Rampini and Pratt, JJ.
1. This is an appeal against the decision of the Subordinate Judge of Hazaribagh, dated 17th May 1900. The suit out of which the appeal arises was brought by the plaintiffs to recover possession of mouzah Shakkerpur, pergannah Kunda, from which they say the defendant No. 1 dispossessed them in Assar 1298 Fusli, i.e., June 1891 or 1948 Sambat. They aver that the mouzah was given by Raja Moni Nath Singn, the ancestor of the defendant Raja Rameshwar Nath Singh, to one Janki Misser in the year 1831 as a khairat bishanprit grant, that the gift was that of an absolute estate, that the mouzah was in 1875 leased in mokurari by Bhat Misser, the grandson, and by Jai Kuner, the daughter-in-law, of Janki to one Lall Ram Garreri, who sold the mokurari to the plaintiffs in 1886 and 1888, that they entered into possession and that, as the defendant No. 1 has dispossessed them, they are entitled to recover possession the defendant's pleas were that the gift to Janki Misser was not of an absolute estate, but of an estate which descended to the male heirs of the donee, and that on the failure of the male heirs of the grantee, the donor and his heirs are entitled to resume the grant, which has accordingly been done, and the defendant is therefore in lawful possession. The Subordinate Judge found in favor of the defendant and dismissed the suit. Hence this appeal.
2. The pleas urged on behalf of the appellants are-
(1)that the Subordinate Judge is wrong in finding that the grant to Janki Misser was of an estate to the grantee and his descendants in the male line, and that it was resumable by the donor and his heirs on the failure of such descendants.
(2) that the Subordinate Judge was wrong in finding that according to the custom prevalent in the defendant's Raj, such khairat grants are resumable on the failure of the male descendants of the grantee;
(3) that, even if his finding on these points be correct, the Subordinate Judge is wrong in coming to the conclusion that there has been a failure of the male descendants of Janki Misser; and
(4) that his finding that the plaintiffs never were in possession of the mouzah and that the suit is accordingly barred by limitation, is also incorrect.
3. We will deal in the first place with the question of the nature of the grant to Janki Misser. The Sanad, Ex, VI, p. 73, has been found to be genuine by the Subordinate Judge, and there is no cross appeal oh this point. It is manifestly a grant in khairat bishanprit to Misser Janki Ram and covenants that mouzah Shakkerpur shall remain in possession of the descendants (al aulad) of the Misserji and that the grantor's descendants (al aulad) shall never molest him in the place. There has been much discussion before us as to the meaning of the vernacular words al aulad. It is evident that they signify 'offspring' or 'progeny' and therefore, etymologically considered, include female as well as male descendants. Hence, the sanad does not by itself show that the grant to Janki Misser was one of the nature of which the defendant contends that it was; on the other hand the sanad contains no words importing a right of alienation. It therefore does not show that the grant was one of an absolute estate, as contended by the plaintiffs.
4. But we think that the ambiguity in the wording of the deed is sufficiently elucidated by the evidence given for the defendants in this case and on which the Subordinate Judge has relied, to the effect that such khairat grants were, according to the custom prevailing in the defendant's Raj at the time of the grant and subsequently, grants of an estate descendible to male descendants only and resumable on the failure of such descendants. There is first the oral evidence on this point, which has been discussed by the Subordinate Judge. He points out that the witnesses, who have given evidence on the subject, belong to two classes, viz., (1) khairatdars or holders of khairat villages, who depose that they can be resumed on the failure of their male heirs and whose evidence is therefore contrary to their own interests or to that of their descendants; and (2) of witnesses, who are in possession of villages formerly held as khairat villages, which have been resumed by the defendant or his ancestor on the failure of the male heirs of the grantees. We agree with the Subordinate Judge in considering that this evidence establishes the existence of the custom set up by the. defendant. But there is further authority in support of the custom. In the first place, in Sir William Hunter's Statistical Account of Bengal, Vol. XVI, in a sketch of the history of the Raj Kunda, in which the disputed village of Shakkerpur is situated, it is said that both feudal and religious tenures escheat to the estate on failure of male heirs of the grantee.' Then, the defendant has adduced several judgments of the Court of Chota Nagpore, to the jurisdiction of which mouzah Shakkerpur is subject, in which the custom referred to, or one similar to it, was held to be established. In one of these, being a judgment of the Judicial Commissioner of Ranchi, dated the 13th August 1844, the plaintiff, whose father had made a khairat grant to the grantee and his at aulad, was held entitled to resume it on the ground that al aulad signified 'male heirs,' and that he had established the usage, contended for by him, that such khairat grants were resumable on failure of the male heirs of the grantee. The Judge says: 'I am therefore of opinion that the usage relied on by the plaintiff has teen fully proved, that is to say, that the absence of male heirs of joghirdars of pergannah Palamau causes ipso facto reversion of the jaghir to the original grantor of the jaghir, and it does not devolve on heirs in general.'
