Muthusami Aiyar, J.
1. The contest in this appeal is as to alienability of the Palayam of Ammayanayakanur in the District of Madura. The 1st defendant, Bommachi Nayak, now deceased, was the last Palayagar; the 2nd defendant is his widow, and the 3rd defendant is their minor sonaged three years. On the 30th November 1891, the 1st defendant transferred to his wife, the 2nd defendant, by an instrument of gift marked as Exhibit VIII the estate of Ammayanayakanur with all its appurtenances. The question which we have to determine is whether the Palayagar was competent so to alienate the Palayapat.
2. Admittedly,Ammayanayakanuris an ancient impartible estate and it appears from Exhibit D, that 'Visvanada Nayak, the founder of the Nayak dynasty of Madura, granted it. Since the grant, it has been in enjoyment of Appellants' family for a period of about 386 years. In Nelson's Manual on the District of Madura. 'it is mentioned as one of the 24 Palayams of the Dindigul group.
3. Though it is assessed with a peshcush no Sannad seems to have been granted, hence it is spoken of as one of the unsettled Polayams.'
4. It is also an undisputed fact that a peculiar custom called ' Dayadipattam' regulates the succession to this Palayam. On the demise of the Palaygar for the time being the estate devolves not on his heir according to the Mitakshara Law which in the absence of a special custom governs this part of Southern India, not on the eldest son according to the rule of primogeniture, which obtains in the other Palayams in the District owned by persons of the Kamblar caste but on the Dayadi or cousin of the deceased Palayagar who is senior in age and who is descended from one of the three brothers who originally formed a joint Hindu family. These three brothers were named, 1. Patala Nayak 2. Chakala Nayak and 3. Chinnalu Nayak and of the three branches springing from them the 2nd is now extinct. Thus, the class of kindred in which the heir has to be found is that of the descendant of the two branches and the person to be selected as Palayagar from that class is the one who is the oldest or senior in years.
5. There are a few special facts relating to this estate which it is desirable to remember in connection with this appeal.
I. The first is a statement made by the Palayagar of 1882, that in his family the estate originally descended from father to son, but that owing to the curse of some person, that mode of succession was found not to prosper and that the present peculiar custom was established to regulate devolution of property. Exhibit D contains that statement, but it gives no information as to when this change was made. 'Whether this family tradition is true, whether the custom is the mere expression of the notion that in a co-parcenary family the senior co-parcener in age ought in times of turbulence to take the impartible estate cannot now be ascertained. However this may be, the fact remains that the custom of Dayadipattam has furnished the recognized rule of succession in the family from time immemorial.
II. Another fact is that the Palayagar for the time being is known as the 'Periya' or senior Nayak, the next in the line of succession is called the 'Siru' or junior Nayak and the one who is next to the heir apparent is designated 'Talakarta Nayak' or commander of the forces. Exhibit JJ. which is copy of a judgment of the Zillah Court, dated 1819 shows that the Siru Nayak had then some land attached to his rank or status and that he was entitled to hold it so long as he had that status.
III. The third fact is that there are now 18 members in the family and that the 1st plaintiff who is 57 years old is the senior in age. Apart from the Palayapat which is considered to be common to all Dayadis for purposes of succession, each has separate property which is partible among his sons and descends in accordance with the Mitakshara Law as applied to ordinary Hindu property.
IV. The next special fact is that since. 1830, there have been ten Palnyagars including the 1st defendant and there have been nine cases of succession as shown in the pedigree BB. It appears that in five cases the deceased Palayagar left sons and in three left widows but in all the senior Dayadi took the estate to their exclusion. It appears further that when the son who is superseded becomes in his turn a senior coparcener, he succeeds in that capacity. The Pedigree BB., shows how each of the 10 Palayagars was related to the others and to the first Defendant and to which of the two branches he belonged.
6. The substantial question in this appeal is whether the estate of Ammayanayakanur is alienable as alleged by the 2nd defendant. The Subordinate Judge who tried the suit has upheld her contention and rested his decision on the ground that the decision of the Privy Council in Sartaji Kuari v. Deoraj Kuari I. L. R. (1887) A. 272 governed this case, no family custom being in his opinion proved in support of inalienability. It was part of the appellants' case that each Palayagar succeed simply to the management of the estate,, that he had no proprietary interest therein and that he was in the position of an office-bearer with the net income of the Zemindari attached to that office as emolument during his incumbency. The Subordinate Judge has declined to adopt this theory of the Zemindar's status and held that Ammayanayakanur is a proprietary impartible estate devolving in accordance with the special custom of Dayadipattam. In the result he dismissed the suit with costs; hence this appeal.
