The Judgment of the Court was as follows:—

Nasim Ali, J.:— The subject-matter of this appeal is a zemindary known as Fulkusum.

The early history of the estate is obscure: but it appears to have been one of the areas included in the District of Manbhum when that District was first created under Regulation XIII of 1833 (Coupland's Gazetteer of Manbhum, 1911, pp. 65, 67), becoming Tauzi No. 4 of the Manbhum Collectorate. In 1879 it was included in Bankura District as Tauzi No. 991 of the Bankura Collectorate.

This zemindary was permanently settled with Raja Darpa Narain. After his death it devolved upon Raja Chaitanya, his eldest son. Chaitanya died on January 25th, 1861, leaving two sons, Mukunda Narain by his junior wife and Raghunath Narayan by his senior wife, Mukunda was the eldest of the two. He inherited the zemindary. He died in the year 1871 leaving a Will. After his death, his eldest son, Raja Sundar Narain became the owner of the zemindary. On December 27th, 1878, Chandra Mohan Singh Roy, the then Raja of Ramgarh, obtained a decree for Rs. 10,210 against Raja Sundar Narain. In 1880 (1287 B.S), he (Raja Sundar Narain) gave a peshgi lease of Fulkusum Pargana excepting certain villages to one Bepin Behari Dutta for 33 years. In execution of the decree obtained by the Raja of Ramgarh the zemindary was sold. Raja Banwarilal, son of Chandra Mohan, purchased the zemindary at this auction-sale on September 20th, 1886. This sale was confirmed on December 6th, 1886. In April or May, 1887, the auction-purchaser obtained symbolical possession of the zemindary through Court.

In 1897, Raja Sundar Narain died leaving two sons, Raja Kali Prasanna and Basudev.

Raja Banwari Lal after purchasing Fulkusum got his name registered in the Collectorate, paid the revenue for the zemindary and satisfied certain mortgages executed by Sundar Narain before the sale.

In 1902, certain ghatwali lands with in Fulkusum which were resumed by Government were settled with Raja Banwari Lal on the footing that he was the proprietor of Fulkusum.

Raja Banwari Lal died in 1907 and thereafter his son, Raja Nagendra Nath, got his name mutated in the collectorate in respect of this zemindary. In the same year compensation for acquisition of certain lands within the zemindary was awarded to Raja Nagendra as proprietor.

In 1912, the peshgi ijara executed by Raja Sundar Narain in 1880 expired.

On September 10th, 1924, Raja Kali Prasanna, the eldest son of Raja Sundar Narain, instituted Suit No. 48 of 1926 in the Court of the Subordinate Judge of Bankura in forma pauperis for possession of Fulkusum and for mesne profits against Raja Nagendra Nath impleading his step-brother, Basudev, as a pro formâ Defendant.

The case of the Plaintiff briefly stated is as follows: The ancestors of the Plaintiff belonged to a Hindu Raj family. Long before the decennial settlement they migrated from the border land of Orissa and Madras and acquired the zemindary of Pargana Fulkusum. They were governed by the Mitakshara School of Hindu Law. Plaintiff and his family are still governed by the same school of Hindu law. Fulkusum is a permanently settled estate but is impartible. By family custom of the Plaintiff and local custom or usage, the eldest lineal descendant gets the zemindary by primogeniture and the Mitakshara rule of survivorship. The eldest enjoys the estate during his life-time. He can grant settlement for the benefit of the estate but has no power of making gifts or sales or transfers of the estate without the consent of the other co-parcener members of the family. In accordance with this custom Plaintiff became owner of Fulkushm after the death of his father in 1893. The sale at which Raja Banwari Lal purchased Fulkushm in 1886 does not affect his right to the zemindary inasmuch as (a) the decree, in execution of which the sale took place, was not against his father and even if it was, it was satisfied before it was executed, (b) the executing Court had no jurisdiction to sell the estate, (c) the processes in execution were not served and the zemindary was sold at a very inadequate price, (d) by the auction-sale the auction-purchaser get only the life-interest of Raja Sundar Narain. After the death of his father Plaintiff obtained possession of the properties which were not covered by the peshgi ijara of 1287 B.S and confirmed the ijaradar's possession in the remaining lands of the zemindary. The ijara having expired in 1912 (1319 B.S), the entire zemindary came into his khas possession but he was dispossessed by Raja Nagendra Nath in the 1914-1915 (1322 B.S).

The principal Defendant, Raja Nagendra Nath, alone contested the suit. His defence in substance is as follows: The zemindary is impartible and succession to it is governed by the rule of primogeniture. Plaintiff's ancestors did not come from the borderland of Orissa and Madras. Even if they did, after immigration into Bengal they adopted the Dayabhaga law; the marriage and sradh ceremonies of the Plaintiff and his ancestors were all along performed according to the Shastras of Bengal from time immemorial. The holder of the zemindary for the time being is the absolute owner of the zemindary and has every right to transfer it by sale, gift, etc. Plaintiff's allegation about the custom of inalienability is false. Plaintiff has no right, title or interest in Fulkushm as his father was its absolute owner and the right to the zemindary passed to the Defendant's father by his auction-purchase in the year 1886. The processes of execution at which the said sale took place were all served and the properties was not sold at an inadequate price. Plaintiff's father or the Plaintiff not having set aside the sale according to law within the time prescribed by law, the said sale is binding on the Plaintiff. Plaintiff's allegations of possession and dispossession are false and this suit is barred by limitation. Plaintiff's suit is also barred by estoppel and res judicata. In any view of the case Defendant's father having satisfied the charges on the property after his purchase at the auction-sale, Plaintiff cannot recover possession unless and until he pays the money paid by the Defendant's father for satisfying those charges.

This suit was transferred for hearing to the Court of the Additional Subordinate Judge and was registered as Suit No. 8 of 1930.

