JUDGMENT

1. This appeal arises out of a suit for declaration of title to and recovery of possession of <ORG>, for mesne profits and other reliefs. The plaintiff <NAME> claimed the estate under the will of <NAME> dated the 11th May 1905. The properties belonging to the estate are situated partly in Singbhum, and partly in the district of Midnapur.

2. The parties are governed by <ORG>, and their ancestors are said to have migrated from Rajputna, centuries ago. The history of the family is stated in <CITATION> (1901) 29 Cal. 343 and a geneological table is given at page 344. The defendant <NAME> is descended from one <NAME> who belonged to the main family and the plaintiff is descended from one <NAME> the brother of <NAME>, who founded the <NAME> branch of the family.

3. The <NAME> Raj is an impartible estate, the succession to which has devolved by family and local custom according to the rule of lineal primogeniture from ancient times. The estate was settled by <ORG> with <NAME>, the ancestor of the parties at a revenue of Rs. 4,000 in 1777. <NAME> got the <NAME> estate according to the ancient family and local custom, on his death dispute arose as to succession to the estate between the defendant who is his nearest heir, and the plaintiff who claimed the estate under his will.

4. <NAME>, as stated above, executed his will on the 11th May 1905, and died on the 1st March 1916. The plaintiff on the 6th April 1916, applied for probate of the will. The defendant contested the will, but it was found to be genuine and probate was ordered to be granted on the 30th May 1917. In the meantime the defendant obtained possession of the estate, and his name was registered under the Land Registration Act by the Deputy Commissioner <NAME> overruling the plaintiff's objections. The order was upheld by the Commissioner, and finally by <ORG> on the 13th July 1917 who held that in the jungle mahals there was no custom of divisibility by will.

5. It appears that before the death of <NAME> the estate came under the Encumbered Estates Act (Bengal Act VI of 1876) upon the complaint of the defendant's father <NAME> on the 2nd August 1905. After <NAME>'s death, the defendant, as his heir, got the estate released in October 1920 from management under the Encumbered Estates Act, but upon his application as a disqualified proprietor <ORG> took over the management of the estate. The present suit was instituted on the 17th March 1921, and after it was decreed by <ORG>, a receiver of the estate was appointed by this Court.

6. The defence, inter alia was that the <NAME> estate had been held and enjoyed by the predecessors of the defendant as an ''ancestral joint undivided and impartible raj" and is still held and enjoyed as such, that the estate is the joint property of a joint undivided family governed by the Mitakshara Law as modified by the custom prevailing in the family and in the locality known as the jungle mahals from time immemorial, that the estate was in its origin in the nature of a "feudal tenure in chief" and was and is by its nature inalienable, that the defendant and his father <NAME> were all along joint with the deceased <NAME> and used to be maintained by the latter, though according to family custom, they had a separate house to live in. The defendant denied that the proprietor for the time being of the <NAME> estate had or has any right to dispose of any of the properties of the estate by will or otherwise or to nominate any person as his heir or successor.

7. The <ORG> below by its judgment and decree dated the 21st August 1922 held that the estate being an impartible one was alienable, that the defendant had failed to prove that either by custom or by its nature, it was inalienable, that the alienation was not bad by reason of the provisions of the Encumbered Estates Act, and in the result decreed the suit in a "modified form." The defendant has appealed to this <ORG>.

8. At the hearing of the appeal an application was made on behalf of the appellant for the admission of certain documents in evidence. These documents were produced in the Court below, but it is said they were not tendered in evidence owing to inadvertence. The respondent objected to their being admitted in evidence. The documents were referred to and discussed by learned Counsel on both sides at the hearing of the appeal, the question of their admissibility being reserved for decision after the arguments were over.

9. We have considered the question and for reasons recorded in the order sheet dated to-day we have admitted them (except one) in evidence and directed them to he marked as exhibits.

10. The first question for consideration is whether <NAME> had power to dispose of the <NAME> estate by his will.

11. It is admitted that the parties are governed by <ORG>, that <ORG> is impartible and that the succession to it takes place according to the rule of lineal primogeniture. It is found that the defendant was joint in estate with <NAME>; the learned Counsel for the plaintiff res-respondent does not press his objections to that finding and there is ample evidence in support of it. So that if there was no power of alienation the defendant is entitled to succeed by right of survivorship. The Court below has held that it is "settled law now that in case of impartible zemindaries governed by the Mitakshara Law, the holder of the zemindary can alienate the estate by will, gift, mortgage, sale, adoption or nomination of next of kin when there is succession to the zemindary by lineal primogeniture." It has further held that " it is settled law now that the holder of an impartible zemindary governed by the rule of succession by the custom of lineal primogeniture can alienate the zemindary unless there be any family or local custom restricting such alienation, and that the onus of proving such custom lies upon the person who alleges it," and reference is made to the case of <NAME> v. <NAME> [1888] 10 All. 272 and some other cases. On behalf of the appellant it is contended that having regard to the principles enunciated in <CITATION> A.I.R. 1921 P.C. 6 (and some other cases) the holder of an impartible raj has no power to alienate it, at any rate by any testamentary disposition. In the case of <CITATION> A.I.R. 1921 P.C. 6 Lord <NAME> in delivering the judgment of <ORG> reviewed the decisions on the point and held that the succession to an impartible estate which is ancestral property of a joint Hindu family governed by the Mitakshara is " designated by survivorship." His Lordship after reviewing the cases on the point decided before <NAME> case  10 All. 272 observed:

Up to this point, with the single exception of the Tipperah case, which as stated, was not under Mitakshara Law the law is all one way and seems to affirm these propositions:

(1) The fact that a raj is impartible does not make it separate or self-acquired property.

(2) A raj, though impartible, may in fact be self-acquired or it may be family property of a joint undivided family.

(3) If it is the latter, succession will be regulated according to the rule which obtains in an undivided joint family, so far as the selection of the person entitled to succeed is concerned, i.e., the person will be designated by survivorship, although then, according to the custom of impartiality, he will hold the raj without the others sharing it."

12. So far therefore as the question of succession is concerned, the authorities show that the principle of survivorship regulates the succession in a Mitakshara joint family, though the estate is an impartible one governed by the rule of lineal primogeniture, except that the estate is held by a single member. In the present case however the question is not one of succession, but the power of testamentary disposition over an impartible estate. So far as the question of the power of alienation is concerned the leading case is that of <NAME> v. <NAME> [1888] 10 All. 272. In that case the owner of an impartible raj made a gift of 17 villages forming part of the estate in favour of his younger wife. Thereupon a suit was brought by his son (by his first wife) for declaration that the gift was invalid on the ground that the <NAME> had no power to alienate any part of the raj estate. <ORG> decided that the deed of gift was invalid. On appeal <ORG> held that "they were not prepared to admit at any rate so far as the law governing these (the North-West) Provinces is concerned, except where it is clearly overridden by well-recognised family custom, an absolute disposing power in one member of a joint family over an estate which has some of the incidents at least of joint family property." Sir <NAME> in delivering the judgment of <ORG> observed: It is admitted that the <ORG> is impartible, and that there is a custom of succession by primogeniture. The question how far the general law of the Mitakshara is superseded and whether the right of the son to control the father is beyond the custom 'is one of some difficulty.

13. The Judges of <ORG> have quoted in support of their view passages from several judgments of this Committee. In all of them the question was as to the succession to the property on the death of the <NAME> or <NAME>, and it was held that for the purpose of determining who was entitled to succeed the estate must be considered as the joint property of the family."

14. Then after referring to some decisions of <ORG> His Lordship observed that "though an impartible estate may be for some purposes spoken of as joint family property, the co-parcenary in it which under the Mitakshara Law is created by birth does not exist." "The reason for the restraint upon alienation under the law of the Mitakshara is inconsistent with the custom of impartibility and succession according to primogeniture.

15. The inability of the father to make an alienation arises from the proprietary right of the sons.-The argument in support of the view of <ORG> appears to be that, although the sons do not take an interest by birth, so as to enable them to hold the estate or to have a partition, they have as members of a joint family some interest which is sufficient to enable them to prevent an alienation.

16. The learned Judges of <ORG> say: "It must be conceded that the complete rights of ordinary co-parcenership in the other members of the family to the extent of joint enjoyment and the capacity to demand partition are merged in, or perhaps to us a more correct term, subordinated to the title of the individual member to the incumbency of the estate, but the contingency of survivorship remains along with the right to maintenance in a sufficiently substantial form to preserve for them a kind of dormant ownership. The property in the paternal or ancestral estate acquired by birth under the Mitakshara Law, is in their Lordships' opinion so connected with the right to a partition that it does not exist where there is no right to it. It is difficult to reconcile this mode of succession with the rights of a joint family and to hold that there is joint ownership which is a restraint upon alienation." The case therefore, establishes the following propositions:

(i) In an impartible estate governed by the rule of lineal primogeniture the co-parcenary which under the Mitakshara Law is created by birth does not exist, and the son is not a co-sharer with the father.

