Dawson Miller, C.J And Foster, J. - The dispute in this case concerns the title to two villages and certain lands in a third comprised in taluka Dumri, kismat 4 annas, which it is alleged is a ghatwali tenure formerly belonging to Ghanasyam Singh as ghatwal who died childless in the year 1880 (1287, F.S), leaving two widows. The senior widow, Thakurain Kishori Kumari, succeeded to her husbands estate in circumstances which will be referred to later, and died in the year 1916. The junior widow, Thakurain Phulbati Kumari, who survived her co-widow, is the plaintiff in the suit and appellant in this appeal. She claims the property as the reversionary heir of her husband on the death of the senior widow. The defendant, Maharaj Kumar Maheshwari Prasad Singh, the respondent in this appeal, is the son of the late Maharaja Bahadur of Gidhaur and brother of the present holder of that title. His title to the property is based upon a conveyance from the senior widow, Kishori Kumari under a kabala, dated the 13th October, 1898, in which Pairu Singh, the younger brother and next male heir of Ghanasyam Singh, joined. The appellant disputes Kishori Kumaris right to alienate the property in question and contends that the estate is inalienable. The respondent on the other hand disputes the appellants right to inherit contending that her sole right in the property is that of maintenance. By her plaint the appellant alleges that the 4-annas share in toluka, Dumri was settled upon Thakur Jungle Singh, the ancestor of her husband, as a ghatwali service tenure by Captain James Brown, the sardar of the jungles and tarais of Gidhaur, Kharagpur, Birbhum and the adjacent tracts, in 1776 under a sanad, dated the 17th December that year, the other 12-annas share being settled with other ghatwals, and that Rs. 142-12-0, together with cess, is payable as perpetual mukarrari rent to the zamindar, the Maharaja Bahadur of Gidhaur, the entire income from the ghatwali interest being appropriated by the ghatwali for the time being. She pleads that by the custom of her husbands family the estate descends to the eldest son of the ghatwal, the remaining sons, if any, getting maintenance, and, if the ghatwal dies without issue, his widow becomes proprietor and if there be more than one widow the eldest succeeds and alter her the second widow takes. She alleges that except for the properties in dispute she came into possession of the remaining properties of the estate in 1916 on the death of Kishori Kumari. She further pleads that there was no legal necessity which would justify the transfer by Kishori Kumari to the respondent.

2. The respondent, by his written statement, denies that the estate is a ghatwali tenure and pleads that it was a mukarrari interest held by Ghanasyam Singh and his ancestors from the Maharaja of Gidhaur at the rent named and cesses. He admits that by the custom of the family the eldest son succeeds and if there be no issue the first widow succeeds and the second gets maintenance, but he denies that the second widow succeeds or the death of the first and alleges that the eldest son of the nearest gotia of the last male holder inherits on the death of the senior widow, the second widow continuing to get maintenance, and having no rights of inheritance. By this is apparently meant that the eldest member of the most direct line of descent succeeds in preference to those nearer in blood but less direct in descent from the common ancestor, that is, according to the rule of primogeniture. He further alleges that in the year 1900, by a bazidawa deed, dated the 8th February that year, after the death of Pairu Singh (who died in 1899). Kishori Kumari relinquished the whole of her interest to Pairus eldest son, Mukhtar Singh, the next male agnate, thereby accelerating the succession, and that Mukhtar Singh got his name registered as mukarraridar and took possession and has continued in possession as ostensible owner ever since. He denies that the appellant ever got possession of any portion of the property. He also pleads that the property was not inalienable and that in any the transfer to him was justified by legal necessity.

3. The learned Subordinate Judge found all the issues in favour of the respondent and dismissed the suit. From that decision the plaintiff has appealed.

