JUDGMENT <NAME>, C.J.

1. This appeal relates to the right to possession of a very valuable estate in Mirzapur, referred to in the plaint as <NAME>. The last male owner was <NAME>. The <NAME> died on the 4th of March 1871, leaving no issue but a young <NAME> him surviving. The <NAME> lived until 1913 when she died. A glance at the pedigree filed with the plaint will show that the plaintiff is the eldest son of <NAME>. This gentleman survived the late <NAME> but died before the <NAME> on the 14th of October 1910. Defendant No. 1, <NAME>, is the rival claimant to the <NAME>. He was a brother, next in seniority to <NAME> aforesaid, father of the plaintiff. Defendant No. 2 is a younger brother of defendant No. 1. In the plaint it is alleged that the <NAME> had made or attempted to make large gifts at the expense of the estate to one <NAME>, a <NAME>, that she had tried to get the consent of the plaintiff's father to her action, that the plaintiff had intervened to prevent his father consenting and that thereupon the <NAME> turned her attention to the rival claimant and his brother defendant No. 2, with whom she was more successful. That the <NAME> did make very extensive gifts to <NAME>, is an admitted fact. <NAME> was made a defendant to the suit though he is no party to the appeal. On the 4th of November 1912, <NAME> Bed Saran executed a document purporting to be a codicil to a Will executed by her on the 1st of March 1910, whereby she had appointed the aforesaid Pandit <NAME> and others executors for the performance of her funeral ceremonies. The document recites that defendants Nos. 1 and 2 belong to the same gotra and will become owners of her husband's estate after her death. The lady then declares that these persons will be her successors: "I direct that <NAME> should occupy the gaddi of the estate and continue to maintain the other members of the family in accordance with the old usage. These persons even came to me...and in proof of faithfulness and obedience they have to-day under a deed of relinquishment admitted my powers to make wakf and to manage the <ORG> property and to make transfers under deeds of gift and to make gifts and religious gifts of cash and articles, etc which I, the executrix, have done out of the profits arising from the property of my husbard." By a deed of even date defendants Nos. 1 and 2 completely ratified all that the <NAME> had done: "It is a matter of great pleasure to us that the said <NAME> Sahiba has used the said income for good and religious purposes which every Hindu widow is authorised to do....Pandit <NAME> has been in the service of the said <NAME> since 1893. So far as we have come to know from enquiry as well as from the <NAME> and from our personal acquaintance we are fully satisfied that the <NAME> is a very honest man." It is to be hoped that defendants Nos. 1 and 2 meant all they said and that the <NAME> was entitled to the high testimonial given him. A perusal of the document discloses not only the piety of the deceased <NAME> but also of defendants Nos. 1 and 2. It is perhaps open to the criticism that the executants protest too much. And there is a marked contrast between this document and a complaint addressed to the Collector on the 17th June 1896 by the father of the plaintiff and the two defendants (see A. 80) in which they bitterly complain that the <NAME> is destroying and wasting the estate and has given Rs. 99,000 in cash besides other extravagant grants to the priest. It may well be doubted that defendants would have executed the deed of November 1912, if defendant No. 1 believed that he was entitled to succeed to the gaddi on the death of the <NAME>. On the 4th of November 1912, the <NAME> executed a deed of relinquishment in favour of <NAME>, defendant No. 1, who was declared owner of the gaddi. By way of proof of consent <NAME> executed the document. Mutation of names followed and defendant No. 1 got possession. On one issue in the case, viz., whether the, estate is an impartible <NAME>, the fact that <NAME> took it as a <NAME> with the assent of his brother is not without some significance. In the codicil, of which of course defendants Nos. 1 and 2 were cognizant, <NAME> was "to occupy the gaddi of the estate and continue to maintain the other members of the family in accordance with the old usage."

2. I now proceed as shortly as possible in these hot days to deal with the history of the family. The accuracy of the pedigree filed with the plaint has (save in one respect) not been contested. According to the pedigree <NAME> was succeeded by <NAME>, the son of <NAME>, brother of <NAME>. It was conceded at the hearing that the evidence showed that <NAME> was adopted by <NAME> and the successor was the adopted son. The family is beyond all question a very ancient one. There has always been a <NAME> installed in the gaddi in the usual way and the membersof the junior branches are styled Babus", the appropriate name for junior members of a <NAME>'s family. The history of the family is referred to in many works including that of Mr. <NAME> (vide, Hindu Tribes and Castes, Vol. 1, page 182-183). 'About the year 1744 A.D., <NAME> the then <NAME> of Agori was dispossessed of his domains by <NAME>. During the insurrection of <NAME>, <NAME>, grandson of <NAME>, just mentioned, attended on <NAME> and made himself so useful that the Governor General gave him a sanad restoring him to the zemindari of Agori Barhar. This was in October 1781. A few days latter (on 15th October 1781), the <NAME> appears to have received a second sanad granting him an allowance of Rs. 8,001 in the form of an assignment of certain villages, and on this is based the right, which his descendant still enjoys, of holding free of revenue nearly the whole of Agori Pergana and certain villages in Barhar.; On possession being taken of <NAME> by the <ORG> the taluqa was one of the estates assigned to <NAME> as his malikana. It was managed till his death in 1794 by his brother <NAME>. The latter then claimed to hold the taluqa but on his death shortly afterwards (in 1796) <NAME> <NAME>, the nephew and heir of <NAME>, obtained possession, <NAME> had a similar fiscal history. Both <NAME> were in 1803 declared to be included in the jagir of the <NAME>" The above is taken from a <ORG> publication called: "A note on the tract of country south of the River Son by <NAME>, C.S., and <NAME>, C.S."

3. To avoid confusion it is necessary to keep separate the history of the family property and the history of malikana grant of Rs. 8,001. The latter was undoubttdly originally a personal grant to <NAME> for a temporary purpose. It is not quite accurate to say that "villages were assigned" as the equivalent of this grant. It was the revenue of the villages not the villages themselves which was assigned, and some if not most of the villages were already part of the family estate. The sanad relating to the zemindari given by <NAME> on the 9th October 1871 was in the following terms:-

Be it known to <NAME>, respectable zemindar of Pergana Agori, that on a petition having been made, it is known that the zemindari in the pergana aforesaid is his old ancestral property. Several years ago <NAME> forcibly dispossessed him and brought it to his use. Therefore, in lieu of former rights he should remain in proprietary possession of his share as heretofore. He should make arrangements as regards the cultivation of the land and population of the pergana aforesaid in accordance with the directions of the Revenue Officer and <NAME> of high rank. He is insisted on doing as directed above.

4. According to Mr. <NAME>'s report, <NAME> recovered possession with the help of British soldiers in pursuance of this document. <NAME>, as already stated, also made a grant to <NAME> of Rs. 8,001. It would appear that the origin of the grant of Rs. 8,001 was to compensate <NAME> for not getting possession and actual enjoyment at once of the ancestral estate. The <NAME>, or perhaps I should say the family, are now in passession of the ancestral estate and they also enjoy the Rs. 8,001, malikana, grant in perpetuity. The arrangement now is that they are charged with <ORG> revenue on all the property including the property <NAME> was assigned to meet the grant of Rs. 8,000, but they take credit for Rs. 8,000. <NAME> had entered into a treaty or arrangement with the Maharaja of Benares, and subsequently difficulties presented the mselves as to ho w faith could be kept with both the <NAME> of Benares and the <NAME> of <NAME>, having regard to the fact that in a sense the property had belonged to both. This led to a good deal of complication and prevented temporarily the sanad of <NAME> being completely acted upon. In the end matters were adjusted and the family are now, and have for many years been, in undisturbed possession. In this connection Regulations I and II of 1795 should be read and in particular the preamble to Regulation I and Clause XVII of Regulation II, Sub-clause (3), in which <NAME> is referred to as the "representative" of the <NAME> <NAME>s. The conclusion I have arrived at is that from the time of <NAME> the family have been substantially in possession of the ancestral estate (they never in fact completely lost touch with it) and that notwithstanding the various events that happened, the restoration of the property in justice and equity ought to be attributed to the sanad of the 9th October 1781 just as if the latter had been carried into full effect at the time. I have appended to my judgment a short statement of the events which have happened. The first question is, whether the estate is impartible. This is a question which, their Lordships of <ORG> say, is to be decided on the facts of each case. No doubt the <ORG> in making a grant of an estate can determine the nature of the grant; but I do not think, in the absence of specific terms in the grant, the surrounding circumstances can or ought to be ignored. I will give an example. Suppose <ORG> confiscated what was admittedly joint family property and suppose (in consequence of representations made by a member of the family to the effect that the confiscation had been made by mistake or for insufficient reasons), the <ORG> restored the property by miking a fresh grant to the member without any special terms or conditions in the grant, I think that the property so restored would be joint Hindu property in the hands of the member of the family to whom the grant was made just as it would have been if there had been no confiscation. In the present case I think that the restoration of the property, notwithstanding what subsequently happened, must and ought to be referred to the action of <NAME>. If this view be correct, Regulation XLIV of 1795 (relied on by the defence) can have no application because it refers to grants after 1797. It does not appear to me that <NAME> had lawful power to confiscate the estate, though the defence strongly contend that he had. Bearing in mind the terms of the document of 9th Ocbober 1871, bearing in mind the fact that four <NAME>s subsequently ascended the gaddi, and bearing in mind the terms of the Will of the <NAME> accepted by the defendant and his brother, I think that this estate must be deemed impartible [see <CITATION> 24 M. 562 : 11 M.L.J. 191, affirmed by their Lordships in <CITATION> 28 M. 508 : 2 A.L.J. 845 : 2 C.L.J. 231 : 10 C.W.N. 95 : 7 Bom. L.R. 907 : 15 M.L.J. 312 : 1 M.L.T. 12 : 32 T.A. 201 : 8 Sar. P.C.J. 855]