(ii) Property in ancestral estate acquired by birth under the Mitakshara Law is so connected with the right to a partition that it does not exist when there is no right to it.

(iii) For the purpose of determining who are entitled to succeed, the estate must be considered as the joint property of the family.

17. The next case is the <NAME> case: Sri <NAME> Rao Venkata v. Court of Wards [1899] 22 Mad. 383, in which it was distinctly laid down that an impartible estate is not inalienable by will or otherwise by will by virtue only of its impartiality, in the absence of proof of some special family custom or tenure attaching to the zemindari and having that effect. That is a case directly in point, and unless it can be distinguished is binding upon us. It is contended on behalf of the appellant that there was no jointness in estate in that case. It is necessary therefore to examine the facts of the case. It appears that the <NAME> of Pittapur adopted the plaintiff who was the natural born son of the <NAME> of <NAME>. Under the adoption deed, he was to reside with his adoptive father; but after so residing for some time ho quarrelled with the latter and ceased to reside with him. The adoptive father gave some moveables to the plaintiff and money for the expenses of his marriage and it was arranged that he would get Rs. 2,000 per month for his maintenance. The defendant who claimed to be the son of the <NAME> set up a will under which the estate was bequeathed to him. It was alleged that the defendant was a suppositious child, but the Court held that the bequest was to him as a persona designata and that the will was genuine. It is true that the plaintiff left the residence of the <NAME>, but the facts show that he was joint in estate with the <NAME>.

18. In the statement of facts at page 84 of the report it is stated that <ORG> took up the question "whether it was within the power of the holder to alienate it by his will so as to deprive his son, who but for the impartible character of the estate, would have been a joint owner thereof with him of all interest in the said estate." Mr. <NAME>'s argument proceeded upon the footing that the adopted son had a vested right in the estate, and Sir <NAME>, in delivering the judgment, said (page 90): " The Courts below held that the estates of the <ORG> though impartible wore in the nature of joint family property and were therefore according to the Law of the Mitakshara inalienable except for necessary objects;" and observed (at p. 91) " that where the Mitakshara law prevails and there is the custom of primogeniture the eldest son does not become a co-sharer with his father in the estate; 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."

19. Reliance however is placed on a passage in the judgment (at page 95) which runs as follows:-"It was argued that the decision in <NAME> v. <NAME> [1888] 10 All. 272 did not extend to a will and a case in 8 M.H.C.R. was referred to. That was a case of an admitted co-parcenary between the maker of the will and his adopted son, and the latter would take as the surviving co-parcener a title which was held to be a prior title to that by devise. It is not applicable here, where co-parcenary between the <NAME> and the adopted son is not admitted, but the contrary is held. In the present case, according to the decision of <NAME> v. <NAME> [1888] 10 All. 272, the appellant did not become a co-parcener with the <NAME>. If the <NAME> had power to alienate he might do it by will, and the title by the will would have priority to the title by succession."

20. It is contended that the Madras case was distinguished on the ground that there was co-parcenary in that case whereas in the Pittapur case, co-parcenary between the <NAME> and the adopted son was " not admitted but the contrary is hold " which shows that there was no co-parcenary. But the adoption was admitted, and although the adopted son quarrelled with the <NAME> and was living separate from him, he was receiving maintenance (Rs. 2,000 per month) from the <NAME>. That being so there can be no doubt that there was jointness in fact. It seems to us that what was meant was that in law there was no co-parcenary between the adopted son and the <NAME>h, as their Lordships say "in the present case, according to the decision of <NAME> v. <NAME> [1888] 10 All. 272 the appellant did not become a co-parcener with the <NAME>h." If there was no joint ness in fact there was no necessity for reference to the case of <NAME> (2).

21. The Madras case related to an ordinary Mitakshara family and therefore his Lordship observed that it was the case of an admitted co-parcener, but in <NAME> case [1888] 10 All. 272 which also was a case of admitted joint estate it was held that in an impartible <ORG> governed by the rule of primogeniture, the co-parcenary which under the Mitakshara law is created by birth does not exist, and the son is not a co-sharer with his father. By reason of the decision in that case, therefore, there was no co-parcenary (as a matter of law) between the <ORG>ah and the adopted son in the <NAME> case, although the latter was joint with the <ORG>ah, and that is what was meant in the passage that the co-parcenary "is not admitted but the contrary is held." It is also contended that in the case of <NAME> [1888] 10 All. 272 jointness was not found, whereas in the present case joint-ness was assorted not only by <NAME> but by all the members of the family, and is conclusively proved, and that therefore the decision in <NAME> case [1888] 10 All. 272 does not apply to the present. But if there was no jointness in <NAME> case [1888] 10 All. 272 it would have been wholly unnecessary to go into the questions dealt with by <ORG> whose judgment proceeded upon the footing that there was jointness in fact, though there was no coparcenary in law.

22. It is contended that impartiality is inconsistent with the power of alienation, that if the holder of an impartible estate has the power of alienation, he can, if he chooses, put an end to the impartibility by alienating the estate to different persons who may be absolute strangers to the family, and who can at once partition the estate, and that in fact, impartibility, lineal primogeniture and inalienability all converge to preserve the entity of the estate, and we were referred to <NAME> Hindu Law, 4th Edition pp. 511-512.

23. The reason however why an impartible Raj has been held to be alienable in the leases cited above as already stated, is that in such an estate, the co-parcenary which under the Mitakshara law is created by birth does not exist and the reason for restraint upon alienation therefore ceases to exist in the case of an impartible estate.

24. There are repeated admissions of <NAME> and other members of the family that the estate has been held from the time of remote ancestors, as a joint ancestral impartible <ORG>. <NAME> died joint in estate with the defendant (<ORG>), and if it were ordinary ancestral property there is no doubt that <ORG> would have taken the estate by survivorship.

25. It is accordingly contended on behalf of the appellant that if, as held in a series of cases, the succession to an impartible <ORG> also goes by survivorship, the right by survivorship being prior to a right under a will which operates only from the death of the testator there was no property of Satrughna upon which the will could operate. Reference is made to the case of <CITATION>  5 Bom. 48 and <NAME> v. <NAME>  8 M.H.C.R. 6. Both the cases related to an ordinary Mitakshara family. In the first case it was held by <ORG> that under the Mitakshara law as received in Bombay, a father cannot by will make an unequal distribution of ancestral property whether moveable or immovable, that although one of several co-parceners under the same law has the power of alienating his undivided share in ancestral estate without the consent of his co-sharers by deed executed for valuable consideration, and although such share may be seized and sold in execution for the separate debt of the co-sharer, at least in the lifetime of the judgment-debtor, yet such alienation cannot be made by will. Their Lordships referred to the case of <NAME> v. <NAME>  8 M.H.C.R. 6 and observed "Again <ORG> though admitting that a co-parcener can effectually alienate his share by gift has ruled that he cannot dispose of it by will [see the case of <NAME> v. <NAME>  8 M.H.C.R. 6]. Its reasons for making this distinction between a gift and a devise are that the co-parcener's power of alienation is founded on a right to a partition; that that right dies with him, and that the title of his co-sharers by survivorship vesting in them at the moment of his death, there remains nothing upon which the will can operate.

26. This principle was invoked in the case of <NAME> v. <NAME> [1879] 5 Cal. 148, and was fully recognized by their Lordships"...and further on observed: ''they are of opinion that the principles upon which <ORG> has decided against the power of alienation by will are sound and sufficient to support that decision.

27. It is contended that with regard to the rule of succession by survivorship there is no distinction between partible property and impartible property under the Mitakshara law, except that in the latter case the estate is held by a single person, and that that being so, the principle that in a case of succession by survivorship, the title by survivorship being the prior title takes precedence to the exclusion of that by devise, applies to an impartible estate also.

28. It is further contended that the principle of survivorship presupposes jointness of interests during the lifetime of two persons, and though in an impartible estate the right to call for partition does not exist in the other members of the family, the right to partition is only one of the incidents of joint ownership, and that in an impartible estate, the members of the joint family (other than the holder of the estate) receive maintenance according to custom, and before <NAME> case [1888] 10 All. 272, it was held that impartibility does not destroy jointness. Reference was made to the case of <CITATION>  4 Cal. 190, where it was observed that impartibility does not destroy its nature as joint family property, or render it the separate estate of the last male holder so as to destroy the right of another member of the joint family to succeed upon his death in preference to those who would be his heirs if the property were separate, and also to the observations in the case of <NAME> v. <NAME>  4 Mad. 250, such an estate though possessed by one of the members of the family is the joint property of the family and in the event of death passes by survivorship.

