Sadasiva Aiyab, J.
1. The question common to all these appeals is whether the Karvetinagar Estate is inalienable by virtue of its tenure or by a custom under which the Zamindar for the time being is prohibited from alienating any portion of the estate, except for purposes for which the manager of a joint Hindu family (not the father) is entitled as such manager to make valid alienations of the joint family property. On this question I might at once say that I agree with the judgment to be pronounced by my learned brother. As it was, however, argued with great strenuousness and persistence by Mr. Govindaraghava Aiyar for the appellant, I deem it appropriate to express my views on this point, in my own words. As regards inalienability by virtue of the tenure, as soon as the military tenure under which the properties were; held was put an end to, about 120 years ago, that is, when the British Government granted the lands to the Zamindav under a quite different tenure With express powers of alienation and after imposing a liability on the lands to be attached and sold in execution of decrees passed against the grantee, the restraint on alienation without the permission of the overlord came to an absolute end. The analogy of the incident of impartiality attaching to game estates is absolutely misleading. Impartibility, according to the Privy Council decision in Sartaj Kuari v. Deoraj Kuari 15 I.A. 51: 6 Ind. Dec. 182, leads logically to the existence of a power of alienability and not to a rule of inalienability.
2. Further, the custom of impartibilifcy and of succession by a single owner are incidents attached not so much to the property held by a family as to the law governing that particular family, see Lord Mavnaghten in the Udayarpalayam, case, Kachi Kaliyini Rangappa Kalakka Thola Udayar v. Kachi Yuva Rengappa Kalakka Thola Udayar 10 C.W.N. 95 : 15 M.L.J. 312 : 1 M.L.T. 12 in that case, the following passages occur: 'On the cession of the Carpatic, the British Government assured the Poligars, of whom the Poligar of Udayar was one, that they would enjoy every just and ascertained civil right, with a free exercise of the religious institutions and domestic usages of their ancestors.' One of the domestic usages, namely, succession according to rules of primogeniture, was upheld in that case. In the case of Zamindaries where succession by primogeniture prevails, though that domestic usage might have he gun in the tires when the head of the family was a military ruler and though that position had ceased at the time of the Permanent Settlement, the family law of succession by primogeniture was presumed to continue even afterwards. In short, it is a. question of the family law of succession and after. law was held applicable even in the case of families of certain Mussalman Zamindara. See Mohammad Afzal Khan v. Ghulam Kasim, Khan 112 P.L.R. 1903 : 5 Bom. L.R. 486, It is not really a question of succession to a particular property. It can never be argued that where portions of an impartibly estate are alienated by a Zamindar,governed by his family law of primogeniture to Hindus governed by the ordinary Hindu Law, succession to the portions so alienated is also governed by the law of primogeniture. If the proprietor of the Karvetinagar Estate was incapable by the custom of his family from alienating or binding by his debts any part thereof beyond his own lifetime, except under circumstances which would entitle the managing member of a joint family to do so, the enactment of Section 4(1) of the Impartible Estates Act was superfluous so far as this estate was concerned. That the law of impartiality depends on the family custom of succession and not on the nature of the estate is also clear from the case in Durgadut Singh v. Rameshwar Singh 4 Ind. Cas. 2, which related to certain properties given to junior members of a Zamindari family for their maintenance. It was held in that case that it was proved that the family custom of primogeniture and impartiality governed the succession to those properties also. (See pages 952 to 954). As remarked by that eminent Judge (West, J.) [see pases 272-73 of Bhau Nanaji Utpat v. Sundrabai 11 B.H.C.R. 249, 'In a good many cases, the question of family custom has been mixed up with that of the supposed impartible character of a raj or principality, and this has perhaps led to some little confusion in particular instances, but; a careful examination of the oases will show that the special law of descent has usually been put by the Privy Council, as in the case of Neelkisto Deb Burmono v. Beerchunder Thakoor 12 M.I.A. 253, on the ground of ancient family custom whether the property, was a, raj, or not. There are other eases like that of Girdharee Sing v. Koolahul Sing 2 M.I.A. 344 : 1 Sar. P.C.J. 200, in which the fact that the estate was a raj was held not to involve the consequence that it was indivisible under a special law of, inheritance applicable to that species of property ; and generally it may be said that it is the family custom of descent, which, for juridical purposes, gives the property the character of a raj, and not anything in the estate itself, which determines the rights of pretenders to it. In a case in 7 Beng. S.D.A.R. 195 it was ruled that on a property which had descended in one family, according to a rule of primogeniture, undivided, passing to another family in which no special rule prevailed, it became particle according to the ordinary law. Thus viewed, all the numerous cases of property regarded as impartible because partaking of the nature of a raj' are instances of the effect which the highest Court has given to family customs diverging from and, therefore, in a sense repugnant or antagonistic to the general