5. We now come to another question. Assuming that the estate is impartible who is entitled to the gaddi? Defendant No. 1 says that the <NAME> is he that is found nearest in blood to the late <NAME> and senior in birth at the date of the death of the <NAME> aud that he fulfils these conditions. The plaintiff contends that the property has always been joint that the <NAME> got possession after the death of her husband, not as succeeding to separate estate in default of heirs, but by virtue of custom and that the <NAME> must be found in the senior line and that he as the eldest son of <NAME> (brother of defendant No. 1) should succeed. It may here be pointed out that the common ancestor of both claimants is <NAME>, brother of <NAME> <NAME>. It is admitted at the Bar that if the property is to be deemed joint in the hands of <NAME> <NAME> after restoration and if the estate was impartible and if there was no separation during the time of <NAME> or subsequently, the contention of the plaintiff is correct. It is, however, contended on behalf of the defendant that even on the assumption that the property is impartible, it was only joint in the sense that it would descend to the heir of <NAME> as an impartible <ORG> and that upon his death, or the death of his <NAME>, the heir would be he who was nearest in blood, and if more than one, he who was senior in birth. Leaving out of consideration for a moment the fact that <NAME> Shambhu was the occupant of the gaddi of an impartible <ORG> when he was dispossessed and treating the property for the moment as ordinary Hindu joint property, I think that there is every -reason for holding that the property would have been still joint on its restoration. There would be a presumption that <NAME>, Babu, <NAME> and <NAME> (common ancestors of the plaintiff and defendant) were joint. <NAME> Shambhu was, however, on the gaddi of an impartible <ORG>. This brings me to the consideration of the constitution of a Hindu family where there is an impartible <ORG>. The normal constitution of a Hindu family is that of union. Wherein does a Hindu family with its senior member sitting on the gaddi differ from an ordinary Hindu family? What is the foundation of the difference? The answer seems to be this. In the case of an impartible <ORG>, the estate is enjoyed by the whole family through the occupant of the gaddi with all the prestige incident thereto, the right to maintenance exists but the members of the family have no legal right to partition. The provision of maintenance for the <NAME>" itself varies in different <NAME>s. The izzat of belonging to such a family is by no means insignificant. The foundation of the distinction is custom. If this view be correct the constitution of the family differs from an ordinary Hindu family so far as custom has modified it. The modification may no doubt be considerable and in a large <ORG> like the present, very considerable authority in support of this view is not wanting. In the <NAME> case [Katarna Natchiar v. <NAME>h of Shivagunga 9 M.I.A. 539 : 2 W.R. 31 (P.C) : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843] their Lordships of the Privy Councilsay: The zemindari is admitted to be in the nature of a principality--impartible, and capable of enjoyment by only one member of the family at a time. But whatever suggestions of special custom of descent may heretofore have been made (and there are traces of such in the proceedings) the rule of succession to it is now admitted to be that of the general Hindu Law prevalent in that part of India with such qualifications only as flow from the impartible character of the subject. Hence if the zemindar at the time of his death, and his nephews were members of an undivided Hindu family, and the zemindari, though impartible, was part of the common family property, one of the nephews was entitled to succeed to it on the death of his uncle." The judgment in this case was delivered by <ORG>

6. <CITATION> 4 C. 190 : 3 C.L.J. 31 : 5 I.A. 149 : 3 Suth. P.C.J. 540 : 3 Sar. P.C.J. 827 : 2 Ind. Jur. 650 : 2 Shome L.R. 21 : 2 Ind. Dec. Dec. (N.S.) 121 their Lordships say at page 201 of the Report: The impartibility of the property does not destroy its nature as joint family property or render it the separate estate of the last holder, so as to destroy the right of another member of the joint family to succeed to it upon his death in preference to those who would be his heirs if the property was separate. The rule upon this subject was stated in the <NAME> case 9 M.I.A. 539 : 2 W.R. 31 (P.C) : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843." Their Lordships then proceed to quote from the judgment in the <NAME> case 9 M.I.A. 539 : 2 W.R. 31 (P.C) : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 and say (at page 202), "The same rule was laid down by their Lordships in a case which was decided on the 12th February in the present year." Their Lordships then quote from the case of Sivagnana Tevar v. <NAME> 1 M. 312 : 5 I.A. 61 : 2 C.L.R. 81 : 3 Sar. P.C.J. 795 : 3 Suth. P.C.J. 508 : 1 Ind. Dec. (N.S.) 208.

7. The same principle, it seems to me, was again laid down most emphatically in Stree Rajah Yanu mula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora 13 M.I.A. 333 : 2 Suth. P.C.J. 302 : 2 Sar. P.C.J. 546 : 20 E.R. 576.

8. In <NAME> v. <NAME> 10 A. 272 : 15 I.A. 51 : 5 Sar. P.C.J. 139 : 12 Ind. Jur. 213 : 6 Ind. Dec. (N.S.) 182 the question was as to the validity of certain alienations by the <NAME> in favour of his wife. It w.as contended by the family that not even the <NAME> could break up the impartible estate (a view very generally held by the <ORG> in India). Their Lordships held otherwise and distinguished the previous decisions I have quoted. In the present case, however, no such distinction can be made because the question is not the power of the <NAME> to alienate but where we are to find the successor to the gaddi. The circumstances of the present case are very similar to those in <CITATION> 24 M. 562 : 11 M.L.J. 191 and the very question was raised [ <CITATION> 24 M. 562 : 11 M.L.J. 191, <CITATION> 28 M. 508 : 2 A.L.J. 845 : 2 C.L.J. 231 : 10 C.W.N. 95 : 7 Bom. L.R. 907 : 15 M.L.J. 312 : 1 M.L.T. 12 : 32 I.A. 261 : 8 Sar. P.C.J. 855.]

9. I next proceed to consider the question of separation, An ordinary Hindu family separates-

(1) When one or more members of the co-parcenary body assert his or their legal right to have the joint property partitioned, or (2) they may agree to a partition.

10. It is the very essence of an impartible estate that there is no legal right to insist on partition, and it is somewhat difficult to understand how the members of a joint Hindu, family in an impartible estate can agree to separate and the estate still remain impartible. If each member of the family including the occupier of the gaddi took his share of the estate, it would almost seem as if the impartibility would cease with the partition. <CITATION> 30 Ind. Cas. 833 : 42 C. 1179 : 19 C.W.N. 1119 : 18 M.L.T. 228 : 29 M.L.J. 371 : 2 L.W. 843 : (1915) M.W.N. 717 : 13 A.L.J. 1034 : 17 Bom. L.K. 1012 : 22 C.L.J. 498 : 42 I.A. 192 (P.C), their Lordships held that there bad been separation but their Lordships do not appear to have held that the estate remained impartible after separation. In this case their Lordships decided the question of separation as a question of fact not of law. I will, however, assume that there can be such a separation. The question I conceive is one of fact. "A fact is said to be proved when, after considering the matters before it, the <ORG> either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" (Section 3, Indian Evidence Act ). The question is, did <NAME> and his brothers separate or did the family subsequently separate? In my opinion there could have been no separation unless there was an intention to separate. Such intention could be proved by direct evidence or might be inferred from facts. There is no direct evidence. In a large impartible <ORG> specific property is generally given to the junior members for their maintenance. In an impartible <ORG> it would be practically impossible to manage otherwise. Sometimes this property is transferred by written instruments expressly for maintenance, with the express condition that it should not be alienated. Sometimes the property is given in a much less definite way and there is always a tendency for the junior branches to treat the property as their own, to mortgage it and even to sell it. Their Lordships of <ORG> do not appear to have considered it inconsistent with the impartibility of the <ORG> that the Babus should have the power of alienating the property assigned to them. Once their Lordships decided [as they did in <NAME> v. <NAME> 10 A. 272 : 15 I.A. 51 : 5 Sar. P.C.J. 139 : 12 Ind. Jur. 213 : 6 Ind. Dec. (N.S.) 182] that the <ORG>a could himself alienate, it followed that the Babus could do the same unless the grants to them were limited. In this <ORG> sixteen taluqas have been assigned to the maintenance of the Babus. There is in the present case evidence that the descendants of <NAME> partitioned between them the property they held. Assuming that they had a legal right to do this, I think it is by no means conclusive on the question as to whether the <ORG> had ceased to be joint, for the purpose of ascertaining who has now the right to sit on the gaddi. The taluqa associated with the gaidi has never been partitioned. And the grants to the brothers of <NAME> were in substance, though perhaps not in form, made by <NAME> [see <CITATION> 29 B. 51 at p. 57 : 6 Bom. L.R. 268]. There is another fact relied on, namely, that <NAME> succeeded to her husband in 1871. It was (in the absence of custom) somewhat inconsistent with <ORG>a Kesho Saran being joint with <NAME>, <NAME>, <NAME> and <NAME> that the <NAME> should have succeeded. The <NAME>, in a petition against the estate being taken over by the <ORG> of Wards, claimed to be the heir and alleged that her husband had given her authority to adopt a son. If the <ORG>a had really made an oral Will, (which was not improbable), giving the <NAME> direction to take over the estate and adopt a son, it would explain why she was allowed to remain in possession, or her possession could be explained on the basis of custom and there is evidence of such a custom. It is pleaded in the present case that the <NAME> succeeded on the basis of custom. In the case of <ORG>a Rup Singh v. <NAME> Baisni 7 A. 1 : A.W.N. (1884) 246 : 11 I.A. 149 : 4 Sar. P.C.J. 533 : 3 Ind. Dec. (N.S.) 902 the question was whether the <NAME> was entitled by custom to the estate for her life. The case was decided by the High <ORG> in 1880. Part of the evidence by which it was sought to prove that there was such a custom, was the fact that this very <NAME> had so succeeded to the gaddi of <NAME>. It is quite possible, if in 1871 the question had arisen whether there was a family custom and the <NAME> was claiming the estate on the basis of custom, that she might have failed to discharge the onus just as the other <NAME> failed in the case reported as <ORG>a Rup Singh v. <NAME> Baisni 7 A. 1 : A.W.N. (1884) 246 : 11 I.A. 149 : 4 Sar. P.C.J. 533 : 3 Ind. Dec. (N.S.) 902. In considering whether there is such a custom, the fact that the family allowed the <NAME> to succeed should not be left out of consideration with the rest of the evidence on the point such as it is.

