Couch, C.J (His Lordship, after briefly stating the facts, continued):— The qoestion at once arises what was the nature of the estate granted to Tej Sing, whether it was a fresh grant of the family raj with its customary rule of descent, or a grant of the lands formerly included in that raj to be held as an ordinary zemindari. To this the judgment in the Privy Council in Baboo Beer Pertab Sahee v. Maharaja Rajender Pertab Sahee is closely applicable. There, at page 34 of the report, it is said:— “There was nbt in this, as in the Shivagunga case, a new sanad. We have no evidence of the intention of the grantors except that which is to be collected from the proceedings and correspondence already referred to; nor have we any record of the proceedings before the Govoner-General, or any means of knowing the precise grounds on which Lord Cornwallis's Government rejected the recommendation, of the Board of Revenue, and determined to confer the property on Chutterdharee Sahee. Again, it cannot be denied, that in these proceedings the term ‘raj’ is never used, or that ia some of them the subject of the grant is spoken of as ‘the land in Hunsapore which belonged to raj Futteh Sahee.’ On the other hand, there is no expressed intention to alter the nature of the tenure. The estate, whilst it was in the hands of the company, had never been broken up. The policy of the decennial settlement was to form a body of landholders, by ascertaining in whom the zemindari interest in the soil actually was, and making with those persons a permanent settlement of the Government revenue, so as to give them greater fixity of tenure. Lord Coruwallis's Government determined to set up Chutterdharee Sahee as the zemindar with whom the settlement in respect of this property should be made. But the estate of a zemindar was not merely the right to the possession or enjoyment of certain lands. It involved rights against, and corresponding obligations to dependant talukdars, or other under-tenants, royts of various classes, and others; and the decennial settlement as a reference to the rules re-enacted by Regulation VIII of 1793 will show, proceeded upon an inquiry into all or many of these particulars. In the absence of all evidence to the contrary, it must be presumed that the settlement was made precisely as it would have been made had the estate) continued in the line of Raja Futteh Sahee; and, therefore, that the subject conferred on Chutterdharee Sahee was the old zemindari with all its incidents, excepting at most its descendible quality. It seems to follow, that the intention to alter that quality, if it existed, would have been expressed. Again the selection of a member of the old family, the next in succession to the excluded line, though it cannot make ancestral that which was self-acquired, is a very strong circumstance in favor of the hypothesis that the intention of Government was to restore the zemindari as it had existed before the confiscation or attachment, making no farther change than was involved in the forfeiture of the rights of Raja Futteh Sahee and his descendants, and in the substitution, by an act of power, of the person next in the order of succession, and consequently that the transaction was not so much the creation of a new tenure, as the change of the tenant by the exercise of a vis major.” The present ease is stronger in favor of this view of the grant, as the ten years' settlement was made by the Government with the eldest son of Parosnath Sing, there being other sons living, which would not have been right if it had been an ordinary zemindari the property of the undivided family. But this not all. [His Lordship here stated the effect of the decision in Koonwur Bodh Sing v. Seonath Singh as given above, and proceeded.] We have no evidence in the ease of the custom or usage of the family before the grant to Tej Sing; but the want of it is supplied by this decision, which declared the, estate to be impartible, the decision being pronounced in a suit between persons who are in privity with the plaintiff and defendant in this suit.

Having arrived at the fact that this is an impartible estate, we have to consider whether the defendant, a female, can succeed to it to the exclusion of the plaintiff, who is the nearest male heir. Where a family is governed, as this family was by the law of the Mitakshara, by which, in an undivided family, females do not inherit as long as there are any male members of the family, it is improbable that a custom that females should inherit to the exclusion of males' would grow up with, and form part of, a Custom that the eldest male member of the family should inherit. The object of the latter custom would be fully attained without the other, and there is no necessary connection between them. Before considering the evidence in this case, it will be convenient to refer to the decisions which are applicable to it.

