Sankaran Nair, J.
1. The suit is to recover the amount due under a promissory note executed by the late Zemindar of Mannarkotai which, according to the appellant, plaintiff, is an impartible Zemindari.
2. The first defendant was the undivided brother and is the successor of the late Zemindar, and the second defendant is his widow. The lower Courts have found that the debt was not contracted for family purposes or the use of the Zemin and have dismissed the suit. In second appeal it is contended before us, that as the Zemindary is impartible, it is not joint family property, but that it was the property of the late Zemindar and liable, therefore, in the hands of that first defendant, his heir, for payment of his debt irrespective of the nature of such debt. In the lower Courts, this plea was disallowed on the ground that it was not properly raised in the pleadings.
3. I am of opinion that the lower Courts are wrong in not s deciding this question and that the plaintiff is entitled to a decision on this point. I accordingly proceed to decide whether the plaintiff is entitled to recover his debt out of the Zamindary, assuming in favour of the appellant, that Mannarkotai is an impartible Zamindary.
4. It is conceded that the late Zamindar was an undivided member of his family, that the Zamindary was not his self acquired property and that the first defendant rightly succeeded to it in the absence of any son of the deceased as the brother and an undivided member of his family in preference to his widow, who is the rightful heir and successor to any property of the deceased Zamindar, either self-acquired or held by him as a divided member of such family.
5. The argument that the Zamin is assets for the payment of the debts of the late Zamindar is based on the ground that, according to certain decisions of the Privy Council,, he had full power of alienation and the estate was his absolute property subject only to the claim for maintenance of the first defendant or any other member of his family.
6. For a long time the prevalent opinion was that there were no proprietors between the Government and the cultivating ryot. According to this view the Zamindars or Poligars were the descendants of Police or Revenue officers, under the former rulers, who were remunerated by them with the grant of lands or assignments of revenue, and it was assumed that their rights in the properties assigned continued unaltered under the British Government. Succession was not treated as governed exclusively by the laws of inheritance. The ruling power disposed of such questions as it deemed most expedient and the succession of the legal heir depended, if not absolutely upon the arbitrary will of the Government, at least upon his selection by the latter, and it was laid down that the hereditary interest in those estate was created for the first time by the Sannads granted under Regulation XXV of 1802. See the decisions reported in the 1st Volume of Select Decrees, pages 80, 141 and 172. That conclusion was arrived at upon the Regulation and 'by information obtained from other sources.'
7. The decisions in Subba Chetty v. Masti Immadi Rani (1867) 3 M.H.C.R. 303, and Arbuthnott v. Olugappa Chetty (1870) 5 M.H.C.R. 303, treated the poliems only as life estates and the judgment in Chauki Gounden v. Venkataramanier (1870) 5 M.H.C.R. 211 states that such was then the generally received theory. This was probably true under the Hindu and Mahomedan Governments in the case of those Zamindars or Poligars who were only Revenue or Police officers before custom rendered their estates hereditary.
8. Public policy under the Hindu and Mahomedan rulers required indivisibility. No part of the Zamindary could be alienated and each holder was bound to hand over to his successor the entire estate. Where the holder was supposed to have only a life estate, his alienation of course could not bind his successor. Where he held under a permanent Sannad it was decided under the terms of the Regulation that he had an estate for life with remainder to his heirs and successors in perpetuity. In neither case could the estate be treated as assets for the payments of debts. This was the state of the law till 1870. In that year, by their judgment in the Marungapuri case (1870) 6 M.H.C.R. 208 the High Court held that the regulation of 1802 only recognized and confirmed the proprietary rights which already existed and provided for the permanent assessment of lands liable to pay revenue to Government; and in strict consonance with this view of the hereditary nature of the estate, the same learned Judges held that the estate must be treated as family property with only a difference in the mode of its beneficial enjoyment due to the possession being vested in a single member Gouri Devamma Garu v. Raman Dora Garu (1870) 6 M.H.C.R. 93. Thus while the High Court practically discarded by the first case the theory of the life estate and estate tail and thereby removed all restrictions upon alienation due to the nature of the tenure, in lieu of such restrictions they introduced by the latter decision restrictions imposed by law upon the managing member of a Hindu family in dealing with the corpus of the estate.
