William Ayling, J.
1. The subject-matter of the present litigation is the dasabandham rights in the village of Dalavayipattada in the Karvetinagar Zemindari originally granted by the zemindar in 1866 by Exhibit A. They are claimed by the plaintiff (1st respondent) in virtue of an assignment of a usufructuary mortgage (Exhibit C) executed in 1905 by Gangamamba, and the first question is whether this lady was possessed of the dasabandham rights at that time.
2. According to the plaintiff, the grant by Exhibit A, the genuineness of which is not disputed, was really in favour of the 'mahal estate.' It is explained that this estate constitutes a sort of endowment for the benefit of the ladies of the zemindar's family, and is managed by the senior married lady for the time being. This estate is of a somewhat unusual nature, and the appellant's Vakil has commented on the meagreness of the direct evidence adduced to prove its existence. On the other hand, the documentary evidence (in particular Exhibits E, F series, M, O and OO) shows the clearest admissions on the part of the appellant (the 1st defendant) and his predecessors-in-title, not only that such an estate existed, but that the plaint dasabandham rights formed part of its assets, and that Gangamamba was entitled to enjoyment of the said rights. I consider that the decision of the District Judge on all these points in favour of the plaintiff was justified. I am unable to accept the appellant's contention that an estate of this kind in any way offends against the doctrine of perpetuities.
3. As regards Exhibit E, I am of opinion that apart from all questions of the admissibility in evidence of Exhibit KK (1), there is evidence to show that in 1894 the zemindar Bomma Raju relinquished his usufructuary mortgage rights under that document (Exhibit E) and gave back possession thereof (in so far as dasabandham rights could be the subject of possession) to Gangamamba. It cannot be held that these dasabandham rights formed part of the property purchased by the 1st defendant's brother under Exhibit B. It being thus found that the plaintiff as assignee from Gangamamba was entitled to receive the plaint dasabandham dues, it only remains to decide whether the District Judge was right in giving a decree for their recovery from the 1st defendant.
4. Whether or no, the holder of the dasabandham rights would be legally entitled to recover his dues direct from the individual ryots of this village is open to doubt, although such a procedure would seem to be contemplated by Exhibit A and for some periods may have been actually resorted to. The difficulties attendant on it are, however, obvious: and it is quite clear that the 1st defendant's brother and predecessor who had succeeded to the rights and liabilities of the grantor of Exhibit A, undertook to collect the whole revenue of the village and to pay to Gangamamba the amounts due to her on account of dasabandham dues--vide Exhibit F, dated 5th April 1903, in which he specifically requests her to refrain from making collections on her own account, and undertakes to pay her the amount due to her for dasabandham. It is likewise clear that the 1st defendant on succeeding his brother accepted the same liability and that up to the beginning of 1907, there was no modification in the system. Shortly before that, the 1st defendant as proprietor of the village had granted a lease of the same for 10 years to the defendants Nos. 2 and 3. (Vide Exhibit D.) It would appear from Exhibits M and M1, that in March 1907 the 1st defendant directed the plaintiff, as mortgagee under Gangamamba, to receive the dasabandham dues from the lessees (defendants Nos. 2 and 3). What steps were taken by the 1st defendant to direct the defendants Nos. 2 and 3 to pay the same to the plaintiff, does not appear: but it is clear that they made no such payments, and in fact, have throughout denied their liability to do so.
5. They rely on Exhibit D as defining their liability under the lease: and admittedly this document only provides for the payment of a fixed annual rent of Rs. 900. The 2nd defendant claims that he and the 3rd defendant are entitled under the lease to appropriate the whole rent of the village (or so much of it as they can collect) less this amount. Whatever the rights under this lease (Exhibit D) may be, must form the subject of a separate litigation: the primary liability of the 1st defendant remains and was, in my opinion, rightly enforced by the decree of the District Court.