On November 30th, 1930, the Additional Subordinate Judge dismissed the suit on the following findings:—

(1) That the decree in execution of which Raja Banwari purchased the zemindary in 1886 was a valid and subsisting decree against Raja Sundar Narayan and that the sale in execution thereof was a valid and operative sale, (2) that by this sale the absolute right to the zemindary passed to Raja Ban-wari Lal and not simply the life interest of Raja Sundar Narain, (3) that after Raja Banwari Lal's death his son, Raja Nagendra Nath, had acquired absolute right to the zemindary by inheritance, (4) that the disputed zemindary was not inalienable by custom, (5) that Raja Sundar Narain's family is not governed by Mitakshara law but by Dayabhaga Law, (6) that Raja Banwari Lal paid Rs. 47,171-1 a after his auction-purchase for satisfying the charges existing on the zemindary at the time of his auction-purchase, (7) that the suit is barred by limitation.

On these findings he dismissed the suit.

The present appeal is by the Plaintiff.

The first point for determination in this appeal is whether the Plaintiff-Appellant has title to the disputed zemindary.

This zemindary admittedly belonged to Plaintiff's father. Raja Banwarilal, father of the Defendant, purchased the right, title and interest of the Plaintiff's father in 1886 at an auction-sale held in execution of a money decree.

This money decree and the sale in pursuance thereof were challenged on various grounds before the trial Judge. The Subordinate Judge overruled the Plaintiff's objections to this decree and sale.

Dr. Sen Gupta appearing for the Plaintiff in this appeal abandoned the objections to the decree and the sale taken by the Plaintiff in the trial Court. The reasons given by the Subordinate Judge for overruling those objections are cogent. I therefore affirm his finding that the father of the Defendant purchased in 1886 the right, title and interest of Plaintiff's father at a valid sale.

The question then is what was the nature of the title which passed by the auction-sale of 1886 to the father of the Defendant.

Plaintiff's case is that rather had only a life-interest in this zemindary and therefore only the life-interest of his father passed by the auction-sale in 1886. The Defendant's case is that Plaintiff's father had an absolute interest in the zemindary and that his father became absolute owner of the zamindary by his auction-purchase in 1886.

It is the case of both sides that by custom the disputed zemindary is impartible and succession to it is governed by the rule of primogeniture.

“Where a custom is proved to exist it supersedes the general law, which, however, still regulates all beyond the custom”—Neelkisto Deb Burmono v. Beer Chunder Thakoor .

Under the Mitakshara Law the members of the joint family have (1) the right of partition, (2) the right to restrain alienation by the head of the family except for necessity, (3) the right of survivorship and (4) the right of maintenance.

Where by custom the property is impartible and succession to it is governed by the rule of primogeniture the right of partition and the right to restrain alienation being incompatible with such custom do not exist. Rani Sartaj Kuari v. Rani Deoraj Kuari . The basis of this view is that the other members of the family do not acquire any right in the impartible estate by birth and not being co-parceners have no right to restrain alienation.

This custom however has been held not to be incompatible with the right of survivorship [Shiba Prasad's case ] and the right of maintenance [Raja Yarlagadda Mallikarjuna Prasada Nayudu v. Raja Yarlagadda Durga Prasada Nayudu ].

In Shiba Prasad's case it was held that the right of survivorship is not a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate but that it is a right which is capable of being renounced or surrendered, and that for purposes of succession the impartible estate still retains its character of joint family property.

As regards the right of maintenance although a contrary view was taken in Raja Rama Rao v. Raja of Pittapur , the decision in Raja Yarlagadda Mallikarjuna Prasada Nayudu v. Raja Yarlagadda Durga Prasada Nayudu , which was based on the joint ownership of the junior members of the family was followed by the Privy Council in Collector of Gorakhpur v. Ram Sundar Mal .

I am unable to accept this contention, as the latest decision of the Privy Council in Ulagalum Perumal Sethurayar v. Subbu-lakshmi Nachiar , lays down that the son of a Hindu governed by the Mitakshara law who succeeds to an ancestral impartible estate under a valid interest in a deed of settlement executed by his father when his elder brother was alive takes the estate as self-acquired property.

The power of the holder of an impartible estate governed by the Mitakshara law to dispose of the estate absolutely by gift [Sartaj Kuari's case ], by Will [Pittapur case and Dhalbhum case ] and by a deed of settlement—Ulagalum Perumal Sethurayar v. Subbulakshmi Nachiar , is therefore now definitely established.

This general rule however may be displaced by proof of a family local custom restricting alienation.

The onus of proving such custom is, however, upon the person who alleges it [Dhalbhum case ].

The contention of the Plaintiff is that there is a family and local custom restricting alienation of Fulkushma zamindary excepting alienations by permanent leases and settlements for the benefit of the estate and that consequently only the life-interest of his father passed by the auction-sale of 1886 to the father of the Defendant.

In support of this custom Plaintiff relies upon the absence of any sales of the zamindaries in Manbhum from 1800 to 1834 and the absence of any sale of Fulkushma before 1886.

At page 200 of the Manbhum Gazetteer. It is stated that in Manbhum “no cases of sale either for arrears of land-revenue or for private debts appear to have been effected between 1800 and 1834.”

Fulkushma was, of course, not in Manbhum District before Regulation XIII of 1833, so that what happened in Manbhum between 1800 and 1834 can be relevant, not as indicating the practice prevailing in Fulkushma itself but only as indicating the practice in neighbouring areas. From this point of view, however, it would be of equal relevance to refer to Mr. Dent's letter to Government, dated September 4th, 1833, and also to Col. Dalton's letter to Government, dated November 6th, 1869. The former shows that the practice of alienation, which the writer considered to have been proved by experience to be objectionable even if legal, prevailed in the jungle mahals up to 1833 and Col. Dalton's letter shows that estates were being sold in Manbhum District between 1834 and 1869, although only with the sanction of the Commissioner, which was generally withheld. [See Pratap Chandra v. Jagadish Chandra ]. It is however true that no instance before 1886 has been proved in which Fulkushma itself was sold; but the mere absence of sales is only an equivocal circumstance. It may be attributed to an assumption on the part of the holders of the estate that the law did not permit them to sell or to the absence of any desire on their part to sell [Dhalbhum case ].