9. Inalienability by the holder and non-liability to pay his debts after death thus continued, therefore, to be the rule in this Presidency till the decision in Beressford v. Rama subba I.L.R(1889) M. 197 which followed the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari I.L.R(1887) A. 272.
10. The case of Sartaj Kuari v. Deoraj Kuari I.L.R(1887) A. 272 and the Pittapur cases I.L.R(1889) M. 383 have been so often referred to and commented upon that I think it only necessary to state the conclusions to be drawn torn them. Those oases establish that the rules laid down by the Mitakshara must govern the question of alienability and similar questions unless such rules are displaced by custom; that impartiality is a custom; that the right to partition is such an inseparable incident of joint ownership acquired by birth in a family governed by Mitakshara Law that, where the right to a partition does not exist, there is no joint ownership and, as admittedly there is no right of partition where the estate has become impartible by custom, there is no joint ownership in any impartible estate; the right to interdict alienations arises from such joint ownership and as the latter is wanting in the case of impartible estates a junior member of the family to which the Zemindar belongs is not entitled to question the validity of the alienation, which must therefore be held binding on the succeeding holders of the Zemindary.
11. The right which a junior member of a family has in an impartible Zemindary held by the eldest member of the family is therefore only a right to maintenance out of that estate. Thus, though according to the Madras decision till 1889 the impartible estates were inalienable by the holder in his lifetime and not available for payment of his debt after his death, the law as then declared established that they are alienable, and it is now contended before us that as the present Zemindar must accordingly be treated as having had no community of interest with the deceased in his lifetime, as the latter had the power of alienation and therefore was the owner of the estate, it is liable in his hands to satisfy the debts of the deceased.
12. The decision as pointed out clearly establish in my opinion that the deceased and the first defendant were not coparceners or joint tenants. There was no unity of possession of enjoyment or interest. There is no benefit of survivorship then, as that term is understood in English law, and if unfettered freedom to alienate only subject in some cases to claims for maintenance is the test of ownership and any property which a person can alienate and of which a person is also proved to be the owner is assets for payment of his debts, then the Zemindar, defendant, must be held liable to pay the debts out of the estate.
13. The main argument on the other side is that this theory of ownership in the Zemindar is incompatible with the recognized rule of devolution of impartible estates.
14. Hindu law recognizes two courses of descent. The law as declared in Section I, Chap. II of the Mitakshara, declares generally the right of the widow to succeed to the property of a sonless Hindu. If has never disputed that the widow takes the whole estate of a man who dies without male issue and separated from the other members of the family. But in considering the question of devolution of the self-acquired property of a person not separated from the other members and remaining undivided with them at his death, the Privy Council have laid down the. following propositions:
Firstly: - 'That the law of succession follows the nature of the property and of the interest involved in it.' Therefore the family may remain undivided. But if the impartible Zemindary is the separate property of any member of the family, it will go to his widow if sonless and not to any coparcener. See Katama Nachiar v. The Raja of Sivagunga (1863) 9 M.I.A. 539 and Raja Sureneni Venkata Gopala Narasimha Row Bahadur v. Rajah Suraneni Lakshma Venkama Row (1869) 13 M.I.A. 140. The first defendant therefore would not be entitled to succeed to the Zamindary as being an undivided member of the family of the deceased, if it were the separate property of the Zemindar. The other proposition laid down by the Privy Council, is that 'It is on the principle of survivorship that the qualification of the widow's right established by the Mitakshara, whatever be its extent, must be taken to depend (1863) 9 M.I.A. 611'. Their Lordships say, 'according to the principles of Hindu law, there is co-parcenaryship between the different members of a united family and survivorship following upon it. There is community of interest and unity of possession between all the members