29. The principle of survivorship, however, which governs succession in ordinary joint family under the <NAME>, has to be [followed, according to the decisions since <NAME> case [1888] 10 All. 272 in the case of impartible estates only for a particular purpose, viz., to find out a successor, and it is only for the purpose of determining who is entitled to succeed, that the estate is to be treated as the property of the joint family.

30. The question, therefore, is no longer res Integra, and we are bound to hold having regard to the decisions of <ORG> in <NAME> case [1888] 10 All. 272 and the first Pittapur case [1899] 22 Mad. 383 that in the absence of any custom, an impartible estate is alienable, by way of transfer inter vivos, as well as by a testamentary disposition. The principle of the said decisions has been followed or recognised in subsequent cases also. <CITATION> A.I.R. 1915 P.C. 30, it was held that there was complete separation of the joint family between <NAME> (the holder of the impartible estate) and his brother <NAME> and consequently the impartible estate became the separate property in which the appellant, the widow of the last holder, was entitled to a widow's estate. But their Lordships?, referring to the judgment of <ORG>, observed: " Those learned Judges overlooked that fact that <NAME> Singh and his son had no co-parcenary rights in the impartible estate, and no rights in that estate which entitled them or either of them to a partition of the impartible estate. They could not have prevented <NAME> from alienating that impartible estate in such a way as to determine any contingent interest they had in it under the custom. Their contingent interest under the custom was liable to be defeated by an alienation of the estate by <NAME> even if the family had remained joint." <CITATION>  29 Bom. 51, Sir <NAME>, C.J., observed: " But whatever may have been the opinion that prevailed at that time it has now been definitely decided by <ORG> in <NAME> v. <NAME>  10 All. 272, and in Sri <NAME> Sarya v. Court of Wards  22 Mad. 383 that in impartible properties there is no co-parcenary."

31. <CITATION> A.I.R. 1918 P.C. 81 (the second Pittapur case) the plaintiff, the adopted son of the late <ORG>a of Pittapur, sued the defendant (to whom the estate had been devised by the late <ORG>a after the adoption of the plaintiff) for maintenance. He rested his case not on any relationship with the defendant which he denied, but on what he alleged was the general law, viz., that by birth he had a right to maintenance out of the property constituting the <ORG> which right followed the property into the hands of a third party. Lord <NAME>, in delivering the judgment, referred to the view taken by <ORG> in <NAME> case  10 All. 272 and observed (at page 783):--"But the decision of the <ORG> which binds their Lordships made that view no longer tenable. It settled that in an impartible zemindary there is no coparcenary, and consequently no person existed who as co-parcener could object to alienation of the whole subject by the de facto and de jure holder. The judgment was followed and applied to this very <ORG> in <NAME> v. Court of Wards  22 Mad. 383. The import of these decisions was in their Lordships' view correctly stated by Sir <NAME> in the case of <CITATION>  29 Bom. 51. ' It has now been definitely decided that in impartible properties there is no co-parcenary." Then, after referring to the right to maintenance as an inherent quality of the right of co-parcenary that is, of common property, observed (at page 784): " that the right to maintenance, so far as founded on or inseparable from the right of co-parcenary begins where coparcenary begins and ceases where coparcenary ceases."

32. It is contended on behalf of the appellant that in the present case there was not merely a notional but actual jointness. According to custom the members of the joint family not only got maintenance, but education and marriage expenses also, so that there was actual enjoyment by the members of the family so far as was consistent with the impartibility of the estate. That is so, but if, as held in the above cases, there is no co-parcenary in law, and the estate is to be treated as joint only for a particular purpose, the distinction relied upon by appellant does not help him.

33. In the case of <NAME> (3), there was no question of alienability and the only question related to succession. But their Lordships in discussing the last question had to refer to <NAME> case [1888] 10 All. 272 because of the contention that the succession to an impartible estate was not governed by survivorship having regard to the principle laid down in the case of <NAME> (2) that there is no co-parcenuiry in an impartible <ORG>, and also to the decision in the second <NAME> case: <ORG> Kumar Babu Bishan Prakash Narain Singh v. Moharani Janki Koer A.I.R. 1920 P.C. 34, based upon the admission of counsel. With reference to <NAME> case [1888] 10 All. 272 it was pointed out that the question of succession was outside the scope of enquiry in that case, and it was observed (at page 244:

No doubt it would have been possible to decide the case of <NAME> (2) differently if the theory had been accepted that impartibility being a creature of custom though incompatible with the right of partition, yet left the general law of the alienability by the head of the family for other than necessary causes without the consent of the other members as it was." Nevertheless the decision in <NAME>'s case [1888] 10 All. 272 was not declared to be incorrect, Their Lordships observed:-" Even if however their Lordships thought the decision in <NAME> (2) wrong an opinion which they do not pronounce the case has stood too long to be touched." <NAME>'s case therefore did not touch the law regarding alienability of an impartible estate, but left the law where it was.

34. Our attention has been drawn to Mayne's Hindu Law, 9th Edition page 769 where it is stated " whether a co-parcenary is to be assumed solely for the purpose of ascertaining the next heir or whether it is a living principle by which the succession is to be regulated is an extremely difficult question, and when it comes before <ORG>, that tribunal will have to resolve the difficulty created by the fact that the doctrine of survivorship and the right to testamentary disposition cannot coexist." That question however must be taken as settled, and having regard to the state of the authorities, we are bound to hold that holder of an impartible estate has the power of alienating it by will, and that therefore <NAME> had the power to dispose of the Dhalbhum Estate by the will.

Custom of inalienability:

35. If according to law, an impartible <NAME> is not inalienable, it is for the defendants to prove that by custom the estate is inalienable. Before dealing with the evidence on the point we may point out the nature of the evidence required to prove custom in such cases.

36. In the case of <NAME> v. <NAME> [1888] 10 All. 272 their Lordships in considering the custom of inalienability observed:- "The fact that there is no evidence of a sale of any portion of the estate is in the plaintiff's favour, but this is not sufficient. The absence of evidence of an alienation without evidence of any facts which would make it probable that an alienation would have bean made cannot be accepted as proof of a custom of inalienability."

37. In the case of <CITATION> (1909) 36 Cal. 943 the latter portion of the above passage was quoted and followed., and their Lordships observed: But in this case numerous instances were proved in which alienations of small portions of the property took place, and in not a single instance was it proved that any objection, based upon the alleged custom, was raised by anyone to an actual, or threatened, alienation. It was raised in the present suits for the first time."

38. In Rama Nand v. Surgiani (1894) 16 All. 221 Sir John Edge, C.J., and <NAME>, J. observed:- "In such a case the kind of evidence that ought to be regarded is evidence showing that the right claimed by custom was more or lees contested and the contest abandoned by some one who, if the custom had not existed, would have been entitled, or evidence showing that generally in the district the custom was followed to the exclusion of persons who, if it had not been for the custom would presumably have enforced their right under the general law. Evidence which is as consistent with there being a custom as with there being no custom at all is not evidence of a custom modifying or varying the general law. In this case, so for as we can see, there was no evidence of custom in the strict sense to be considered."

39. It is contended that the estate has remained intact for several centuries and the fact of its existence for such a length of time is an indication that there was no power of alienation, as otherwise the estate would in all probability have been' broken up and dissipated.

40. Reference is made to paragraph 105 of the judgment in Suit No. 17 of 1890, <CITATION> where the statement of Raja <NAME> (the son of Raja <NAME> of <ORG>) dated the 26th June 1859 with reference to the " date from which the successors of the original title holder have been holding title " is set out. It was stated that Raja Jagannath Dhabal Deo, the founder of the family, came from Dharangar in the Western provinces in the year 638 B.S. and established himself in <ORG>. Reference is also made to the statement of <NAME> contained in his question dated 29th March 1887, where he stated that 24 generations back his ancestors migrated to this part of the country from Dharanagar and the family was governed by the Mitakshara. As for <NAME>'s statement, it was not accepted by the <ORG>, and even if it be accepted, it merely shows that the family migrated to this part of the country centuries ago. It does not show since what time the family came to possess property, nor how long the estate is impartible and governed by lineal primogeniture. Whether the family migrated about seven centuries ago (638 B.S.) or not, as to which of course there is no evidence beyond the statement of Raja <NAME> made in 1859 or that a Satrughan made in 1887, it appears as stated in the judgment of this <ORG> dated the 5th August 1893 in the appeal of <NAME> against <NAME> that, the members of the family looked upon themselves as Kshatriyas who came many generations ago from some place in the North-West Provinces. There is no doubt also that the bulk of the estate has remained intact for many generations.