The contention of the Plaintiff is that Exhibits 6, 7, 8, 36, 11 and EK show that the absence of any sale of Fulkushma was due to the existence of a custom prohibiting sale.

Exhibit 6 is a Robakari dated August 14th, 1861, in an Execution case in the Court of the Munsif at Chowki, Manbhum, started by a judgment-creditor of Raja Chaitanya for realisation of Rs. 427-12 as by attachment and sale of Fulkushma.

The Munsif held that there was no bar to the auction-sale of the zamindary but it was necessary to obtain permission of the Deputy Commissioner of the place. He accordingly reported the matter to the Deputy Commissioner. When the matter came before the Deputy Commissioner, the Deputy Commissioner held that the zamindary of a zamindar could not be sold but the decretal amount could be realised only by attachment “by khas-tahsil,” which presumably means attachment and direct management by Government.

The Civil Procedure Code (Act VIII of 1859) had been extended to Manbhum before the execution case by a notification dated 15th June, 1859. By this notification a proviso to the effect that no sale of lands shall be made in Manbhum without the sanction of the Commissioner of the province had and obtained as heretofore, was added to sec. 205 of the Act (Ext. EB).

The reason for adding this proviso was this: By Art. 8 of Regulation I of 1793 all permanently settled lands were saleable. The sale of ancestral lands for debt was believed to be one of the contributory causes of the Kol insurrection of 1831-1832. Accordingly, after that insurrection had been put down, Regulation XIII of 1833 was passed. By sec. 3 of this Regulation, portions of what was then known as Ramghur District, all the jungle mahals except Samphuri, Sheerghur and Bishenpore; and Dhalbhoom were excluded from the operation of the general Regulations and were constituted as a non-Regulation province called the South-Western Frontier Agency and were placed under an officer called Agent to the Governor-General.

The Governor-General was declared competent to prescribe rules for the guidance of the Agent and his subordinate officers.

This Regulation came into force in December, 1833. Captain Wilkinson was the first Agent of this non-Regulation province. Early in 1834, he seems to have proposed certain rules (sometimes referred to as the Wilkinson Circular) which provided that no sale or alienation or even mortgage of immovable property was to take place without the sanction of the Agent. These rules do not appear to have been factually embodied in any Government orders, but were nevertheless acted upon in practice, invariably as regards sales and sometimes as regards other forms of transfer, also. Thus in practice the Agent generally withheld his sanction to the sale of ancestral lands for debt. The addition of a proviso to sec. 205 of the Civil Procedure Code of 1859 (Act VIII of 1859), which has already been mentioned, merely gave legal authority for this practice. In addition, under certain orders of Government dated October 13th, 1834, the Agent had authority to sequester estates of heriditary proprietors for payment of their debts, including judgment debts, as a necessary corollary to his power to stay sales.

By Act XX of 1854, the denomination of the Agent was changed from Agent to Commissioner and that of his province from South-Western Frontier Agency to Chota Nagpur.

The power to prohibit sales exercised by the Agent or Commissioner thus rested at first on a rule of practice and after 1859 on a rule of law. (Ext. EB and Hunter's Statistical Account of Bengal, Vol. 17, p. 354, paragraph 2).

The order of the Deputy Commissioner in the Execution case of 1861 was made because of the proviso added by notification to sec. 205 of Act VIII of 1859. It does not prove unsaleability of Fulkushma by reason of any custom.

Exhibits 7 and 8 are two Robakaris of the year 1863 of the Deputy Commissioner exercising the powers of a Civil Court of Purulia (portion of Manbhum) in an execution case started by another judgment-creditor of Chaitanya for realisation of Rs. 3,270 by sale of Fulkushma. By these two orders the decree-holder's prayer for the sale of the zemindary was refused and the decretal amount was directed to be realised by attachment and khas collection of the income of the estate.

The reason given in support of this order in Exhibit 7 is:

“there is no custom (reeti) of the Zemindaries of the Zemindars of this province (Prodesh) being sold but according to the practice (Pratha) prevailing in this part of the country (esthale) the duce of the decree-holder may be realised in the Collectorate of this portion by attachment of and realisations from Pergana Fulkushma, the Zemindary of the deceased judgment-debtor.”

The reason given in Ex. 8 is in similar terms:

“There being no custom of sale of Zemindary property in this part of the country, & c”

It would therefore seem that in that case Fulkushma was not allowed to be sold as the executing Court thought that there was no custom in the locality sanctioning sales of zamindaries. The contention of the Plaintiff is that the view taken by the Civil Court in that execution case indicates that the zamindaries of the zamindars in the locality were known to be unsaleable on account of the existence of a custom prohibiting such sale. Exhibits 7 and 8 do not refer to the existence of a custom of inalienability. They refer to the absence of a custom of saleability. In the next place, they do not refer to any particular zamindary, but to the zamindars of the locality generally. Evidently then, the executing Court was thinking, not of any custom of inalienability prevailing in any particular zamindary, but rather of some well-known territorial rule restraining the sale of zamindaries in general in that locality. And, indeed as will presently appear, the evidence available disproves the existence of any invariable custom of the former kind, whereas, as already mentioned, there was in existence at that time a territorial rule of the latter kind.

The evidence in this case shows that other zamindaries in the locality are alienable and were actually sold. Pachete, a zamindary in Manbhum, was found to be not inalienable by custom in 1850 in Anand Lal Sing Deo v. Maharajadhiraj Gurrood Narayan Deo . Mukundapur and Syamsunderpur were alienated by private sale in 1864 and 1883 respectively. Syam Sunderpur adjoins Fulkushma on the north. Khatra was sold in 1866 at a Court sale with the sanction of the Commissioner. Jaynagore was sold in 1866 as no protection (under the proviso to sec. 205 of the Code of 1859) was given to the proprietor on account of his treating the various processes of the Civil Court with contempt (Manbhum District Gazetteer 202). Quilapal which is on the west of Fulkushma and adjoins it was sold at a Court sale in 1867. Dhalbhum was alienated by Will in 1905 and it has been decided that there was no custom prohibiting alienation of this zamindary—Protab Chander v. Jagadish Chunder .