7. The first question argued before us is as to the Palayagar having no proprietary interest in the Palayapat and as to his succeeding merely to the office of manager for the time being. Appellants' pleader is unable to refer us to any positive evidence in proof of his contention save Exhibit A, which lends no support to it. That Exhibit is a report made in 1882 to the Collector by an Amin who was deputed to attach the bouse of the then Palayagar for arrears of kist. It states that the heir-apparent executed a Kararnama promising to pay the arrears in certain instalments,. that he prayed that orders might be issued for him to ' manage the affairs' as he was entitled to the 'Zemindar's Kariyam' after the then Palayagar and that his prayer was in accordance with custom. I fail to see how this document negatives any proprietary intertest in the Palayapat. It does not contemplate a case of inheritance, but at the best it implies that the then Palayagar might be superseded in management according to the custom of the family as such a management was found inefficient. The words 'next entitled to the Zemindar's affair or Kariyam' signify nothing more than next entitled to exercise the functions of the Zemindar or to his position. An attempt is next made to compare the position of the Palayagar with that of the managing co-parcener of a joint Hindu family, but in doing so, the learned pleader for appellants overlooks the fact that the managing co-parcener has no separate property in the income of the family estate, whereas the Palayagar takes the income of the Palayapat as beneficial owner for the time being. Again the correspondence which took place on the demise of each Palayagar from the commencement of this century treats the case as one of inheritance to an ancestral estate by virtue of a peculiar family custom. It is not explained whether according to the theory that the Palayagar for the time being is a mere office-bearer, the estate vests in any one and whether if it vests in the coparcenary family constituted by all the Dayadis, why it does not vest in the senior co-parcener for the time being as the sole representative capable according to the family custom of enjoying it as an impartible estate. If this contention were to prevail, it would equally apply to every Zamindari in this presidency belonging to a joint Hindu family in which the Zamindar's power of alienation is restricted, by the custom of the family. I agree with the Subordinate Judge in thinking that the contention is one which cannot be upheld.
8. The second question argued in this appeal is as to the law applicable to the case. The Subordinate Judge has held that inalienability cannot be inferred from impartiality and it must, be proved by family custom. In support of his opinion he relies on the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari I. L. R. (1887) A. 272 Appellant's pleader contends that the law to be applied to this case is that contained in Narganti Achamma Garu v. Venkatachalapati Nayanivaru I. L. R. (1880) M. 250 and that the decision of the Privy Council is not applicable because the question of inalienability was there considered as between a Hindu father and his son, whereas the controversy in this case is between cousins or co-parceners. There is no doubt that this distinction exists, but when regard is had to the principle on which the Judicial Committee decided the Allahabad case and to the opinion of the High Court at Allahabad which their Lordships overruled, I am unable to accede to this contention. The law as administered both at Allahabad and in Madras prior to that decision was that when an impartible estate belongs to a joint Hindu family consisting of father and son the latter acquired a co-parcenary right therein by birth and that though in consequence of the estate being impartible and capable of enjoyment but by one member of the family at a time, there was no joint enjoyment yet, the co-parcenary right was not extinct but lay dormant and generated a right of survivorship in the son on the death of the father and that the co-ownership which is of the essence of a co-parcenary right existed in the case of impartible estates belonging to a joint Hindu family in the form of a right of survivorship. The grounds on which the Lords of the Judicial Committee rest their decision are that in order to prevent alienation by the father, there must be co-ownership in the son, that the property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is in their opinion so connected with the right to a partition that it does not exist where there is no right to partition and that: though an impartible estate may for some purposes be joint family'1::., property, the co-parcenary in it which under the Mitakshara Law is created by birth does not exist. Thus the ratio decidendi of the Privy Council decision is that there is no co-parcenary right so as to generate co-ownership in the form of a right of survivorship and in the absence of co-ownership there can be no restraint on alienation. It is then said that though such may be the law as between father and son, it is not so as between brother and brothers. The view does not seem to me to be tenable. When the impartible estate is paternal, the co-parcenary in contemplation is referable as regards its origin to the date of the son's birth; when the impartible estate belongs to the paternal grandfather the co-parcenary is referable to the date of the father's birth and when the estate belongs to a remoter ancestor, the co-parcenary is preferable to the date of the birch of a son to that ancestor. Whether the co-parcenary is refe-. rable to the first generation or to the second or third, it is alike no cause of co-ownership on which the power to restrain alienation depends for its existence. The effect of the Privy Council decision is that inalienability is like impartibility or a peculiar mode of succession a special independent incident which lies outside the ordinary Hindu Law and can only attach to an impartible estate by family custom and cannot be deduced from a theory of dormant co-ownership. If the contention of the appellants' pleader were to prevail, the following anomaly would be the result. Take for instance an impartible estate belonging to a co-parcenary family and descending in accordance with the rule of primogeniture and the co-parcenary family to consist of a father, his sons and brothers. If a suit were brought against an alienee by the son we should have to hold that there is no restraint on alienation, but if the same suit were brought by the brother we should then hold there is no unrestricted power of alienation though in both cases the impartible estate and the person alienating it are one and the same.