11. <NAME> was succeeded by <NAME>, who died without issue but leaving a <NAME>. The lady claimed that she was entitled according to custom to succeed to the gaddi (see petitions dated 29th July 1828 and the 15th of August 1828.) She was not successful, it is true, because it was found that her husband had either adopted or nominated the son of his brother. But the fact remains that the custom was asserted as far back as the year 1828. Ther8 is oral evidence even of persons connected with this family that the custom exists. On the question of separation, much reliance has been placed on some litigation which took place between <NAME> and <NAME>, his brother, in respect of Rs. 900 per annum, which was part of the Rs. 8,001 malikana allowance awarded to <NAME>. I have appended to my judgment a short statement of the history of this grant and a supplementary statement as to the history of the Rs. 900 (part of the Rs. 8,001). This Rs. 900 is now enjoyed by the descendants of <NAME> in this way. The <NAME> branch, when paying the revenue of the property they hold as <NAME>, take credit from <ORG> for the sum of Rs. 900 per annus). I do not think that the history of this Rs. 900 helps the defendant as showing that there was a separation any more than the possession of portion of the ancient estate in the hands of <NAME> shows separation.

12. In 1819 there was litigation between <NAME> and the son of <NAME>. <NAME> had mortgaged some property to raise money to pay revenue. He sued to redeem the property and his suit was dismissed on the ground of limitation. It is said that this is inconsistent with the family being joint. If the family was an ordinary joint Hindu family this would certainly be so. But it does not seem to mean much where the Babus were enjoying their babuana taluqa. It must be admitted that, if it is necessary for the plaintiff's case to prove that the family was strictly joint, the evidence shows that it was not. On the other hand when <NAME> succeeded <NAME> Shah, Karai taluka which had been given to <NAME> fell back into the <ORG> instead of going to <NAME>, either in whole or part, as it should have done if the family was separate. I do not believe that the family separated or intended to separate. It is still joint in worship. In my opinion it remains joint to this day so far as the custom permits.

13. The defendant's contention is that under the circumstances <NAME> must he held to have acquired a completely new title and that the property was his self-acquired property. Bearing in mind all the circumstances and the fact that the question arises not between the <ORG> and the family but between members of the family, I think this contention is not sound. It seems to me that on every principle of justice and equity the case should be considered just as if <NAME> had never interfered with the possession of <NAME>. If I am correct in this, I think that for the purpose of looking for the heir to the gaddi we should apply the principle so clearly established in the cases I have referred to, namely, that the family should for this purpose be considered joint. It would, in my opinion, be deplorable if the <ORG> were to depart from this principle. I think that this family has always followed the ancient custom of providing for the maintenance of the <NAME> by assigning to them property but that there has never been such a separation as would justify the <ORG> in holding that the property was the self-acquired property of <NAME> or <NAME>.

14. I have a very strong feeling that every disinterested person, connected with this family, believes that the plaintiff and not defendant No. 1 is the proper successor to the gaddi. On the 6th March 1871 the Collector of Mirzapur writes to the Commissioner reporting that He considers the <NAME> incapable of looking after the estate. He says: "<NAME> and his uncle <NAME> have waited on me this day and have begged me to apply for the intervention of <ORG> to save the property." It is perhaps a small matter. But if the defendant's contention be correct <NAME> was then the heir-apparent; Yet we find he is mentioned after his nephew in the report and is styled "<NAME>", while the nephew is styled "<NAME>."

15. One more contention was put forward on behalf of the defence. It was argued that if the property was joint, <NAME> had no right to possession and that if she had none, the suit is barred by limitation. I have already pointed out that the <NAME>'s possession could be legally explained on the basis of a Will by her husband or on the basis of custom. I do not think under the circumstances the <NAME>'s possession could be said to be adverse.

16. No argument WAS, nor do I think any argument could have been, addressed to us on the 21st ground of the memorandum of appeal.

17. Itisnotallegedin the memorandum of appeal that any distinction could be drawn between the property and the grant of Rs. 3,000. I do not think that any such distinction could have been made. The grant of Rs. 8,000 has been always enjoyed (save to the extent of Rs. 900 per annum) by the <NAME> and has been treated as part of the <ORG>. No argument was addressed to us on the matter.

Appendix A.

Statement as to the ancestnal <ORG>.

1744.-Up to about 1744 A.D., the property was held by the family. <NAME> then sat on the gaddi. <NAME> was dispossessed by <NAME> of Benares for non-payment of revenue. It does not appear that <NAME> had any legal power to confiscate the property. "About the end of the year 1744 <NAME>, the then <NAME>, was dispossessed of his domains by <NAME>. At the period, the two perganas were divided into 18 taluqas, 16 of which belonged to <NAME> of the <NAME>'s own blood and kin, who according to local custom obtained an assignment of villages for their support when they became separate from the household of the <NAME>: of the remaining taluqas one remained to the <NAME>, one belonged to a then influential family of Brahmans peculiar to the pergana created By the <NAME>s called Raipari Brahmans" (Robert's Report dated 6th January 1847). The above is taken from: "A Collection of papers relating to the Settlement of South Mirzapur", printed by the Government.

Note.-- This document refers to the custom for the provision for maintenance of the Babus and the property assigned to them.

1781-- <NAME> from <NAME> to <NAME> (see page 70R): "In view of former rights he should remain in proprietary possession of his share as heretofore."

1787.-- <NAME> appointed (30A) <NAME> of a large amount of property (including the ancestral estate).

Note.-- This appointment was inconsistent with the terms of the sanad of 9th October 1781, <NAME> nominally was appointed merely to an office instead of having the settlement made with himself. It is quite clear that <NAME> did not accept this position without protest, for there is a document under the hand of Mr. <NAME>, dated 21st October 1790 (143R), in which it is pointed out that the action of <ORG> is due to the fact that there is a settlement already with the Raja of Benares, that the appointment of <NAME> is not that of any ordinary Tahsildar liable to dismissal. "The aforesaid pergana being your ancestral zemindari, it is not like that of other Tahsildars. Though the settlement has been made by <ORG>, your zemindari rights will not be destroyed. You should clearly understand this." This is a very important document.

1794.-- <NAME> died and. on the 15th October 1794 (23A) there is a sanad to <NAME> on account of the natural death of <NAME>.

Note.-- Apparently by this time the difficulty between the Raj of <NAME> and <NAME> had been adjusted. This was confirmed by a sanad, dated 25th November 1794 (37A), in which the consent of the Raja of <NAME> is referred to.

Appendix B.

Statement as to the <ORG> grant Rs. 8,000.

15th October 1781.--Adil <NAME> received a sanad from <NAME> granting him Rs. 8,001 (see <NAME>'s Report dated 6th January 1847--Collection of papers above referred to). This grant beyond dispute originally was intended to be temporary. It took the form of the assignment of the revenue of certain villages most of which were part of the ancestral estate. It should be noted that some confusion is caused by the language in some of the documents which might make it appear (contrary to fact) that the villages themselves as distinguished from the revenue were assigned.