If the zamindaries of the zamindars in the locality were unsaleable by custom the zamindaries mentioned above could not have been sold. The sale of these zamindaries negatives the existence of any custom of inalienability in Chota Nagpur or in the District of Manbhum. The reeti referred to in Exhibits 7 and 8 must therefore refer to some rule which was applicable at that time to the zamindaries of all the zamindars in the province or in the District. I have already stated that even before Act VIII of 1859, with the proviso to sec. 205, was extended to Manbhum, a practice had been established under the Wilkinson Circular by which the zamindaries could not be sold without the sanction of the Commissioner. “Reeti” is an appropriate term in which to refer to an established practice of this kind. The contention of the Plaintiff is that the reeti or custom referred to in Exhibits 7 and 8 does not refer to Captain Wilkinson's rule or circular or to the proviso to sec. 205 of Act VIII of 1859, as under this Government Circular the zamindaries were not absolutely unsaleable but were saleable with the sanction of the Commissioner whereas the reeti or custom referred to in Exhibits 7 and 8 refers to a rule absolutely prohibiting sale. But, as already pointed out, what these documents say is that there was no custom of zamindaries in that part of the country being sold, which is rather, different from saying that there was a custom absolutely prohibiting sale. That sales were not customary is clear from Col. Dalton's letter of 1869, Ex. EB. It appears from this letter that though under the rules made by Captain Wilkinson a sale could take place with the sanction of the Agent, the sanction of the Agent was generally withheld (Paragraph 11 of Ex. EB).

I am therefore of opinion that Ex. 7 and Ex. 8 do not prove the existence of a custom of inalienability as alleged by the Plaintiff.

Fulkushma was not allowed to be sold in 1861 and 1863 in view of the proviso to sec. 205 of Act VIII of 1859.

It was next contended on behalf of the Plaintiff that even if “reeti” be held to refer to the practice originating in the Wilkinson Circular, that Circular itself merely embodied a pre-existing custom of inalienability. The argument is that there was such a custom in most of the estates in the locality, though not in all, and that the Agent or the Commissioner was given power to prohibit or permit sale according as the custom was or was not in force in the estate concerned. It was considered good policy to recognise the custom where it existed and hence, it is said, Hunter's statement (Statistical Account of Bengal, Volume 17, p. 354, para. 2), that the restriction on sales was imposed as a political measure. This explanation of the Wilkinson Circular is, however, not entirely convincing. The account given in Coupland's Gazetteer of Manbhum (1911, pp. 199-201) conveys a different impression. Coupland, in describing the history of the permanently settled estates of the District, refers to two of their special features, namely, the strict rule of succession by primogeniture and the policy of exemption from the ordinary sale laws. He traces the former to a custom existing from before British rule and the latter to the Government orders of October 13th, 1834. It is true that he goes on to say that these orders probably only, regularised an existing practice; but even so, it is significant that he does not speak of any custom of inalienability as he does of the custom of primogeniture. He speaks, instead, of the policy of practice of exempting estates from sale and suggests that it might have been due to a fear of disturbances such as those which attended the sale of Pachete in 1795. It cannot therefore be said to be established that this policy or practice is itself proof of an ancient custom of inalienability.

Ex. 36 and Ex. 11 are orders of the District Judge of Midnapore on two applications for succession certificates under Act XXVII of 1860 and one under Act XL of 1858 respectively. Of the former two, one was made by Sunder Narain after the death of his father Mukunda and the other was filed by the widow of Mukunda. The widow's application was based on a Will executed by Mukunda before his death.

By this Will (Ex. QQQ) Mukunda Narain gave 4 annas share of Shilda (a zamindary inherited by him from his maternal grand-father) to his minor son, Jajneswar Narain and his mother,. Rani Durga Kumari for their maintenance. By another provision of the same Will Mukunda Narain gave 16 annas share of Fulkushma to Sundar, Narain but directed that Durga Kumari; and Jajneswar Narain shall get villages out of Fulkushma yielding an annual profit of Rs. 300 for their maintenance.

Sundar Narain objected to Durga, Kumari's application for a succession certificate on the following grounds: (1) that Mukunda Narain had no power to make divisions of estates by Will since the custom of the family is that the title to the estate descends to the eldest son, (2) that the deceased was not of sound mind at the time of the execution of the Will and that undue influence on the part of one Gangaram (who had obtained putni grant from the deceased on favourable terms) was used, (3) that in any case he had a better right to certificate than the widow since he inherited a larger share and was directed to pay off debts and encumbrances.

The learned District Judge held that the Will was inoperative by reason of a family custom (Ex. 11).

The family custom referred to in this document must be the family custom as set up by Sundar Narain in his objection. That custom, as has already been stated, is the custom of primogeniture and not any custom of inalienability apart from and independent of, the custom of primogeniture. This is clear from para. 6 of Ex. 36 where the learned Judge stated that the Will could not be allowed to set aside Sundar Narain's rights as eldest son. Evidently the learned Judge took the view that the custom of primogeniture necessarily involved absence of the power of alienation by Will. In other words, inalienability was taken to be the necessary incident flowing from the custom of primogeniture.

Ext. EK is the judgment of this Court in appeal against the above orders of the District Judge. The material portion of Ex. EK is as follows:

“This was an application for a certificate under Act XXVII of 1860. The applicants were the eldest son of the late Rajah Mukund Narain Deo, and his widow respective. It appears that the Ranee set up a Will under which she claimed to have a share in the estate left by the deceased Raja. The Judge was of opinion that the certificate ought to be granted to the eldest son. But as the pleaders for the Ranee pressed him for an expression of opinion on the validity of the Will, he thought it proper on the evidence before him to go into that question; and after going through the evidence with reference to the execution of the Will the Judge has come to the conclusion that the Will cannot be allowed to set aside the rights of the eldest son, and that the younger son must be left to apply in some future suit for an allowance, if the eldest son does not grant him one sufficient for his maintenance and dignity. On these grounds and from either point of view, whether the Will be a good or bad one, the eldest son is entitled in the opinion of the Judge to a certificate under Act XXVII of 1860.”

