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TMI Blog1899 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent admitted the adoption, asserted that he was the begotten son of the late Rajah, that the will was absolute and unconditional, that certain property left by the Rajah was impartible descending to the begotten son alone, and that the plaintiff - as the adopted son was entitled only to one-fifth share of the self-acquired property. The suit was tried by the District Judge of Godaveri who made a, decree which declared that the second respondent was not the son of the late Rajah, and that the will in his favour was wholly ineffectual and invalid. The defendants appealed to the High Court, which reversed the decree of the District Court and dismissed the suit. The present appeal is from that decision; The conclusions which the High Court came to in favour of the appellant on the other questions in the appeal to it made it unnecessary for it to decide the issue whether the second respondent was the son of the late Rajah, and that question was not determined by the Court. 2. As to the contention that there was a contract which prevented the Rajah from making a will which would defeat the rights vested in the appellant by the adoption, their Lordships do not feel any difficulty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and immovable property to his aurasa son (again naming him) he gave him his self-acquired properties and other immovable property which he had got in pursuance of the will of his paternal aunt, and also the whole of his movable property. On March 17, 1890, he made another will, by which he confirmed the gifts to his aurasa son and the allowance to the adopted son, As the District Court decided that the second respondent was not the natural son of the Rajah, and the High Court deemed it unnecessary to determine this issue, it must for the present purpose be assumed that he is not. Their Lordships are of opinion that there is a gift by the will to the second respondent, and that the false description which must at present be assumed does not vitiate it. The case of Fanindra Deb Raikat v. Rajeswar Das L.R. 12 Ind. Ap. 72, which was referred to in the argument for the appellant is distinguishable. The words of the angikarpatra upon which the decision was given are stated at p. 89, and differ materially from the words in the Rajah's will. 4. The third and really important question in the appeal is whether the Rajah had power to alienate the impartible estate It is stated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this decision should not be held to be binding in the Madras Presidency, contended that there was a custom co-extensive with the province of Madras with regard to every impartible zamindari, and that a long course of decisions in the Courts of that province, not resting on the Mitakshara law, had established a custom of inalienability. It is, therefore, necessary to examine these decisions. 7. The earliest reported case is a judgment of the Sudder Adawlut in the note, 3 Knapp, 29. The marginal note to it is A grant made by a zemindar in 1804 of part of his zemindary...which he held at that time under an eight years' lease, and which was afterwards confirmed to him upon the permanent settlement, is valid as against himself. Semble, such a grant would not be valid against his successors or against Government. The judgment is founded on Section 8 of Regulation XXV. of 1802. It says: Section 8 provides for the payment of the public assessment on all separated portions of a zemindary by a grantee if the transfer be regularly made, and, if otherwise, by the grantor; and as a protection to the heirs the validity of the transfer is made to depend on its being conformable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a special appeal. 1 Madr. H.C. 141 The Court, after considering Sections 8 and 12, decided it in the same way, saying that this construction of the Regulations was supported by the observations of the Court in the case No. 6 of 1821 3 Knapp, 29 in giving judgment on the point for decision in that case, which was different from the present, There are two other cases in the same volume (1863) 1 Madr. H.C. 349, 455, in which the decision was followed, the whole appearing to rest upon the supposed rule of construction. The next case is in 2 Madras, H.C.R. 128. In that it was held by the High Court of Madras that the ratio decidendi of all the cases, down to the two latest, clearly was that a zemindar under the permanent settlement had really an estate analogous to an estate tail, as it originally stood upon the statute de donis. This was introducing into the law of the Madras Province what is said in Tagore v. Tagore (1872) L.R. Ind. Ap. Supp. Vol. p. 74 to be a novel mode of inheritance, inconsistent with the Hindu law. In the next case 3 Madr. H.C. 5 it was held (Holloway J. dissentiente) that where a zemindar alienated a part of the zemindary, and the terms of Regulation XXV. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily with such further powers, or it may be with such restrictions as spring from the peculiar character of his ownership, and that these powers fall short of a right of absolute alienation of the estate. It is to be noticed that here the estate is said to be possessed free from coparcenary rights in others. This is not consistent with the view in the former case, that the estate, whilst in the possession and enjoyment of one person, is still the property of the family in which each member of it has a share. There is a remarkable divergence of views in these judgments which their Lordships think deprives them of much authority. In the case of Beresford v. Ramasubba Ind. L.R. 13 Mad. 197 the alienability of an impartible zemindary came again before the Madras High Court on appeal from the decision of a judge sitting on the original side. He had followed the decisions in 4 and 6 Madr. H.C. R., and made a decree declaring a mining lease by the owner of an impartible zemindary void. The two judges of the Appellate Division of the High Court held that they were bound by the decisions of this Committee in Rajak Udaya Aditya Deb v. Jedab Lal Aditya Deb (1881) L.R. 8 Ind. Ap. 248 and Sar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the Rajah had power to alienate he might do it by will, and the title by the will would have priority to the title by succession. In the case in 17 Ind. Ap. Ca. 128, referred to by Mr. Branson, it was a question of succession by an illegitimate son to the legitimate son of his father. There was no question of the power of alienation. The language used was intended to apply only to the succession to the estate. It is true that prior to 1889 there was a series of decisions in the Madras Courts, beginning as far as appears in 1822, but the reasons given for them are not consistent. At first they were made to depend upon the construction of Regulation XXV. of 1802, afterwards upon the rights of the members of an undivided family under the Mitakshara law. In 1889 the Madras High Court held itself to be bound by the decision of this Committee, and overruled those decisions. The contention for the appellant now is that the decision of the High Court in 1889 should be overruled, and it should be held that the decision in Sartaj Kuari v. Deoraj Kuari L.R. 15 Ind. Ap. 54 should not be held to be the law in the Province of Madras. In their Lordships' opinion this is not a case to which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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