41. We were referred to a passage in the judgment of <ORG> in the case of <NAME> v. Badan Singh A.I.R. 1922 P.C. 146, where their Lordships observed (with reference to the judgment of the appellate Court): "The judgment omits from consideration in the appraisement of the case the existence of the family as an entity through so many centuries which entity could only survive destruction and disintegration with the help of such a family custom."

42. The family custom there referred to was the custom of lineal primogeniture. The fact referred to by their Lordships is no doubt to be borne in mind, but it also must be remembered that according to the law as understood prior to the decision in the case of <NAME> in 1889, an impartible <ORG> had always been considered as inalienable. And if the <ORG>as were following what they believed to be the law, it was not custom because custom is something in derogation of the law. It may also be pointed out that the estate in <NAME>'s case [1888] 10 All. 272, had its origin three hundred years before the suit, and evidently that fact by itself was not held to be sufficient proof (in the absence of custom) of inalienability.

43. The question we have to consider is whether the evidence proves the custom of inalienability. In considering that question we have to bear in mind that if there was any occasion when, having regard to human nature, there was likelihood of alienation, and alienation was not effected, it would be evidence of inalienability.

44. We will now deal with the instances in which it is said that alienation would have been made were it not for the custom of inalienability.

1. <NAME> died leaving a widow (who was enceinte), a widowed daughter-in-law (the widow of <NAME> who had predeceased <NAME>) and a brother <NAME>, became the <NAME>, and that was a fact relied upon by <NAME> in <NAME> suit (No. 1 of 1889) as an instance (among others) of exclusion of the widow, as bearing upon the question whether the family was governed by the Mitakshara or Dayabhaga. (See judgment of District Judge dated the 19th August 1891, in that suit, and the judgment of <ORG> dated the 15th August 1893 on appeal.)

45. But no inference can be drawn in favour of any custom to inalienability from the fact that <NAME> Ram Chandra I did not execute any will and that <NAME> succeeded to the <NAME>. It does not appear that the <NAME> was aware of the <NAME> being enceinte when he died. If he was aware of it, there was the possibility of her giving birth to a son, in which case there could be no question of bequeathing the estate to the widow, But of course there was no knowing that she would give birth to a son, even if the <NAME> was aware that she was enceinte and we must consider the question from the point of view that the <NAME> was not aware that she was with child or that she would give birth to a son. It does not appear when the succession of Hikim <NAME> took place. But <NAME> I who was in the womb when <NAME> Ram Chandra I died, was installed as <NAME> in 1767, as appears from the District Gazetteer (<ORG>, page 27). <NAME> Ram Chandra must have therefore died some time before 1750. Wills were unknown at that time, at any rate in that part of the country. But apart from that, the contention that the <NAME> did not execute any will in favour of his wife because of the conaoionsness that he could not alienate the estate, proceeds upon the assumption that a man dying without issue would naturally leave his estate to his widow. That may be natural feeling with persons of other nationalities or even with some of the present day Hindus specially in towns. But was that the feeling among Hindus, at any rate, in those days? Apart from the sentiment of preserving the prestige and dignity of the family, and the integrity of the estate there was generally speaking a feeling among Hindus until recent times, against the estate passing into the hands of the wife's relations.

46. Even Hindus governed by Dayabhaga Law (as to whose power of alienation there is no doubt) in those days very rarely made dispositions of their estates in favour of their wives. The effect of such disposition would be to pass the ancestral estate from the family of the owner to the family of his father-in-law. It is well-known that Hindus specially in those days were anxious to provide for the offering of pindas and libation of water to them after death, and the members of the widow's family are not competent to offer Jal pindas. The feeling against the estate passing into the family of the wife would be much stronger in the case of an owner of an impartible <ORG> which had descended by lineal primogeniture from generation to generation.

47. We ought not to judge of the feelings and sentiments of these <NAME>s imbued with ideas of customs of hoary antiquity in the light of the feelings and sentiments of other nationalities or of Hindus of the present generation. Even assuming that a will had been made, how could rights under a will be enforced at that time, when the British power had not been established and there were no British Courts to enforce rights? Apart from the fact that the instinct of jointness was very much stronger then than at present, could <NAME> expect that his widow would be able to enforce her rights under a will if he executed any, as against his younger brother who would succeed under the Mitakshara Law as well as under family custom? The question of succession of <NAME> would be settled in no time by an appeal to arms and a female would not venture to set up rights as against a male who had law and custom on his side and followers to support his claim. The argument that no will was executed in favour of his widow has therefore no force. It is contended however that some provisions would certainly have been made by <NAME> for his widow and widowed daughter-in law, but this contention assumes that no provision was made. It is for the party, setting up the custom to show that no provision was made and there is no such evidence. There is no suggestion in the pleadings nor in the evidence of witnesses that no provisions were made for members of the family. The widow and the widowed daughter-in-law would under the family custom be entitled to maintenance. The amount of maintenance is not left to the caprice of the next <NAME> but is regulated by well-known custom in these ancient impartible estates, and though there is no evidence as to what maintenance they got the evidence with regard to some widows in other cases to be presently noticed, shows that widows of the family were amply provided for under the family custom. (In the course of his further discussion of the evidence, His Lordship observed:)

48. With regard to the agreement set up by <NAME> by which it was alleged that <NAME> appointed him his successor, it appears that after the death of <NAME> appointed him his successor, which took place some time between 1800 and 1805, a dispute arose as to who should succeed him, viz., <NAME> who set up the agreement, or <NAME> the eldest son of <NAME>.

49. (His Lordship then dealt with the evidence as to this dispute and continued:-) We are accordingly of opinion that an agreement by <NAME> which could divert the course of succession is not proved and the argument on behalf of the appellant that it was an instance where an attempted alienation was unsuccessful has no force. On the other hand the fact that such an agreement which would have the effect of alienating the estate, was set up (though falsely) by a member of the family, was inconsistent with the consciousness in the family that the estate could not be alienated if the agreement was genuine.

IV. <NAME> died leaving six sons and four widows. We have seen that his eldest son <NAME> succeeded him. It is said that <NAME> did not make any provision for his younger sons and widows. But the evidence shows that largo grants were made for the maintenance of the younger sons. (In continuing his discussion on the evidence as to the custom in the family, his Lordship observed:) <NAME> (the grandson of <NAME>) in his petition of objection filed on the 24th May 1891, in the pro-bate case also took the same pleas as those raised by <NAME> and among others that the <NAME> "had no right to make a will regarding those properties or to make a gift of the same to any person, or to give permission to take an adopted son or to appoint a future heir," and this is relied upon as being a statement made by a member of the family as to the family custom. <NAME> was a minor at the time, and was represented by his mother and guardian <NAME>. However that may be, <NAME> himself had claimed the estate; that suit was pending: <NAME> (the grandson of <NAME> substituted in his place) was highly interested in denying the power of alienation.

50. If the genuineness of the will and the power to make a will were proved, the suit would be defeated. Apart from that the statement was made at a time when a controversy as to family custom had arisen; and the question is whether the statement is admissible in evidence. Under Section 32, Clause (4) the statement in order to be admissible must have been made "before any controversy as to such right, custom or matter had arisen." In the present case <NAME> had set up a will. The controversy therefore as to the custom of making a will had already arisen when <NAME> filed his objections. The statement therefore does not come under clause (4) of Section 32 of the Evidence Act.

51. It is contended however on behalf of the appellant that it comes under Section 49 or else under Section 13 of the Act. Section 49 (so far as is material for the present case) runs as follows:-"When the <ORG> has to form an opinion as to the usages and tenets of any body of men or family-the opinion of persons having special means of knowledge thereon are relevant facts." There is no difficulty when a living wit-ness states his opinion; the question however arises whether the opinion of such a person who is dead can be proved even though it does not come under Section 32 of the Evidence Act.

52. In the case of <CITATION>  23 All. 37, <ORG> observed:-"By Section 49 when the <ORG> has to form an opinion on (inter alia) the usages of any family, the opinions of persons having special means of knowledge thereon are also relevant. But by Section 60 if oral evidence refers to an opinion or the grounds on which that opinion is held it must be the evidence of the per. son who holds that opinion on those grounds. Their Lordships think it is admissible for a living witness to state his opinion on the existence of a family custom and to state as the ground of that, information derived from deceased persons, and the weight of the evidence would depend on the position and character of the witness and of the persons on whose statements he has formed his opinion. But it must be the expression of independent opinion based on hearsay, and not mere repetition of hearsay."

53. If the contention of the appellant were correct, statements of deceased parsons as to matters coming under Sections 45 , 47 and 49 would be admissible even though they do not fall under Section 32 . But Section 32 is a, special section providing in what cases statements of deceased persons would be admissible. Such statements have not the sanction of oath, and the persons making them cannot be subjected to cross-examination. It is necessary therefore that the statement should not be made under bias i.e., after a controversy had arisen.