“There can be no doubt that the Judge's decision is right. Prima facie the eldest son would be entitled to a certificate under the Act above referred to in preference to the widow. We think it unnecessary in this case to pronounce any opinion on the validity of the Will. The order of the Judge granting the certificate to the eldest son will therefore be affirmed leaving the question of the Will an open question”

This judgment does not support the Plaintiff's contention that alienation of Fulkushma by the Will of Mukunda was invalid by reason of the existence of any custom of inalienability apart from and independent of, the custom of impartibility and primogeniture.

The Plaintiff also relies upon his evidence and the evidence of P.W 14. The Plaintiff in his examination-in-chief stated:

“The owner of the disputed zamindary for the time being hag the right to enjoy it for his life time. He has no right to alienate it by sale or gift or will. He can grant leases. The zamindary cannot be auction-sold for the personal debts of the zamindar for the time being, such is the custom governing the zamindary since its creation.”

In his cross-examination he admitted that some villages appertaining to Fulkushma had been gifted away to Brahmins. He also admitted Mukunda's making a disposition by Will. He, however, added that the Will was with respect to Shilda zamindary, but he did not know whether by the Will other properties were also transferred. He also admitted that the owner of Fulkushma had the right to grant mokarari mourashi leases and that his ancestor granted many such mokarari leases. He also stated that such leases were binding on his successors. His evidence is, to say the least, not sufficient to establish the custom of inalienability. P.W 14 in his examination-in-chief stated that the zamindary of Raja Raspal could not be sold or gifted or sold in auction. In his cross-examination he stated that he heard from his uncle that Fulkushma was not alienable. He said that he heard this when he was 13 or 14 years old in the course of a conversation between his uncle and others in connection with the zamindary of Jhargram which was then in the hands of the Court of Wards. He then stated that the only thing that he remembered of their talk was that Raspal, Fulkushma and Jhargram were governed by Mitakshara and that he had no other source of knowledge.

This witness came to give evidence, though not summoned. I do not place any reliance on his evidence. It has been already stated that other zamindaries in the locality are saleable and some of them have been actually sold.

It also appears from the evidence,

(1) that out of the total area of Fulkushma as recorded in the record-of-rights, viz., 36,978'91 acres, 27,171'46 acres have been settled in permanent mokarari leases (admitted by Plaintiff in his evidence to be binding on the successors of the zamindars who created these leases), 581'13 acres have been given away in nishkar grants and 211'72 acres have been let out at Panchaki (quit rent).

(2) That Mukunda in order to raise Rs. 1,900 granted a putni lease of 4 as share of Fulkushma in 1864, though 8 as share of another zamindary belonging to him, viz., Shilda was still available for putni settlement and that he subsequently resumed it for a consideration of Rs. 10,000.

(3) That Mukunda disposed of Shilda which is admittedly alienable and Fulkushma by the same Will treating both the zamindaries on the same footing so far as his power of alienation is concerned.

(4) That Sunder Narayan raised money on mortgage of Fulkushma on several occasions on the footing that he had absolute title to the zamindary and that he had the power to alienate it.

(5) That before 1886, Fulkushma was put up to sale (though not actually sold) on several occasions in execution of Chander Mohan's decree of 1878 and in execution of other money decrees but no objection was taken that it was inalienable beyond Sunder Narayan's life-time.

(6) That after the death of Sunder Narayan Plaintiff did not repudiate the peshgi ijara and accepted the position that it was binding on him.

(7) That after the death of Sunder Narayan about 956 acres of Fulkushma were resumed by Government in 1900-1902 and were settled with Raja Banwari Lal on the footing that the latter had acquired absolute title to the zamindary without any objection from the Plaintiff and Raja Banwari Lal is in possession of these lands since then.

(8) That in 1907, 63'19 acres of land out of Fulkushma were acquired under the provisions of the Land Acquisition Act and the sum awarded as compensation was paid to Raja Bonwarilal without any protest from the Plaintiff.

(9) That in 1913 the Plaintiff himself on behalf of his mother paid rent for Mauza Kasakend to the principal Defendant—Ex. JJJ(25) as the zamindar of Fulkushma.

For the reasons given above I hold that the Appellants have failed to establish that Fulkushma is inalienable by custom.

The next contention of the Plaintiff is that before Sartaj Kuar's case in 1888 the settled law in India was that the holder of an ancestral impartible estate governed by Mitakshara could not alienate the estate absolutely and as Plaintiff's father was governed by Mitakshara law and as the auction-sale took place in 1886, the executing Court must be deemed to have sold and the Defendant's father must be deemed to have purchased only the life-interest of Plaintiff's father. [Abdul Aziz Khan Sahib v. Appayasami Naicker ].

This contention raises the question Whether Plaintiff's father was governed by Mitakshara law or Dayabhaga law.

It is an admitted fact in this case that this family has been in Bengal for the last three to four hundred years. The presumption therefore is that the family is governed by the Dayabhaga law. In order to rebut this presumption Plaintiff's Advocate relied on

(1) a tradition recorded in the District Gazetteer of Bankura,

(2) the evidence of the Plaintiff and the evidence of P.W 14 and P.W 15.