1788.-- It being found that <NAME> had got possession of his zemindari, the purpose for which the grant of Rs. 8,001 had been made had ceased to exist and the grant was ordered to be resumed. It then was ascertained that <NAME> had mortgaged Rs. 4,000 of the grant to <NAME> to secure a debt he had incurred in paying Government revenue. Government officials had been party to this transaction and so resumption to the extent of Rs. 4,000 was deferred. The jagir villages, i.e., the villages the revenues of which were assigned, were under the management of <NAME>, younger brother, on behalf of <NAME>.

1794.-- After the death of <NAME> on the earnest entreaties of the family the grant was allowed to remain with the new Raja <NAME>.

1803.-- The debt due to <NAME> was still undischarged and he had got a decree against the <NAME> for Rs. 49,000 odd. The <NAME> petitioned Government stating that his estates were over-assessed. The grant was restored to Rs. 8,000 and made permanent. The revenue of the villages representing the old Rs. 4,000 was assigned and the revenues of 136 new villages were added bringing the grant to Rs. 8,000 (see 28 A). The Raj has the benefit of this grant to this day.

Supplementary Statement as to the right of <NAME> to Rs. 900 per annum, part of Rs. 8,000.

1795.--At page 48A a long letter will be found, dated 13th August 1795, from the Resident of Benares, which shows that the origin of the claim to this Rs 900 by the <NAME> branch was an alleged arrangement between <NAME> and his brother <NAME>, by which <NAME> was to manage the jagir, liquidate the debt to <NAME> and take Rs. 900 himself. The letter concludes: "At the same time if in consideration of the brethren and large family left by <NAME> the Board should be pleased to continue it....<NAME>, although possessing no positive right, may yet in equity be admitted to some proportion of it for his support, and this distribution may be made by Government.

18. 17th July l795.--Then follows a panvana of this date which recites an alleged sanad from <NAME> to <NAME> granting him Rs. 900 out of the Rs. 4,000, but subject to the liquidation of <NAME>'s debt.

19. 7 th May 1882.--Ran <NAME> brought a suit claiming that the payment of the Rs. 900 might be stopped or in the alternative that <NAME> (in possession of which the <NAME> branch was) might be resumed. The decree was not made till 1833 (R. 125). In this decree the plaint and written statement are set forth at length. It does not appear to have been controverted that the <NAME> were in possession "as <NAME>", although the right of the <NAME> to resume was contested. The suit was brought against the grandson of <NAME> and failed. The <NAME> branch have since enjoyed the benefit of this Rs. 900 and take credit for it when paying the <ORG> revenue of their taluqa.

Rafique, J.

20. I am of the same opinion as the learned Chief Justice and I give some of the reasons which have made me come to a finding adverse to the appellant. The dispute between the parties to this appeal relates to an ancient estate which at one time was a principality. The estate is known as <NAME> and is situate to the south of the river 'Son' in the district of Mirzapur. More than 700 years ago an aboriginal tribe called Kharwar inhabited the perganas of <NAME>, Bijaygarh, Singrauli and Bardi in the District of Mirzapur. The Buland <NAME>s of the tribe of Kharwar held possession and sway over the said perganas up to the end of the 12th century. Towards the end of the 12th century or the beginning of the 13th, <NAME> defeated <NAME> of Mahoba, two members of whose family managed to escape the sword of the victor and took refuge in Mirzapur. They claimed the protection of <NAME> and obtained it. They entered his service and rose high in his favour gaining both honours and authority. On the death of the <NAME> the two thakur refugees treacherously seized his fort and treasurers and divided the <ORG> among themselves. The grandson of <NAME>, however, sometime after the usurpation managed to regain his patrimony and put to sword every <NAME> thakur. But one of the <NAME> escaped and gave birth to a son who was brought up in a peasant's family, and was called <NAME>. He on attaining majority regained the <ORG> of <NAME> with the help of the <NAME> of <NAME>. Ever since then for about five hundred years, but for a short interruption which will be mentioned presently, the family of <NAME>, from whom the parties to this appeal are descended, has retained the <ORG> of <NAME>. The <NAME>s of <NAME> by reason of the inaccessibility of their estate were very little affected by the changes of Government in this country until 1744-1745, They used to pay Rs. 8,001 per year, not in cash but in skins of elephants and deer and in bamboos, timber and other forest productions as tribute or revenue to the Nazim of the Moghal Empire at Ohunar. In 1719-1720 the sircars of Benares, Jaunpur and Ghazipur were given by the Moghal Emperor to one <NAME>, a courtier, who in 1722 made them over to <NAME>, the first Nawab Wazir of Oudh, in consideration of seven lakhs a year. He in his turn leased the revenues to his friend and dependent <NAME>. The latter was an incapable and indolent man and left the administration of the sircars to his subordinates, chief among whom was <NAME>, the ancestor and founder of the family of the Maharaja of Benares. On the receipt of reports of mismanagement <NAME> deputed his son-in-law, afterwards known as <NAME>, to call <NAME> to account. <NAME> sent <NAME> to interview and pacify the Nawab. The result of the interview was the fall of <NAME> and the rise of <NAME>, who obtained in the name of his son <NAME> the lease of the sircars of Benares, Jaunpur and Chunar. <NAME> died shortly after and <NAME> obtained from the Emperor at Delhi a sanad conferring upon him the title of <NAME> and the confirmation of his lease of the three sircars. He was an ambitious and far-seeing man and saw his opportunity in the weakness and the approaching disruption of the Moghal Empire. In order to strengthen his position and power he disposed and ejected one by one all the old landholders of influence and standing and by degrees established his power in the three sircars until he became almost independent, Among others he dispossessed <NAME> Shambhu Shah of <NAME> in 1741-45 as also younger members of the <NAME>'s family. At the time of the expulsion of <NAME> Shambhu Shah the estate consisted of eighteen taluqas "sixteen of which belonged to <NAME> Babus of the <NAME>'s own blood and kin, who according to local custom obtained an assignment of villages for their support when they became separate from the household of the <NAME>; of the remaining taluqas one remained to the <NAME> and one belonged to a then influential family of the Brahmans" (vide the collection of papers relating to the Settlement of south Mirzapur, page 45). <NAME>, after expelling <NAME> and the members of his family, settled directly with the tenants and the village occupants which secured to him increase of power and revenue. He died in 1770 and was succeeded by his son <NAME>. In 1775 the sovereignty of the three sircars was ceded to <ORG> by <NAME> of Oudh and <NAME> then came directly under the authority of <ORG>. In 1781 there was trouble between <ORG> and <NAME> and the latter was deposed. <NAME>, the daughter's son of <NAME>, was installed on the gaddi in place of <NAME> by <NAME>. All the possessions of <NAME>, were restored to <NAME> but the revenue payable formerly was increased and an English Resident was appointed at Benares, Among the old and dispossessed zemindars, who had helped <NAME> against <NAME>, was <NAME> the grandson of <NAME> of <NAME>. In recognition of services rendered <NAME> granted a sanad to <NAME> restoring him to his estate. The sanad was granted on 9th October 1781 and was as follows:

Be it known to <NAME>, the honourable Zemindar of Pergana Agori, that on a representation made by him it has been found that the zemindari in the pergana aforesaid is his old ancestral property and that several years ago <NAME> forcibly dispossessed him and brought it to his use. Therefore, in view of former rights, he should remain in proprietary possession of his estate as heretofore and should make arrangements as regards the cultivation of the land and population of the pergana aforesaid in accordance with the directions of the Revenue Officer and <NAME> of high rank. He is particularly directed to carry out these instructions.

21. It was soon discovered that the grant of the sanad did not amount to actual restoration, and hence on 15th October 1781 a grant of Rs. 8,001 per annum in cash was made by the assignment of the income of certain villages. Sometime in 1782, <NAME> entered his domains supported by British troops under Major <NAME>, who drove out <NAME> followers from <ORG> and other places. The Raja thus obtained possession of his entire estate including the taluqas of the Babus. In 1787 he was appointed amil or Tahsildar of the two Perganas of Agori and Barhar for realising revenue. After the deposition of <NAME> and shortly before the grant of the sanad to <NAME> restoring him to his ancestral estate, <ORG> had in September 1781 entered into a treaty with <NAME>, securing to him all the rights and possessions of the deposed Raja. The position thus created was curious. On the one hand <NAME> by the treaty with <ORG> continued to be the proprietor of <ORG> and on the other <NAME> was given the sanad conferring on him the ownership of the said estate. In 1788-89 the question of the respective rights of the two Rajas arose when the Settlement of Mirzapur District was undertaken. The matter was referred to the Governor-General, who in his Resolution of 11th April 1788 remarked as follows:

The question next occurring is, what is. then to be done with respect to those whose claims have been recognised by Mr. <NAME>? If his decision be confirmed, the Governor-General in <ORG> acts in opposition to a principle which he deems equitable and in effect infringes the pattah granted to the <NAME> of Benares, which is a very important consideration. On the other hand if Mr. <NAME>' decision should be annulled-, those who have benefited by it will have reason to complain of the resolutions of Government for, resuming without cause what it bestowed as a reward for zealous service....The next pensioned landholder is <NAME> Adil Shah. The grant made to him by Mr. <NAME> in conformity to the orders of Mr. <NAME>, specifies the allowance to be nanak and altamgha. But, as he has actually obtained possession of the land as zemindar, it appears to the <ORG> that he ought to be placed on the same footing as the other zemindars in Benares, without any peculiar exception in his favour, and that the allowance of Rs. 8,000 ought to cease. It still, however, remains to be determined, whether the zemindari which he has acquired shall be deemed an inheritance. The <ORG> are of opinion that it should not, but to give him every fair advantage during his possession, be recommended to the <NAME> (presumably the <NAME> of Benares) to make a mokarrari settlement with him during his life only.