6. I would dismiss the appeal with costs. (Two sets.)
7. This appeal arises out of a suit in which the plaintiff claims to be paid by the defendants, a half share of a certain case (referred to as the dasabandham cess recoverable from the ryots of Dalavayipattada village. The right to recover the other half share of the dasabandham cess is not in question before us, and I shall throughout speak of the cess as referring to the half of it which is the subject of this suit. The plaintiff has obtained a decree against the 1st defendant who now contends that, if the plaintiff has any right at all,--which is denied--it is against the 2nd and 3rd defendants.
8. The defendants' position appears from the following facts. On the death of Rajah Venkataperumal, the grantor of the sanad, (Exhibit A), his son Bomma Razu succeeded him and all his property was seized and sold in 1895 in execution of a decree in Original Suit No. 378 of 1880. In the auction-sale in execution of that decree, the 1st defendant's elder brother and predecessor-in-title purchased Bomma Razu's interest in the dasabandham cess in question in addition to the other rights of Bomma Razu in the same property. The sale certificate, Exhibit B, is dated the 19th February 1896. The 2nd and 3rd defendants are lessees under the 1st defendant. The lease is Exhibit I) dated the 21st September 1906. It is for a term of 10 years relating back to the 1st July 1905. (See paragraphs 1, 2 and 18 of Exhibit D.)
9. The question from the point of view of the defence, therefore, is whether Bomma Razu had any interest in the dasabandham rights, claimed by the plaintiff. The plaintiff's and the defendants' claims are, it is evident, exclusive of each other. They cannot both have title to the same rights and to some extent, the defendants' case is based on a denial of the title of the plaintiff. The defendants, however, raise some further contentions which will have to be dealt with separately.
10. The plaintiff's alleged right is traced ultimately to a sanad of 1866, Exhibit A, under which Raja Venkataperumal, the then Zemindar of Karvetinagar, granted to his mother, Vijaya Lakshmamba Garf, the right to levy and enjoy a moiety of the dasabandham cess by her and those authorized by her, and by her transferees hereditarily from son to grandson, and so on with powers of gift, mortgage and sale so long as the sun and moon last.' The next step in the plaintiff's title is the alleged devolution of this right from the grantee Vijaya Lakshmamba Garu upon Konamamba Garu, the senior wife, and from her upon Gangamaraba Garu, the junior wife, of the grantor, namely, the zemindar. The first question that has to be considered, therefore, is whether this alleged devolution can be held to have taken place and can be recognized in law; and in this question two points are involved: (1) whether the terms of the grant being such as they are, any person other than the son, grandson and so on' can be considered to have succeeded to the rights granted under Exhibit A; and (2) assuming that a devolution other than that to which the grant refers, can prevail, then, whether the particular mode of devolution relied upon by the plaintiff, can be upheld.
11. Both these points are somewhat closely connected with each other; for the son of the grantee is the grantor himself, and it appears that the son and the grand son of the grantor have been dealing with Vijaya Lakshmamba, Konamamba and Gangamamba in such a manner that it is impossible to hold that there were any rights left in favour of the grantor in what was purported to be granted away. Moreover, the words cited from Exhibit A, appear to have been used clearly as words of limitation and not of purchase. They indicate that the grantee was to take the fullest and most absolute estate in the rights granted.
12. It is desirable at the outset to refer to the fact that the dasabandham cess has been purported to-be granted and usufructuarily mortgaged exactly as though it were actual land; and in the arguments before us, the same assumption was made throughout.
13. The rule of devolution under which the plaintiff claims, depends upon the existence of a custom. The question of fact involved in the proof of the custom Cf. Kunhambi v. Kalanathar 24 Ind. Cas. 528 was considered by the learned District Judge in the finding which he has submitted to this Court on the first tissue. He came to the conclusion that there was a custom prevalent in the Zemindari of Karvetinagar laying down a particular rule of inheritance with regard to property held by the ladies of the zemindar's family and derived from the zemindar in the first instance for the purpose of maintenance. The alleged custom is that the property, unless it has been alienated during the life-time of the ladies entitled thereto, devolves upon the other ladies of the zemindar's family who would for the time being be entitled to be maintained out of the zemindari funds.