54. Clause 4 of that section accordingly provides that statements of a deceased person on such matters are admissible if made before the controversy had arisen, and it would not be reasonable to hold that those very statements though made after the controversy has arisen are admissible under Section 49 of the Act.

55. Reliance is placed on behalf of the appellant upon a passage in the judgment of <ORG> in the case of <CITATION>  11 Cal. 463.

56. Their Lordships referring to the judgment of <ORG> on the question of adoption in the <NAME> family observed, " They also, if their Lordships rightly understand their judgment, put out of their consideration on the ground that it was hearsay evidence, all the statements as to the custom made by deceased members of the family to which the witnesses deposed. They refer to Section 32 of the Evidence Act, but not to Section 49 . The latter section is applicable, and when an ancient family usage is to be proved the statements of deceased members of the family are relevant facts."

57. But their Lordships were dealing with statements made by living persons examined in Court who deposed to statements made by deceased persons. The statements of deceased persons on the question of family usage are no doubt relevant facts, but in the first place it does not appear that the statements of deceased persons deposed to by the witnesses were made after any controversy as to the usage bad arisen.

58. In the next place as pointed out by Lord <NAME> in the case of <NAME> the opinion of a living witness though grounded upon the statements of deceased persons would be admissible, it would be so, as independent opinion and not repetition of hearsay. We do not think that their Lordships laid down that statements made by deceased persons after the controversy had arisen and therefore inadmissible under Section 32 are admissible under Section 49 of the Act. In the case of <CITATION> A.I.R. 1914 P.C. 76 <ORG> referring to certain evidence as to custom observed:

Some statements deposed to by witnesses who were called and some of the documents which were put in were not admissible as evidence in this suit. It seems to have been overlooked at one period of the suit that evidence oral or documentary as the statements of a deceased person as to the custom in a family is not admissible if it appears that such statements were made after a controversy has arisen.

59. Reference was made to clause (7) of Section 32 , but that clause refers to statements " contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13 , clause (a)." It omits clause (b) which relates to "particular instances." "Statements" moreover cannot be called "instances" though the whole litigation ending with the judgment may be an "instance."

60. [His Lordship then continued his discussion on the evidence and in the course of it, said:]

61. <NAME> in his petition asserted that the estate was not liable for any of the debts incurred by <NAME> specially, such as were illegal or immoral, that no portion of the debts or liabilities could be satisfied out of the estate under the Encumbered Estates Act and that he was very much injured thereby. It appears however that most of the debts were raised on simple bonds, and the debts of a previous holder are not binding unless charged upon the estate. But apart from that it is difficult to rely upon any particular statement made by <NAME>, as he seems to have made assertions with respect to the power of making alienations from time to time as suited him.

62. [Alter referring to the oral evidence, his Lordship proceeded:-]

63. From this review of the evidence it is plain that though the witnesses are at one in declaring that there is no custom of alienation of the <NAME> estate, they all in point of fact hold a number of Mouzahs under permanent grants from the <NAME>. We agree with the <ORG> below in thinking that their testimony is untrustworthy. They have been set up with the transparent object of amplifying and perhaps embroidering the statement made by <NAME> in the probate proceedings.

64. On behalf of the appellant reference was made to the case of <CITATION>  18 Mad. 287, where <NAME>, J., after referring to the "settled rule of law that though mere absence of alienation is of itself no proof of inalienability, yet such absence when it is coupled with special fact that would render alienation probable is relevant evidence, though its probative value may depend on the special circumstances of each case" observed:-"Right of the nine zemindars who held the estate prior to the first defendant either left sons or widows for whom they would ordinarily desire to make some provisions, and the peculiar custom which is shown to prevail in regard to succession must have imparted to that desire more than its ordinary strength as an inducement to alienation. Notwithstanding this, there has been no sale or gift for more than three centuries and ought to be considered together with such other evidence of inalienability as there is on record."

65. The custom in that case (Dayadi Pattani) was of a very peculiar nature. The succession did not devolve upon the heir according to Mitakshara law, nor on the eldest son according to the rule of primogeniture, but on the Dayadi or cousin of the deceased polayagar who was senior in age and who was descended from one of the three brothers who originally formed a joint Hindu family. It appears that in five cases the deceased polayagar left sons and in three left widows, but in all the senior Dayadi took the estate to their exclusion. In such cases the zamindar would naturally desire to make some provision for his own son or widow when according to the peculiar custom they would be excluded, and the estate taken by a Dayadi-a distant agnate, and in these circumstances the absence of any sale or gift for more than three centuries was held to be relevant evidence. The observations of the learned Judges in that case cannot apply to the <NAME> family where in the majority of cases the succession devolved upon the eldest son, or where there was no son upon the brother and it was only in the last case on the death of <NAME>, under special circumstance that it devolved upon a somewhat distant agnate,

66. (Taking up the question of plaintiff's documentary evidence regarding alienations in the Dhalbhum Estate, his Lordship observed in the course of his remarks:-) There is a reference in <ORG> to a Mehatran Pottah dated the 21st November 1855, by <NAME> in favour of one <NAME> in respect of <NAME> consisting of 2455 bighas at a rent of Rs. 4-6-0. It is described as Mokarari and non-resumable in <ORG>. The original pottah has not been produced. In some other cases, too, it was not produced and the respondent relied upon the entries in <ORG>. These settlement Khewats were produced on the 7th August 1922, when the trial commenced. It is contended by the appellant that <ORG> cannot prove the grant. But the entries made in the Settlement record are such as the Settlement Officer is authorised to make under Section 102 of the Bengal Tenancy Act, and such entries are presumed to be correct under, Section 103 (B) of the Act. But even if the entries do not come under Section 102 of the Tenancy Act, they are relevant under Section 35 of the Evidence Act, being made by a public officer in the discharge of official duties [See <NAME> v. <NAME> (1879) 5 Cal. 744.]

67. [His Lordship after resuming his discussion on the evidence, continued:] It is said that there were 1,640 villages in Sinbhum, and 46 villages in Midnapur comprised in the estate. The area included in the estate is said to be about 22 lacs of bighas which was settled at Rs. 4,000 only at the permanent settlement. But the alienations were also of considerable quantities of land, and extending over a long period, though most of them were made since the time of <NAME>.

Custom of Nine Mehals.

68. Besides the evidence of custom in the <NAME> family, the parties adduced evidence of custom in some other cognate estates. They are referred to as jungle mehals or nine mehals.

69. [His Lordship then referred to this part of the evidence and in the course of his discussion remarked: ] <NAME>

70. Out of the documents admitted in evidence in this Court is a judgment of <ORG> dated the 4th June 1804 in a litigation between <NAME>, plaintiff, and <NAME>, defendant. It related to the <NAME> estate one of the nine mahals (in the jungle mehals). <NAME>'s case was that he was the son of the patrani (the senior wife) though he was younger in age to <NAME> who was the son by a junior wife, and further that his father had made a will or hebanama in his favour, and he was accordingly entitled to succeed.

71. (After briefly alluding to the course of the litigation in the lower stages, his Lordship continued:) The Sadar Dewany Adalat held that the custom of the succession of the son of a patrani junior in age in preference to an elder son by a junior wife was conflicting in some of the mehals contiguous to <NAME> and that the plaintiff had failed to prove the custom in his family. The right of the defendant as the eldest son was accordingly maintained, and it was held that the plaintiff should obtain a maintenance allowance. The defendant <NAME> challenged the genuineness of the "Will. He stated that the <NAME> " on the morning of which date he died, was quite unconscious and unable to speak from the severity of his disease, so how does the plaintiff state that on the 14th of the said month he made the "Will in plaintiff's favour and gave the tika of <NAME>ship to him?" As stated above <NAME> although he set up a Will did not prove it after its genuineness was challenged by <NAME>. But it is to be observed that although he challenged the genuineness of the Will he did not plead that even if the Will was genuine the <NAME> was precluded by custom from making a Will. Having regard to the fact that both parties referred to the custom of the family and to the fact that the plaintiff set up a Will, it is strange that <NAME> did not plead that the <NAME> bad no power to make a Will. Another document relating to the succession to the <NAME> estate mentioned above is a letter from the Collector of Midnapur to <ORG> dated the 10th April 1800, in which the document set up by <NAME> was referred to as a hebanama. The Collector wrote as follows: " But though this writing was authentic which is 'doubtful I conceive that it could not alter the rule of succession and that the circumstances of its having been procured affords a strong presumption that he was considered as having otherwise no right to the zamindary." This passage is relied upon on behalf of the defendant. But in the first place the authenticity of the document was considered doubtful by the Collector and we have seen that it was not proved in the title suit which came up to <NAME> nor was the question of the power of the <NAME> to make such an alienation raised for consideration before, nor considered by any of the Courts in the litigation. In the next place " even if authentic the hebanama could not alter the rule of succession" was merely the view of law of the Collector-an opinion expressed in 1800 long before <ORG> laid down in <NAME> case [1888] 10 All. 272 that an impartible <NAME> was alienable. Then again the Collector's opinion was given in such a way ( " I conceive " ) that it was not of any value. Lastly the Collector was not considering the custom of not making a will, and it does not appear that he had any special knowledge of custom.