22. Mr. <NAME>, the English Resident who was conducting the settlement made a mokarrari settlement accordingly with <NAME>, who wrote a counterpart for a settlement with the Raia of Benares on 8th January 1789, undertaking to pay revenue annually and admitting that the settlement was made with him for his life only. On 26th April 1789 Mr. <NAME> reported his proceedings to the Governor-General who sanctioned them on 17th June 1779, vide, Thomson's Despatches, pages 102-108. In 1790 <NAME> through his <NAME> complained of the inclusion of his estate in the Raj of Benares and of the mokarrari settlement with him for his life only. Mr. <NAME> replied that the arrangement could not be then disturbed and held out hopes to him. The reply was in these terms:--"From the statement of <NAME>, your <NAME>, I have come to know that you are quite displeased at the settlement of the, miscellaneous villages of the aforesaid pergana, which has been made by the <ORG>, <NAME> submit that according to the parwana dated 9th Optober 1781 His Excellency the Governor-General Lord <NAME>, <NAME>, has after ascertaining that your. zemindari is ancestral, maintained and confirmed the said, pergana and you also wish that according to the order of the <ORG> dated 15th April 1788 and sanad dated 7th October 1789, the aforesaid pergana be maintained and confirmed in your name at the fixed jama. It is, therefore, written to you that at present the settlement of <ORG> has been made by the <ORG> and in continuation thereof the settlement of the zemindari in your pergana also has been made and it cannot be cancelled for the present. You are loyal to the <ORG>; you should accept the settlement which has been made. When another settlement is made, it will be on your behalf at a fixed jama. You suspect that the dismissals and appointments in the above-named pergana will be like those of the Tahsildars, but the aforesaid pergana being your ancestral zemindari your position in it is not like that of other Tahsildars. Though the settlement has been made by the <ORG> your zemindari rights will not be destroyed. You should clearly understand this." This parwana was dated 21st October 1790, vide, page R 143 of the paper-book.

23. On 26th July 1:93 Mr. <NAME> sent another parwana to <NAME> authorising him to raise money by mortgage on his estate. In the year 1794 a very important change took place in the status of the <NAME> of <NAME>. He was deprived of <ORG>, with the exception of what is known now as <ORG> and which did not then nor do they now include the estate of <NAME>. The change was effected in lieu of an annual payment of one lakh a year to the <NAME> by <ORG>. The latter, having thus acquired the proprietary rights of the <NAME> of <NAME> in the three sircars except <ORG>, found itself in a position to keep faith with the old zemindars whom <NAME> had restored to their ancestral estates. <NAME> died about this time, that is, in the year 1794. Mr. <NAME> issued a parwana to <NAME>'s nephew and adopted son, <NAME>, making over the pergana to him. Shortly after on 25th January 1794 a sanad was granted to him "confirming him in the inheritance of the zemindari" of <NAME>. In 1795 the revenue, assessed on the estate of <NAME> in 1788-S9, was made permanent and payable, directly to <ORG>.

24. <NAME> thus became full owner of the estate of <NAME> directly responsible to <ORG> for the payment of revenue, and in no way liable or subordinate to <NAME> of Benares. He was succeeded on bis death by <NAME>. The latter died without leaving any issue and was succeeded by his nephew and adopted son <NAME>. He died leaving him surviving a son <NAME>, who succeeded to the estate and remained in possession of it till 1871 when he died leaving no issue. He in his turn was succeeded by his widow <NAME>, who held the estate up to 1913. I now proceed to give briefly the history of the malikana of Rs. 8,001. I have already said that it was granted to <NAME> on 15th October 1781, as it was found that he could not get possession of his ancestral estate. The allowance took the form of an assignment of the revenue of certain villages. In 1788 the Governor-General ordered its resumption as <NAME> had obtained possession of his domains. But as he had in order to raise money for the payment of Government revenue mortgaged the malikana to one <NAME> with the consent of Mr. <NAME>, the Acting Resident at Benares at the time, Mr. <NAME> solicited and obtained the sanction of the Governor-General to defer the resumption of half the malikana until the liquidation of <NAME> debt. Accordingly half the malikana was resumed. On the death of <NAME> the question of the resumption of the remaining half of the malikana was raised, but in consideration of the poor circumstances of the family and in order to secure punctual payment of the revenue of the estate it was not resumed.

25. In 1803 <NAME> memorialised the Governor-General that he, <NAME>, had been hardly dealt with by the resumption of half the malikana and that his estate was over-assessed and he, therefore, prayed for relief by the re-grant of the resumed portion of the malikana. The Governor-General after an enquiry from the local officer grunted the request of <NAME>. Ever since then the malikana of Rs. 8,000 per annum has continued to the <NAME> and his successors, with the exception of Rs. 900 per annum which were given to <NAME>, the brother of <NAME>. It appears that <NAME> had appointed his younger brother <NAME> to manage the malikana villages and had promised to pay him Rs. 900 per annum in perpetuity in case he managed to pay off the debt of <NAME>. On the death of <NAME> <NAME> claimed Rs. 900 per annum and his claim was denied by <NAME>. Mr. <NAME> who investigated the claim was of opinion that even if <NAME>'s statement were correct as to the promise of <NAME>, the latter had no right to give away what was not his own. The malikana was for the life of <NAME> only and he could not, therefore, gift the whole or part of it for a longer period than his own life. But as half the malikana was to be continued to the successor of <NAME> to enable him to pay off <NAME>, Mr. <NAME> recommended that in consideration of the poor circumstances of <NAME> the sum of Rs. 900 per annum should be reserved to him. The proposal of Mr. <NAME> was sanctioned and <NAME> got Rs. 900 per annum. In 1822 <NAME> sued the descendants of <NAME> for the resumption of Rs. 900 malikana or in the alternative of the taluqa of <NAME>, now known as Jamgaon, which he said was given by <NAME> for the maintenance of <NAME>'s family. The claim was dismissed on the ground that the taluqa was given for maintenance and the malikana as a gift by <NAME>. Ever since then the descendants of <NAME> have retained both the taluqa of <NAME> and the malikana of Rs. i 00 per annum. The subsequent history of the estate is'uneventful and relates to the financial difficulties of <NAME> and some of his descendants and the determination of inferior rights in the estate of persons other than the members of the family. The estate remained in the hands of the descendants of <NAME> up to the time of <NAME> Kesho Saran, who dipd leaving him surviving a widow but no issue. Among the collaterals alive at the time of his death the nearest by blood relationship was <NAME> and next to him in degree were the three sons of his elder brother, viz., <NAME>, <NAME> and <NAME>.