In The Widows of Raja Zorawur, Singh v. Koonwur Pertee Singh, the widows of Zorawur Singh sued his brother to recover possession of an estate in the Jungle Mahals, alleging that by the custom, of the family, of the Pergunna Jurria, and of the other jungle estates, the eldest son of the late incumbent took the whole estate, the other sons receiving lands for their support; and that, in the event of the zemindar leaving no son, bis widow took the estate to the exclusion of his brothers. A deed of gift by Zorawur Singh to the plaintiffs, who were his second and third wive, was also set up. The Provincial Court of Calcutta, in which the suit was brought, put a question to the pandit of the Court, with directions to give an answer according to the shastra as current in the Western Provinces; and the answer was that the gift, if made, was not valid, and the right of inheritance in the estate vested on the faith of the donor in his two brothers. The Provincial Court of Calcutta having dismissed the claim of the plaintiffs, they appealed to the Sudder Dewanny Adawlut. One of the Judges there, upon considering the whole case, held that the decision of the Provincial Court should be reversed; but the other two held it to be proved that the estate had always gone to the chief male heir, and confirmed the decision of the Provincial Court. In this case, the estate was ancestral, and the family undivided, and the impartiality of the estate only interferes with the ordinery law so far as to make it pass to the chief of the male heirs. In Naragunty Lutchmeedavamah v. Vengama Naidoo, the estate which was the subject of the suit, was a Polliam, a tenure known in Madras. It was an ancestral estate of the nature of a raj not subject to partition, and could be held by only one member of the family who was styled the Polligar; and it was held that, being an ancestral estate, the succession vested in the nearest undivided male cousin of the Polligar last seised, who died without, issue-male, in preference to his widow, it appears is the judgment; page 86 of the report, that this was the opinion of the pandits who were cansulted by the Sudder Court; and that it was adopted by the Court, and no objection was urged to it on the appeal, the ground taken being that it was not an ancestral estate, nor were the parties in the suit members of an undivided Hindu family. The answer of the pandits, page 74, shows that the ground of their opinion was that all the members of an undivided family have a joint right in their ancestral property, although only one of them, being capable, continues in possession thereof. The case of The Collector of Madura v. Verracamoo Ummal is clearly distinguishable from this, and was decided upon its own peculiar facts. Markby, J., referred to Katama Netchier v. The Rajah of Shivagunga, as an instance of a woman succeeding to a raj, and near the end of his judgment said, that between impartibility and the exclusion of females, there is no conexion whatever. That need not be disputed. It is not upon the impartibility of the estate, but upon the family being undivided, and the law of succession to ancestral undivided property, that the, exclusion of females rest. This appears clearly in the Shivagunga and subsequent cases. The zemindari of Shivagunga was created in 1730 by the Nabab of the Carnatic; and by a proclamation of Lord Clive, dated the 6th of July 1801, the Government transferred the zemindari, which it appeared was treated as an escheat for want of lineal heirs, to Gowery Vallabha Taver, who was collaterally descended from the progenitors of the first zemindar. By a sanad, dated the 22nd of April 1803, the zemindari was confirmed to him in perpetuity, with power to transfer it by sale or gift, on payment to the Government of a permanent annual jumma. By the decree appealed from the son of Oya Taver, the elder brother of Gowery Vallabha Taver was held entitled to the zemindari in preference to his surviving widow, on the ground that they were undivided brothers. In the judgment of the Judicial Committee, page 605 of the report, it is said that the substantial contest was whether the zemindari ought to have descended in the male and collateral line, and the, determination of that issue depended on the answers to be given to one or more of the questions:— First, were the brothers undivided, in estate, or had a partition taken place between them? Second, if they were undivided, was the zemindari the self-acauired and separate property of the younger? And if so, third, what is the course of succession, according to the Hindu, law of the South of India, of such an acquisition, where the family is in other respects an undivided family? From these questions, it is, clear that the Shivagunga case, was different from the present; and the decision in it is not applicable. But the law applicable to it is slated in the judgment at page 589 of the report, where it is said that “if the zemindar, at the time of fits death, and his nephews were members of an undivided Hindu family, and the zemindari, though impartible, was part of the common family property, one of the nephews was entitled to succeed to it on the death of his uncle.” We have thought it right to refer to this case at some length on account of the reference to it in Markby, J.'s judgment. Another authority for the exclusion of females, where the property is ancestral and the family undivided, is in the judgment of the Privy Council in Jowala Buksh v. Dharum Singh, where it is said that Lal Sing, a nephew, whose legitimacy was disputed, if the legitimate male heir of the great ancestor, would have taken the raj on the death of his uncle to the exclusion of the widow, the property being assumed to be ancestral and the family undivided; that in the case of Katama Natchier v. The Rajah of Shivagunga, it was admitted that this would have been the course of descent according to the Mitakshara if the property had been ancestral; and that the reason of that decision was that the Shivagunga raj was the separate acquisition of the deceased. And in the judgment of the Privy Council in a latter case, Rajah Suraneni Venkata Gopala Narasimah Bow Bahadoor v. Rajah Surhneni Lakshma Venkama Row, it is again said that, in the Shivagunga case, the impartible zemindari was shown conclusively to have been the separate acquisition of the person whose succession was the subject of dispute, and the ruling of the Court was, that in that case the zemindari should follow the course of succession as to separate property, although the family was undivided, but that if that zemindari had been shown to have been an ancestral zemindari, the judgment of the Board would, no doubt, have been the other way. There is, however a judgment of the Privy Council, which is referred to by Markby, J., as the Tippera case, in which a different view ia taken, and which we are unable to reconcile with the previous decisions. In Neelkristo Deb Burmono v. Beer Chunder Thakoor, their Lordships say at page 540 of the report:— Still when a raj is enjoyed and inherited by one sole member of a family, it would be to introduce into the law by judicial construction a fiction, involving also a contradiction, to call this separate ownership, though coming by inheritance, at once sole and joint ownership, and so to constitute a joint ownership without the common incidents of coparcenership. The truth is, the title to the throne and the royal lands is, as in this case, one and the same title; survivorship cannot obtain in such a possession from its very nature, and there can be no community of interest; for claims to an estate in lands and to rights in others over it, as to maintenance for instance, are distinct and inconsistent claims. As there can be no such survivorship, title by survivorship, were it varies from the ordinary title by heirship, cannot, in the absence of custom, furnish the rule to ascertain the heir to a property which is solely owned and enjoyed, and which passes by inheritance to a sole heir.” But in a later case, we find their Lordships adhering to the law laid down in the earlier cases. In the judgment in Stree Raja Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora, after stating that the question upon which the parties in the suit joined issue and went to trial was, whether the family of which the plaintiff and the appellant's husband were members was an undivided or a divided Hindu family, and that the Courts below had properly decided that issue in favor of the plaintiff, — they say: “Accordingly, the strength of the argument of the learned counsel for the appellant has been directed to show that this case should be governed by that in the ninth volume of Moore's Indian Appeals, which is generally known as the Shivagunga case. They have gone so far as to argue that the estate in question in this case being impartible, must, from its very nature, be taken to be separate estate, and consequently that, according to the decision in the Shivagunga case, the succession to it is determinable by the law which regulates the succession to a separate estate whether the family be divided or undivided. The authority invoked, however, affords no ground for this argument. The decision in the Shivagunga case will be found to proceed solely and expressly on the finding of the Court that the zemindari in question was proved to be the self acquired and separate property of Gowery Vallabha Taver.” And after quoting from the judgment, they say: “It is therefore clear that the mere impartiality of the estate is not sufficient to make the succession to it follow the course of succession of separate estate. And their Lordships apprehend that, if they were to hold that it did so, they would affect the titles to many estates held and enjoyed as impartible in different parts of India.” And in observing on the evidence as to the estate being the separate property of the appellant's husband, they say:— “These grants, by way of maintenance, are, in the ordinary course of what is done by a person in the enjoyment of a raj or impartible estate, in favor of the junior members of the family, who, but for the impartiality of the estate, would be co-parceners with him.” This judgment is closely applicable to the present case. There is here an ancestral impartible estate and an undivided family; for there is no proof that the family of Tej Sing had become divided, and no issue was raised as to that. If there had been no evidence of custom in the case, we should have held, upon the authority of the decisions we have referred to that the plaintiff is entitled to succeed to the estate.