72. It is true that in course of time some of the nine mehals or jungle mehals came to be governed by the Dayabhaga and others by the Mitakshara and it is contended by the appellant that with regard to those governed by the Dayabhaga the same rigour with regard to inalienability could not possibly be expected. But with regard to impartible estates there is no difference, upon the authorities, between Dayabhaga and Mitakshara so far as the question of alienation is concerned, and it is not established that there has been any definite and uniform custom of inalienability either in the jungle mehals or in the nine mehals.

73. Reference was made on behalf of the appellant to certain passages in the judgment of <ORG> dated the 13th July 1917 in the land registration proceedings between the present parties where it was stated that there was no evidence of the estate ever having been transferred by will out of the line of descent to the next heir " that <NAME> is one of the jungle mehals, that in the early days there was no custom of devisability by will, and from this it may be presumed in the absence of rebutting evidence that this custom still maintains. But although as already stated the absence of any transfer by will is a circumstance in favour of non-alienability, what is to be proved is a custom of non-alienability and not a custom of alienation. On the whole we think that the defendant has failed to prove the custom of inalienability.

74. There is be doubt that the bulk of the estate has existed from ancient times, and the fact that it has not been split up and dissipated in the course of centuries is certainly in favour of the plaintiff. It is useless to refer to the state of affairs before <ORG> was established because at that time these Rajas were in the position of military chiefs, and we have no materials of that period for determining the question of custom. After British Administration was established and before <NAME> case [1888] 10 All. 272 was decided in 1889, the law as laid down by the Courts was that an impartible estate was inalienable.

75. As pointed out by <NAME> J., in <ORG> in <CITATION>  7 M.W.N. 146 " where a supposed custom has followed the ordinary law as laid down by the <ORG>, 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 <ORG> 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."

76. And having regard to the nature of evidence required to prove inalienability as laid down by the authorities already cited, it is not to be wondered at that defendant has failed to prove the custom of inalienability.

<NAME>

77. It is contended that at its inception the Dhalbhum estate was in the nature of a principality. It is also pointed out that in 1767 <NAME> who was on the guddi of the <ORG> was fighting with the British. He was deposed and <NAME> placed on the guddi, but he too began to fight with the British. He was deposed and <NAME> was put in his place. But he had neither money nor support and <NAME> was again placed on the guddi, and the first settlement of the estate was made with him in 1777. (See Taslinama, Ex. 46). In 1800 the estate was permanently settled with <ORG>a Ram Chandra and after his death, <NAME> renewed the <ORG> in December 1821.

78. But, although the Jungle mehal chiefs seem to have exercised semi-sovereign powers British power was established and the <ORG> might have been in its inception in the nature of a principality as most, if not all, impartible estates were in their inception, and although some of the <ORG>as fought with the British when they were fires established in this country, there was nothing military, after the settlement with Jagantath in 1777. The Taslinama of that year was on the usual conditions on which grants; were made to zamindars There was nothing military or feudal in it. Certain police duties were imposed on the zamindars of Jungle mehals by Regulation XVIII of 1805 which were assigned to the numerous ghatwals under the <ORG> but they were subsequently discharged from those obligations.

79. The <NAME> case, <NAME> v. <NAME> A.I.R. 1924 P.C. 5, referred to on behalf of the appellant related to a ghatwali tenure the incidents of which were materially different. It was found that the tenure was a service tenure, ghatwal in its nature inalienable and indivisible and incapable of being sold in execution of a decree against the person of the incumbent of the office of ghatwal for the time being.

80. It was further held that the question whether or not a given ghatwali tenure is a <ORG>;.ghatwali tenure or not must depend on the original grant, and unless the inclusion of the tenure in the assessment of zamindari lands can be shown to have amounted to a release by the <ORG> of the ghatwali services or to a grant to a third party of the right to appoint the ghatwal, the tenure must remain as it originally was a <ORG> ghatwali tenure.

81. On the other hand in the case of <CITATION>  7 M.W.N. 146, where the estate was held more than a century ago under a military tenure <ORG> held that "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 zamindar 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 end."

82. The observations of <ORG> in the case of <NAME> v. <NAME> [1872] 1 Cal. 186 were referred to. In the present case there was no military tenure; it was an ordinary zamindari, and the police duties which were at one time imposed upon the Jungle mehal zamindars having been abolished, the inalienability, if any, arising therefrom was gone.

83. [His Lordship then went into the evidence relating to the question and proceeded:]-

The last contention is that the will of Satrughna under which the plaintiff' claims is invalid having regard to the provisions of the Encumbered Estates Act, Bengal Act VI of 1876.

84. It appears that the estate came under the Act during the lifetime of <NAME> and remained under management until 1899 when it was released to <NAME> who got possession. It again came under the Act in 1905 upon the application of <NAME> (the father of the defendant), notwithstanding <NAME>'s objections. <NAME> made the application on the 10th March 1905; it was re-submitted on the 11th April 1905. <NAME>'s petition of objection was filed on the 8th May 1905. The notification under Act VI of 1876 was made on the 2nd August 1905. In the meantime, on the 11th May 1905, <NAME> made his will. He died on the 1st March 1916. The estate remained in charge of the Encumbered Estates Act authorities from 2nd August 1905 until October 1920 when it was taken charge of by <ORG>..

85. At the time when <NAME> made his will (11th May 1905) the estate had not come under the Act, but it was so at the time of his death (1st March 1916) and so continued subsequently up to October 1920, Section 3 (thirdly) of the Act provides that "so long as such management continues the holder of the said immovable property and his heir shall be incompetent to mortgage, charge, lease, or alienate their immovable property or any part thereof or to grant a valid receipt for the rents and profits arising or accruing therefrom.

86. It is contended by the appellant that the word "alienate" though used after the words 'mortgage' and ' charge etc." should not be taken ejusdem generis so as to apply only to transfers having present operation, but should be construed in its usual and general sense having regard to the object of the Act, viz., relief to be given to the holder of an estate in Chota Nagpur and his heir, and that so construed, the power of making a will is also taken away during the period the estate is under management under the Act. Though the will was executed before the estate was taken charge of under the Act, it is contended that the will was invalid, as a will operates only on the death of the testator and the manager under the Act was in possession at the moment of <NAME>'s death. The management may continue until the holder or his heir is restored to possession which is to be notified in the <ORG> (see Section 12 of the Act), and in this case did continue until long afterwards) and the attempted alienation by a will was therefore void under Section 12-A (clause 4).

87. The principle of ejusdem generis has been stated in <NAME> on Cardinal Rules of Legal Interpretation, 3rd Edition, page 355, thus:

General words in a statute are prima facie to be taken in their usual sense. General words following specific words in a statute are prima facie to be taken in their general sense, unless the reasonable Interpretation of the statute requires them to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before.

88. We have therefore to consider the provisions of the Act.

89. <ORG> in the case of <CITATION> A.I.R. 1918 P.C. 41, observed: " The preamble is material for it defines the purpose of the measure as the provision of relief to holders of land in Chota Nagpur who may be in debt and whose immovable property may be subject to mortgages, charges and liens." Under Section 2 , the " holder," or " the person who would be heir to such holder if he died intestate," or the Deputy Commissioner (in case where a sale is imminent or "where the holder has entered upon a course of wasteful extravagance likely to dissipate his property") may make an application to the Commissioner for applying the provisions of the Act, and the Commissioner may appoint a manager and vest in him the management of the estate. The proviso to the section directs postponement of the order until enquiry. Section 2-A empowers the Deputy Commissioner to order production of accounts and documents with the object of finding out the debts and liabilities and the income of the estate. Section 3 lays down that on the publication of an order under Section 2 the following consequences will ensue:

90. First, all proceedings which may then be pending in any civil Court in British India or in any revenue Court in Bengal in respect to such debt, or liabilities, shall be barred; and all processes, executions and attachments for or in respect of such debts and liabilities shall become null and void.

