in 1879 between Venkata Perumal Raju, the then Zemindar, and his son Bommaraju, under which he binds himself not to contract new debts except such as are contracted for lawful purposes and are necessary in the interests of the Samasthanam. He also agrees to discharge the debts of the son to the extent of Rs. 17,000, the son undertaking not to borrow anything more, and the son agrees to join with him in a bond for the purpose of borrowing a lakh of rupees for paying peishcush. Mr. Govindaraghava Aiyar strongly relies on this as evidence of the custom. But apart from the initial difficulty that it gives effect to what was supposed then to be the law, there is this answer, namely, that at that time, the estate was largely involved and the creditors, knowing the law as then understood, were very naturally insisting on the son of the Zemindar joining in future alienations. The fact that the state was heavily involved is shown by exhibit XIIIa, a letter written by the son after his father's death, in which he states that there was a debt of sixty lakhs and he there complains that the creditors were compelling his father that he (the son) too should sign the bonds and states that out of respect he had to do so. So far from proving that the father and the son recognised the existence of the family custom, it shows that for the purpose of getting his own dobts paid, he had been compelled to join his father in executing mortgages for further advances because the creditors insisted on it. Evidence that such mortgages were executed by both jointly is afforded by Exhibits D, F, VIII, etc. We then come down to the year 1894, Exhibit XXIII, the plaint in a suit against the then Zamindar by his son claiming that the father had no right of alienation beyond his lifetime. Here, it seems to me, we get for the first time the allegation that by custom and by nature of the tenure, the said Zemindari is inalienable. Now giving all due weight to all the above documents and even assuming that from time to time the brother or son of the then Zemindar set up a custom, it cannot, in my opinion, assist the appellant in the slightest degree, and for this reason, namely, that each Zamindar on inheritance from his father continued his father's practices and never recognised any limit to his own power of alienation. A protest by a son carried into practice when he came into the possession of the estate might be some evidence of custom, but a contention to which the Zamindar paid no attention and which the person making the protest never adopted himself can be of no value whatsoever. It appears that during the whole period covered by the evidence, 200 out of 803 villages were granted in inam for various purposes; a large number of the grants were certainly made on festivals and for religious duties and Mr. Govindaraghava Aiyar seeks to explain away this class of alienations on the ground that pious purposes are part of the doctrine of necessity and that, therefore, the fact that these alienations were made proved the recognition by the zemindar of the limitation suggested. He relies on a case reported as Vasudev Bhat v. Venkatesh Sanbhav 10 B. L. C. R. 139. Mr. Rangachari has referred to a case Muthusami Pillai v. Dorasami Pillai 11 M. L. J. 310. where it was held that the only forms of alienation for pious purposes which come within the doctrine of necessity are the grants for family worship; and this certainly appears to be the view taken in Madras. In my opinion all these inams for various purposes are explained by the view taken by each zemindar that he had absolute, uncontrolled power of alienation once the restriction placed by the nature of his military tenure was removed. It is common knowledge that all Rajahs, whether absolutely independent or semi-independent, have been in the habit of making large grants of villages for military service, for revenue service and for personal service, and it is only necessary to refer to the work of the inam Commission to establish this undoubted fact. This being so, the fact that one-fourth of the villages of the estate has been granted as inam is a sufficient answer to the claim put forward in these suits. On behalf of the respondents, our attention was invited to the evidence showing that there have been an enormous number of mortgages. By far the largest- number of these are not produced and the respondents urged with some justice that this evidence is in the possession of the zemindar and that if there were any considerable number which purported to be for life only and to admit the custom alleged, they would have been produced by the appellant in support of this case; whereas in fact we only find the documents Exhibit VII series, of which the most that can be said is that they are ambiguous. We are referred to the evidence of the first defence witness at page 225. This witness was head clerk in the estate and had been there for the last twenty-five years. He states that the Narayanavanam Taluk of the estate has been under usufructuary mortgage since 1882 to his knowledge and had been under a Court Receiver before that, that the Tirutani Taluq has been under usufructuary mortgage since 1884 and that in the Pallipat Taluq various villages have been under mortgage since 1882, and he ends by admitting that there does not appear to be even a single village which is not under mortgage, either simple or usufructuary. He also admits that about ten villages in the estate have been granted to bandhus. One of these grants is exhibited and is before us as Exhibit B. It is made to the sister's son of the Rajah and it cannot be contended that a grant of that sort is one recognised by the Hindu Law. I do not think it necessary to examine the evidence let in by the respondents at all in detail. It admittedly lies upon the appellant to establish the custom and, in my opinion, he has absolutely failed to do so. So far from evidencing the custom alleged, the documents conclusively establish that each zemindar, however much he may have protested when he was a son has exercised the right of alienating any portion of the estate he chose for any purpose which he thought fit---with the result, as stated above, that there is not a single village in the estate which has not either been granted in warn or mortgaged. On this first issue, therefore, common to all the appeals, the appellant must fail. My learned brother in his judgment has dealt with the other issues that arise in each case and I concur with him in his reasons and the result that he has arrived at.