1. This Letters Patent appeal arises out of an application for the execution of a decree made by the respondent decree-holder in O.S. No. 173 of 1911 on the file of the Court of the Principal District Munsif of Madura. The decree was against three defendants of whom defendant 2 is the appellant before us. In execution of the decree, the decree-holder attached and brought to sale defendant 2's share in the village of Vellikurichi. He objected to the sale by means of a petition, in para. 3 of which he stated that the village of Vellikurichi has been held to be inalienable' and impartible (2) Thirumalai Naick v. B. Thirumalai Souri Naick  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. The District Munsif held that his share was attachable and ordered the sale thereof. On appeal against, the order preferred by defendant 2, the learned Subordinate Judge held that only the appellant's share in the annual produce of the property was attachable and not his share in the suit property. Against the order the plaintiff preferred the Civil Misc. Second Appeal to this Court and Ramesam, J., allowed the appeal* and restored the District Munsif's order. The present Letters Patent appeal is against the order of Ramesam, J.
2. The point urged in support of the appeal is that defendant 2's share in the village of Vellikurichi is not liable to be attached and sold inasmuch as there is a, custom of inalienability attaching to this village. This custom is sought to be made out by a reference to two decisions of this Court one Viswanatha Naick v. Bangarao Thirumalai Naick  Mad. Sadr. Ad. Dec. 87 and the other in Thirumalai Naick v. B Thirumalai Souri Nick  21 Mad. 310. Apart from these decisions, no evidence has been adduced as regards usage either of the family or of the locality, Apparently the custom of ''inalienabiltty' pleaded is one attaching to the enjoyment of this property as laid down by the two decisions aforesaid. It is pointed out that it was decided in those two cases that the village of Vellikurichi is indivisible and, therefore, it is argued that the share of defendant 2 must be considered to be inalienable. The terms 'impartibility and indivisibility' as used in this case are not used in the usual sense. In this Presidency zamindaries are impartible by usage as they are descendable only to a single heir, the other persons being entitled only to maintenance and the incident of inalienability was held not to be a necessary incident of such impartibility; on the other hand an impartible estate was held to be alienable by the holders unless there was also a custom of inalienability with regard to the particular estate It is not alleged in this case that the village is descendable to a single heir; on the other hand it was held by the very decision relied upon by the appellant Thirumalai Naick v. B. Thirumalai Souri Naick that the village must be regarded as belonging to all members of the family in co-ownership : see Thirumalai Naick v. B. Thirumalai Souri Naick. This village is not therefore like other estate in Southern India which are impartible by usage and it is not contended that there is any legislative enactment making the village inalienable. The custom of inalienability pleaded has for its foundation only the two cases which we have mentioned; and we will now proceed to examine them.
3. The villages of Vellikurichi and Thachampatti were granted to Raja Bangaru Thirumalai Naick, the ancestor of the defendants by the Rajahs of Sivaganga and Gindapanaikanur early in the 18th century. The grant was made for the purpose of maintaining the rank and dignity of the Naick family. For a long time the property was managed by the representative for the time being of the senior line. In 1844 one of the junior members instituted a suit for partition. The Sudder Adalaut Court, acting on the opinion of the pandits who were consulted, declared in a decree the corpus of the property to be indivisible and only the produce to be divisible in certain shares. In the course of the execution of the decree in 1857 the parties entered into a razinamah whereby they agreed to vary the distribution of the shares ordered by the decree. They also agreed that the estate should be held indivisible and inalienable in consonance with the decree and that the management of the estate should continue to be vested in the eldest line subject to the supervision on the part of the other members: see Thirumalai Naick v. Tirumalai Souri Naick. This compromise was long acted upon; in 1892, the representative of the senior line having died his widow as the guardian of her elder son entered on the management and being a Gosha lady delegated it to a stranger. Then some members of the junior line filed a suit for the removal of these persons from management for various reasons This litigation came up to the High Court. This is the 2nd decision relied on by the appellant. The High Court's decree held amongst other things that the compromise was binding on the parties and it removed the widow from the management.
4. The Sudder Court's decision that the village in question is impartible is based on the answers given by the Pandits to some questions put to them by the Court. The answer of the Pandits was in these terms:
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. As pointed out by Ramesam, J., this answer does not show that the property is inalienable. The Pandits seem to think that if the members are allowed to exercise rights of sale
each member in possession of a portion might attempt to dispose it of by sale and thus the rank and dignity of the family would be lessened and it will lead to the ruin of the family's dignity and respect
and, therefore, they recommended that the property should be kept exempt from partition. This would show that the answer of the Pandits is based upon what they thought was desirable, and not on any particular usage. The remedy suggested by the Pandits would not in the nature of things avert the calamity apprehended by them, that is, loss of family-dignity and prestige, because in the course of years the shares of produce by an increase in the number of members; would become smaller and smaller. For these reasons, the learned Judge held that the decision was wrong and was not binding on him. We agree that the grounds alleged by the Pandits are open to criticizm but it is not necessary for the purpose of this case to go so far as to hold that the decision is wrong; whether the decision is right or wrong, it is clear that it is not based on usage and that the question we have to decide, viz., the inalienability of the property did not arise for decision before the Sudder Adalat Court and that question was not in any way decided by it.
6. In Thirumalai Naick v. Bangaru. Thirumalai Souri Naick no question arose as regards the partibility or alienability of the suit property. The High Court accepted the position that the property is impartible because it was not questioned by the parties. The suit was for removal of the manager and not for partition. In observing that the Court meant only to say that if; was so, for the purpose of keeping the management in the senior branch of the family. That was all the question which the learned Judge had to consider. The observation that the razinamah was binding was made in connexion with the argument that the suit was not maintainable on the razinamah. Having regard to those circumstances it cannot be said that the High Court had addressed its mind to the question whether the razinamah, in so far as it makes the property indivisible is binding on the parties. The decision of the High Court did not directly con-corn itself with any question regarding the indivisibility or inalienability of the property.
7. The above decisions do not, in our view, support the contention urged by the appellants. As we have already pointed out, no evidence in support of the custom pleaded has been given and no customary law which would make the property indivisible though belonging to members, like the Malabar law for instance, has been invoked and ' a single family cannot by not alienating the property for a number of years create a custom which would compel a Court of law to uphold that the property is inalienlable. For these reasons, in the absence of evidence we cannot on the strength of the two decisions quoted to us, hold that the respondent is not entitled to bring the property to sale on the strength of the custom of inalienability alleged by the appellant. The true position of the parties seems to be as pointed out by Ramesam, J., that all the sharers are tenants in common with reference to the village and that no valid ground exists for holding that the village cannot be partitioned. Such a condition would be repugnant to their rights of co-ownership as tenants-in-common and must be held to be invalid as held by the learned Judge. We must, therefore, uphold the decision of the learned Judge and dismiss this Letters Patent appeal with costs.