26. <NAME> and <NAME> died in the lifetime of the <NAME>. One of the sons of <NAME>, viz., <NAME>, is the plaintiff in the present case and the two brothers of <NAME> are the defendants, as also the sons of one of the two brothers. <NAME>, it seems, took an objection to <NAME> Bed Saran Kuar getting possession of the estate and claimed it for himself but his objection was disallowed, vide Exhibit B12, page 80 A of the paper-book. She, however, entered on possession and held the estate till her death in March 1913. During her life she gave considerable property to a Pandit of Benares called <NAME> by lease, endowment and purchase in his name. On the 24th May 1909 she executed a Will and appointed some persons as her executors and gave them her stridhan, i.e., her personal property. On 1st March 1910 she made a codicil in which she specified the property that was to go to one of the executors. On the 12th January 1912 she executed a further codicil by which she declared that <NAME> and <NAME> (defendants Nos. 1 and 2) were heirs to her late husband and that <NAME> should succeed to the gaddi. On 1st October 1912 she executed a lease of 67 villages in favour of defendants Nos. 3 and 4. On 4th November 1912 she executed a deed of relinquishment in favour of defendant No. 1 of her rights in the estate. On her death in March 1913 on a dispute between the plaintiff and the defendant No. 1 as to the possession of the estate, the District Magistrate declared the latter to be in possession and directed the plaintiff to seek his remedy in <ORG>. Thereupon on 2nd June 1913 the suit out of which this appeal has arisen was brought by the plaintiff for a declaration of his title to and the possession of the <ORG> of Agori Barhar. The plaint, after reciting the old history of the estate, goes on to say that the <ORG> is impartible and that the succession to it is governed by the rule of lineal primogeniture according to the custom of the family. The younger members of the family are entitled to maintenance and in case of the death of a <ORG>a without issue his senior widow, under a custom obtaining in the family, is entitled to hold the estate for her life, subject to the vested interest of the eldest member of the senior branch living at the time of the death of the last <ORG>a to succeed after the widow. On the death of <ORG>a Kesho Saran Shah in 1871 Babu <NAME> Singh, father of the plaintiff, became entitled to the <ORG> subject to the life-estate of <NAME> Bed Saran Kuar. In fact the late <ORG>a on his death bed in conformity to the family custom directed that his widow should hold the estate for her life and that after her death <NAME> should succeed to the <ORG>. The latter was accordingly recognized as yuvaraj, i.e., the heir-apparent. He died on 14th November 1910 and the plaintiff, his eldest son, became entitled to the <ORG> subject to the life-estate of <NAME> Bed Saran Kuar. She wanted plaintiff and his father to consent to the gifts and other alienations she had made to and in favour of <NAME> and even offered to relinquish the <ORG> in their favour, but they refused. She then approached the defendant No. 1 and got his consent to the benefits conferred by her on <NAME>, and in consideration of the compliance of the defendant No. 1 with her wishes she first made a Will and then executed a deed of relinquishment in his favour and a lease of 67 villages in favour of his sons. She had no right to make any of the transfers mentioned above nor could she dispose of the estate by Will or deed of relinquishment. The plaintiff, therefore, sued to recover possession of the <ORG> as also the property conveyed to <NAME> by a declaration of his title as the lawful successor to <NAME> by the rule of lineal primogeniture and by a declaration of the invalidity of the Will of 13th January 1912, the deed of relinquishment of 4th November 1912, the lease of 1st October 1912 and the alienations made in favour of <NAME>. I need not refer to the defence of <NAME>, as the claim , against him has been dismissed and no appeal has been preferred. Defendant No. 2 defended the suit on the ground that no cause of action was disclosed in the plaint against him and that he was not in possession of the estate. He asked for his costs. Defendants Nos. 3 and 4, the sons o defendant No. 1, set up the validity of the lease on the ground that it reserved a fair rent. The chief defendant who contested the suit was defendant No. 1. He denied that the <ORG> was impartible or that the rule of succession by family custom or under the law governing the family was lineal primogeniture, or that there was a family custom under which the senior widow of the last male holder, in case he died without leaving: any issue, got a life-estate. He said that the estate was partible and had been divided prior and subsequent to 1745,. and that whatever may have been its character prior to 1745 it was granted to <NAME> for life and again to <NAME> by <ORG> as an ordinary zemindari. It was divided in <NAME>'s life time between him and his brothers and again among the two sons of <NAME> In any case the grants to <NAME> and <NAME> would make the estate the self-acquired property of each in turn, in which case whether the grant was of partible or impartible estate, the estate would1, under the Hindu Law, go to the nearest sapinda of <ORG>a Kesho Saran, i.e., the defendant No. 1. Moreover, <NAME> Bed Saran Kuar was in adverse possession for more than twelve years and hence defendant No. 1 would succeed to the estate both under the deed from her and as the nearest sapinda of her late husband. I would observe here that no separate defence was set up to the malikana.

27. The learned Judge of the lower Court found on all the issues raised in the pleadings of defendants Nos. 1 to 4 against them and decreed the claim. They have in their appeal to this Court reiterated the pleas taken in their written statements in the lower Court.

28. The main question in the appeal is, who is the lawful successor of <NAME>, the last Raja? The reply to the question depends upon the decision of four matters, viz:

(1) The character of the estate.

(2) The nature of the grant to <NAME> and again to <NAME>.

(3) The status of the family at the time of the grant to <NAME> and subset quently.

(4) Nature of <NAME> possession.

29. It is contended on behalf of the appellants that the estate was not impartible prior to 1745 nor was it granted to <NAME> or <NAME> as an impartible estate. The grant to <NAME> was of mokarrari lease and to <NAME> of an ordinary zemindari. The character of the estate prior to the grant, to <NAME> is only relevant to show the nature of the grant to him, as in the sanad and other official documents it is stated that he is restored to his former rights and also to show the natural desire of <NAME> and his descendants to retain and keep up the dignity of a <NAME>. The official and other historical accounts of the district of Mirzapur agree in stating that the estate of Agori Barhar was a principality up to the time of <NAME>a <NAME>, the grandsfather of <NAME>. The fact that the <NAME> <NAME>as of Agori Barhar were descended from the <NAME> rulers of Mahoba would make the former adhere to the ancient custom of retaining the dignity of a <NAME> in the family. But it is argued for the appellants that the estate was divided several times prior to 1745. The instances relied upon are the division of the estate between the two <NAME> Princes who usurped the <NAME> on the death of <NAME>a Maddan, the Kharwar chieftain, the' partition of the estate By <NAME> in his lifetime between his two sons and subsequent assignment of small taluqas to different members of the family, as is evidenced by the pedigree filed by the plaintiff-respondent. The pedigree is admitted by, the appellants with the exception of the remark against the names of the junior members of the family as guzaradars. It is said that they were not guzaradars but got the taluqas on separation. The division by the two <NAME> princes on the usurpation of the estate cannot be said to have been a, partition under the Hindu Law. They had usurped the <NAME> and had divided it among themselves each holding a separate <NAME>. Nor can the division of the estate by <NAME> among his two sons be said to prove the partibility of the estate in suit. Each of the estates created By <NAME> as a matter of fact became a separate <NAME> and has descended as such. The so-called subsequent divisions were not based on partition at all The younger members of the family were granted villages as maintenance allowance from time to time--vide, Mirzapur <ORG> and the report of the <NAME> in 1863, page 73 R, paper-book, and <ORG>, page 383. There is no evidence on behalf the defendants-appellants to show that the accounts given in the <ORG> or <ORG> or the report of the <NAME> are incorrect. I am, therefore, of opinion that the estate in question was held as an impartible <NAME> up to the time of the expulsion of <NAME>a <NAME> by <NAME>a Balwant Singh of Benares in 1744-1745.

30. The next point for consideration is what was the nature of the estate granted to <NAME>? Was he granted an ordinary zemindari and was the grant personal to him so as to make the estate his self-acquired property? The language of the sanad of 9th October 1781 shows that <NAME> was given the same estate as was held by his grandfather <NAME>. The words of the grant are that in view of former rights" the zemindari is given. <NAME> explained his grant to <NAME> in his narrative of the insurrection of the <NAME> of <NAME>. He says that as these persons" (meaning <NAME> and others) "showed a zeal for the service of our Government and a desire of being useful to us during the late troubles, I have thought it proper that their conduct should not pass without the retribution due to it and for that purpose have directed that they be restored to the possession of the lands to which they have hereditary claims," vide Appendix, page 34. The italics are mine, to show the nature of the estate granted. The hereditary claim of <NAME> was to succeed to an impartible <NAME>. The subsequent correspondence on the subject between the English Resident at <NAME>, the Governer-General and other official correspondence and papers show conclusively that what was granted to <NAME> was the estate he would have got but for the resumption of 1744-1745 by <NAME>. But it is argued for the appellants that the usurpation of the estate by <NAME> destroyed its impartible character and the grant by <ORG> must be taken to have been of the estate as it existed in 1781. It was then in the hands of tenants and village occupants (sic) paid revenue direct to the Maharaja of <NAME>. <NAME> was made to pay to the Maharaja and, therefore, he got no better right than his immediate predecessors-in-possession. For the respondent the reply is that the confiscation of the estate by <NAME> was illegal and his dealings with the estate cannot, therefore, be taken into consideration. The obvious rejoinder for the defendants-appellants is that <ORG> had no right legally to deal with the estate of the Maharaja of <NAME> and grant a portion of it to a third person, however lawful the latter's claim might be, for it is said that <NAME> of Oudh had not got the sovereignty of the three sircars, and had none to give. <ORG> did not derive a valid and legal title from the cession of the sovereignty of the three sircars by <NAME> of Oudh. The fact is that after the shock which the Moghal Empire sustained by the invasion of <NAME> the central authority had become weak and every Subedar, Governor or so-called lessee attempted to and did in many cases assume independence. <NAME> adopted the course he saw others followed. But the character of the usurpation of <NAME> is in my opinion immaterial. The fact remains that he expelled <NAME> and the estate of <NAME> remained in the <NAME> family up to 1781. There is the further fact that whether <ORG> had a legal right or no to deal with the <NAME> <NAME>, it dealt with the <NAME> nnd granted <NAME> the estate in suit in view of former rights," and restored him to his ar.cestral 'estate. His former rights were to get his ancestral estate, the estate as it was in the hands of his grandfather <NAME>. And the estate in the hands of the latter was, as has been mentioned above, impartible. The nature of the grant is also shown by the conduct of <NAME>. Did he treat it as an ordinary partible zemindari or a <NAME>? 1 think the latter. His whole conduct shows that he considered - himself to be entitled to the estate in the tame manner as his ancestors were, vide his complaint to Mr. <NAME>. <NAME>, his successor, also held and dealt with the estate as an impartible one. Moreover the litigation of 1822 between <NAME> and the descendants of <NAME>, the custom of gaddi-nashini, which is deposed to by plaintiff's witnesses, the last ceremony being that of <NAME>, her own declarations about the estate, especially in the deed of relinquishment to defendant No. 1, the impartible character of other estates held by other members of the family which were similarly confiscated by <NAME> and restored by <NAME>, go to prove the impartibility of the estate in suit. It is too late in the day, I think, to dispute the legality of the confiscation by <NAME> or of the grant by <NAME>. Besides the dispute in the present case is not about the rights of <NAME>'s family or those of <ORG> which now represents <ORG>, but the dispute is between the descendants of <NAME> as to succession to the estate. The question of the nature of the grant is raised simply to find out the successor. All considerations point to the conclusion that an impartible estate was granted to <NAME>. The fact that he was given a mokarrari lease for life only does not affect the conclusion. What we have to look to is the intention of the grantor, and the intention of <NAME> was no doubt to restore <NAME> to his ancient rights. The temporary check was due to the regard for treaty rights of <NAME>, which was removed in 1794 or a short time after. But the defendants-appellants say that even if the grant was of an impartible estate, it was made to <NAME> and was, therefore, his self-acquired property. The language of the sanad of 9th October 1781 and its explanation by <NAME> in his book disprove the contention of the appellants. And if there were any doubt as to the construction of the terms of the sanad or the language of <NAME> in his narrative of the <NAME> insurrection, it is removed by reference to Clause 3, Section 17 , of Regulation II of 1795. The relevant portion of the clause is as follows:--"The circumstances of the pergana of <NAME> in the sircar of Chunar constitute in some degree a deviation from the rule observed in the general settlement. This pergana appertained to its separate <NAME>hs, Until they were expelled by <NAME> <NAME>. Their descendants appearing and having performed some public services in 1781, Government ordered that <NAME> <NAME>, their then representative, should be restored," The words "their then representative" show clearly that the restoration of the estate to <NAME> was not personal to him and did not render the estate his absolute and self-acquired property, but it was given to him subject to the rights of the other members of the family. <NAME> in fact attempted to treat the estate as his property and was unsuccessful. It has been mentioned above that at the settlement of 1788-89 the whole pergana including the maintenance villages of the Babus was settled with him. He refused to make over the babuna taluqa to the decendants of <NAME>, the brother of <NAME>. They sued him and obtained a decree against him in 1793, vide papers relating to the settlement of South Mirzapur, page 51.