The tradition appears at pages 179-180 of the Gazetteer of Bankura. It is this:—

“Tungbhum—a name given to the tract of country lying in the south of the Raipur thana. Tradition relates that it was so called after Nakur Tung, a descendant of Tung Deo who came from the banks of the river Gandaki on pilgrimage to Jagannath, when by the favour of the God Jagannath he was made King of Puri. His grandson, Gangadhar Tang was informed by Jagannath that after him there would be no King of his line in Puri and that therefore his son should change his name and go to some other country where he would be King, Accordingly Gangadhar Tung's son Nakur Tung, taking with him his wife, his treasure and some soldiers left Puri in 1270, Saka (1348 A.D) and after ten years' wandering settled in 1358 A.D at Tikarpara, a village near Syam Sunderpur. At that time the part of the district now comprised within Parganas Syam Sunderpur, Phulkusma Raipur, Simalpal and Bhataidiha was called Rajagram …. Nakur Tung having … taken possession of the country called it Jugannathpur in honour Jagannath whose idol he had brought with him and himself assumed the title of Raja Chatra Narayan Deb …. During the time of the sixth Raja Lakhi Narayandeb, who before his succession was called Syam Sunder Tung, a dispute arose between him and his brother Mukut Narayan which ended in the apportionment of the Raj between them. The portion that fell on the lot of the elder is now called Pargana Syamsunderpur and that which formed the share of the younger, Fulkusma. The Permanent Settlement of the two Parganas was made with Raja Srinath Narayan Deb and Raja Darpa Narayan Deb respectively.”

Reports and Gazetteers are not strictly evidence of the truth of all the statements contained in them, although they may be read for what they are worth [Garuradhwaja Prasad v. Superundhwaja Prasad ].

In the extract reproduced above it is stated that the person who migrated from Puri and acquired the zamindary in the jungle mahals was descended from a person who came from the Gandaki Valley. The Appellant's case in para. 2 of his plaint however is that the family emigrated from the borders of Orissa and Madras. Again according to the aforesaid tradition, Shyamsundar Raj family and Sundar Narain's family had a common ancestor. Plaintiff, however, in his evidence definitely states that he and the Raja of Shyamsundarpur do not belong to the same family and that he does not know where the Raj family of Shyamsundarpur came from. Plaintiff in his evidence stated that he is a Kshattriya Rajput by caste. At p. 276 of the Manbhum Gazetteer however it is stated:

“Of their Rajput origin they have nothing in the shape of authentic records of ancient date and in all probability like all other zemindars of the district they are actually of Bhumij or possibly in this case of Bauri origin.”

The evidence of the Plaintiff is that he has married the daughter of his maternal uncle. The contention of the learned Advocate for the Appellants is that such a marriage is not permissible in families governed by the Dayabhag law and, consequently, this family must have migrated from some place outside Bengal. Plaintiff's case is that his ancestors came from Orissa where the Mitakshara law prevails. But the Mitakshara law also prohibits such marriage. Such marriage is no doubt sanctioned by a custom even amongst the Brahmins of southern India in Madras. But then such marriages appear also to be sanctioned by a custom amongst holders (who claim to be Kshatriyas) of impartible estates in the jungle mahals of West Bengal. (See Golap Sarkar Shastri's Hindu Law, p. 144, 7th Edition).

Plaintiff and P.W 15 in their evidence stated that marriages in the family took place at day time (which would not be permitted in Dayabhaga families) and that the priests and Gurus of the family are all Brahmins of Orissa. But this evidence is contradicted by D.W 1, D.W 4, D.W 8, D.W 15 and D.W 32.

The evidence of these defence witnesses is corroborated by the deposition of Sunder Narain in Title Suit No. 1 of 1889 wherein he stated that the marriage of his sister and daughter took place at night and that he did not see any marriage in the day-time. He also stated that marriages in the family took place in accordance with the injunctions laid down by Bhabadeb, who is an authority on the marriage of Rahri Hindus governed by the Dayabhaga School.

Plaintiff in his evidence stated that Purna Chandra Tripati is his Guru and that P.W 15 is his family priest.

Purna Chandra Tripati has not been examined. But D.W 1, D.W 4, D.W 8, D.W 15, and D.W 32 in their evidence say that Goswamis who follow the ritual of Bhabadeb are Gurus of this family,.and that other Rahri Brahmins are the priests of this family. The evidence of the defence witnesses is supported by the fact that Goswamis are in possession of lands granted to them by this family as Brahmuttars.

Mukunda Narayan in his rejoinder (Ex. AO) in Suit No. 31 of 1852 which was instituted by him in the Subordinate Judge's Court at Midnapore for recovery of Shilda stated that Dayabhaga law governed his part of the country. It is true that in Suit No. 74 of 1871 Sunder Narayan's case was that his family was governed by Mitakshara law. But his case was not accepted either by the trial Court or by this Court in appeal in 1874 [Ex. EA(1) and EA]. In this Court it was held that Raja Sunder's family was then governed by the Dayabhaga law.

My conclusion therefore is (1) that the evidence in this case is not sufficient to establish that the ancestors of Sunder Narayan migrated from a place outside Bengal; (2) that even if they did, they after migration into Bengal adopted the Dayabhaga School of law.

On this finding, the question as to what was the settled law in India as regards the power of the holder of an impartible ancestral estate governed by Mitakshara law does not arise.

Assuming however that Raja Sunder Narayan was governed by Mitakshara law can it be said that the settled law in Bengal before Sartaj Kuari's case was that the holder of an ancestral impartible estate governed by Mitakshara law could not absolutely alienate such estate?

In 1873, in the case of Raja Ram Narayan Singh v. Perbni Singh this Court held that the holder of an impartible estate cannot alienate any portion of it except for family necessity without the consent of all the members of the joint family.

This Court however in 1874 in The Chotanagpur case relying on the decisions of the Privy Council in Hanspura case , The Tipperah case and Yanumula v. Yanumula held that the law of Mitakshara by which each son has by birth a property in the ancestral estate is inconsistent with the custom of impartibility and primogeniture.

In 1881, in Narayan v. Lokenath this Court held that the custom impartibility does not prevent the holder for the time being making grant of land in perpetuity.

Further as already mentioned, in an appeal of 1874, and therefore before the auction sale in 1886, this Court held that Raja Sunder Narayan's family was governed by Dayabhaga law. There is no evidence that either the Court which sold the property in execution in 1886 or the bidders at the sale knew or had reason to believe that Sunder Narayan was governed by Mitakshara law. Before this sale Raja Sunder Narayan had made alienations by mortgages and permanent leases on the footing that he was the absolute owner of the estate. The price for which, the zamindary was sold in 1886, in view of the incumbrances existing on it at the time of the sale was not such as to suggest that the purchaser was buying merely the life-interest of Raja Sunder Narayan.

