Undoy Adittya Deb vs Jadublal Adittya Deb

Birch, J. 1. As regards the defendant''s objection, we think it is now too late to contend that the mokarari khorposh or maintenance grant is not resumable at the death of the grantor. Since the judgment in the case of Anund Lal Singh (5 Moo. I.A., 82), it has invariably been held that maintenance grants conferred by the possessors of these impartible rajas in Chota Nagpore cease with the life of the grantor, and are resumable at the pleasure of the succeeding raja. But while the power of resuming vests in the successor on the raja''s death, a corresponding obligation is imposed upon him by family custom to provide maintenance for his brothers according to their seniority and status in the family as hakim, koonwar, or lal. The Judicial Commissioner is, therefore, right in giving the plaintiff a decree as regards these eight villages, and the appeal of the defendant is, therefore, dismissed. Each party in that appeal to bear their own costs. 2. We have next to consider, whether the late raja had the power of alienating in perpetuity any portion of the zemindari, whether for valuable consideration, or as a gift. The estate is an impartible one, but the effect of impartibility does not seem to interfere with the ordinary law as to rights over property beyond this, that it makes the estate pass to the eldest son. It becomes his separate property subject to certain obligations imposed upon him of allowing maintenance to the other members of the family. His right to alienate under the ordinary law, can only be restrained by some family custom, which has the effect of overriding and controlling the general law. Now, the only custom proved is that the estate descends to the eldest son to the exclusion of the other sons; to this extent the custom supersedes the general law as to the devolution of property, but beyond the custom, the general law must regulate all right of property, and under the general law the taker of the property may make alienations or gifts. It is found by both the lower Courts upon the evidence in the case that such alienations have been and are made in the zemindari of Patkoom; and in other estates in Chota Nagpore of a similar character, it has been found to be the case that grants of jaghirs and mokararis have been made by the holder for the time being of the impartible estate. 3. It is contended by the learned Counsel, who appears for the plaintiff, that the holder of an impartible estate is by the nature of his tenure debarred from diminishing the estate by any grants or gifts; that all he can do is to make maintenance grants, which grants endure only for his life; and the case cited as an authority for this proposition is the case of Anund Lal Singh Deo v. Maharaja Dheraj. Gurrood Narayun Deo (5 Moo. I.A., 82). We think that if that case is carefully examined, it does not warrant the construction that is so tight to be put upon it. The dispute in that case arose between the defendant as representative of Kanchun Lall, and the plaintiff as the head of the family, the defendant''s allegation being that the rajagee of Pachete had been equally divided in 1748 between Mumee Lall and Mohun Lall; that in 1773 Mumee Lall by compromise obtained the whole of the raj, save and except Pargana Kasairpore, which by deed of gift from Kanchun Lall, became the property of his adopted son Lathorgon, the gift being absolute, and in consideration of the compromise by the terms of which the raja recovered the rest of the moiety acquired by Mohun Lall in 1748. 4. The Sudder Court held, that the defendant''s allegation of a division of the raj was false; that it was clear that Mumee Lall had been invested with the entire zemindari; that any grants made by the raja for the time being were liable to be annulled and cancelled by his successor. The pargana in dispute was declared to be part of the estate, and the grant was set aside as invalid. 5. Before the Privy Council the point considered was the title which Kanchun Lall had to the pargana of Kasairpore. It was admitted on the "part of the defendant, appellant, that if the grant was a maintenance grant, it ceased with the life of the grantor; but the case he sought to establish was that the pargana had been given to Kanchun Lall for consideration, and that such alienations were within the power of the raja in possession of the estate. This he failed to establish, and it was held that there had been no division of the estate as alleged; that it had come entire to Mumee Lall: and that the grant obtained by Kanchun Lall was a maintenance grant, which admittedly lapsed on the death of the grantor. Their Lordships say that the inalienability of the zemindari had not been sufficiently established; and they do not decide the question raised before them by the respondent as to the power of the raja to bind his successors by a permanent grant of property belonging to the raj. The whole Judgment is directed to the determination of the nature of the grant, whether it was a maintenance grant or not; and the decision being that it was a grant of that nature, the case was disposed of on that ground only. 6. So far as we are aware, it has never been held by the Privy Council that an impartible estate is inalienable. 7. Our attention has been called to an unreported Judgment of a Division Bench of this Court, in which a remark is thrown out that alienations in perpetuity of an impartible estate are voidable, but the case in which this remark was made was one in which a maintenance grant was the subject of consideration and decision. 8. Accepting, as we must, the finding of the lower Courts that mokarari grants have been made in this zemindari by the rajas in possession, and being of opinion that such grants are not prohibited by law, or restrained by family custom in this zemindari of Patkoom, we must also dismiss the special appeal preferred by the plaintiff. 9. Each party to bear their own costs in this Court.