91. Secondly, so long as such management continues, the holder of the said property and his heir shall not be liable to arrest for or in respect of the debts and liabilities to which the said holder was immediately before the said publication subject, or with which the property so vested as aforesaid or any part thereof was at the time of the said publication charged, other than debts due, or liabilities incurred, to Government, nor shall their movable property be liable to attachment or sale under process of any civil Court in British India or <ORG> in Bengal for or in respect of such debts and liabilities other than as aforesaid; and

92. Thirdly, so long as such management continues.

(a) The holder of the said immovable property and his heir shall be incompetent to mortgage, charge, lease or alienate their immovable property or any part thereof or to grant valid receipt for the routs and profits arising or accruing therefrom;

(b) such property shall be exempt from attachment or sale under such process as aforesaid, except for or in respect of debts due, or liabilities incurred, to Government; and

(c) the holder of the same property and his heir shall be incapable of entering into any contract which may involve them, or either of them, in pecuniary liability.

93. Section 4 lays down the duties of the Manager-to receive rents and profits and pay therefrom the Government demand, rent duo to superior landlord, the maintenance of the holder and his heir, to repay loans, costs of repairs and improvements, and. to apply the residue in discharge of the costs of management and in settlement of such debts and liabilities of the holder of the property and his heir as may be established under the succeeding provisions of the Act. Part IV containing Sections 5 to 10 lays down the procedure for the determination of the debts of the holder of the property, and Section 11 provides for preparation of a schedule of debts and liabilities and a scheme for the settlement thereof, which when approved by the Commissioner, shall be carried into effect. Section 12 provides for restoration of the owner to his property when the debts and liabilities are discharged and in certain other cases. In these events such holder or his heir shall be restored to the possession and enjoyment of the property or of such part thereof as has not been sold by the manager, but subject to the leases and mortgages, if any granted and made by the manager under the powers conferred under the Act. Provided that where a fresh order has been made under Section 2 in pursuance of Section 12-A , Sub- section 5 , re-appointing a manager and vesting in him the management of the whole or any portion of the property of any holder, such property shall not be restored to such holder but shall be retained by the manager for restoration to the heir of such holder in due course. Section 12-A provides that (1) where the possession and enjoyment of property is restored under the circumstances mentioned in the first or the third clause of Section 12 to the person who was the holder of such property when the application under Section 2 was made, such person shall not be competent, without the previous sanction of the Commissioner,

(a) to alienate such property or any part thereof in any way, or (b) to create any charge thereof extending beyond his lifetime.

(3) Every alienation and charge made or attempted in contravention of Sub-section (1) shall be void;

(4) the Deputy Commissioner may make an enquiry to ascertain whether any holder of property has made or attempted to make an alienation in contravention of Sub-section (1); and (5) if he is satisfied after enquiry that such holder has made or attempted to make any such alienation, he may report to the Commissioner requesting that the provisions of the Act be re-applied to his case, and the Commissioner may publish a fresh order under Section 2 re-appointing a manager and vesting in him the management of the whole or any portion of the property of such holder.

94. Section 12-A was introduced into the Act by the Amending Act III (B.C.) of 1909. The provisions of that section do not apply to <NAME> and that for two reasons. In the first place the section was enacted after <NAME> made his will on the 11th May 1905. In the next place the section deals with the case of restoration of possession to the person who was the holder of such property when the application under Section 2 was made. The estate was restored to <NAME> in 1899. He was not the holder when the application was made; the holder of the property at that time was <NAME>.

95. The next question is what sort of alienation is contemplated by Section 12-A ? Subsection (i) provides for alienation with the sanction of the Commissioner, and Sub- section 2 provides for an appeal to <ORG> when sanction is refused by the Commissioner. The mere execution of a will does not amount to alienation as it passes no property at the time. A will operates only from the death of the testator and there can be no question of sanction after the death of the testator when only the will takes effect.

96. Sub- section 4 provides for the Deputy Commissioner requesting the Commissioner to re-apply the provisions of the Act. After the death of the holder no question of re-applying the provisions of the Act to the case of the deceased (his ease) can arise. All these considerations show that the alienation mentioned in Section 12-A refers to alienation inter virus and not to wills. And if the expression "alienate" has boon used in that sense in Section 12-A , it should be taken to have that meaning in Section 3 also, unless if. is clear that some other meaning was intended.

97. On the 11th May 1905, when the will was executed by <NAME>, he was competent to make a sale, gift or charge the estate or alienate in any way he liked (except that a lease granted by him might be sot aside under certain circumstances under Section 9 ), and it cannot be held that he had no power to make a will at that time. Then, when did the testamentary disposition became invalid? It was not invalid under Section 12-A for reasons already stated. It may be said that it could not have effect on his death because the estate might continue under the management under the Act (is in fact it did) until the debts and liabilities were discharged. But management of the estate is one thing and the right to the estate is another.

98. It is true the Act recognizes only the heir and not the devisee, and the restoration of the estate is to be made to the heir on the death of the holder. But under Section 23 , <ORG> in Chota Nagpur have jurisdiction to entertain and dispose of suits relating to the succession to immovable property. "Succession" would include intestate as well as testamentary succession, so that although the heir would be restored to possession and a person claiming under a testamentary disposition would have to establish such claim in the civil Court, the possession of the heir would be subject to the result of such suit.

99. Under Section 2 of the Act what is vested in the manager is the management of the property, and the provisions of the Act are all directed towards securing the effective control of the estate by the manager. The holder of the estate is prohibited from mortgaging, charging, leasing, or alienating his immovable property; or entering into any contract which may involve him in pecuniary liability and the property is exempt from attachment and sale so long as such management continues. Without such prohibitions the management could not proceed, nor could the scheme for discharge of the debts and liabilities be carried out. But a testamentary disposition cannot interfere with the management by the manager. The Act creates a sort of administration of the immovable estate of a debtor in some respects resembling that pursued in an administration suit, but with the material difference that whereas, in administration suit, the satisfaction of the claims of the creditors is primarily in view, in proceedings under the Act, the protection of the debtor and the protection of his estate, so far as practicable in spite of its encumbered condition, is the main solicitude of the authorities concerned: see <CITATION> (1893) 20 Cal. 609 and <CITATION> (1912] 16 C.L.J. 527.

100. It is contended on behalf of the appellant that the scope and object of the Act is the preservation of the property of the holder and his heir, and that the introduction of the heir makes the object clear.

101. Section 3 provides that the holder and his heir shall not be liable to arrest for the debts and liabilities of the holder, nor shall their immovable properties be liable to attachment and sale, and the holder and his heir shall be incompetent to mortgage, charge, lease or alienate. It is difficult to see how the heir can be arrested or his moveable properties attached and sold for the debts and liabilities of the holder. However, that may be, the Act restricts the power of the holder in disposing of the property in so far as it would interfere with the management of the estate. But the right of succession to the estate of the holder is not affected by the Act. It is saved by the provisions of Section 23 . It is true that the management may continue even after the death of the holder if the debts and liabilities are not discharged before his death. But that would merely postpone the possession of the successor until the debts are satisfied: it cannot affect his title to the property. Section 12 provides for restoration of the holder or his heir to possession and management of the estate and the Act does not provide for cases of testamentary succession. But the question is does the Act prohibit such succession?

102. There is no express provision to that effect in the Act, and the proviso contained in Section 23 goes against that view.

103. It is contended that the object of the Act is to preserve the estate belonging to families of political or social importance and that the object would be frustrated if testamentary dispositions were allowed. It is true Section 2 (thirdly) lays down that the consent of <ORG> shall not be given in the case of any holder who has "entered upon a course of wasteful extravagance likely to dissipate his property" unless such holder belongs to a family of political or social importance but that is not the only case, because under the same section such consent may be given where the <ORG> "is satisfied that it is desirable that such consent should be given."

104. It is pointed out on behalf of the respondent that whenever it is intended to restrict alienation by will it is expressly so provided as for instance in the Madras Court of Wards Acts (Section 34 of Act I of 1902), and in the Bombay Act, Section 38 of Bombay Act of 1905, (see also Section 37 of United Provinces Court of Wards Act IV of 1912 (though Act XXIV of 1870. <NAME> Act (upon which Bengal Act VI is based) does not contain any restriction as to will. This appears to be so, but the statutes in other provinces do not give us much assistance in construing Bengal Act VI of 1876, as each Act must be construed with reference to its own provisions.

105. <ORG> in the case of <NAME> v. <NAME> (1910) 33 All. 1176 held that a will is not an alienation falling within the prohibition in Section 325 A of the Code of Civil Procedure XIV of 1882 (corresponding to the third schedule in Act V of 1908, paragraph II) which is similar to the prohibition contained in Section 3 of Act VI of 1876. The learned Judges observed, " The word' alienate' in our opinion was used ejusdem generis with the words preceding namely, mortgage, charge, lease and manifestly contemplates a transfer which would have present effect and not a divise which can only have operation after the death of the testator. In this view the will was not void and the lady was not incompetent to make it."

106. There are differences however between the provisions of the third schedule and those of Bengal Act VI of 1876, more specially as Act VI of 1876 confers certain privileges and imposes certain disabilities upon the heir, whereas there are no such provisions in the third schedule; and even some of the provisions relating to the holder of the property under Act VI of 1876 are different from those relating to the judgment-debtor under the third schedule. The decision referred to above therefore is not of much assistance in deciding the question before us.

