Richard Garth, C.J.
1. The facts of this case are as follow:
A certain mouzah in the district of Balasore constituted a mourasi survarakari tenure recorded in the name of Karunakar Pari, defendant No. 7. It has been found as a fact by both the lower Courts that the tenure was previously held by his father Michu Pari, and by his grandfather Edhab Pari. Besides Michu, Edhab left two other sons, who are represented by defendants 1 to 5.
2. In 1879 the defendants 2 to 5 brought a suit against their cousin, defendant No. 7, for possession of a share in the tenure, and that suit was decreed in their favour on 3rd June 1880. Five days prior to that decree, however, namely, on the 29th May 1880, defendant No. 7 executed a deed of surrender of the tenure in favour of the zamindar, who is the plaintiff in the present suit. Subsequently, on the 24th September 1881, defendants 1 to 5 sold a share in the tenure to defendant No. 6.
3. The plaintiff then brought this suit to have it declared that defendants 2 to 5 had no interest in the tenure, and that the sale to defendant No. 6 was invalid.
4. The suit was dismissed in the Court of first Instance; but on appeal the District Judge held that the tenure was the sole property of defendant No. 7, who surrendered it to the zamindar; and he accordingly gave the plaintiff a decree for khas possession.
5. Against this decree the defendants 1 to 6 have appealed to this Court.
6. The question of law arising for our decision is simply this: whether a mourasi survarakari tenure in Orissa descends to all the heirs as joint family property, or to one heir only to the exclusion of the others
7. The nature of these tenures was to some extent defined by the Government orders of the 25th September 1838; and in two cases Puddo Lochun Mundle v. Lukhun Burrooah S.D.A. Reports 1860 Vol. II p. 109 and Doorjodhan Dass v. Chooya Daye 1 W.R. 322 it was held that those orders were to be recognized as authority in respect of the character or constitution of these tenures.
8. Those rules provide that the tenure be recognized as one of the existing tenuros of Cuttack; that when the tenure is in the possession of several joint survarakars, the Collector may, with the concurrence of the zamindar, select one or more to be the recorded 'manager' of the survarakari; that the tenure may under certain circumstances be 'hereditary property;' but that, whether hereditary or not, the tenure cannot be alienated or sub-divided without the consent of the zamindar.
9. The effect of these rules, we think, is to place the tenure much on the same footing as ordinary tenures, and to constitute it joint heritable property, subject to this, that for convenience sake the name of one of the owners is to be recorded as the proprietor, who is to act as the manager for the rest, and to be directly responsible to the zamindar for the rent. The Munsiff states that this is the nature of the tenure as usually understood in Cuttack, and that this view has been frequently upheld by the Courts. No case has been cited to us which bears directly on the point, but we think that this is the true meaning of the rules.
10. The prohibition against alienation or sub-division appears to be directed against such a splitting of the tenure as would be effected in this case by the sale of a portion of it to defendant No. 6. Such a splitting of the tenure cannot take place without the consent of the zamindar.
11. On the facts then, as found in this case, we must hold that defendants 1 to 5 had an interest in the tenure, which defendant No. 7 under the circumstances had no authority or power to surrender to the zamindar; and we must further hold that the sale of a portion of the tenure to defendant No. 6, not having been made with the consent of the zamindar, is invalid.
12. The decree of the District Judge must, therefore, be reversed. The plaintiff's suit for khas possession will be dismissed, but it will be declared that the sale to defendant No. 6 is invalid, having been made without the consent of the plaintiff zamindar.
13. Defendants 1 to 5 will have their costs in all the Courts against the plaintiff. Defendants Nos. 6 and 7 will pay their own costs.