31. The whole history of the estate from 1781 to 1845 to be found in the <ORG> records and correspondence militates against the contention of the appellants that the grant to <NAME> or <NAME> was personal and, therefore, the estate conferred on them was their self-acquired property.

32. For the appellants' reference has been made to the following cases:-- <CITATION> 14 M. 237 : 18 I.A. 45 : 5 Sar. P.C.J. 645 : 15 Ind. Jur. 222 : 5 Ind. Dec. (N.S.) 167, Ven-katarayadu v. <NAME> 15 M. 284 : 5 Ind. Dec (N.S.) 549, <CITATION> 23 Ind. Cas. 166 (P.C.) : 41 I.A. 51 : 18 C.W.N. 554 : 12 A.L.J. 315 : (1914) M.W.N. 299 : 26 M.L.J. 411 : 15 M.L.T. 285 : 16 Bom. L.R. 328 : 37 M. 199, Brij Indar Bahadur Singh v. Ranee Janki Koer 5 I.A. 1 : 1 C.L.R 318 : 3 Sar P.C.J. 763 : Bald. 148 : Rafique & Jackson's P.C. No. 48 : 3 Suth. P.C.J. 474.

33. None of these cases in my opinion lays down that a fresh grant in all circumstances renders the property of the grantee his self-acquired property.

34. The first case related to the zemindari of Merangi in Madras. The contention was that the zemindari was impartible prior to its incorporation in another zernindari and its grant by <ORG> did not render it partible. It was held that even if the zernindari was impartible prior to its inclusion in the <ORG> zernindarij the subsequent dealings with the (Merangi) zernindari, the nature and the terms of the grants under which it was held after 1802 and other evidence showed that it was now partible. In the present case the terms of the sanad of 9th October 1781 and of 1794, their official interpretation soon after, and the dealings with the estate by <NAME> and <NAME> show that the grant was not personal and that the estate in their hands did not become their selfacquired property. In the second case, the one reported as <CITATION> (12), it was held on the evidence and the circumstances of the case that the grant by the <ORG> to <NAME> was not a grant to the undivided family of which he was a member but to him personally. The third case, that of <NAME>, was also decided on the facts proved in it and the construction of a sanad granted under Regulation XXV. It in no way helps the appellants.

35. The last case, that of <NAME>, was also decided with reference to the language of the sanad granted to <NAME>, mother of <NAME>, and the facts and circumstances which led to the grant of the sanad. Moreover, the provisions of Act I of 1869 (local law applicable to Cudh) were also considered as affecting the rights of the parties. The decision of that case has no bearing on the present case. All that can be said on the authorities relied upon for the appellants is that each case should be decided on its facts and circumstances. The intention of the grantor, the language of the grant, the surrounding circumstances and the dealings with the estate have to be considered in determining the nature of the grant. In the present case all these considerations negative the contention of the defendants-appellants.

36. Another argument which has been urged with great force is that, had the estate not been the self-acquired property of <NAME>, the widow of the last <NAME> would not have been allowed to succeed to her husband, I shall discuss the question of her succession presently but even if her succession is inexplicable on any other ground, that fact alone would not in the face of other evidence prove conclusively that the property in suit was the self-acquired property of <NAME>.

37. The next point to be discussed is the status of the family. The defendants-appellants say that there is no evidence that the estate was joint at the time of <NAME> or that <NAME> was joint With his brothers. In fact, they say that the circumstances disclosed by evidence go to show that the family was neither joint before the confiscation of the estate in 1744-1745, nor at the time of restoration in 1781 or after. Prior to the confiscation during the time of <NAME>, other members of the family, his own brothers included, were living separately and had separate taluqas in their possession over which they had disposing power and which were divisible and were divided among their descendants. After the restoration <NAME> gave his two brother?, <NAME> and <NAME>, separate taluqas who lived on their estates. <NAME> mortgaged some of his property to <NAME>. He also gave the latter Rs. 900. per annum out of the malikana, which is still enjoyed by the family of <NAME>. The, holders of the said taluqas cannot be said to be guzaradars. A guzara is not alienable and a guzaradar must pay his revenue to the parent estate and not directly to the <ORG> Besides if the family was joint, plaintiff's father should have claimed the succession on the death of <NAME>. In his applications to the <ORG> officers on the death of <NAME> plaintiff's father made no allegation of joint family and his right to succeed. It will be apparent from the argument for the appellants that the contention is based on the character of 'guzaras' in the estate in suit, the mortgage by <NAME> to <NAME>, the succession of <NAME> and the silence of plaintiff's father and his omission to press his claim as the next successor. The fact that the guzaradars of <NAME> have disposing power over their 'guzaras' or that the guzara villages are divisible and are divided among their descendants or that the guzaradars pay revenue directly to the <ORG> does not change the character of their tenure or prove that they have separated from the family. A guzara is held on the terms it is granted, or the custom of the family. In the family of the parties to this appeal it appears that the guzaradars have the power of disposition and division and pay revenue direct to the <ORG>. These incidents of the guzara are due either to the custom of the family as deposed to by witnesses for the plaintiff, or considerations of convenience. The mortgage by <NAME> to <NAME> would not necessarily show that the two were separate. <NAME> as owner of an impartible estate could dispose of it as he liked. If he could transfer it, what did it matter to him to whom he mortgaged a part of it? The succession of <NAME> and the silence of plaintiff's father are no doubt circumstances which require consideration, and I shall refer to them when dealing with the possession of <NAME>. They are, however, by themselves not sufficient to prove that <NAME> was separated from his brothers. As against the considerations advanced on behalf of the defendants-appellants we have to take into account some other facts which militate against the theory of partition. First is the presumption of Hindu Law in favour of jointness and especially in the case of brothers. Then we have the fact of the reversion to the parent estate of four of the babuana taluqas on the extinction of the lines of four guzaradars. The said four taluqas were <NAME>, <NAME> or <NAME>, <NAME> and <NAME>. Again on the death of <NAME>, the second brother of <NAME>, his taluqa if the family was separate ought to have been divided between <NAME> and <NAME>, for <NAME> had been adopted by <NAME> and could not claim the whole taluqa as the son of his natural father. But <NAME>'s Taluqa reverted to the <ORG>. In his plaint in 1822 <NAME> distinctly stated that <NAME> was given the taluqa of <NAME>, now called Jamgaon, as maintenance. The descendants of <NAME> made the same allegation and the Court found it to be true. Had the family been separate <NAME>'s descendents, the ancestors of defendant No. 1, would have pleaded that <NAME> Was obtained on partition. In the litigation of 1793 relating to the taluqa of <NAME>, neither party pleaded that <NAME> had got the taluqa by partition. The common case was that he had got it for maintenance. The learned Counsel for the appellants relies on the case of <CITATION> 30 Ind. Cas. 833 : 42 C. 1179 : 19 C.W.N. 1119 : 18 M.L.T. 228 : 29 M.L.J. 371 : 2 L.W. 843 : (1915) M.W.N. 717 : 13 A.L.J. 1034 : 17 Bom. L.K. 1012 : 22 C.L.J. 498 : 42 I.A. 192 (P.C) in support of his contention that when some portion of the estate is given to a member of the family who goes away and takes up his residence in another house separate from that of the <ORG>a, that amounts to separation. In the present case <NAME> and his descendants have lived in <NAME> and, therefore, he says they have been separate from <NAME> and his descendants. I think that the case of <CITATION> 30 Ind. Cas. 833 : 42 C. 1179 : 19 C.W.N. 1119 : 18 M.L.T. 228 : 29 M.L.J. 371 : 2 L.W. 843 : (1915) M.W.N. 717 : 13 A.L.J. 1034 : 17 Bom. L.K. 1012 : 22 C.L.J. 498 : 42 I.A. 192 (P.C) was decided on its particular facts and lays down no general principle. In a large estate and a numerous family it is the rule rather than the exception that the junior members of the family are given villages for their maintenance where they go and live for convenience and management. I find that the family was not separate either before, or after <NAME> got the estate.