law.' The prevalence in any part of India of the special course of descent in a family, differing from the ordinary course of descent, in that place, of the property bof people of that class or race, stands on the footing of usage or custom of the family. Soorendionath Roy v. Musammat Heeramonee Burmoneah 12 M.J.A. 81. In Rajkishen Singh v. Ramjny Surma Mozoomdar 19 W.R. 8 the following observations occur at page 191: 'In the present case the estate was held directly from the Government, there being no intermediate lord. And it appears to their Lordships that, upon this settlement, any incidents of the old tenure, as a military jagir, requiring the render of services, if any such ever existed, were, as conditions of tenure, impliedly at an end; and that the Zimindari, so far as relates to tenure, was thenceforth held under the Government as an ordinary Zimindari free from any such conditions, The settlement would not, however, of itself, have operated to destroy a family sage regulating the manner of descent.... It would not of itself affect an existing family custom.' At page 195, their Lordships say that even the custom of impartibility could, without any violation of law, be put an end to by the conduct of the members of the family after the Permanent Settlement. They say: 'Their Lordships cannot find any principle or authority for holding that in point of law a manner of descent of an ordinary estate, depending solely on family usage, may not be discontinued, so as to let in the ordinary law of succession. Such family usages are in their nature different from a territorial custom, which is the lex loci binding all persons within the local limits in which it prevails.' These passages show that even as regards the family usage of succession by primogeniture, the family could revert to the ordinary law after the Permanent Settlement. As regards the question of inalienability without the Sovereign's sanction in case of military tenures, the reason for the restricted ownership ceasing as soon as the military service is dispensed with, the ordinary law governing impartible estates, involving the right of the holder of that estate to alienate at his pleasure (which follows from there being-no co-parcenary rights vested in the other members of the family Page 3 of 36 C., becomes at once applicable. In the Pittapuram case, Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards 1 Bom. L.R. 277 : 8 Ind. Dec. 276 Mr. Mayne tried his best to argue that in the Madras Presidency, there was a special custom governing the impartible estates which were once held by military rulers, which custom attached the incident of inalienability to those estates (except for purposes for which the Mitakshara family manager is entitled to alienate). Their Lordships, however, without even calling, upon the respondent's Counsel, went through all the cases in Madras from the earliest case in Raja Row Vancati Niladry Row v. Vutchavoy Vencatapautly Row 3 Knapp 23 and decided against the custom. It was very soon after this decision that the first temporary Act that preceded the Madras Impartible Estates Act was enacted. The evidence in this case, in my opinion, does not establish any custom of inalienability but indicates, on the other band, that the ordinary law which Vests the power of alienation in the Zamindar for the time being was followed by each successive Zamindar, though the son or the brother of a Zamindar sometimes claimed that the ordinary Mitakshara Law applied to the estate. He never suggested that any custom which was against the ordinary law as understood by him applied to the Zamindars. Their Lordships of the Privy Council say at page 386 that where a supposed custom has followed the ordinary law as laid down by the Courts, though it was wrongly assumed to be the ordinary law, that supposed custom which did not modify the understood general law and which had, therefore, not independently the force of law, cannot be recognised by Courts as a custom having the force of law, even after it is established that the supposed ordinary law which it was alleged to have followed was not the ordinary law. I, therefore, agree with the lower Court and with my learned brother that there was no proof of any family usage having been consciously followed which was considered to be a special custom at variance with the ordinary Hindu Law.
3. As regards the argument based on Exhibit VII series in which the word 'Tanaka' is used, Ayling, J., says in Dakkata Thotapalli v. Sasanapuri Dali Sethi 22 Ind. Cas. 524 that 'Exhibit A was intended by the parties to create a simple mortgage, I find no doubt whatever. The word Tanaka' which is twice used in the operative portion of the document is to my mind conclusive. The learned District Judge says the word 'Tanaka' is always used to denote a mortgage.' In Brown's Teluga Dictionary the only meanings given to the word 'Tanaka' are (1) a mortgage, (2) an assignment of land revenue, the latter meaning being obviously inapplicable in the present case. 'In Patte Muhamad v. Sheikh Davood 30 Ind. Cas. 569 : (1915) M.W.N. 852Spencer and Kumaraswami Sastri, JJ., interpret the word 'Tanaka' occurring in the document in that ease as mortgage. The interpretation sought to be put upon that word by Mr. Govindaraghava Aiyar when it occurs in Exhibit VII series, namely, that it meant only an assignment of revenue and not a mortgage, cannot, therefore, be sustained. For from these documents supportingthe learned Vakil's argument that the Zamindar was disinclined to execute deeds of alienation intended to last beyond his lifetime, they support the conclusion that he treated the lands in his estate as his absolute property to be alienated according to his pleasure.