9. The question argued in this appeal has reference to the evidence adduced in proof of family custom. Three objections are urged on appellant's behalf against the decision of the Subordinate Judge viz: (1) Due effect has not been given to absence of alienation for several centuries. (2) No due effect is given to severa documents which prove a consciousness in the family that b custom its alienation is forbidden except for necessity or for pur poses binding on all the dayadis. (3) In determining the weigh-to oral evidence due regard is not had to the probabilities of 1 case and to the admissions of the first defendant. As regards the first ground, there is no doubt that throughout the history of the Palayapat, there had been no instance of sale or gift of any nor tion of the Zemindari prior to the gift in dispute. The Subor dinate Judge has apparently attached no value to it as it is only negative evidence. But it is a settled rule of law that though mere absence of alienation is of itself no proof of inalienability yet such absence when it is coupled with special facts that would render alienation probable is relevant evidence though its proba five value may depend on the special circumstances of each case'
10. Eight of the nine Zemindars who held the estate prior to the first defendant either left sons or widows for whom they would ordinarily desire to make some provision and the peculiar' custom which is shown to prevail in regard to succession must have imparted to that desire more than its ordinary strength as an inducement to alienation. Notwithstanding this, there has been no sale or gift for more than three centuries and I am of opinion that this fact is relevant evidence and ought to be considered together with such other evidence of inalienability as there is on record.
11. The second objection taken on appeal is as to the weight attached by the Subordinate Judge to the documentary evident in this case and it appears to me to be entitled to weiaht In paragraph 14, of his judgment, the Subordinate Judge refers to four important Exhibits viz. R, T, U and Z and refuses to give effect to them on the ground that the admissions they contain ' viz, that the Palayapat was common property for purposes of alienation were made under an erroneous impression as to the law applicable to alienability and could not therefore operate as an estoppel. There is nothing in the documents themselves to show that the admissions were made with reference to the law as laid down in any particular case.
