1. This civil miscellaneous second appeal arises in execution of a decree obtained by the appellant before me against the three defendants in O. S. No. 173 of 1911 on the file of the Court of the Principal District Munsif of Madura. In execution of this decree the plaintiff has attached and seeks to bring to sale the 2nd defendant's share in the village of Vellikurichi. The 2nd defendant is a member of the family of the Nayaks, the last native rulers of the Madura District. After the attached property was advertised for sale, the Government filed a claim petition under Order 21, Rule 58 of the Civil P. C. claiming that they are entitled to the reversion in the attached property which is an unenfranchised inam and that it ought not to be sold. The 2nd defendant also filed a petition in para. 3 of which he states that the village of Vellikurchi
has been held to be inalienable and impartible Kumara Thirumalai Naik v. Bangaru Tirumalai Sauri Naik  21 Mad. 310 and the same cannot possibly be attached and sold. The process of sale is clearly illegal and opposed to the incidents of the grant.
2. The District Munsif held that the village is saleable and disallowed the claim of the Government as well as the objections of the 2nd defendant. The Government did not and could not appeal. The 2nd defendant appealed to the Subordinate Judge of Ramnad at Madura who reversed the order of the District Munsif and held that the 2nd defendant' s share in the village is not liable to attachment and that the decree-holder can attach only the annual produce from the appellant's share. The plaintiff files this civil miscellaneous second appeal.
3. One point argued in limine by Mr. A. Srinivasa Iyengar is that the 2nd defendant is not competent to file the appeal in the lower appellate Court. But I overruled his objection, as the appeal lies under Section 47 of the Civil P. C. and the defendant's counter-petition was not filed as counter to the claim petition of the Secretary of State, but to the execution petition of the plaintiff. The 2nd defendant appeals and the present second appeal clearly lies.
4. The next point which is argued on the merits is whether the 2nd defendant's share in the village of Vellikurichi is liable to be attached and sold. Mr. C. S. Venkatachariar, appearing for the first respondent, stated his case to be that there is a custom of inalienability attaching to this village, and the evidence he relies upon in favour of such custom consists merely of two decisions of the Sudder Court and the High Court reported in Viswanadha Naik v. Bangaru Tirumala Naik  MSAd.D. 87 and Kumara Thirumalai Naik v. Wangaru Tirumalai Sauri Naik  21 Mad. 310 respectively. The narrative of facts given in the first case shows that the two villages of Vellikurichi and Thacumpatti were originally granted by the Rajahs of Sivaganga to Rajah Bangaru Thirumalnayak, the ancestor of the parties, and the plaintiffs sought a division. A copy of the extract from the Inam Fair Register is now filed as Ex. A, and it shows that the grant was made in 1764. The Sudder Court put some questions to the pundits. One of the answers of the pundits runs thus:
If the village referred to had been conferred on the original ancestor, for the maintenance of the rank and dignity of his family, then the said property, though common to all the members of the family, whose rank and dignity require to be maintained, would be exempt from partition; as, otherwise, it would be parcelled out into small portions, and each member in possession of a portion might attempt to dispose of it by sale, etc., an event which would gradually lead to the ruin of the village, and to the loss of that family rank and dignity which require to be supported by it.
But if the descendants of the original ancestor referred to, be at variance with each other, and wish to live separately, they may divide the annual produce of the village, and enjoy their shares respectively.
5. The Sudder Court accepting this answer held that the property was not divisible and refused partition. In execution of that decree there was a razinama. The latter case arose in the year 1896. That was not a suit for partition, but only a suit to remove the manageress of the village who was managing the property in pursuance of the razinama. The only question that arose in appeal there was whether the manageress, the 24th defendant, and her agent, the 25th defendant, were mismanaging the properties. It is true that the defence also raised the questions whether the suit lay upon the razinama and whether it was maintainable without a certificate from the Collector under the Pensions Act, and these objections were repeated in appeal. In disposing of these objections the learned Judges say incidentally that the razinama was binding' on the parties and also observe at page 321 (21 Mad.):
Where there is a clear intention that only the profits of the land are to be taken and not the corpus, the general rule would not apply.