4. The learned Vakil next relied strongly on the decision in the Ammayanayakanur case, Sivasubramania Naicker v. Krishnammal 5 M.L.J. 168. Even if certain observations of that decision have not got to be reconsidered in the light of the Privy Council decision in Sri Raja Rao Venkata Surya Mahipah Rama Krishna Rao Bahadur v. Court of Wards 1 Bom. L.R. 277 the rule of succession applicable to that Zamindar was a quite exceptional one, namely, Dayathipattam, and the evidence let in that case to show the nature of the estate held by each succeeding Zamindar was also of a very special character The conclusion of fast arrived at in that case, in which the succession was not succession governed by the ordinary rule of primogeniture and where the evidence showed that each succeeding Zamindar expressly admitted that his Dayadees were co-parceners with him, cannot govern the consideration of the evidence in this case. Having thus dealt with the point common to all these cases, I shall now deal with the other particular questions arising in the appeals.
5. In the suit out of which this appeal has arisen, the 1st defendant contends that the mortgage deed sued on has not been supported by consideration in respect of five of the items of consideration mentioned therein. The first of these items is a sum of Rs. 6,617-6 5 due to the 1st and 2nd plaintiffs' father under a decree in Original Suit No. 1 of 1885 on the file of the District Court of North Arcot, which was passed against the Zamindar. The amount of the decree debt was Rs. 6,581-0-10 on the date of the decree (25th February 1885), the decree providing for subsequent interest. About seven months before the date of the mortgage sued on (14th November 1890) the receipt, Exhibit VI, (19th February 1890) for Rs. 2,500 was filed in Court by the decree-holder. This sum of Rs. 2,500 covered a sum of Rs. 2,000 agreed to be paid to the decree-holder for the forbearance shown by him in not proceeding with the execution of the decree on a former occasion, that agreement not haying had the Court's sanction. Section 257(A) of the old Civil Procedure Code was as follows: 'Every agreement to give time for the satisfaction of a judgment-debt shall be void, unless it is made for consideration and with the sanction of the Court which passed the decree and such Court deems the consideration to be under the circumstances reasonable.' 'Any sum paid in contravention of the provisions of this section shall be applied to the satisfaction of the judgment-debt.' I think these are imperative provisions and Rs. 2,000 which have been admittedly paid under an agreement as consideration for grant of time (see Exhibits V and VI) ought to be treated as paid towards the decree, Out of the sum of Rs. 6',617-6-5 therefore mentioned in Exhibit A, the sum of Rs. 2,000 and interest theron at six per cent. per annum from date of Exhibit VI (19th February 1890) till date of suit bond (14th November 1S90) should be deducted in defendants' favour. See also Venkala Subrarnania Ayyar v. Koran Kannan Ahmod 12 M.L.J. 113. The mortgage document is, however, good security for the balance of the decree amount. See Tirumal Raju v. Pandla Muthial Naidu 9 Ind. Cas. 289 : 9 M.L.T. 286. The objections as to the other four items were not seriously argued and I agree with the District Judge that those objections cannot be sustained. It was next objected to the decree as drawn up in the lower Court that even simple interest at 12 per cent.per annum from the date of default mentioned in Exhibit A is a penal rate, the original rate being six per cent. The provision in Exhibit A for compound interest at 12 per cent.from the date of default is no doubt of a penal character, but I think the lower Court was justified in giving 12 per cent.simple interest from the date of default as reasonable compensation for the breach of the contract to pay on the due date. Lastly it was contended that the decree drawn up by the lower Court was wrong in form and might be construed as making the 1st defendant liable personally at once for the shores amount, as it begins by saying that 'the Court doth order and decree that the defendants do pay plaintiffs', etc., I think the decree ought to have followed the Form No. 4, Appendix I), of the Code of Civil Procedure. The decree will be modified accordingly.
6. I must here state that the 11th and 12th grounds in the memorandum of appeal, namely, that the District Judge ought not to have excluded the time during which the estate was under the Court of Wards in calculating the period of limitation (as regards the right to a decree for sale) and that the mortgage document has not been proved, were not argued before us, and very properly, seeing that there is nothing in those contentions. In the result, the appeal is partially allowed, the amount due to the plaintiffs being calculated after deducting Rs. 2,000 and interest thereon at 6 per cent.for about nine months from the sum mentioned as principal in Exhibit A. As this is only a slight modification of the lower Court's decree and as the mortgagee cannot be said to be guilty of dishonesty in claiming the whole sum mentioned in Exhibit A, I would order the appellant who failed on the principal contention as to 'inalienability' to pay the respondents' costs in this appeal, which can also be added to the mortgage amount. The consideration of the question whether the plaintiff would be entitled to a remedy against other properties if, under Clause (3) of Form No. 4, an application is made on the sale of mortgaged properties, is premature and we express no opinion on it.
7. The only question argued when this appeal came up before this Court after submission of findings, is that the decree is not in proper form and might be construed as making the 1st defendant personally liable in the first instance. Let the decree be drawn up is proper form as directed in the connected Appeal No. 173 of 1910. The appellant will pay the plaintiffs' costs of the appeal.
