Loftus Richard Tottenham, J.

1. This is an appeal from a decree of the Subordinate Judgeof Bhagulpore made in a suit brought by the plaintiffs-respondents to recoverpossession of a ghatwali mehal named Kharna from the defendants-appellants who,or their predecessors, purchased it in 1868 at a sale held in execution of adecree against the then ghatwal, Tekait Meghraj Singh, father of the plaintiffNo. 1.

2. The plaintiffs case was that from the nature of thetenure in question and under the principles of the Mitakshara law governing theTekaits family, the alienation was invalid, and that plaintiff No. 1 as eldestson of Meghraj Singh was entitled to hold the estate on the death of hisfather. Plaintiff No. 2 joined in the suit as purchaser from, plaintiff No. 1of five-eighths of the latters interest.

3. The case is in many respects a peculiar one, and thedecision of the lower Court partakes also of that character. Both sides haveobjected to it by way of appeal and cross-appeal.

4. In a case of this kind it might have been expected thatthe plaintiffs would have relied simply on the inalienable character of aghatwali tenure, the purpose for which it was created necessitating its beingprotected from seizure and sale for debt, as well as its impartibility.

5. But the plaint shows that the plaintiffs rely chiefly onthe Mitakshara law modified by a family custom that the eldest son alonesucceeds to possession. It is alleged that the late holder, though by familyusage sole possessor, was precluded by the Mitakshara law from encumbering oralienating the tenure, except for family necessity, without the consent of hisson, the plaintiff, who was adult at the time the debt was incurred whichformed the basis of the decree under which the sale took place.

6. The plaintiffs, therefore, evidently rely chiefly on theMitakshara law, but further appeal to the nature of the tenure as rendering thesale invalid.

7. The peculiarity of the defence is that while it deniesthat plaintiff No. 1 acquired any right in the property under the Mitaksharalaw by his birth, and contends that the father was sole proprietor fullycompetent to deal with it, still it raises the plea of limitation on the groundthat the right to sue accrued on the date of sale, whereas the suit was notinstituted until more than twelve years afterwards.

8. And to get over the difficulty in regard to the seizureand sale of a ghatwali tenure, the defence alleges that the ghatwali tenure waslong ago abolished, and so the property became Meghraj Singhs absolutely.

9. The somewhat mixed character of the pleadings may beaccounted for thus. Plaintiffs must have felt some diffidence in trustingsimply or chiefly to the nature of the ghatwali tenure as being indivisible andinalienable, for upon their own showing one of them had sold, and the other hadbought, five-eighths of it just before the plaint was filed; and they weredoubtless fully aware that in fact numerous similar ghatwalis of Kharukpore, towhich class the one in question belongs, had actually been sold. It wasconvenient, therefore, to put forward the Mitakshara law which does allowalienations for necessity, and moreover the chief inducement to bring the suitwas probably the success of other suitors in recent years in recovering propertysold for their fathers debts by the application of the Mitakshara law. It wasnecessary, however, to fall back upon the nature of the tenure as a ghatwali inorder to allow the plaintiffs to count the period of limitation from the timeof Meghraj Singhs death, rather than from the date of sale, in the event ofplaintiffs being unable to establish their allegation that plaintiff No. 1 wasdispossessed only in 1287==(1879).

10. The defendants would naturally wish to eliminate theMitakshara law, except in so far as it might help their plea of limitation, andto contend that plaintiff No. 1 had no interest whatever in his fatherslifetime, and could not object to any alienation effected during that period.

11. The lower Court evidently took infinite pains with thecase, and recorded an extremely long and elaborate judgment. It found that theghatwali had not been abolished: yet that it was transferable; also that it wasa joint ancestral property subject to the Mitakshara law, modified only by the customwhich operated in this case to make the period of limitation run from the deathof Meghraj Singh, and not from the date of sale or of the adverse possession ofthe defendants, and finally that it was indivisible, and upon these findings itproceeded to give the plaintiffs two-thirds of the property, and the defendantsone-third, which the Subordinate Judge held was the extent of Meghraj Singhsinterest in the ghatwali tenure.

12. It appears to us that both parties are justified inobjecting to the manner in which the case has been decided, for it seems cleareither that the plaintiffs should have recovered the whole tenure, or that thesuit should have been dismissed altogether. The tenure being undoubtedly aghatwali, the lower Court we think made a mistake in attempting to apply to thecase the rules of the Mitakshara law.

13. For we concur with the learned Counsel for theappellants in his contention that in dealing with a ghatwali the Court musthave regard to the nature of the tenure itself and to the rules of law laiddown in regard to such tenures, and not to any particular school of law or tothe customs* of particular families. The incidents of a ghatwali tenure are thesame whether the ghatwal be a Hindu or a Mussulman or a follower of any othersystem of religion, and the same ghatwali might be held successively by personsgoverned as to other property by totally different rules of law. A ghatwali iscreated for a specific purpose, has its own particular incidents, and cannot besubject to any system of law affecting only a particular class or family.