5. In another case, viz., Appeal No. 40 of 1844, the Deputy Commissioner of Chota Nagporo, on the 4th August 1845, decided that on the death without issue of the grantee of a birt (free of rent) tenure the pottah of which convoyed the land to the lessee putra poutradi, the plaintiff Maharaja was undoubtedly entitled to resume. This decision is not quite in point, but it shows that in Chota Nagpore the words 'putra poutradi' have been held not to convey an absolute estate, as they have been interpreted as doing in other parts of the province. To the same effect is a judgment of the High Court, dated 4th July 1863, in which it is said: 'We consider that it was clearly admitted in both the lower Courts that there was a special custom prevalent in the district, in which this estate is situate, with regard to jaghirs of the description of that now in dispute, and that such jaghirs were granted to the original grantee and his lineal direct heirs to the exclusion of all collateral heirs and on the failure of direct heirs wore liable to resumption the meaning of the words 'putra poutradi' should therefore in this speoial description of estate be guided by the customs of the country.'. The case of Roop Nath Konwar v. Juggunnath Sahee Deo (1836) 6 S.D.A. Sel. Rep. 133 has also been cited to us. This was a ease coming from Chota Nagpore. In it, it was held that a jaghir could under local usage be resumed on the death of the jaghirdar without lineal descendants. We may also allude to the provisions of Section 124 of Act I of 1879, the Chota Nagpore Landlord and Tenant Procedure Act, which recognises the existence of under-tenures held conditionally on the survival of heirs male of the grantee and which, on failure of such heirs, revert to the grantor free of all incumbrances. It has been argued by the learned pleader for the appellants that the khairat grant of Shakkerpur made to Janki Misser is not on under-tenure. This may be so, but it is significant and supports the contention of the defendant of the existence of the custom relied upon by him that, when the present defendant attached the village of Shakkerpur in execution of a decree against that Misser, he described it as a tenure resumable on failure of male heirs, and that the plaintiff Perkash Lal, who objected to the execution, did not plead that the tenure had been wrongly described, and that it was not resumable on failure of male heirs.
6. The learned pleader for the appellants has called our attention to many rulings of the Privy Council and of the Courts of this country--among others to the cases of Nursing Deb v. Koylasnath with Roy (1862) 9 Moo. I.A. 55, Ganendra Mohan Tagore v. Upendra Mohan Tagore (1869) 4 B.L.R. O.C. 103, 182, Ganendra Mohan Tagore v. Jatindra Mohan Tagore (1872) 9 B.L.R. P.C. 377 : 18 W.R. 359, Krishnarav Ganesh v. Raugrav (1867) 4 Bom. H.C.A.C. 1, 17, Bhoobun Mohini Debya v. Hurrish Chunder Chowdhry (1878) I.L.R. 4 Calc. 23 : 3 C. L.R. 339 : L.R. 5 I.A. 138, Ram Lal Mookerjee v. Secretary of State for India (1881) I.L.R. 7 Calc. 304 : L.R. 8 I.A. 46, 60, Lalit Mohun Singh Roy v. Chukkun Lal Roy (1897) I.L.R. 17 Mad. 150, Venkata Kumara Mahipati Surya Rau v. Chellayammi Guru (1893) I.L.R. 17 Mad. 150, and Gobind Lal Roy v. Hemendra Nurain Roy Chellayammi Garu (1893) I.L.R. 17 Mad. 150. The cases of Ganendra Mohan Tagore v. Upendra Mohan Tagore (1869) 4 B.L.R. O.C. 103, 182 and Ganendra Mohan Tagore v. Jatindro Mohan Tagore (1872) 9 B.L.R. P.C. 377 : 18 W.R. 359 have been relied on as authority for the proposition that; estates tail male cannot according to Hindu Law be created either by will or gift.' The other cases are authorities for the contention, that words in grants such as 'from generation to generation' 'putra poutradi' and 'santan santati krame' have been hold to convey absolute estates of inheritance, alienable and never resumable. The answer to these arguments would seem to be that all law is liable to be overridden by custom, and that none of the cases cited relate to the words 'al aulad' or lay down how such words are to be interpreted, particularly in Chota Nagporo and Raj Kundu, where custom apparently ascribes to them the meaning of 'lineal male descendants.'