8. The suit out of which this appeal has arisen was brought (by the sons of the usufructuary mortgaged who obtained the mortgage document Exhibit U from the then Zamindar of Karvetinagar) to establish the plaintiffs' right to enjoy the villages mentioned in item No. I of the plaint schedule (including the forests and jangles in those villages) as part of the property usufructuarily mortgaged under Exhibit N and for a permanent injunction against the defendants, of whom the principal defendant is the 5th defendant (the minor Zamindar of Karvetinagar), from interfering with the plaintiffs' enjoyment of the forests and jungles and of the produce therefrom and for other minor reliefs. The special defence raised in this case is that the poramboke waste and the forests attached to the villages of Pillaiyarkuppam and Kannikapuramd were excluded from the usufructuary mortgage, that the forests and porambokes were not put in possession of the mortgagee (the plaintiffs' father) and that they have been all along in the enjoyment of the Zamindar. Exhibit U mortgages about one hundred villages and it begins by saying that for the sum of Rs. 25,000 odd, the said one hundred villages with the hamlets, tanks, kasams, channels, fruit trees garden, forests, forest por-mbokes, road-cess, etc., income, mountain and mountain leases are secured. Then it says that ninety-two villages of the one hundred villages are secured without possession, while the remaining eight villages (including the two villages in dispute) are mortgaged usufructuarily. In the latter half of the document (which, I might say, has not been translated or printed for our use) the names of the villages are mentioned but the addition found in the first part, namely, forests, forest produce, etc., are not repeated. It was, therefore, argued that the forests and forest produce were intended to be excluded from the usufruct to be taken by the mortgagee. I find myself unable to accept this argument, especially as it is expressly stated in the document that the mortgagee was to enjoy all the come realisable from the above eight villages, which include the two villages in dispute. I also agree with the lower Court that the evidence in the case establishes that though the Zamindar tried to let to others the produce of the forests in these two villages himself (the income from the said villages being comparatively trifling), the mortgagee was able to secure his possession of the produce by himself letting it to his own licensees. The lower Court's decree declaring the plaintiffs' right and securing future possession by injunction and granting the small amount of damages claimed was, therefore, right and this appeal is dismissed with costs.
9. The 1st defendant (the minor Zamindar) is the appellant in this case. The only ground argued in this case was the 14th ground besides, of course, the common ground of inalienability. That 14th ground is as follows:
'Admittedly there being no personal liability for the payment of the amount found due, the decree directing that the defendants do pay the plaintiffs the amount decreed is not sustainable in law.' For reasons given in Appeals Nos. 173 and 182 of 1910, I would order the decree to be drawn up in the correct form, and it being admitted in this ease that the personal liability is barred, the 3rd clause of Form No. 4, Appendix D, need not be reproduced in the decree in this case. The appellant will bear his own costs in the appeal and the respondents will add their costs to the mortgage amount.
10. The suit out of which his appeal has arisen was brought on a mortgage document marked as Exhibit FF on remand and is dated 8th June 1894 and was executed by the then Zamindar in favour of G. Grurusawmayya and E. Saravana Pillai, who were employed under him as Zamindari servants and agents (manager and deputy manager of the Zamindar). In order to protect; himself from his creditors, the Zamindar had executed a nominal lease of about 106 villages in favour of these two mortgagees in January 1590 under Exhibit XXIV. The lease was a purely benami transaction and the nominal lessees were (as I said) his servants and chief officers who had, as such, to make collections from the tenants cultivating the lands in the villages, to pay the peishcush of Rs. 12,000 to Government and to account to the Zimindari for the balance. In order to keep up the appearance of a real lease, these agents had sometimes to pay the peishcush of Rs. 12,000 due to Government even before collections to that extent had been made and to recoup themselves out of the collections afterwards made. The mortgage document sued on (Exhibit FF) was executed for Rs. 54,763-12-11. Out of this amount, I find from the account statement Exhibit XXV that Rs. 16,544-15-1 were connected with this nominal and transaction. Out of that stun Rs. 16,544-15-1 again, Rs. 13,478-5-9 appear to be the principal amount alleged to be due on the accounts as between the Zamindar and his agents in respect of the management of the 103 villages (see page 202 of the printed paper), the remaining Rs. 3,366-9 4 being charged as interest. The Zamindar (2nd defendant in this suit) contended in his written statement, paragraph No. 7, as follows: The said Gurusawmayya and Saravana Pillai occupied fiduciary position towards the late Rajah Bommaraja Bahadur in respect of the said lease of 106 villages and the amounts realised thereunder. This defendant submits that the suit mortgage-deed was executed on the basis of the accounts outstanding between the said Raja Bommaraja Bahadur Varu and the said Gurusawmayya and Saravana Pillai. If only the true state of accounts had been disclosed to the said Raja Bommaraja Bahadur inclusive of those relating to the said lease, as it was their duty to have done, the amount payable, if any at all, would have been considerably 'less than the amount for which the mortgage deed was executed and to the extent of this difference, as shown in the schedule here to, the mortgage-deed had no