1. The real defendant in this case is the widow of the sixth Zamindar who died in 1888. He and the plaintiff were great-grandsons of a common ancestor, the third Zamindar, who died in 1865. The other defendant is the plaintiff's younger brother. Apart from the special defence raised by the Late Zamindar's widow, there can be no doubt that the plaintiff was either on the Zamindar's death entitled to the Zamindari as an impartible estate or was antecedently entitled as a coparcener with the deceased Zamindar. Admittedly there was no other person entitled, whether the Zamindari be regarded as partible or impartible. The plaint is framed on the footing that the Zamindari is partible and accordingly it is asked that a division of it be made between the plaintiff and his brother. The defence raised, on the assumption that the property is partible, is two-fold. It is said that all right to the Zamindari was renounced by the plaintiff's grandfather and that that renunciation is now binding on the plaintiff. It is also said that the suit is barred by limitation by reason of the long continued adverse possession of the elder branch to which the defendant's husband belonged. There is little or no dispute about the mode in which the Zamindari has been enjoyed by the family since in the person of Somasundara Narayana they came into possession in 1796. He died in 1814 leaving two sons, Dhananjaya and Visvambara the great-grandfather of the plaintiff and of the late husband of the defendant, From 1814 till 1849 when Dhananjaya died, the Zamindari, with the exception of two villages held by Visvarnbara for his maintenance, was in the enjoyment of Dhananjaya. It appears that the cash and jewels had been equally divided between them, (Exhibits XVIII, XIX). After Dhananjaya's death without male issue, the family seems to have got into difficulties and the estate was conveyed on a usufructuary mortgage to the Merangi Zamindar. It continued in his possession till after Visvambara's death in 1865. At that time the family consisted of the latter's two sons, Eamachandra and Janardana; there was also living a daughter of Dhauanjaya who made a claim for the Zamindari which was settled by a compromise, (Exh. XXI). Shortly afterwards the Merangi Zamindar was persuaded to restore the Zamindari to the family in the person of the eider brother Ramachandra, and an arrangement was then made between him and his younger brother whereby two villages were allotted to the latter for his maintenance. In the kararnama executed on 13th October 1866 it is recited that the Zamindari has come into the possession of Ramachandra by right of primogeniture. (See Exh. VI, p. 14, and the so-called promissory note of same date, p. 5). All along it seems the relations between the two brothers were unfriendly. (See Ramachandra's letter to the Collector, of December 1869, pp. 2 to 4, and Janardan's letter of 14th October 1870, p. 6).
2. There is evidence that Ramachandra had taken in adoption Janardau's son Sivanarayana, but the adoption was strenuously denied by Ramachandra. Finally in 1870 a suit was brought by Sivanarayana against Ramachandra to have the alleged adoption declared, (see plaint, Exh. XXV, p. 45). Whilst this suit was pending the defendant Ramachandra died and the widow and brother Janardana were brought on the record as his representatives. Between them a compromise was arranged whereby it was agreed that the right to the Zamindari should pass to the plaintiff as the adopted son of the late Zamindar and that Janardana should continue to enjoy the two villages which had been in his possession since 1866. The material part of the document of compromise is set out by the judge at p. 40 of the judgment. It is the document on which the appellant's plea of renunciation is rested. Since the date of that compromise there has been no material change of circumstances. Janardana and after his death in 1885, his sons, remained in possession of the two villages while the rest of the estate was in the hands of Sivanarayana and after his death in March 1882 of his son Dhananjaya whose widow it is that is now the appellant before us.
3. On the above facts which are not really disputed and to which the oral evidence adds but little, it is contended that the suit must fail inasmuch as it appears that the senior branch to which the defendant's husband belonged held the Zamindari adversely since 1865. It is of course admitted that since, prima facie, the possession of one coparcener is the possession of all, the possession of the senior branch is not necessarily inconsistent with the coparcenary rights of the junior. It is incumbent on the appellant resisting the plaintiff's claim on the plea of limitation to show that her husband's and his father's and grand-father's enjoyment of the Zamindari was not the enjoyment of a mere coparcener but was inconsistent with the rights now asserted.