14. The appellant attacks this finding on what may be analysed as three distinct grounds. It is first argued that the custom is too uncertain to be given effect to; secondly, that it is, opposed to public policy, because it ties up property indefinitely; and finally, that it has not been satisfactorily proved to have been prevalent and to have been acted upon for a sufficiently long period with a consciousness that it has the force of law.
15. There is nothing uncertain about the custom as alleged. Certainly, it is not more difficult of ascertainment than the claims for maintenance of the members of the zemindar's family.
16. The argument that it is opposed to public policy must also fail, because the custom does not restrict the devolution of 'property, but at the most earmarks property for a particular purpose leaving each holder of it for the time being a wider power of disposition than in the case of property assigned in lieu of maintenance. The custom appears to be reasonable when considered in the light of the fact that the ladies of the zemindars family must have some provision made for their maintenance and that this provision in order to be adequate must be of a stable nature and commensurate with the dignity of the ladies. The custom is well calculated to bring about these results.
17. With reference to the evidence of its prevalence in the Karvetinagar Zemindari, I am not prepared to say that the learned Judge was wrong in the finding at which he has arrived, especially in view of the documented of the admissions of the parties most nearly concerned and of clear indications that it was recognised as binding by persons who would have been most interested in questioning its binding force. The persons that would have the best information upon it, would be the members of the Karvetinagar Zemindar's family, and not the present plaintiff and defendants. The conduct of the zemindars in the past and of members of their family, bear strong testimony to the existence of the custom.
18. The only alternative to the recognition of the custom suggested by the appellant is that on the death of Vijaya Laksbamamba Garu her son Venkataperumal, the grantor himself, and on his death, his son Bomma Razu who next succeeded to the zemindari, inherited this right. This alternative cannot be entertained in view of the events that have taken place and of the conduct of Bomma Razu. For Bomma Razu took a mortgage of the same right on the 16th of October 1888 (Exhibit B), five years after Vijaya Lakshmamba's death. It was argued for the respondents that Bomma Razu as the mortgagee of this right, was estopped from denying his mortgagor's title and Coote on Mortgages, Volume 11, page 1434, Pearce v. Morris (1869) 5 Ch. App. 227 : 39 L.J. Ch. 342 : 19 W.R. 196, Kinniard v. Trollope (1838) 39 Ch. D. 66 : 39 L.T. 433 : 37 W.R. 234 and Debendra Nath Sen v. Mirza Abdul Samed Seroji 1 Ind. Cas. 264 were relied upon for this proposition. In view of the events that have taken place and of the present title of the parties, it is difficult to apply the rule of estoppel; but it is unnecessary, to consider whether it is applicable. In any case, Bomma Razu would not have taken a mortgage of the dasabandham rights if he had conceived himself to be entitled to right's of full ownership in it; and the conduct of Bomma Razu is, therefore, strong evidence in favour of the existence of the custom. He was deeply interested in denying the existence and questioning the effect of the custom, he would have had intimate knowledge of facts enabling him to determine whether the custom was prevalent, yet he acted to the detriment of his own interests in a manner which cart only be explained on the basis of the existence of the custom and a consciousness of its having binding force. Exhibits O, O1, OO, E, LL, K, H, H1 need not be referred to in detail; they ail support the same conclusion.
19. Assuming, however, that the custom relied upon by the plaintiff cannot prevail, After the death of Vijaya Lakshmamba Garu in 1883, her son Venkataperumal and on his death, his son Bomma Razu became entitled to the property, and their rights to take possession of the property have never been asserted and became barred long prior to the suit.
20. I, therefore, proceed on the basis that Gangamamba Garu was entitled to execute Exhibit C which purports to be a usufructuary mortgage of the dasabandham cess, and that the plaintiff who is the assignee of that mortgage, would be entitled to Come to this Court in his right as mortgagee, subject to the defences with which I shall now deal.