consideration.' On this plea, the question was raised generally whether the suit mortgage-deed was not supported by consideration. The Zamindar's contention was that far from Rs. 13,000 principal plus Rs. 3,000 odd (interest), total Rs. 16,000 odd, having been due on the date of Exhibit FF to the two mortgagees, on a calculation of receipts and expenditure relating to the 106 villages, Rs. 38,641-9-0 would be found to have been then due by the said agents to the Rajah in the matter of the receipts from the above ijara villages which the agent failed to account to the Zamindar and that there was therefore want of consideration for the plaint mortgage-deed to the extent of the Rs. 16,000 and odd entered in the statement Exhibit XXV, which was the basis of Exhibit FF. Though in the written statement it is contended that the whole of the difference of Rs. 50,000 and odd between the statement of accounts in Exhibit XXV and the statement of accounts attached to the written statement should be deducted from the consideration of Exhibit FF, it is quite clear that the 2nd defendant could attack the consideration for the mortgage deed only in respect of the Rs. 16,000 and odd mentioned in it as part of its consideration. The learned Subordinate Judge refused to go into this question of partial failure of consideration on the ground that if complete and true accounts had not been rendered by the mortgagees on the date of Exhibit FF in the matter of the ijara transaction, that was a separate transaction, that a separate suit for account should be brought by the 2nd defendant and that he could not be allowed to raise it as a defence to the suit on the mortgage bond Exhibit FF. I am, unable to accept as sound the above reasoning of the learned Subordinate Judge. Here were two con. identical agents obtaining a mortgage-deed from their principal not only for amounts due to them on other loan transactions but also on account of a debt of Rs. 16,000 and odd alleged to be due to them for principal and interest in the matter of their management of 106 villages nominally leased to them. They were in a fiduciary position with regard to all sums of money received by them from the estate and were bound to render accounts. If they falsely represented that on the balance of the account the sum of Rs. 16,000 was due to them, then the Zamindar would be entitled to have the account re-opened in a suit against them Does the fact that the amount has become the consideration for a mortgage prevent the raising of this defence in a suit by the had There is no doubt that it is Open to a mortgagor to show that there has been an actual failure of consideration in respect of part of the consideration and that the mortgage is good for the balance 9 Chinnayya Rawutan v. Chidambaram Chetti 5 Ind. Jur. 356 and Tirumal raju v. Pandla Muthial Naidu 9 Ind. Cas. 289 : (1911) 1 M.W.N. 113. It is also clear that an attaching creditor can question the correctness of the whole account on which a mortgage of the attached property is founded [vide Rajani Kumar Dass v. Gaur Kishore Shaha 7 C.L.J. 536. There seems to be therefore no principle which gives the consideration for a mortgage a position any higher than that of an ordinary bond debt, the transfer of interest being by way of security only. It follows therefore that if circumstances are proved which would entitle an obligor, to go behind a settled account, he is equally entitled to plead that the consideration based on that account has never been received.
11. The lower Court ought, therefore, to have allowed evidence to be adduced on the question of failure of consideration for Exhibit FF in respect of this Rs. 16,000 odd; and is now directed to take evidence adduced on both sides on this question and submit its Ending within four months from the receipt of records. Ten days will be allowed for filing objections.
12. These are appeals in Original Suits Nos. 34 of 1907 and 12 of 1908 in the District Court of North Arcot and Original Suit No. 18 of 1911, Original Suit No. 86 of 1911 and Original Suit No. 95 of 1911 in the Court of the Subordinate Judge of North Arcot. Appeals Nos. 173 and 182 of 1910 come before us on return of finding; the other three are heard now for the first time. The issue on which the finding was called for is the same as one of the issues framed in the other three suits and it is with that issue that I propose to deal. The issue is as follows: Whether the Karvetinagar Estate is inalienable by virtue of its tenure or the custom pleaded. The custom pleaded is as follows: 'Inalienability except for purposes for which the manager of a joint Hindu family can, as such manager, alienate joint family property.' With regard to the tenure there is do dispute. The Zamindar was originally a semi-independent Poligar holding an impartible raj on the terms of paying an annual tribute to the Nawab of Arcot and supplying a military force. There is no doubt that the Poligar was originally a petty chieftain who had gradually improved his position, so his origin is different to that of other classes of Zamindars who Were in many cases mere tax collectors for the Ruling Power. In the year 1792 the East India Company took over the control of the dominions of the Poligars of Venkatagiri, Kalahasti and Bommarajapalayam, (the earlier name of Karvetinagar), from the Nawab under treaty with him and by a later treaty of 1801 these semi-independent kingdoms became merged in British territory, losing their quality of raj. A year later in 1802 the Poligars became Zamindars and sanads were issued to them. The history of these proceedings and the nature of the settlement made at that time has been fully explained in Appeal No. 62 of 191d reported as Secretary of State for India v. Rajah of Venkatagiri 35 Ind. Cas. 266 It is sufficient to say that the settlement was based on the commutation of service and military tribute and; not on the revenue of the raj and that the sanad shows material divergence from that ordinary sanad in consequence.