12. The Subordinate Judge considers that all the decisions of the Indian Courts prior to the recent decision of the Privy Council were erroneous, that all that was said or done in a family concerning an impartible estate was said or done under the influence of those decisions and that as evidence of consciousness in the family that the estate is inalienable, they have no probative value. The flaw in this reasoning is this that, if evidence of consciousness in the family that an estate is impartible or inalienable is thus to be explained away, there can be no proof of any custom either as regards impartibility or inalienability. But their Lordships of the Privy Council observe that the estate may be shown to be inalienable by custom. All that they say in Sartaj Kuari v. Deoraj Kuari I. L. R. (1887) A. 272 is that inalienability is not to be inferred as an incident of co-parcenary right on the ground that an impartible estate belongs to a joint family for purposes of succession. They do not say that the practice or custom of the family as evidenced by its acts or declarations is to be assumed to be due to error of law and to be rejected. The Subordinate Judge should have considered each Exhibit and tried to see how far it discloses a consciousness in the family that the estate is inalienable by custom. Several documents are relied upon on appellants' behalf as showing that the estate is inalienable and I proceed to consider them. The 1st document to which our attention is drawn is Exhibit J.J. which is a copy of the judgment of the Zillah Court of Madura dated 1817. It shows that some land was attached to the status of the Siru Nayak who enjoyed it only so long as he retained that status. Hence it is argued that the land being-attached to the status of Siru Nayak, it could not be alienated, and its inalienability renders it probable that the Palayapat is likewise inalienable. It is not unfrequently the case that a principal estate is alienable whilst subsidiary estates carved out of it for special purposes such as maintenance are inlienable. I am therefore not prepared to accede to the appellants' contention. The 2nd document on which appellant relies is Exhibit P which is a copy of an explanation furnished in 1868 by the then Zemindar Kamala Nayak with reference to a complaint addressed to Government against his management of the Zemindari by the heir apparent. Kamala Nayak is the 7th Zemindar named in the pedigree B. B. and he succeeded to the estate in 1827 and died in 1871 after administering it for a period of 44 years. It is clear from Exhibit N, that his management began hardly with any debts at all and ended with a debt amounting to a lac and half of rupees, though his rent roll gradually rose from 15,000 rupees to 50,000. It appears that Kamala Nayak's growing indebtedness alarmed the heir apparent Muthuchinnama Nayak who complained to the Government of maladministration on the part of the Zemindar and prayed for the appointment of a commisssion and that the]Zemindar entered into an elaborate explanation in vindication of his management. As argued by appellants' pleader this document discloses a belief in the Zemindar of 1868 and his heir-apparent that the former was not at liberty to contract unnecessary debts so as to imperil the succession.
13. The next document is Exhibit IV which is a copy pf the judgment of the District Court in Original Suit No. 4 of 1876. It shows that in March 1870, Kamala Nayak agreed to grant a lease of the Zemindari in view to clear his debts to two persons named Venkatasami Nayak and Adimulam Pillai and that the Dayadis attested that agreement in token of their consent. This suggests the inference that there was no necessity for their consent if the Zemindar could alone alienate his estate at his pleasure. It appears further that in adjudicating on the validity of the agreement the Judge considered the circumstances under which Kamala Nayak contracted the debts which it was desired to liquidate by the lease and came to the conclusion that they were not binding on the Palayapat. This again indicates a belief in 1870 that the Palayagar could only bind his estate by debts contracted for purposes binding on his Dayadis.
14. The fourth document upon which appellants' pleader lays stress is Exhibit R, dated 24th March 1870 and all the adult dayadis were parties to it Save the heir apparent Muthu Chinnama Nayak whose relations with the Palayagar were not cordial and who declined then to recognize Kamala Nayak's debts as family debts. This document evidences a family arrangement made in view to discharge the existing debts and to ensure efficient future administration of the estate. The provisions which it contains distinctly negative the theory that the Zemindari is alienable at the pleasure of the Zemindar for the time being and treat it as common property for all purposes. It is however open to the observation that it is tainted with an attempt to make it appear that Muthu Chinnamma Nayak the real heir apparent who was , reluctant to acknowledge Kamal Nayak's debt as binding on the Dayadis and to subscribe to the lease for 30 years was not the heir apparent and that the one next to him in the line of dayadis was his senior. Though there-is this taint in the document yet it does not appear to touch its probative value as a family arrangement evidencing inalienability of the estate.
15. Another document to which we are referred is Exhibit Z which is a copy of a claim petition dated 1868. Eight villages forming part of the Zemindari were then attached in execution of the decree passed against the Zemindar, Kamala Nayak, in Appeal Suit 1 of 1867 and were advertised foe sale. By the claim petition the 1st defendant and the 1st plaintiff asserted that the Zemindari was their joint property and that of the other dayadis, though impartible and was not therefore liable to be sold for the personal debts of the Palayagar.
16. The next document relied on is Exhibit T, which is a bond executed in May 1883 by the 1st defendant who was the Zemindar by the 1st plaintiff and four other Dayadis for Rupees 43,000 and odd. The documeut was executed in order to avert the attachment of the Zemindari and the appointment of a Receiver in execution of the decree in O.S. No. 4 of 1876. It provides for repayment of the debt by certain instalments and for the creditor proceeding on default against the 16 villages of the Zemindari for the benefit of which the debt is said to have been contracted. This shows that the Zemindary was treated as common property for the purpose of the Palayagar contracting debts and that the family arrange-ment contained in Exhibit R was acted upon.