21. In 1888, Konamamba Garu who, in accordance with the decision at which I have arrived that the custom relied upon by the plaintiff has been proved, must be taken to have been entitled to deal with the property now in question, executed what purports to be a usufructuary mortgage of it to her son Bomma Razu, Exhibit E. If that mortgage was subsisting at the date of the execution purchase on which the 1st defendant relies, then the plaintiff's right must be taken to be subject to that mortgage, and the plaintiff's suit must consequently fail. It must, therefore, he considered whether the mortgage under Exhibit E was subsisting. With reference to this, the plaintiff contends (1) that the mortgage was released by Exhibit KK (1), (2) that the mortgage right was lost by adverse possession, (3) that the alleged mortgage was nugatory inasmuch as no consideration passed for it,, and (4) that the alleged mortgagee is estopped from setting it up as against the plaintiff.
22. These four contentions are based, on different aspects of the same events or pieces of evidence. It may be stated at once that it is not possible to say that on the merits either the plaintiff or this defendants have established any case. On the other hand, the documents and the transactions in question indicate a gross mismanagement of the estate by the zemindar and a complete apathy as to the rights and legal positions of both the zemindar and the ladies of the family and un business-like methods of dealing with valuable rights. Taking the whole of the events and documents together, it seems to me, however for the reasons which I will state, that the plaintiff's contentions must prevail.
23. Exhibit E purports to be a usufructuary mortgage. Its object was to provide for the payment of the debts incurred for mahal expenses by Vijaya Lakshmamba Garu; and this was sought to be done by transferring the mangement of the 32 villages referred to in Exhibit E to Bomma Razu. On the true construction of Exhibit E, it appears that there was in fact no mortgage in favour of Bomma Razu and no consideration received from Bomma Razu, and the real effect of Exhibit E seems to be to entitle Bomma Razu to take charge of the property and to liquidate the debts which were due from the ladies out of the income of the properties referred to in Exhibit E, and after the debts had been liquidated, to hand back the properties to the ladies. This being the original nature and object of the transaction, it is unnecessary for the plaintiff to rely upon Exhibit KK (1) as in the nature of a re-assignment of the mortgage. It is enough for his purpose to refer to the fact that under the document, Bomma Razu would have been entitled to collect the rents and profits of the 32 villages and to pay off the creditors of Konamamba Garu there out and if he had done so, he would have had a charge on the villages for the sums so paid out. He does not get any other right under the document. The arguments, therefore.
(a) that if there were any failure of consideration for Exhibit E, the only result of it would be that the mortgagor would be entitled to claim payment of the mortgage money and
(b) that in any case, the usufructuary mortgagee gets an immediate right to take possession of the property mortgaged and that this right cannot be affected by failure to pay the mortgage money.
24. These arguments have no application to the facts of the present case where what is dealt with, is the right to collect the moiety of a cess, and considerations which may be applicable to tangible property, cannot be applied.
25. It is clear also that Bomma Razu relinquished the right to take possession of the villages and that such a relinquishment does not require to be made by a registered document. See Thiruvengadachariar v. Ranganatha Aiyangar 13 M.L.J. 500.
26. It was argued, moreover, that the auction-sale on which the 1st defendant relies for his title to the property, was based on an attachment of the 3rd August 1885, dated three years prior to the alleged mortgage under Exhibit E, that at that time, even according to the 1st defendant's case, Bomma Razu had no rights over the dasabandham cess now in question, and that it could not entitle the auction-purchaser to acquire rights which had not been attached for the reason that they had not come into being at the time. On the other hand, the 1st defendant relies upon Section 70 of the Transfer of Property Act and the decisions in Ramasami Naik v. Ramasami Chetti 17 M.L.J. 201, Muniappa Naik v. Subramania Ayyan 5 M.L.J. 60, Raja Thakur Barmha v. Jiban Ram Marwari (1914) M.W.N. 118 : 16 Bom. L.R. 156, Umes Chunder Sircar v. Zahur Fatima 17 I.A. 201, Ajudhia Prasad v. Man Singh (1902) A.W.N. 176 and Surja Narain Mandal v. Nauda Lal Sinha 33 C.K 1212. It is clear that there is no such accession to the mortgaged property as is referred to in the Transfer of Property Act. It is, however, unnecessary in view of what I have already said to decide whether the comprehensive terms of Exhibit B, the sale certificate, were sufficient to transfer all the rights that Bomma Razu had in the property at the time of the execution sale and whether the absence of any express attachment of those rights, did not affect the purchase under Exhibit B.