6. Besides these two decisions there is no other evidence.
7. In the first place I observe that though the property is declared indivisible by the judgment of the Sudder Court, and is also described as impartible in the judgment of the High Court, the words 'impartible' and 'indivisible' are used in a different sense from the word 'impartible' as applied to impartible estates in Southern India. There are several zamindaries which are impartible by usage in this Presidency. They are impartible because they were descendible only to a single heir, the other members of the family being entitled to maintenance only; but by reason of such impartibility they were not inalienable. It was so decided by the Privy Council in Sartaf Kuari v. Deoraj Kuari  10 All. 272 and in Rama Krishna Rao v. Court of Wards  22 Mad. 383 Only by statute in Southern India, that is, by the Impartible Estates Act these zamindaries have become inalienable. So far as usage is concerned they were not alienable and they were impartible only because they could be held only by a single heir. In the present case the incidents are entirely different. Both the answers of the pundits and the remarks of the High Court in Kumara Tirumalai Naik v. Bangaru Tirumali Sauri  21 Mad. 310 show that the villages in this case are not such as can be held by a single heir only. The High Court say at page 322:
that the members of the family have a common right in the property, is declared in the answers by the pundits. In their first answer, they say that the estate having been granted for the maintenance of this family, belongs to all its descendants, and in their second answer they refer to the property as common to all the members of the family. Their opinion, so clearly expressed, is no doubt in accordance with the law. So that we must view the plaintiffs and Defendants Nos. 3 to 23 as co-owners of the property with Defendants Nos. 1 and 2. That being so, they would have an equal right to management with Defendants Nos. 1 and 2, had it not been for their own agreement in the razinama that the sole right of managemnt should remain in the eldest branch of the family representd by Defendants Nos. 1 and 2.
8. It is thus clear that the village now in question must be regarded as belonging to all the members of the family in coownership. It is not like the estates in Southern India which are impartible by usage. The indivisibility of this village in question was inferred by the pundits because of the fact that it will lead to the ruin of the village and the loss of the family rank and dignity. On this reasoning the immovable property of any family of rank and dignity ought not to be divided. At any rate the immovable properties granted to families for the maintenance of rank and dignity, such as many of the inams in this Presidency are, ought never to be divided. Again, the answer of the pundits shows that it is not inalienable. On the other hand, the reasoning that, if parcelled, any member may dispose of it by sale, etc., shows that the members have a right to sell and the pundits' idea seems to be that if kept undivided, there may be great difficulty in obtaining purchasers, and thus there would not be facilities for alienating away the properties. The reasoning of the pundits is entirely fallacious and, in my opinion, the acceptance of it by the Sudder Court does not bind me. The second part of the pundits' answer is inconsistent with the first part. If the annual produce of the village is to be divided into shares and the family becomes very large by breeding even then, the family might be reduced to poverty and the rank and dignity of the family may be lost; and, to avoid such consequences, partition was made undesirable, by the first part of the answer. The whole answer of the pundits is based upon what is desirable and not upon the question of usage.
9. As pointed out in Kumara Tirumalai Naik v. Bangaru Tirumalai Sauri Naik  21 Mad. 310 the absolute right to take rents of land ordinarily involves the right to land itself: see Mannox v. Greener  14 Eq. 456 But the High Court went on to observe that in the case before them the property was declared to be impartible. Whether the property was legally divisible or indivisible did not arise before them, the suit being only for removal of the manageress and not being one for partition. The question never arose before the High Court. The adoption by the High Court of the position that the property was impartible, was because, both sides did not question it. The point never arose before them and was never considered. In my opinion, to hold that the property belongs absolutely to several members of the family but is indivisible between them is opposed to all fundamental principles of law: see Chetu Narayan Pillay V. Ayamperumal Ambalam 4 M. H. Or. 447 I would even proceed to the extent of saying that such a custom, even if it exists, is unreasonable. In the present case, no custom was pleaded by the 2nd defendant, but he simply relies upon the decisions. But assuming that such a custom is pleaded, what is the custom? Is it a legal usage? There is neither allegation nor proof of the legal usage. Is it a custom pertaining to a single family or a single item of property in the whole Presidency? There cannot be such a custom. A single family cannot create a custom by not alienating property for 50 or 100 years. There is no evidence of inalienability in the case. On the other hand, it appears that the other village of Thacumpatti was ordered to be sold by the District Judge of Madura in execution of another decree, but it does not appear whether it was afterwards sold or not. When the High Court observed in Kumara Tirumalai Naick v. Bangaru Tirumalai Sauri Naick  21 Mad. 310 that the razinama was binding, it must have been only for the purpose of keeping the management in the senior branch of the family. The observation was made with reference to the defendant's contention that the suit was not maintainable on the razinama. The observation has nothing to do with the question whether the razinama in so far as it makes the property indivisible, is binding.
10. I am of opinion that it cannot be held indivisible by custom. Assuming that it ought not to be divided, that is a different point from saying that it is inalienable. Even if the village is not to be divided, the annual shares have to be enjoyed by the respective members, and the undivided share of each member may yet be alienated, and each member enjoys his share of the profits. The question of indivisibility is not the same as the question of inalienability especially as the produce is capable of division. I, therefore, hold that this village is both divisible and alienable and certainly alienable even if indivisible; that the custom of indivisibility as held by the Sudder Court is an unreasonable custom; that the decision does not bind me; that the High Court did not decide with reference to any of these matters in Kumara Tirumalai Naik v. Bangaru Sauri Naik  21 Mad. 310 I, therefore hold that the appeal should be allowed and the District Munsif's order restored with costs here and in the Courts below. The execution petition will be restored to file and further execution will be allowed to proceed.