17. There other documents are referred to as containing admissions by the 1st defendant that the Zemindari is inalienable. Exhibit N is copy of a deposition made by the 1st defendant in Calendar Case 309 of 1890. Exhibit W is copy of another deposition made in Calendar Case 178 of 1887, and Exhibit G is copy of another deposition made in Sessions Case 107 of 1879. He stated in N that the Zemin property was common : that he was under the belief that succeeding claimants had equal lights in the estate, that they had to join in executing the bond, Exhibit T, that among the Dayadis then living the 1st plaintiff had the preferential right to the Pattam and that the 1st defendant has been paying money to the 1st plaintiff as per the family arrangement R and that the kists had been remitted to the heirs. These admissions by the 1st defendant warrant the contention that the Zemindari was not self-acquired property at the disposal of the Zemindar.
18. Our attention is next drawn to two other documents Exhibits C.C. and VIII, and on comparing them and Exhibit D.D. in the light of the oral evidence it appears that the provision which the Zemindar first intended to make for his wife and children on the 4th Jane 1890 was to settle upon them his self-acquired properties and toleave the Zemindari to devolve on the Dayadis according to custom, that in November 1891 he changed his intention and cancelled C.C. on pretext of fraud on the part of the person who drew it up and made a gift of the Zemindari in supersession of the prior deed of settlement in favor of his wife at the expense of his heir and that this change was probably due to the advice he obtained from Vakils and agents as to the effect of the decision of the Privy Council.
19. The foregoing is the material portion of the documentary evidence on both sides. It is clear that throughout the history of the Palayam, there was no instance in which any Palayagar alienated any portion of the Zemin by sale or gift to the prejudice of the Dayadis entitled to succeed to it, that from 1868 there is clear evidence of consciousness in the family that the property is not alienable at the pleasure of the Palayagar. The contention that the practice of the family is the result of the mistaken view of the Hindu law which prevailed in India, before it was corrected by the Privy Council is one to which I cannot accede. There is no evidence that it was the result of any such mistake and not of family custom founded on the character of the estate as an ancient Palayapat. 'Why should not a similar mistake be set up in regard to impartibility? The argument, if it were to prevail, would unsettle rights of property founded upon the usage of centuries. At all events, there is no presumption of that when the evidence discloses a long standing practice. It is founded upon a mistake and in the absence of clear evidence to that effect, the conclusion ought to be that it is the custom of the family having a legal origin. As I read the decision of the Privy Council I am unable to conclude that this proved custom of the family is intended to be precluded by their. Lordships as evidence of inalienability.
20. Turning to the oral evidence, ten witnesses give evidence for the plaintiffs on this point.
21. The 2nd witness is one Muttusami Jotala Nayak and he is the Zemindar of Jotalanayakanur and the son-in-law of the 1st defendant. His evidence is that ' it is not usual to alienate the Zemin by gift or otherwise; there has been no such instance of gift.' He states that the same is the case with the Kambala Palayapats in the District of Madura and with his own Palayapat. The witness is aged 63 years and there is no reason to think that he is either not acquaited with the usage or that his evidence is not bona fide.
22. The third witness is Balamukunda Adivalusami Nayak. He owned a village named Sukkampatti which was annexed by the Government and he is now in receipt of a money allowance. He is related to 1st defendant and plaintiffs by marriage and he is 42 years old. He deposes that ' in the Ammayanayakanur Zemin-dari the Zemindar cannot alienate the Zemin even when the eldest son should succeed to it.' He adds, in cross-examination, that no Zemindar can alienate because the Zemin is the common property of the family and that the 1st defendant and his predecessor told him that the Zemindari of Ammayanayakanur was common to the family.
23. The 4th witness is one Arumugasami Nayak aged 45 years. He is related to 1st defendant. His evidence is that it is not the custom in the Kambala Zemindaries in Madura to alienate their Zemins and that the Zamindar of Ammayanayakanur cannot, alienate his Zemin.
24. The 5th witness Tirumala Muthu Veera Tiruvengadasami Nayakkar, the Zemidar of Malur one of the Kambala Palayapats was 1st defendant's agent for some time and is related to 1st plaintiff. He deposes that the Zemindari is inalienable by custom and that the 1st defendant told him of it.