It cannot therefore be said that only the life-interest of Sunder Narayan was intended to be sold and the father of the Defendant intended to purchase only his life-interest.

I therefore hold that Raja Bonwarilal by his purchase in 1886 acquired absolute title to the zamindary in question and that Kaliprosanna has no title to it.

The last point for determination is whether the suit is barred by limitation.

At the time of the death of the Plaintiff's father the peshgi ijaradar was in possession of the entire Perganah Fulkushma excepting Moujas Dhadanga, Bhurrudanga, Hijli, Mohisamura, Kasakend, Deulbhira, Murachara, Balijura and the jungles of Dudhenala, Fuljhore, Khan Pahari and Katapahari.

As regards the villages covered by the ijara the Plaintiff's case is that he confirmed the ijara after his father's death in 1897 (1304 B.S), remained in possession of them through the ijaradar till 1912 (1319 B.S) and thereafter in khas till he was dispossessed in 1914 (1322).

As regards the Moujas and jungles outside the ijara, the Plaintiff's case is that at the time of his father's death they were in the possession of one of the wives and a mistress of his father and a transferee from another wife of his father as permanent tenure-holders and that since his father's death he had been realising rent from them till he was dispossessed in 1322.

This being the Plaintiff's case, the suit is governed by Art. 142 of the Indian Limitation Act.

As regards the possession of the ijara lands through ijaradars the case of the Plaintiff is that he confirmed the ijara by realising during the unexpired term of the ijara a part of the ijara rent from the ijaradar since the death of his father.

The annual rent reserved in the ijara is Rs. 6,156-5. Out of this amount the ijaradar was to pay Rs. 1,093 for meeting the Devseva expenses of certain deities, Rs. 29-8 to the ghatwals for their pay, Rs. 420-8 for revenue and cess of the entire zamindary and the balance was to be appropriated by the ijaradar for collection charges and towards the payment of the money advanced by the ijaradar to Raja Sunder Narayan.

The evidence of the Plaintiff is that so long as his father was alive he realised the amount directed to be paid for Devseva from the ijaradar and that after his death he realised it from the ijaradar in rice and cash up to 1319 B.S

The Plaintiff in his evidence stated that his gomasta used to write receipts on account of the Devseva money and that he used to sign them. He also stated that his collection papers were burnt 15 or 20 years ago.

Some dakhilas or rent-receipts have been exhibited on behalf of the Plaintiff (19 to 19-N). These dakhilas, however, were not granted by the Plaintiff to the ijaradar, but by the ijaradar to some tenants of the ijara mehal.

Reliance was however placed upon the following words in some of these dakhilas: “by barat” (assignment or order) of the Raja of Rashpal (Plaintiff).

The Defendant exhibited counterfoils of these dakhilas. These counterfoils do not contain the above-mentioned words. The learned Subordinate Judge has found that these words were Subsequently interpolated. I agree with him.

P.W 7 produced Exts. 19 to 19-C, and P.W 9 produced Exts. 19-E to 19-N. P.W 9 said that he got some of these dakhilas from the box of his uncle and that he received the rest from the ijaradar's tehshildar. This witness attended Court without being summoned to give evidence or to produce these dakhilas. Rent suits by the Defendant were pending in appeal against P.W 7 and P.W 9 at the time when they gave their evidence in this case.

On the other hand, the rokars and receipts filed by the principal Defendant show realization of rent directed to be paid for Devseva expenses from the ijaradar by Raja Banwarilal and Raja Nagendra from 1299 to 1319.

These documents have been found by the learned Subordinate Judge to be genuine, and I see no reason to differ from him.

I, therefore, hold that the Plaintiff did not realise the rent directed to be paid for Debseva expenses from the ijaradar, and that the Defendant and his father realised this rent from the ijaradar.

The Plaintiff's case is that after: the termination of the ijara in 1319, he was in possession of the villages covered by the ijara for two years, namely, 1320 and 1321, and that he was dispossessed in 1322.

The evidence on this point consist of (1) the collection papers of the Plaintiff for the years 1320 and 1321, and (2) the oral evidence of the Plaintiff and his witnesses P.W 2 to P.W 10.

Exts. 24 and 24-A (Chekmuris), Exts. 21 and 22 (Shehas), Exts. 20 and 20-A (Thokas) show realization of rent from the tenants. Exts. 23 and 23-A are Shehas showing realization of sunnya selami (monies paid by tenants to the landlord once every year on a fixed day). No Chekmuris or Thokas for selami have been filed.

The Plaintiff in his evidence stated that he realized some rent from the tenants in 1320 and 1321 and that his officers knew if there were any collection papers showing such realization, although the collection papers had been filed in Court before he came to the witness box.

These collection papers were not filed in Court within the time fixed by Court. No explanation was given for this delay.

Some of the Chekmuris (Ex. 24-A serial Nos. 65 and 125) show double payment.

Exts. 20, 23 and 23-A according to the evidence of P.W 11 are in his handwriting. This witness says that Ex. 20-A is in the handwriting of Surjya Biswas, that Ex. 22 was written by P.W 13 and that Exts. 21, 24 and 24-A are partly in his handwriting and partly in the handwriting of Surjya Biswas. He also said that Exts. 24 and 24-A were signed by Digambar (P.W 13).

P.W 13 in his evidence says that he was tehshildar of the Plaintiff in 1320 and 1321 and that Surjya Biswas and P.W 11 worked under him as his clerks.

P.W 2 in his evidence said that Sarada Dutt was the tehshildar of the Plaintiff in 1320 and 1321. In 1915 and 1916 the Defendant instituted suits for recovery of arrears of rent against the father of P.W 2, father of P.W 3 and against P.W 6 and P.W 7 and some other tenants of the Mehal for the years 1320 to 1322 and six months of 1323.