of the family and upon the death of any one of them, the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession.' The widow's claim, therefore can only be postponed to claim by survivorship. This rule of succession as to impartible estates has been re-affirmed and acted upon by the Privy Council even after the case in Hartaj Kuari v. Deoraj Kuari I.L.R(1887) A. 272. See Jogendro Bhupati Hurrochandra Mahapatra v. Nityanand Man Sing I.L.R(1890) C. 151. It is contended, therefore, that when the first defendant succeeded in preference to the widow, he took the estate by survivorship and such estate is not liable in his hands to payment of the debt of the deceased. It is argued before us on the other side that, as there is no coparcenary or joint tenancy neither community of interest nor unity of possession in the case of an impartible Zemindary, there can be no survivorship, and therefore when it is stated that the brother takes as survivor, it only means that he takes as the member of a family of which the two persons were undivided members. But She decision of the Privy Council in the Sivaagnga case (1864) 9 M.I.A. 539 already cited precludes us from accepting this suggestion made on behalf of the appellant. It is the nature of the property that determines the succession. It is the community of interest in the property in dispute and the unity of possession so far as such property is concerned, that is the foundation of the right to take by survivorship. It is true that their Lordships have not explained now there can be any survivorship where there is neither coparcenary nor joint tenancy, but we cannot for that reason hold against the express decisions of the Privy Council, that the first defendant did not take by survivorship. Otherwise he cannot exclude the widow, the second defendant.
15. Mr. Mayne is probably right in saying that after the decision in Sartaj Kuari v. Deoraj Kuari (1864) 9 M.I.A. 539 and the Pittapur case I.L.R(1898) M. 383, the survivorship as a rule governing the law of succession to an impartible estate is only a survival from a theoretical coparcenary.
16. A peculiar mode of devolution of ownership may make it subject to exceptional incidents of property, and when the acquisition or recognition of ownership is due to a process of evolution to a series of decisions, extending over a comparatively long period of time, or to judicial legislation as called by some, such ownership may carry with it certain incidents appropriate to it in its earlier stages, but from which rights of ownership acquired in well known and recognized modes are free.
17. Illustrations may be found in Hindu as in English law.
18. A Hindu widow is at liberty to dispose of the income from her husband's estate. But if she has not disposed of such income, it becomes a part of the husband's estate, goes to his heirs and ceases to be available to satisfy her debts.
19. Before the Married Women's Property Act, the husband was entitled absolutely to his wife's leaseholds. He had power of alienation though not by will without her consent. But if he did not alienate them and she survived him she took the estate free from any obligation to discharge his debts. Again before Lord Romilly's Act 3 & 4, Will. 4C. 104, the simple contract creditors could not proceed against the real estate of the deceased except when he was a trader, and copyholds were not assets for payments of even specialty debt.
20. We are not, therefore, compelled to disregard the course of decisions in this Presidency and hold that the Zemindary must be treated as assets in the hands of the present holder for the payment of the debts the last Zemindar deceased because the latter had the power to alienate it.
21. The second appeal in my opinion must therefore be dismissed with costs.
22. The District Judge observes in his judgment that as the Mannarkotai estate was not shown to be impartible, the doctrine laid down in Sartaj Kuari v. Deoraj Kuari I.L.R(1887) A. 272 was not applicable. He has, however, not tried to question as to whether the estate was impartible or not or the date on which Exhibit A was executed.
23. I was accordingly, at the commencement of the hearing of this second appeal, of opinion that an issue as to whether the estate was impartible or not should be sent down to the District Judge for trial. As, however, I concur with my learned colleague, in holding that even if the estate should be shown to be impartible, the Zemin cannot be looked on as assets in the hands of the first defendant for the payment of the debts of the late Zemindar, it follows that it is not necessary to send this issue, and I accordingly agree in ordering this second appeal to be dismissed with costs.