25. The 7th witness Thataya Nayak is a village munsif in the. Zemindari. He deposes that no Kambala Zemindar can alienate the Zemindari by gift, whilst there are Dayadis and that he knows the custom of Ammayanayakanur and of three other Palayapats.
26. The 8th witness is a ryot attached to the Zemindari of Ammayanayakanur and he knows the practice prevailing in it from the time of Kamala Nayak's predecessor. His evidence is that the Zemindari is the common property of the Dayadis, that it is custom not to alienate the Zemin whilst there are Dayadis and that nobody has done so.
27. The 11th witness is a ryot aged 85 years and he was for some time the vakil or agent of the Zemindar Kamala Nayak and he deposes that no Zemindar has alienated the Zemin by giftor otherwise and that Kamala Nayak told him that the Zemindari was common to all the Dayadis.
28. The 12th witness is related to the parties and he also, states that Ammayanayakanur is common to all the Dayadis and that no Zemindar has alienated any portion of it.
29. The 13th witness also states that the Zemindari cannot be alienated.
30. The foregoing is the oral evidence adduced for the plaintiff. There is also oral evidence for the defence, witnesses 3, 8, 9, 10, 11, 12, 13, and 15. They all depose that the Zemindar can alienate the Zemindari at his pleasure, that the Dayadis have no right to it, that, as he is the Istimirar Zemindar he is the sole owner, that he pays no portion of his income to Dayadis, that he does not remit kists due on their separate property, that they should also obtain licenses to cut wood in the Palayagar's forests that the Palayagar has granted cowles of waste land and that if there has been no gift or sale hitherto, there has been no occasion for it.
31. Thus, the oral evidence is conflicting. But on comparing it. I find that there are some Palayagars among plaintiff's witnesses and that the witnesses for the defence depose to several matter's which are inconsistent with the documentary evidence which has been set out and with undisputed facts of the case. On the other hand the oral evidence for the plaintiff's receives an accession of strength from its agreement with the documentary evidence.
32. For these reasons, I am of opinion that the custom of inalienability is proved and that the decree of the Sub-Judge should be reversed and the claim decreed with costs.
33. The Subordinate Judge has dismissed the plaintiffs' suit on the ground that it was competent to the late Zemindar Bommachi to make and that he did make, a gift of the Zemindari in favor of his wife. At the time when the suit was filed, the plaintiff, a cousin of the late Zemindar, was, in virtue of the custom admittedly prevailing in the family, entitled to succeed on his death, and now that Bommachi has died since the decree, he is the person entitled to actual possession if the gift in question is invalid.
34. Thesole contention on thehearing of this appeal before us was that the Judge's ruling as to the powers of disposition possessed by the late Zemindar was wrong, for the reason that the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari I. L. R. (1887) A. 272 was inapplicable in the circumstances of the case. In that case, as in the present, the donor whose alienation was challenged was the holder of an impartible estate and belonged to a family governed by the Mitakshara Law. The alienation was challenged by the son who by the custom of primogeniture was entitled to succeed on the donor's death. The decision in that case appears to me to amount to this. The proprietary or co-parcenary right ordinarily possessed by the son under the Mitakshara Law does not exist except in conjunction with the right to partition; the existence of the proprietary right is the cause of the restriction on the father's powers of alienation; therefore in the absence of a right to partition there is no restriction on the father's powers of alienation. While it is allowed that an impartible estate held by one member of the family may, in a sense, be said to be the common property of the family and that for purposes of succession the estate may so be treated, the proposition that the withdrawal of the right of partition is consistent with the maintenance of a restraint upon alienation is denied. The Judicial Committee, as I read the judgment, disapprove of the doctrine stated in the passage from the Judgment of the High Court quoted on page 287 (Compare statement in I. L. R. Mad. 266 In conclusion their Lordships observe that 'if the eldest son where the Mitakshara Law prevails and there is the custom of primogeniture does not become a co-sharer with his father in the estate, the inalienability of the estate depends upon custom which must be proved or, it may be in some cases, upon the nature of the tenure,'