14. We think, therefore, that the lower Court was misled inits recourse to authorities bearing upon the effect of the Mitakshara law onancestral joint property whether partible or impartible; and as to theobligation of sons to pay the debts of their fathers, and the authorities citedon these points seem, therefore, to us to afford no assistance in disposing ofthis case.

15. The real and only material questions for us to decideare--first, whether the sale of this ghatwali in execution of a decree againstthe ghatwal was invalid and liable to be set aside by reason of the tenurebeing in its nature inalienable; and, secondly, if the alienation was bad, arethe present plaintiffs entitled to recover the property The second questionalso involves one of limitation.

16. As to the first question there is doubtless authorityfor holding that ghatwali lands are not alienable either at the pleasure of theghatwal for the time being, or for the payment of his debts at the pleasure ofhis creditors. For the nature of the tenure and the reason of its existencerender it necessary that the holder of the office of ghatwal be secured in hisenjoyment of the tenure.

17. The principal case cited to us by the learnedAdvocate-General for the plaintiffs-respondents is that of Rajah Nilmoni Singhv. Bakranath Singh L.R. 9 IndAp 104. But in that case the particular pointdecided by the Judicial Committee, Privy Council, was that ghatwali lands couldnot be seized in execution of a decree for the debts of a former ghatwal asassets by descent in the hands of his successor. Their Lordships, however,expressed an opinion that the same considerations on which the ghatwali shouldbe held to be indivisible would make it inalienable. That case related to ajagir in West Burdwan to which Police services were attached, and it wasconsidered to be analogous to one of the Beerbhoom ghatwalis governed byRegulation XXIX of 1814. Another case was cited to us in which a Division Benchof this Court held in a Second Appeal No. 2451 of 1880 that a Shikmi ghatwalicould not be seized in execution of a decree for debt. That too was a Beerbhoomghatwali, and the objection was taken by the Shikmi ghatwal before any decreewas obtained.

18. The ghatwali in the present case is one of theKharukpore ghatwalis, and as regards them the Judicial Committee noted, withoutexpressing dissent, that transfers have taken place and have been recognized ifmade with the assent of the zamindar, while without that consent the Court hasnot recognized them. Precedents for these propositions are to be found in twocases mentioned by the lower Court. Rajah Lelanund Singh v. Doorgabutty W.R.1864 249 and Lalla Gooman Singh v. Grant 11 W.R. 292.

19. These decisions have not been overruled, but theJudicial Committee point out this distinction between the ghatwals of Beerbhoomand of Kharukpore, that the former are appointed by Government and the latterby the zamindar.

20. As to the Beerbhoom ghatwals, Regulation XXIX of 1814expressly provides that they and their descendants in perpetuity shall bemaintained in possession of the lands so long as they pay their revenue, andfulfil the other obligations of their tenure.

21. It has been argued that the Kharukpore ghatwals are onthe same footing as those of Beerbhoom, but this does not appear to be thecase; for besides there being no statutory provision in their favour, itappears from a description given of their status in the judgment of the PrivyCouncil in the case of Raja Lelanund Singh Bahadoor v. The Government of Bengal6 Moores I.A. 101 that the zamindar retained in his hands the power ofappointing and dismissing the ghatwals in case of their not performing theduties. This seems to negative a right to hold from generation to generation onpayment of the rent reserved. Be that as it may, we think that we must hold,upon the authority of the cases and upon the evidence of many such transfershaving been effected and unquestioned, as well as in consideration of the longsilence of the present plaintiff No. 1, and the silence too of his father whilehe lived, that a Kharukpore ghatwali is transferable, if the zamindar assentsand accepts the transferee; and in the present case we think the lower Courtwas justified in holding that the zamindar by making no objection within twelveyears of the sale acquiesced in it, and that the transfer was, therefore, onewhich the Court ought to recognize, and looking to the fact that the purposesfor which the Kharukpore ghatwalis were created no longer exist, we shouldgreatly regret being compelled to come to a contrary conclusion. We accordinglydecide the first question in favour of the defendants-appellants, and hold thatthe sale was not invalid by reason of the inalienability of the ghatwalitenure.

22. And upon the second point, too, we think the plaintiffsmust fail.

23. For only as ghatwals duly appointed by the zamindarcould they establish any claim to possession of the tenure, and they nowhereallege that they have been appointed ghatwals. Their case was that plaintiffshad a vested interest by his birth in the ghatwali, but this we have shown tobe untenable.

24. The result is that we decree the appeal of thedefendants, and dismiss the plaintiffs suit with costs of both Courts.

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Kali Prosad Singh and Ors. vs. Anundo Rai and Ors.(21.04.1884 - CALHC)