107. It has been held by <ORG> that the Chota Nagpur Encumbered Estates Act (VI of 1876) does not apply to immovable property outside Chota Nagpur (See Raja of Pachete v. Kumud Nath A.I.R. 1918 P.C. 41. That being so, the Act cannot in any case apply to properties in the district of Midnapur.

108. As pointed out by <NAME>, J. in <CITATION> 1893) 20 Cal. 609, the Act is so framed as to render it not easy to construe," and <ORG> 'in the case of <NAME> of Pachete (25) referred to the language of the Act as "obscure." An Act imposing disabilities should be strictly construed and if, as we hold, the restrictions imposed by the Act upon the holder of the estate (or his heir) are only for the purpose of carrying out the management of the estate and do not affect the rights of the holder of properties, we think that the restrictions as to alienation refer only to alienation inter vires having present operation, and not to testamentary dispositions. We have already pointed out that a person claiming under a testamentary disposition cannot interfere with the management of the estate, if such management continues after the death of the holder, and that such a person can only get the estate after the management comes to an end. For all these reasons we are unable to hold that the will of <NAME> executed at a time when his estate had not come under the management of the Act is invalid.

109. On the whole we think that the decree of the <ORG> below should be affirmed. The appeal is accordingly dismissed with costs.

110. The plaintiff has claimed the amounts paid to the defendants for maintenance as mesne profits. There is no doubt that the defendant is entitled to maintenance and we are not inclined to interfere with the order for mesne profits made by the Court below, viz,, that they should come out of the <NAME> estate and that the defendant shall not be personally liable for the same.

111. The plaintiff denied that the defendant was joint with the deceased, and made no offer to pay maintenance. In the circumstances we do not interfere with the order for costs made by the <ORG> below. The costs of the plaintiff in the <ORG> below as well as in this <ORG> will come out of the <NAME> estate and the defendant will not be personally liable for the same.

112. The (cross-objections are accordingly dismissed. We make no order as to costs.

113. It is pointed out on behalf of the respondent that <ORG> was in charge of the estate at the time when the decree of the <ORG> below was passed and accordingly there are references to <ORG> in the ordering portion of the decree. As <ORG> has subsequently given up the management of the estate and has placed it in the hands of the receiver appointed by this <ORG> the reference in the ordering portion of the decree to <ORG> should be interpreted as applying to the receiver appointed by this <ORG> and the expression "ward defendant" will be interpreted to mean "defendant-appellant."


JUDGMENT <NAME> <NAME>, C.J.

1. The question referred to us for decision is--

Is it open to an undischarged insolvent to maintain a suit regarding his after-acquired properties subject to the right of the Official Receiver to intervene in such proceedings?

2. In our view, upon the facts of this case this question does not arise and we are not disposed to enter into any further discussion of this question which is purely one of academic interest.

3. The facts of the case may be quite shortly stated. The insolvent was the plaintiff in <ORG>. He was also an undischarged insolvent. His case as set out in the plaint was that he got emeralds from one <NAME> for sale and that he gave them to the defendant in the suit for sale. The value of the emeralds was fixed, so he alleges, at Rs. 1,000 and it was agreed that the excess realised by the defendant by the sale should be shared equally between the plaintiff and the defendant. He sued to recover the emeralds or Rs. 1,000 the price of the emeralds and for Rs, 250 being his share, as he alleged, of the profits made by the defendant on the allegation that the defendant sold the emeralds for Rs. 1,500 and he asked for the return of the emeralds in case they were not sold by the defendant. Amongst other contentions the defendant raised the plea that: the plaintiff was an undischarged insolvent and was consequently not entitled to sue. An issue was taken upon that contention and the District Mun-sif found that the plaintiff was an undischarged insolvent, but that he could maintain the suit for recovery of the articles bailed. I wish to draw particular attention to the fact that the articles were described by the District Munsif as articles bailed. Then there was an appeal and the first <ORG> fixed the value of the emeralds at Rs. 800 and gave the plaintiff a decree for that amount only. The case came up on second appeal to this Court and the question of the maintainability of a suit by an insolvent with reference to after-acquired property was raised and in view of the fact that a Letters Patent Appeal raising this very point was then pending decision by a Full Bench, our learned brother <NAME>, J., adjourned the case until the Opinion of the Full Bench was delivered. The Letters Patent Appeal, however, abated and the matter again came before our learned brother who, in view of what appears to be a difference of view in a case decided by <NAME> and <NAME>, <ORG>., in <CITATION> (1923) 45 M.L.J. 827 and a later decision of <ORG> in <CITATION> (1927) L.R. 54 LA. 190: I.L.R. 54 C. 595: 52 M.L.J. 734 (P.C.) referred the case to us.

4. Upon the facts of this case the plaintiff's suit was divided into two parts: (1) relating to his commission of Rs. 250--that claim has been held against, and (2) for the return of or the value of the emeralds which he handed over to the defendant for sale. In our view, the first essential in the appellant's case is that the emeralds themselves or their cash value should vest in the Receiver as the after-acquired property of the insolvent under Section 28 of the Provincial Insolvency Act. That section deals both with the actual property of an insolvent at the time of his adjudication and property which may pass into his possession after the adjudication. In the case of property coming into his possession after adjudication--it is after-acquired property--that shall forthwith vest in the Receiver. There is another class of property dealt with in that section and that is the reputed property of the insolvent. Upon the facts of this case the value of the emeralds can in no sense of the word be described as the property of the insolvent. His own case was that this property was given to him by <NAME> for sale. He was a jeweller and goldsmith and so was the defendant. So that in the ordinary course of business, according to his own case, these emeralds were entrusted to him for sale. That statement in his case completely negatives any position occupied by him other than as a bailee of goods for sale and it is important to remember that this statement that there had been an entrustment to the insolvent of these emeralds as a bailee is not controverted anywhere in the written statement of the defendant. Clearly the emeralds were not the property of the insolvent but it has been urged before us that although they are not the property of the insolvent, they may yet be his reputed property.

5. Where goods, precious stones and such like things are given into the hands of a goldsmith or a jeweller either for the purpose of being converted into ornaments or for sale, they are given to him in the ordinary way of his business; and assuming that at the time of his adjudication he is in possession of those jewels, clearly they are not his jewels at all but they are the jewels of the bailor and as such, being easily identifiable, do not pass to the Receiver in the insolvency. The further question arises as to what is to happen if he has recovered the proceeds of the sale. Here again if those proceeds have not been inter-mixed with the money belonging to the creditors and can easily be identified, the money does not vest in the Receiver but this case is a stronger one from the respondent's point of view because the jewels had been parted with and the insolvent had no money in his possession which he had received in respect of the sale. He claims in his suit to get that money from the defendant. If he succeeds, no one, I think, would contest that that money is clearly ear-marked as money belonging to the real owner of the jewels, namely, <NAME> up to the extent of the agreed value Rs. 1,000 and is not available at all for distribution by the Receiver arnongst the creditors in the insolvency. This matter, I think, is made perfectly clear by the notes to Section 38 , which is the vesting section, in the English Bankruptcy Act of Williams on "Bankruptcy," 13th Ed., p. 229. The marginal note is "Trusts arising from employment of bankrupt," and the note says:

Lastly, then, there is the third class of trusts where the bankrupt has not the general, but only a special property, e.g., where property is vested in the bankrupt as an agent, such as a factor, etc. Such property, so long as it or its proceeds remain distinguishable from the mass of the bankrupt's property, will not pass to the trustee of the creditors.

6. Then again at page 230 it is stated:

It is always to be remembered that, although goods in the hands of an agent may be easily distinguishable, they may yet, on the bankruptcy of the agent, pass to his trustee if the principal has permitted the agent to have a possession not consistent with the ordinary usages of trade, and raising a reputation of ownership in the bankrupt.

7. Here the case for the plaintiff uncontradicted by the defendant in his written statement is that there was no entrustment at all which was not consistent with the ordinary usages of trade. As before stated, the insolvent was a jeweller and goldsmith and he himself says that the emeralds were entrusted to him for sale--that is what a jeweller and goldsmith does--and it cannot be said that the emeralds or their value were the reputed property of the insolvent. Under these circumstances and upon the facts of this case the question before us really does not arise. It would arise if the property were property which vested in the Official Assignee or the Receiver as the case may be. Therefore we decline to decide the question. We need express no opinion upon what would happen had the property been the after-acquired property of the insolvent. With regard to the claim for Rs, 250 no question arises with regard to that because that claim has been disallowed in all the Courts.

8. The case must, therefore, be dealt with by the referring Judge in the light of these observations.