13. Mr. Govindaraghava Aiyar, who represents the present Zemindar in all these suits, admits that there was during the period when the Poligar was semi-independent under th Nawab, a condition arising out of the tenure which forbade alienation either of the whole or any part-of the raj without the sanction of the Nawab, the overlord. But he contends that there was in addition a custom of inalienability as pleaded and that that custom remained in existence after the treaty of 1801 and after the Permanent Settlement of 1802 and has continued to the present time. He seeks to fortify his argument as to the possibility of the existence of the custom concurrent with, the inalienability owing to tenure by the. analogy of the custom on which impartibility is based. And he has invited our attention to a long series of cases which, he contends, support the proposition that impartibility of either a raj or an estate is linked with the tenure and enures after the alteration of the tenure. He has accordingly examined the decisions in Naragunty Lutchmeedavamah v. Vengama Naidoo 9 M.I.A 66 : 1 sar. P.C.J. 826 Katama Natchiar v. Rajah of Shivagunga 9 M.I.A. 539: 1 Suth. P.C.J. 520, Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee 9 W.R.P.C. 15 : 2 Suth. P.C.J 114 : 20 E.R. 241, Collector of Trichinopoly v. Lekkarnani, Oolgappa Chetty v. Hon. D. Arbmthnot 1 I.A. 282 Mutta Vaduganadha Tevar v. Dora Singa Tevar 8 I.A. 99, Mallikarjana v. Durga 17 1 A. 134: 4 Ind. Dec. 995, Udayarpalayam case, Kachi Yuva Rangappa Kalakka Thola Udayar v. Kachi Kalyana Rangappa Kalakka Thola Udayar 11 M.L.J. 191. The Ramnad case 24 M.K 613; The Udayarpalayam, case 2 C.L.J. 231 : 8 Sar. P.C.J. 865 Ram Nundun Singh v. Janki Koer 29 I.A. 178 and Mahammad Afzal Khan v. Ghulam Kasim Khan 67 P.R 1903, quoting the passages which he relies on for his contentions. On the other side it is contended by Mr. Rangachary that impartibility arises out of a family custom as to succession, not out of tenure, and that therefore the custom of impartibility, may well continue after the change of tenure, but that the prohibition against alienation without the sanction of the overlord arises solely out of the tenure, that no family custom could have existed side by side with that prohibition and that when the prohibition was removed the ordinary right of alienation came into existence.
14. I do not think it necessary to examine the accuracy of these alternate contentions, because undoubtedly Mr. Govindaragbava Aiyar has been unable to prove the existence of any such custom prior to the cession by any evidence whatsoever. We must begin to seek this custom in the history of the dealings with this estate by the Zimindar after the date of the Permanent Settlement. Now it is perfectly obvious why the claim of custom is put forward in the form which Mr. Govindaraghava Aiyar contends for. It is well known that prior to the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari 15 I.A. 51 the view was taken in the Courts of this Presidency that after the Permanent Settlement these impartable estates were inalienable except for certain purposes. The basis of this doctrine has shifted during the history of decisions, a fact which was pointed out and relied on by the Privy Council in the Pittapur case, Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards 1 Bom. L.R. 277 : 9 M.L.J. Sap. 1when the Board finally negatived the decision in contention. Undoubtedly, the decision Sartaj Kuari v. Deoraj Kuari 15 I.A. 51 was unwelcome to the Courts of this Presidency and an attempt was made in Court of Wards v. Venkata Surya Mahipati Ramakrishna Rao 6 M.L.J. 218 before the High Court and in Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards 1 Bom. L.R. 277 before Privy Council, to differentiate the impartible estates in this Presidency from those governed by the decision in Sartaj Kuari v. Deoraj Kuari 15 I.A. 51 on the ground of a territorial custom. That plea failed and in consequence the Legislature intervened with the Impartible Estates Act, II of 1904. Now the attempt is renewed on the basis of the family custom pleaded here based on the language used by their Lordships in Sartaj Kuari v. Deoraj Kuari 15 I.A. 51 : 12 Ind. Jur. 213: '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'. Mr. Govindaraghave Aiyar has argued that the Permanent Settlement was not intended to alter the tenure or, the customs as Government were not seeking revenue but only seeking to disarm the Poligars, and he relies on the decisions in Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee 12 M.I.A. 1, The Udayarpalayam case, Kachi Yuva Rangappa Kalakka Thola Udayar v. Kachi Kalyana Rangappa Kalakka Thola Udayar 24 M.A 562and The Udayarpalayam case 10 C.W.N. 95 for the proposition that although it was undoubtedly open to the British Government to make any alteration it chose in the nature of the tenure it must be shown affirmatively that they intended to do so at the time. It may be doubted whether this proposition is an accurate statement of the law since the decision of the Privy Council in Secretary of State for India v. Bai Rajbai 30 Ind. Cas. 803 It is there held that the conditions of the tenure prior to cession cannot be presumed to have continued and that it rested on the claimant to show that the manner in which the estate has been treated by the British Government indicated that Government intended to preserve the prior incident (vide Second Appeal No. of 210 of 1911). But even if