7. The learned pleader for the appellants has further called our attention to certain rulings on the subject of custom, viz., Hiranath Koer v. Baboo Ram Narayan Singh (1871) 15 W.R. 375 : 9 B.L.R. 274 (in which ho relies on certain dicta of Mr. Justice Markby), Mana, Vikrama v. Rama Patter (1897) I.L.R. 20 Mad. 275 and Indur Chunder Doogur v. Luchmee Bibee (1871) 15 W.R. 501. In respect of the first of these cases, it is sufficient we think to say that in our opinion there is sufficient evidence to establish the existence of the custom in question in Raj Kunda, to which the village of Shakkerpur appertains. In the Madras case; it is, laid down that in order that the practice on a particular estate may be imported as a term of the contract into a contract in respect of land in that estate, it must be shown that the practice was known to the person whom it is sought to bind by it and that he assented to it. The last case is authority for the proposition that no custom can possibly override the plain terms of a contract and must not be irrational, absurd and contrary to the principles of equity and good conscience. But in this case the contract was made 63 years ago. The contracting parties are all dead. It is sufficient we think, if evidence is given, as we consider has in this case been given, of the existence and the prevalence of the custom in question on the defendant's estate at or about (he time of the grant, so that it may be inferred that the grantee must have been cognizant of, and must have accepted the grant subject to it. With reference to the last case, it is sufficient to observe that the forms of the grant to Janki Misser are not plain, and that the custom set up by the defendant is neither irrational, absurd nor contrary to equity and good conscience.
8. The appellants' next plea which we have to consider] is that which impugns the Subordinate Judge's finding as to the failure of heirs of the grantee Janki Misser. But in the first place, as we agree with the Sub-Judge in finding that the existence of the custom set up by the defendant is proved, and that the words al aulad in the deed must be interpreted as 'lineal male descendants,' this plea fails. Admittedly no such descendants exist. It is alleged that one Ram Shanker Pandit is a descendant of Janki Misser through a female. 'We are of the same opinion as the Sub-Judge that this allegation has not been proved. Ram Shanker Misser has not appeared, though summoned. His son has not appeared. Witnesses have been called on both sides to prove and disprove his relationship to the family of Janki Misser, Those who say he is not related to the family have apparently as good means of being acquainted with the family as those who swear that he is a relation. In these circumstances, we cannot disturb the finding of the Subordinate Judge that he has not been J proved to be a descendant of Janki Misser, and on the view we take of the meaning of the sanad, even if he be, as alleged, a descendant of Janki Misser through a female the defendant is entitled to resume.
9. We further concur with the Subordinate Judge in his finding as to possession. The plaintiffs have, we think, entirely failed to establish their possession of the lands of the village at any time. We have nothing to add to what the Subordinate Judge has said in the part of his judgment, in which he gives his reason for his finding on the sixth issue, which relates to the alleged possession of the plaintiffs.
10. The learned pleader for the appellants argues that the defendant's right to resume is barred by limitation, as the right arose on the death of Janki Misser. But we are of opinion that this is not so. The grant is shown to be one to Janki Misser and his male heirs, and the right to resume could not arise till the death of the last male heir, viz., Bhat Misser, which took place about August 1886, and the defendant is alleged to have taken possession within about five years of that date.
11. For all these reasons we dismiss this appeal with costs.