35. The contention of the Appellants' Vakil with regard to this J decision was rested on certain features, in the present case which it is argued take it altogether out of the range of the authority and -secondly was directed to the evidence relied on in proof of the custom of inalienability alleged to prevail in the family to which the parties belong. It was said and this is a point strongly insisted upon, it would seem, in the Court below, that the Zamin-dar for the time being was nothing more than a Manager not possessed of any proprietary interest in the Zemindari. I fully agree with the Subordinate Judge in his conclusion on this point. There is really no evidence in support of it except a doubtful phrase used by an Amin in a report of some statement said to have been made by the claimant to the succession in 1816 (A). Then it is said that the decision of the Judicial. Committee must be taken as confined to the case of father and son and that it does not follow from it that a brother entitled according to custom to succeed in virtue of seniority, is devoid of a right to control alienations made by the Zamindar for the time being. It appears to me, however, that while allowing the importance of the peculiar mode of succession in this case, we cannot put such a narrow construction on the judgment of the Judicial Committee. The reasoning of the judgment indicates no intention to distinguish between the rights of a brother and those of a son. Otherwise the case of Periascami v. Periasami could hardly have been cited as it is in the judgment, (see p. 285). It would certainly seem to be an anomaly to hold that the owner of an impartible Zamindari having one son and a brother might make a free grant of his estate according to his pleasure, and so defeat the son's right of succession but that on a son's death the power of disposition became subject to the control of his brother. No doubt the son is under certain circumstances in a less favourable position than the brother, but this is due to the operation of a peculiar rule of Hindu Law under which the father is empowered to alienate property in order to satisfy debts which his son is equally bound to discharge. In the case supposed, that rule clearly would not apply, and the brother's possession of a right to restrain alienations, uncontrollable by the son would be unaccountable.
36. It remains to deal with the question whether a custom of impartiality is proved by the evidence. The evidence clearly shows that for many years the Zemindari which is an ancient one has descended not to the eldest son of the last holder, but to the eldest member of the family. What is called ' Dayadipattam ' has prevailed (see especially Exhibit D). A pedigree was put in evidence, the accuracy of which is not disputed. According to it the defendant Bommachi who succeeded in 1875 was the eighth Zemindar in succession to the Faisal Zemindar who died in ]814. It is obvious that with this peculiar descent the reigning Zamin-dar is under great temptation to provide for his wife or children, by gifts out of the Zemindari property. The Faisal Zemindar himself left no son, only a widow and a daughter, but his successor left sons as also did the third in succession, and the sixth and the eighth. The fourth and fifth left widows. There is no evidence of any alienation by any of these Zemindars either in favour of sons, wives or daughters (See the evidence in Exhibit XX of 3rd witness for defendants p. 197). The, Zemindari remains now as it was originally constituted. Not only is it shown that no alienations (except for temporary purposes) have been made, but there is also proof of circumstances rendering it likely that alienations would, in the absence of a restricting custom, have been made. The Appellants' Vakil relies on his evidence as satisfying the test laid down by the Judicial Com-,: mittee. In 1873, and for some years previously Kamala Naick, who had held the Zamindari since 1827, was in pecuniary diffi-,. culties. Loans had been raised, the Zamindari had been leased out and a sale had threatened. In February 1870 the defendant Bommachi intervened to protest against an impending sale. His petition describes the Zamindari as belonging to the Dayadis, in common [Z]. On the 24th March 1870 an agreement was entered into between Kamala Naick, Bommachi, the defendant and six other members of the family. Ponnu Chinnama who in fact succeeded Kamala was not a party to the agreement. His right to succeed had been denied (See Exhibit P) but was established in the suit brought against him by the defendant Bommachi. The Subordinate Judge remarks that the agreement of 1870 does not recite any custom and was an arrangement 'brought about for the first time and for a particular purpose.' The expressions about the Zamindari in this and subsequent documents the Judge refers to the idea commonly prevalent at the time that the Zamindar for the time being had only a life interest. The evidence of the witnesses called to prove the custom of alienability he treats in the same way. 7f, however, the conduct of the members of the family shows that they were under the belief that the Zemindar for the time being was not competent to alienate the family property, that is clearly evidence in support of the alleged custom. Evidence showing that they guided themselves by a certain rule is evidence of their consciousness that this rule was obligatory. In this view the agreement of 1870 is of the greatest importance. Six days previously, Kamala had, with the concurrence of his kinsmen who attested the document, executed a lease in favour of Adimulam Pillai and another. The agreement recites this fact and proceeds to make provision to guard the Zemindar against danger in the future. It