this proposition is sound, it is difficult to see how it could help the mortgagor. We are referred to the sanad Exhibit II(a) and it is argued that Article 7 only relieved the Zimindar of a disability but did no otherwise alter the tenure. The tenure was, however, in fact altered, the military service, the foundation of the tenure, being dispensed with, and as there is no evidence of a custom of inalienability other than that arising out of the tenure, there is no material on which a Court could decide that the alleged custom continued. It is contended by Mr. Rangachary that the sanad shows clearly that the condition of inalienability was removed and intentionally removed, because its rationale had ceased with the abolition of the service. As put by my learned brother in the course of the argument, 'The raj was inalienable without the sanction of the Ruling Power ; By the sanad the sanction was given.' The sanad recites the removal of the military service, the obligation to furnish troops and maintain forts and garrisons, and the commutation of that duty for an equivalent to be paid in money. Article 7 reads as follows: 'You shall be at full liberty to transfer without the previous consent of Government, or of any other authority, to whom sever you may think proper, either by sale, gift, or otherwise, your proprietary right in the whole or any part of your Ziminlari and such transfers shall be valid provided that they be not repugnant to the Muhammadan or Hindu Laws or to the Regulations of the British Governrment.'
15. Article 8: 'Your Zaimindari will be liable to be sold either wholle or in part in satisfaction of a decree of Court.'
16. Article 10: 'Although you will have free right and libiity to transfer, by sale, gift or otherwise, any part of your Zaimindari not repugnant to the Regulation of Government yet it shall not be competent for you to form any part of your land into a separate estate unless the public assessment am most to the annual sum of 500 star pagodas.'
17. Mr. Rangaohariar contends that these articles indicate the removal of the necessity for sanction. Mr. Govindaraghava Aiyar argues contra that the words in Article 7, being only a reproduction of paragraph 8 of the Regulation and being inserted in sanads to all Zaraindars, cannot have special reference to the sanction, and he calls in aid the language of Article, 2 where it is stated that the military service is commuted for an equivalent to be paid in money by you and your posterity. With regard to Mr. Govirdaraghava Aiyar's first contention, it may be that in other Zimindaris dealt with in identical language there had not been a prohibition against alienation without sanction, but in ray opinion that cannot limit the effect of the words. Bearing in mind that this was the creation of an 'estate in lands' in substitution for an existing raj and applying the principle that it is entirely within the province of Government to create conditions on which the estate is to be held, it is to my mind impossible to contend successfully that these words did not create a new estate with the incidence of alienability for the benefit of the Zimindar. It is true that the Saddar Adaulat Court had at different times construed the sanads as creating an estate analogous to an estate-tail or as a settlement on the Zimindar for life with remainder to his heirs and successors in perpetuity [vide the history of these decisions set out in the judgment of the Board in Sri Raja Ran Venkata Surya Mahipati Rama Krishna Rao Rahadur v. Court of Wards 1 Bom. L.R. 277 But those views were subsequently abandoned and have been declared by the Privy Council to be unsound. As to his contention on Article 2, it is sufficient to point out that those words did not create an 'estate' and that they must be read with Article 15, under which the Zamindar is 'authorised and empowered to hold in perpetuity and his hers, successors and assigns the permanent assessment herein named the Zaimindari of Bammarajapalayam' Mr. Govindaraghava Aiyar further argued that the rights of the Poligars had been recognised in the treaty and could not be cut down by the language of the sanad. With regard to this the answer is that the short period of a few months between those two events is not sufficient to create new rights and that the Regulation passed in 1802 prior to the sanad contains same words. There still remain the words 'provided that such transfers shall Hot be repugnaut to the Hindu Laws.' No argument has been addressed to us by either side on. these words, but it is to be noted that since the decision in Sri Raja Rao Venkata Surya Mahipati Rama Krishna, Rao Bahadur v. Court of Wards 1 Bom. L.R. 277 : 3 C.W.N. 415 : 9 M.L.J. Sap. 1, it must be held that an absolute power of alienation is in accordance with the Hindu Laws. There is indeed no reservation of custom in the sanad or in paragraph 8 of the Regulation and for this reason, I should be strongly inclined to doubt whether the Court could take into consideration any custom prior to the cession. But as I have held no such custom was proved, there is no necessity to decide this point, Coming now to the history of the Zimindari after the settlement, we have to see whether the alleged custom is made out. The first difficulty in the way of the appellant is this. Up till the decision in Sartaj Kuari v. Deoraj Kuari 15 I.A. 51 it was held by the Courts of this Presidency that an impartible Zamindari wan inalienable except for special reasons. The