27. In my opinion, therefore, the 1st defendant cannot rely upon the existence of any mortgage rights in favour of Bomma Razu at the time of the Court purchase on which the 1st defendant relies.
28. The 1st defendant's next contention is that the right of the plaintiff to recover the dasabandham cess must be asserted, if at all, against either the ryots themselves or as against the 2nd and 3rd defendants. This contention falls under the following heads: first, that the 1st defendant was under no liability to collect the dasabandham cess on behalf of the plaintiff; secondly, that as a matter of fact, the 1st defendant did not collect the cess; thirdly, that the right of the plaintiff is as against the ryots, not against himself; and fourthly, that if there was ever any liability on himself to collect the cess, that liability has been transferred to the 2nd and 3rd defendants by virtue of the lease Exhibit D.
29. All these contentions, again, are based on different aspects of the same pieces of evidence, and it need only be said that owing to his conduct throughout as indicated by the evidence and especially by Exhibits F, F2, M, M1, and S, the 1st defendant cannot be heard to say that he is not liable to pay over the dasabandham cess from time to time--the translation of Exhibit F says therefore, it is made known to you that the amount due to you will be duly paid to you now and then' meaning thereby from time to time as the amounts are collected.' The disclaimer of any liability to pay, contained in Exhibit GG dated the 20th February 1908, cannot affect the rights which had already become vested. It is unnecessary to decide in the present case whether the liability to pay to the plaintiff the dasabandham cess rest ultimately as between the defendants themselves, either upon the 1st defendant or on upon the 2nd and 3rd defendants. In my opinion, the right to receive the dasabandham cess has become vested in the plaintiff and by virtue of Exhibits F, F2, M, M1 and S the liability to pay the cess to the plaintiff, rests in the first instance upon the 1st defendant. Whether the 1st defendant assigned to the 2nd and 3rd defendants the right to collect the cess, or whether it is still vested in himself, or whether the 2nd and 3rd defendants are bound to pay the cess to the 1st defendant in addition to the payments they have already made, or whether they have discharged all the liability that rested upon them under Exhibit D and whether Exhibit D may entitle them to recover from the ryots the dasabandham cess to which we have held the plaintiff to be ultimately entitled all these are questions which need not be considered in the present proceedings.
30. Finally, the question arises whether the Courts can recognise the existence of such a right as the plaintiff would be entitled to claim on the findings that we have given. We have had occasion recently in Avula Charamudi v. Marriboyina Baghavulu 28 Ind. Cas. 871 : 18 M.L.T. 76 : (1915) M.W.N. 596 to consider the incidence of Section 27(6) of the Specific Relief Act and Section 40 of the Transfer of Property Act, and for the reasons mentioned in that judgment, I am of opinion that the English Law relating to covenants running with the land, is not applicable in India. I am of opinion that the obligation to collect and pay the dasabandham cess was annexed to the ownership of the Dalavayipattada village and as the 1st defendant is the transferee of the village with notice of the obligation, it may be enforced as against him. No reasons have been pointed out why the obligation which is capable of being specifically enforced, should not be so enforced. On the other hand, the principles which underlie Section 39 of the Transfer of Property Act favour the enforcement of the obligation.
31. I am, therefore, of opinion that the decree under appeal is right and that the appeal must be dismissed with costs (two sets of costs).