In the rent suits of 1915 and 1916 the tenants pleaded payment to the Plaintiff. They produced dakhilas in support of their plea. In these suits P.W 2 was examined on behalf of the tenants. He then said that he and Saroda were tehshildars of the Plaintiff in 1320 and 1321. The collection papers which have been filed in this suit were not filed in those rent suits. The collection papers which have been filed in this suit are not in the handwriting of P.W 2 or Saroda. P.W 2 and P.W 3 produced some dakhilas in those rent suits, but they have not been produced in this suit.

The evidence of P.W 2 in the present suit is not consistent with the evidence in the rent suits of 1915 and 1916. The evidence in this case shows that the Defendant purchased the jotes of this witness before he came to depose on behalf of the Plaintiff in this suit. The evidence of P.W 4 is not supported by the collection papers filed by the Plaintiff.

P.W 3, P.W 5, P.W 6 and P.W 8 being to the same family.

The evidence of P.W 3 about payment of rent to the Plaintiff is not supported by the collection papers filed by the Plaintiff. His evidence in the present case is not consistent with his deposition in the rent suits of 1915 and 1916. The Defendant had obtained rent decrees against this witness before he came to depose on behalf of the Plaintiff in this case.

There was litigation between P.W 5 and the Defendant before the former gave his evidence against the latter in this case.

The Defendant had obtained rent decree against P.W 6 before he came to depose in this case.

The evidence of P.W 8 is not corroborated by the Chekmuris filed by the Plaintiff in this suit. His evidence is inconsistent with the Chekmuri Exhibit 18-C.

Rent suits by Defendant were pending in an appeal against P.W 7 and P.W 9 when they came to depose against the Defendant in this suit. It has been already pointed out that P.W 9 was not summoned to give his evidence in this case and that the dakhilas produced by him show interpolations.

The evidence of P.W 10 is inconsistent with his previous deposition in 1928.

On the other hand, the Defendant has produced his collection papers for 1320 and 1321, namely, Rokars, Shehas and Chekmuris. The relevant portions of these collection papers were filed in the previous rent suits against the tenants in 1915 and 1916.

One counterfoil of the Chekmuris filed by the Defendant (Exhibit JJJ-25) as has already been said was signed by the Plaintiff. Another counterfoil, Exhibit JJJ-27 finds support from P.W 8.

The collection papers of the Defendant are supported by the oral evidence of his officers (D.W 1, D.W 4 and D.W 33), some tenants of the zamindary (D.W 14, D.W 21, D.W 30 and D.W 32).

Some of the tenant witnesses have produced their dakhilas.

The Defendant has also obtained rent decrees against a large number of tenants for rent of the years 1320 and 1321.

The learned Subordinate Judge has disbelieved the oral and documentary evidence adduced by the Plaintiff to prove his possession in 1320 and 1321 and has believed the oral and documentary evidence adduced by the Defendant to show his possession during these two years. For the reasons given above, I agree with him.

As regards the possession of the villages outside the ijara, the Plaintiff's case is that after the death of his father he began to realise rent from mokararidars and continued to do so till 1321 and that he was not allowed to do so by the Defendant from 1322.

There is no documentary evidence to support the Plaintiff's realization of rent from the mokararidars before 1320 B.S The evidence of realization of rent in 1320 and 1321 has been already discussed and has been found by me to be unreliable. The Rokars of the Defendant, which I have found to be genuine, show realization of rent from the mokararidars by the Defendant's father and the Defendant from 1299 to 1325.

The statement of some of these mokararidars in certain documents (Ex. H H, A X, A V and A W.) support the Defendant's case.

In 1318 the landlord's fee was deposited for payment to the Defendant by the mokararidar Annapurna, the mistress of Sundar Narayan. In 1320, the Plaintiff himself paid rent for the year 1320 on behalf of his mother, one of these mokararidars (Ex. JJJ-25).

I therefore hold that Plaintiff never realised rent from the tenure-holders in possession of the villages outside the ijara.

The evidence in this case has established the following facts:

(1) Raja Banwarilal got his name registered in the Collectorate as proprietor of the entire zamindary including the ijara properties after his purchase in 1886.

(2) He paid the entire revenue of the zamindary from 1891 till his death in 1907.

(3) After Raja Banwari's death Defendant got his name registered under the Land Registration Act and has been paying revenue of the zamindary since then.

(4) After the death of Raja Sundar Narayan Plaintiff made no attempt to get his name registered in the Collectorate as proprietor and never paid the revenue.

(5) After the resumption of the ghatwali lands included in the ijara in the year 1902 the sum of Rs. 29-8 of the rent reserved in the ijara became payable to the proprietor.

(6) This amount was realized by Raja Banwari and after his death by the Defendant.

(7) Some lands included in the ijara were acquired under the Land Acquisition Act in 1907.

(8) The compensation awarded for this acquisition was paid to the Defendant and the ijaradar without any protest from the Plaintiff.

(9) Sunya selami was paid by the ijaradar to Raja Banwari.

These facts indicate that Raja Banwari and after his death the Defendants were recognised as proprietors of the entire zamindary including the ijara properties.

The last contention on behalf of the Plaintiff was that in law the possession of the ijaradar was the possession of the Plaintiff. The argument in support of this contention is this: Raja Sundar Narayan was governed by the Mitakshara law. The debt for satisfaction of which the ijara was granted was not incurred by him for immoral purposes. The appropriation by the ijaradar of the major portion of the ijara rent towards the satisfaction of the debt was made on his behalf and consequently Plaintiff must be deemed in law to have realized the major portion of the ijara rent from the ijaradar.

I am unable to give effect to this contention as I have already found that Raja Sundar Narayan was governed by Dayabhaga law and not by the Mitakshara law.

I therefore agree with the Subordinate Judge that Plaintiff's case of possession and dispossession has not been made out and the suit is barred by limitation.

The result, therefore, is that this appeal fails and is dismissed with costs.

Rau, J.:— I agree.

C.C