declares that none of the executants are for the next, thirty years, the period of the lease, to pledge the Zamihdari property, that bonds and other documents executed by any Zemindar are to be attested by the adult members entitled to succeed and it provides that the Dayadis shall according to the original custom and mode of enjoyment of the Zemindar obtain the title of Zemindar and exercise all powers one after the other according to seniority of age. The Zemindariis described as common property. It is natural that Adimulam should for his own security have required the attestation of his lease by Kamala's immediate successors. But the execution of this agreement was not required to protect Adimulam (See evidence of 20th witness for defendant) It is not alleged that there was any fraud practised either upon Kamala or Bommachi in the execution of this agreement.(See AA. deposition of Bommachi). The object of it was clearly to protect, the Zemindari by restricting the powers of the reigning Zemindar. The acquiescence of Kamala Naick and of his probable successors in such an arrangement is inconsistent with the belief on their, part that the Zemindar for the time being might dispose of the Zemindari as he pleased. Unless it was believed that the Zemindar was not possessed of absolute powers of alienation, it is not intelligible why care should have been taken to say that the admitted debts were binding on the Zemindari or why Kamala and Bommachi as his intended successors should have consented to have their hands tied. The object of this evidence is not impaired by the subsequent proceedings. As already stated Bommachi Naick succeeded Kamala on his death in 1871 and died in 1875. In 1876 the lessees brought a suit against Bommachi and the other members of the family. As far as the lease was concerned the lessees failed, but they obtained a decree for a larger sum found to' be due to the plaintiffs. The judgment in that suit assumes that the Zemindar Kamala was not competent to make a valid alienation of the estate save for debts binding on the estate according to ordinary Hindu Law. It was Bommaehi's case that Kamala could not lawfully deal with anything but his life interest in the property. For payment of this sum provision was afterwards made by the execution of an instrument dated May 1883 in favor of Arunachella who had taken an assignment of the decree. In this instrument the Zemindari is described as 'belonging to us' and the transaction is said to be entered into 'for the welfare of ourselves and of our Zemindari.' The instrument is executed by. Bommachi and five members of the family. In addition to this evidence of the conduct of the family, there is the evidence of several witnesses insluding the plaintiffs themselves and other neighbouring Zemindars who speak to the custom said to obtain among the the Kambala Zemindars. This evidence cannot be disregarded. The Judge does not say he disbelieves the witnesses, but he appears to think the task of proving the custom a hopeless one. He seems to have been greatly influenced by a passage in Mayne's Hindu Law,15. Against this evidence in support of the alleged custom really no evidence is adduced by the defendant. The defendant Bommachi was not called, although a deposition made by him on previous occasions which required explanation was put in. There is no explanation of his conduct with regard to the agreement in 1870 or of his action in 1890 and 1891 in first making a gift in favour of his wife and daughter dealing with the self acquired property only, then revoking it eight months later, and finally in November 1891 making a gift of the Zemindari in favour of his wife (VIII). It would appear from the issues framed' and the judgment of the Subordinate Judge, that, although the custom of inalienability was set up and insisted upon, more prominence was given to the contention that the Zemindar for the time being was a mere manager and perhaps to other contentions which have now been abandoned. This circumstance coupled with the erroneous idea entertained by the Judge as to the possibility of proving the alleged custom may account for the cursory notice, which the Judgment gives of the evidence bearing on the ques-, tion of custom. In my opinion there is a body of evidence pointing to the conclusion that the Zemindari has for a long course of years been treated as inalienable at the mere will of the reigning. Zemindar. There is the peculiar mode of succession, and the fact that although occasions were frequent on which alienation might have been expected, no absolute alienation of any part of the estate is proved to have been made before 1890. There are admissions of the defendant Bornmachi wholly unexplained. There is his conduct and the conduct of the other members of the family with reference to the agreement of 1870 and to the suit of 1876 brought by. Adimulam Pillai. Again, there is his conduct immediately preceding the gift now impugned. Added to all this there is a mass of evidence given by witnesses who are in a position to know the facts, and who, with the exception of those belonging to the family are not said to be interested or untrustworthy. I think that the custom has been sufficiently proved and that the appeal ought therefore to be allowed.