4. If Ramachaudra and his line had claimed to hold the Zamindari as their own self-acquisition or otherwise than as members of the family, there can be no doubt that the plaintiff's claim would have been barred by limitation. Even then it does not follow that his claim would have been absolutely extinguished,, for, on the death of the widow, the question of inheritance to her husband, the last male holder would still have arisen. As the facts stand, however, the elder branch did not assume the position of strangers to the family; they admitted the rights of the younger branch so far as, those rights were compatible with the supposition that the Zamindari was impartible. On that footing the Zamindari was treated by all the members of the family. The fact that they were all under a misapprehension certainly would not prevent time running against the plaintiff, if he could be said to have been excluded from possession within the meaning of the Limitation Act. We understood it to be almost admitted in argument that if the late Zamindar, the defendant's husband, were now defendant, he would have a complete answer to a suit for partition brought by the plaintiff. However that may be, the case is different when, on the failure of males in the elder branch, no question of partition as between that branch and the younger branch can arise. Assuming that the defendant's husband resisted the plaintiff's claim-for partition and in that sense held adversely to him, it does not follow that the plaintiff's right to possession on the death of the defendant's husband is lost. In our opinion, limitation, while it cures the defect of title on the strength of which possession was maintained, cannot operate to give the holder a title which he never claimed, regard must be had to the animus with which possession is taken or held and nemo site issue custom possession's mutave potest. A person holding in the character of mortgagee may by dint of possession render unimpeachable a title which at the outset was defective; but his acquired right is co-extensive with his claim, and he cannot on the strength of it go further and claim to be absolute proprietor. If a man claims an estate for life and that is consistent with his possession, the law will not, upon the mere, fact of possession, adjudge him to be in under a higher right of a larger estate, Brown on Limitation, pp. 126, 76.
5. In the present case it is clear that the rights of the junior branch were not absolutely extinguished. If, for instance, the last holder had died leaving no issue and no widow, it could not be contended that the property must go to Government as an escheat. It is only in her capacity of widow, in virtue of her relation to the last holder, that the defendant can resist the plaintiff's claim. Unless she can show that her husband by long possession acquired a title such as would according to Hindu law descend to his widow, her position can be no stronger than that of Government or any other stranger. In our opinion she fails to establish any such title because she has proved no more than that her husband held the property as an impartible estate. She has not shown there was any allegation of a division or of self-acquisition. We think therefore that the plea of limitation is not well founded.
6. The other ground of defence raised by the appellant is that all right to the Zamindari was renounced by the plaintiff's grandfather and that such renunciation is now binding on the plaintiff. As has been already pointed out, the supposed renunciation is contained in the document relating to the settlement of the suit, 1870. As far as can be ascertained, the point really raised in that suit was the alleged adoption of Sivanarayana asserted by him and denied by the original defendant Ramachandra. How it came to pass that the contest was maintained, is not explained. There is nothing to show what was the contention or 'claim in this suit,' which, Janardana by the razinama agreed to abandon. The result of the compromise was that Sivanarayana was admitted to be the adopted son of the late Ramachandra and as such entitled to the Zamindari while his natural father was allowed to remain in enjoyment of the two villages. The arrangement which had subsisted in Ramachandra's lifetime was maintained. It is said that Janardana's intention was to remove his coparcenary rights in the Zamindari. We do not think that any question beyond that of the present enjoyment of the Zamindari was present to the minds of the parties. To affirm that an abandonment of all further rights was intended is to say that partition was the subject which the pasties had in view, whereas it is clear that there was no thought of such a thing. There was clearly no intention on the part of Janardana to separate himself and his descendants completely from the Zamindari. It was further contended on behalf of the appellant that the Zamindari is an impartible one and that, as the plaint alleges that the estate is partible and the prayer of it is framed accordingly, no relief can be given in the present suit.
7. The District Judge gives an account of the origin of the Zamindari and there is really no dispute about it. It appears that as late as about the middle of last century the estate is figured as a Zamindari dependent on Vizianagram, that in 1796 there was no holder and that accordingly Lord Hobart granted fourteen villages apparently part of the original estate, to Sundaranarayana as an acknowledgment of the services of his father. This grant was by way of a lease for life but subsequently a permanent sannad was given. This sannad is in the ordinary form. There is no definite evidence as to the tenure on which the original Zamindari was held. But assuming that it was an impartible estate there is no indication whatever of any intention to impress that character on the estate granted in 1802. On the contrary there is the clearest indication of an intention to change the nature of the tenure, for the first grant to the family now in possession was by way of lease. Moreover the grant is made, for special reasons alleged, to an individual, unconnected with the family of the original Zamindar, and it is not made by way of restoration of an original estate. This being so, the main contention on the part of the appellant was that there was evidence of a custom peculiar to the family, regulating the enjoyment and descent of the estate. It is true that as often as there has been a devolution of the estate, the eldest son or in the absence of son, the brother of the last holder has assumed the position of Zamindar. Whether for reason of convenience or for other reasons, the estate has no doubt been treated by the family as if it were of an impartible character and as if all that the junior branch could claim was a right of suitable maintenance. This state of things has continued since the death of the first Zamindar in 1814 down to the date of the abortive suit for partition in 1885, a period of about seventy years. In our opinion, in the case of a family of comparatively modern origin, evidence of conduct extending over such a. short period is wholly inadequate to prove a special custom. It is impossible to predicate of the alleged usage that it is of an immemorial character, see Umrithnath Chowdhry v. Goureenath Chowdhry, 13 M. I. A 542; Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, 14 M. I. A 585
8. On the whole, therefore, we are of opinion that the appeal has failed and must be dismissed with costs.