proposition is stated in Pareyasami v. Saluckai Tevar 8 M.H.C.R. 167 as follows at page 177, speaking of the Palayaput of Padamathur, an ancient impartible Zemindari: 'We think that the Zamindar should be regarded as possessing only the qualified powers of disposition of a member of a joint family with such further powers, or it may be with such restrictions, as spring from the peculiar character of his ownership and that these powers fall short of a right of absolute alienation of the estate.' The language used in Bhavanamma Guru v. Ramasami Guru 1 Ind. Dec. 969, the date of which is 1881, is as follows: 'Assuming, therefore, that the Zamindari of Devarkota is an impartible estate belonging to a joint Hindu family, descendingto a single heir at a time to the exclusion of the rest of the family, that the Zamindar for the time being is not competent to bind his successors by a permanent grant of property forming part of his estate, and that an alienation made by him in circumstances which would not ordinarily render it binding on a joint Hindu family could not enure beyond the grantor's life, the question for decision is whether the grant now in dispute ceased to be in force on the death of the late Zimindar.' 'On these decisions the law, as understood that.was practically what is contended for now as arising by custom. Is it possible for a custom to exist which is in accordance with the law as then understood?' It has been held by a Bench of this Court in Sivasubramania Naicker v. Krishnammal 5 M.L.J. 168that such a custom can be proved. But I doubt whether this view is good law in the face of the language used by the Privy Council in Sri Raja Rao Venhata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards 1 Bom. L.R. 277 There Mr. Mayne was contending for a territorial custom and their Lordships use the following language: 'The supposed custom followed the law.... The custom now relied upon did not modify the law. It had no force independently of the law.' It is difficult to see how a practice in accordance with law can be relied on as a custom, for the essence of a custom is in its being some special usage modifying the law. If this argument is sound, the whole of Mr. Govindaraghava Aiyar's case on custom must go, for it was only in 1899 that the right of free alienation was definitely laid down by the Privy Council and the old law declared to be bad.
18. His Lordship then discussed the evidence as to custom and concluded:
I do not think it necessary to examine the evidence let in by the respondents at all in detail. It admittedly lies upon the appellant to establish the custom and, in my opinion, he has absolutely failed to do so. So far from evidencing the custom alleged, the documents conclusively establish that each Zamindar, however much he may have protested when he was a son, has exercised the right of alienating any portion of the estate he chose for any purpose which he thought fit--with the result, as stated above, that there is not a single village in the estate which has not either been granted in inam or mortgaged. On this first issue therefore common to all the appeals, the appellant must fail. My learned brother in his judgment has dealt with the other issues that arise in each case and I concur with him in his reasons and the result that he has arrived at.
19. In compliance with the order contained in the above judgment the Subordinate Judge of North Arcot submitted the following
1. The issue sent to me for a finding is Whether there was partial failure of consideration in respect of the suit mortgage-deed and if so, to what extent?
* * * * * * * * * *
I find that there was a failure of consideration in respect of the suit mortgage bond to the extent of this sum of Rs. 16,544-15-1.
This appeal (Appeal No. 48) coming on for final hearing after the return of the finding of the lower Court upon the issue referred by this Court for trial, the Court delivered the following.
20. We accept the finding of the Subordinate Judge on the question of failure of consideration for Exhibit FF. Th6 result is that the decree of the Subordinate Judge shall be modified by calculating the amount due to the plaintiffs on the date of suit on the basis that Rs. 54,763-12-1 minus Rs. 16,544-15-1 (35,218-130) is the principal amount due under the mortgage. As the plaintiffs are entitled to interest at 12 per cent.till the date 19th September 1913; fixed for payment on the real principal amount and as the lower Court's decree allows only 6 per cent.interest between the date of the decree, 19th September 1913, and the paid date 19th March 1913, the decree requires modification in that respect also. The decree contains further errors owing to its not following form No. 4 in Appendix D, Civil Procedure Code, and also as it directs defendants who are not representatives of the mortgagors (some of them have even priority over plaintiffs' claim) to pay up the amount decreed. These mistakes must also be corrected.
21. As regards costs, the appellant and plaintiffs will pay and receive proportion, ate costs in both Courts. The appellant will pay to the other respondents who have appeared to contest his appeal (except the 6th defendant) their costs including one set of Vakil's fees to be shared between them on the amount found due to the plaintiff on the date of the lower Court's decree according to this judgment. The appeal is dismissed in other respects. Extension by six months from this date is granted for redemption.