38. The, fourth point for consideration is the nature of the possession of <NAME>. The case for the plaintiff is that under a custom obtaining in the family the senior widow of the last male holder in case of his leaving no issue gets a life-estate of a Hindu widow and <NAME> succeeded as such. Oral evidence has been given on behalf of the plaintiff in support of the alleged custom. The defendants-appellants object to it and I think there is force in their objection that the said evidence is not sufficient in law to prove the custom set up. There are no valid instances given or proved. But it appears to me that the silence of the defendants Nos. 1 and 2 and of the father of the plaintiff and the absence of any objection on their behalf to <NAME> taking possession of the estate are explicable either on the existence of the alleged custom or their belief in the existence of such a custom or the respect for the wishes of <NAME> as stated in the plaint and by the <NAME> in several of her documents, or the desire to maintain the rank and position of the <NAME> as the widow of the head of the family. As to the belief of the family in the existence of the custom in question in addition to the conduct of the defendants Nos. 1 and 2 and plaintiff's father; we have the evidence of the <NAME>s of Basti and <NAME>, who are connected with the family of <NAME> and who swear to the custom. The belief does not seem to be of recent growth. It was entertained as long ago as 1828. <NAME> Jai Chand Kuar, the widow of <NAME>, in her application of 18th August 1828, refers to the custom in question, But apart from custom or the belief in it the oral Will of <NAME>, alleged by <NAME> on more than one occasion and admitted by the plaintiff in his plaint and deposed to by some of his witnesses, would give the <NAME> the right to hold the estate for her life. I think that the weight of evidence is in favour of the oral Will of <NAME>, whose wishes were respected by plaintiff's father and defendants Nos. 1 and 2 giving the estate to his <NAME> for her life. I do not at the same time believe the story of the plaintiff that the <NAME> on his death-bed nominated plaintiff's father as 'yuvaraj.' The possession of <NAME> was not, therefore, adverse. Moreover, if it be said that the alleged oral Will of <NAME> is not proved and that the <NAME> held the estate without any right, we have to see whether she became the absolute proprietor of the estate and thus the claim of the plaintiff is not sustainable. She admittedly held the estate as a Hindu widow. She says so in her Will, her deed of relinquishment, her petitions to <ORG> and <ORG> officials, and the defendants Nos. 1 and 2 treated her as such. Her possession as a Hindu widow does not make her absolute proprietor of the estate. Had the plaintiff or his father sought to eject her after she had been in possession for 12 years, he would have failed as she could claim to remain in possession as a Hindu widow for her life. It cannot, therefore, be said that because she admittedly held the estate as a Hindu widow the rul6 of succession to the estate has been altered by that fact. Had she been in possession as an absolute owner, then no doubt the rule of succession, would have been affected. The only result of her possession as a Hindu widow has been to interpose the period of her life between the death of her husband and the succession to the collateral entitled to succeed, Now that the four points on the decision of which, as I have said in the earlier part of this judgment, depends the reply to the main question raised in the appeal, have been determined, what is the answer--who is entitled to the estate? My answer is--the plaintiff. It has been held that the rules of succession which govern the devolution of a partible estate apply to an impartible one also, "with such qualifications only as flow from the impartible character of the subject." This was first laid down by their Lordships of <ORG> in the Shivaganga case and has been followed since, vide <NAME> v. <NAME>h of Shivagunga 9 M.I.A. 539 : 2 W.R. 31 (P.C) : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843. The principal qualification imposed by the impartible character of an estate is that a single person from amongst the heirs should succeed and hold the estate, that is, the succession is governed by the rule of primogeniture though not necessarily lineal primogeniture. The choice of the single heir depends on several considerations, whether the succession is governed by the <NAME> or some other system of Hindu Law, whether the estate was self-acquired or ancestral and whether the family was joint or separate. In the present case the parties are admittedly subject to <NAME>, and I have held that the estate in the hands of <NAME> was impartible and ancestral and not divisible and self-acquired and that he was joint with his brothers. In view of my findings on the character of the property and the grant to <NAME> and the status of the family and the fact that the parties are subject to the law of <NAME>, the choice must fall on ,the nearest co-parcener of the senior line in the absence of any special family custom of descent. The rule of succession in such a case as the present was first enunciated in the case of <NAME> v. <NAME> 4 M. 250 : 1 Ind. Dec. (N.S.) 1010. It was laid down in that case that "when impartible property passes by survivorship from one line to another, it devolves not necessarily on the co-parcener nearest in blood, but on the nearest co-parcener of the senior line." This principle was adopted in subsequent cases and was approved of by their Lordships of <ORG> in the case of <CITATION> 28 M. 508 : 2 A.L.J. 845 : 2 C.L.J. 231 : 10 C.W.N. 95 : 7 Bom. L.R. 907 : 15 M.L.J. 312 : 1 M.L.T. 12 : 32 I.A. 261 : 8 Sar. P.C.J. 855. In the present case the plaintiff is the nearest co-parcener of the senior line, while defendant No. 1 is the coparcener nearest in blood. The plaintiff, therefore, has the preference over defendants Nos. 1 and 2 and I hold accordingly.

39. I should also mention that the plaintiff in his plaint had stated that under a family custom the sucsession to the estate was governed by the rule of lineal primogeniture. He gave evidence in support of his allegation. If the right of the plaintiff to succeed depended on the alleged custom, I would have felt considerable hesitation, in view of the evidence in the case, in holding that he had proved his allegation of custom. In fact the question was not approached from that point of view by either side in argument. Each party claimed to be entitled to the estate under the law, resting his claim on the character of the estate, the nature of the grant, the status of the family and the character of <NAME> possession. I would also like to note that the learned Counsel for the defendants appellants frankly admitted during the course of his argument that if the estate is held to be impartible, and in the hands of <NAME> to be both impartible and ancestral and the family joint, the plaintiff must succeed.

40. One other point remains to be considered, viz., the objection of the defendants-appellants to the decree of the lower Court with regard to the moveables. No list of moveables was given in the plaint and no evidence was produced to prove any in the possession of the defendants-appellants. The learned Judge of the lower Court has directed that the defendants-appellants should make a discovery of the moveables and give an account. The direction by the learned Judge is obviously erroneous. In my opinion the decree as to the moveables is bad in law and must be set aside.

41. Before concluding my judgment I would like to say a few words about the claim to the malikana. I have already mentioned when reciting the pleas of the patties that no sepa. rate defence was set up with regard to the malikana. In the grounds of appeal. to this Court no objection is taken especially with regard to the decree of <ORG> about the malikana. But I do not wish to rest my decision on the omission of the defence, for it might be said on their behalf that if the argument of a personal grant to <NAME> or <NAME> does not apply with regard to the estate, it does certainly apply to the malikana. The reason of the grant of the malikana and its subsequent history have been given by me in the earlier part of this judgment. The malikana was no doubt personal to <NAME> and the whole of it would have been resumed but for the guarantee given by the Resident to the creditor of <NAME>. The re-grant to <NAME> was made on his representation that his estate had been over-assessed and he was getting into financial difficulties frequently. His representation may have been right or wrong, but it was in the belief that his estate had been over-assessed that the grant was made and not only for his life but permanently. It, therefore, follows that the grant of malikana was made to enable the holder of the estate to pay his revenue punctually and to maintain the position and dignity of his rank. The malikana must, therefore, go with the estate. I would, therefore, dismiss the appeal and uphold the decree of <ORG>, but with this modification that the decree with regard to the moveables should be limited to the list given by the defendant No. 1 in his written statement at pages 29 and 30 of the paper book.

42. The order of the <ORG> is that the decree of the <ORG> below is set aside with regard to moveable property save to the extent, of the moveable properties mentioned at pages 29 and 30 of the paper book. In all other respects the appeal is dismissed with costs, including in this <ORG> fees on the higher scale.