The evidence, oral and documentary, is fully stated in the judgments in the Division Court, and it is not necessary to re-state it. It shows that, on the only occasions since the grant of the estate of Tej Sing, when a female might have inherited, she was excluded. It is true that, in both cases, a brother succeeded in preference to the widow of the deceased, but this could only be justified by the family being an undivided one; and the undivided family was not that of Sidnath Sing, the father of the brothers, but of Tej Sing, of which family the plaintiff is a member. And that this succession was not allowed, as was argued by the appellant's counsel, because a brother was to succeed, is, we think shown by the return made by Shambunath Sing on the 25th June 1846, in which he acknowledged the plaintiff as heir next in succession to his surviving brother Ramnath. The plaintiff's claim is, therefore, supported by such evidence as there is of a custom in the family. It does not, in our opinion, depend upon a local custom, and probably the instances which appear to be evidence of a local custom may all be explained by the rule of law which, we think, is established by the authorities we have quoted. The judgment of Markby, J., for the defendant appears to be founded on the assumption that the succession was governed generally by the rule of inheritance of separate property according to the Mitakshara, treating separate as if it were self-acquired, and this is supported by the judgment in the Tippera case — Neelkristo Deb Burmono v. Beerchunder Thakoor; but all the other authorities appears to show that this is not correct. Where the property is ancestral and the family undivided, a custom modifying the law must be a custom to admit females, not a custom to exclude them. In our opinion, the plaintiff is entitled to succeed to the estate.

Nothing is said in the judgments in the Division Court about the Khurkhur property, and the judgment of the lower Court as to that was confirmed apparently without any difference of opinion between the learned Judges. It has not been argued before us that this part of the decree is erroneous. The lower Court found that the defendant had not proved her right to this property; and assuming that this question is before us in the present appeal, which we think it is, having been raised by the grounds of appeal to the High Court, and by the grounds of the present appeal, we cannot consider the evidence of the mohurir of the defendant as sufficient. On a question of fact, we think we ought to be guided by the rule of the Privy Council, where there have been the decisions of two Courts to the same effect.

We think the appeal should be dismissed with costs. The-decree of the lower Court will thus be allowed to standi.

Appeal dismissed.