4. It will be convenient in the first place to consider as far as can be gathered from the evidence the origin and incidents of the estate of which the property in suit forms part. The earliest document relied on by the appellant is the sanad of the 17th December, 1776, granted by Captain James Brown. Its genuineness is not questioned nor is Captain Browns authority. From 1774 to 1778 he was actively employed under the East India Company in quelling disturbances and establishing order in what was known as the jungle tarai or jungleterry which included most of the country now comprised in the Santal Parganas and much of the land to the north and west in the Bhagalpur, Monghyr and Hazaribagh districts. He granted many ghatwali tenures and confirmed many more to the previous ghatwals for services in guarding the ghats and chowkies. The sanad is addressed to the chowdkries, kanoongoes, zamindars and muksaddis of mauza Dumri. It recites that Kanchan Singh, Jungle Singh (the ancestor of the appellants husband), Ragno Singh and Manorath Singh, ghatwars of the aforesaid mauza, have been in accordance with old standing practice enjoying ghatwali fees for their services as ghatwars out of sayer for rahdari of the mauza and declares that from 1184, F. (1777 A.D) in conformity with the old standing practice the fees for ghatwari have been granted to them. It directs the chowdhries and others to allow them to enjoy the fees and enjoins upon the ghatwars the duty of keeping watch and going the rounds of the ghats and chowkies in their elakas, and holds them accountable and liable to dismissal for any murders, thefts, highway robberies, night attack or other disturbances in their elakas. This document is not a grant of land but an authority to the persons named to collect, as formerly, ghatwari or ghatwali fees or tolls from those using the roads and passes which the ghatwals undertook to protect. It is relied upon in the plaint as the basis of the appellants title but it is not and cannot be regarded as the grant upon which the title of Ghanasyam Singh and his ancestors to the land in suit is based. It does appear, however, that a tenure comprising 8 annas in mauza Dumri was granted by Raja Gropal Singh of Gidhaur to Jungle Singh and Nain Singh (the son of Ranchan Singh, one of the ghatwals mentioned in the sanad of 1777) in the year 1780 (1187, F.) with the sanction of Captain Brown. This can be gathered from certain proceedings which were tried in the year 1798 before the Dewani Adalat of Ramgarh and which went on appeal to the Patna Provincial Court of Appeal in the following year. Copies of the judgments in both Courts have been produced in evidence by the appellant. From these it appears that in the year 1780 Jungle Singh and Nain Singh as ghatwals of the mauza were granted a patta of 8-annas share in the mauza by the Raja at the instance of Captain Brown and that this share formerly constituted their ghatwali interest. About 1796 the Raja had attempted to raise the rent contending that the patta of 1780 was a grant for one year only. The grantees had refused to accept a new patta or grant a kabuliat at an enhanced rent and the Raja had thereupon endeavoured to dispossess them by letting the lands to other tenants. Jungle Singh and Nain Singh then sued the Raja claiming a patta at the old rent, the object being apparently to establish their title to a permanent interest at the former rent. They proved that they had been in occupation paying rent at the same rate for over twelve years. The Ramgarh Court found in favour of the plaintiffs and ordered the patta to be granted by the Raja at the old rent. The Court referred to section 49 of Regulation VIII of 1793 which provides that:

"Istimradars (mocurraydars) of the nature of those described in section 18 who have held their lands at a fixed rent for more than 12 years are not liable to be assessed with any increase either by the officers of Government or by the zemindar or other actual proprietor of land should he engage for his own lands".

5. To appreciate the effect of this section it is necessary to refer to the earlier sections of the Regulation more particularly sections 18 and 19. The former provides that mukarraridars holding lands of which they are not actual proprietors and whose grants have been obtained since the Companys accession to the dewani and have not received the sanction of Government are to be dispossessed and a settlement is to be made with the proprietors as provided in the Regulation. Section 19 provides that istimradars who have not got possession of their lands to the exclusion of the proprietors or without their consent as the mukarraridars under section 18 are supposed to have done but held them of the proprietors on patta or lease, are to be considered as a species of patta talukdars and the settlement is to be made with them as afterwards provided in the Regulation Section 49 is one of the provisions relating to the new settlement by the zamindar in cases contemplated under sections 18 and 19. Although there is nothing to show that any permanent settlement had been made with the proprietors of the Gidhaur Raj at that time, some sort of settlement appears to have been made with the Raja of Gidhaur and his brother in 1775 of some villages, including Dumri, as appears from a sanad of that date (Ex. A) signed by Captain Brown. It may be assumed that this was confirmed and made permanent in 1793 by Regulations I and VIII of that year. It appears from the judgments of the Ramgarh Court in 1798 and the appellate Court at Patna in the following year that the Collector had confirmed the rent reserved in the grant of the half-share of Dumri to the ghatwals by the zamindar in 1780. After the permanent settlement of 1793 the Raja had sued Nain Singh and Jungle Singh to compel them to execute a kabuliat at a higher rent but in 1796 the Court had rejected his claim and ordered him to execute a patta at the old rate. The patta was prepared and withdrawn from Court by the Raja but apparently not executed and when he again attempted to obtain a higher rent the ghatwals brought the suit of 1798 with the result already mentioned. An appeal by Raja Gopal Singh from that decision was dismissed by the appellate Court which found that the Raja had knowingly put a false construction on the previous decree and fined him Rs. 25 for having preferred a litigious appeal. From that time to the present the interest enjoyed in the estate by the appellants family has been described in documents, sometimes as a ghatwali tenure, sometimes as a mukarrari tenure and more often as a mukarrari ghatwali tenure. It is undoubtedly of a permanent nature and held at a fixed rent payable to the zamindar, and it would appear to be a settlement made by him with the tenure-holders by force of the provisions of Regulation VIII of 1793. The learned Subordinate Judge considered that the estate was a ghatwali mukarrari tenure which was originally granted as ghatwali and in respect of which the ghatwals afterwards, at about the time of the permanent settlement, got a mukarrari lease from the zamindar thereby fixing the rent in perpetuity. In the absence of the instrument under which the grant was created it is impossible to know whether it was in fact a service tenure granted in consideration of performing the duties of ghatwal. That the grantees of the 8-annas share in question were ghatwals together with others is conclusively proved by the sanad of 1776 but the remuneration for their services referred to in that sanad is not a grant of land but a right to collect certain tolls from those using the roads. In the Bengal District Gazeeteer, Volume XVII, at page 168, there is a passage which throws some light upon what happened at Dumri when Captain Brown took over charge of the operations in the jungleterry tracts. The passage states:

"About 1774 the lawless state of this tract led the British to place it in charge of Captain James Brown, who otilad the estate grith the ghatwals with two exceptions. These two exceptions were Dumri and Mahesri which were settled directly with the proprietors, the story being that the ghatwal tenure-holders fled at the approach of Captain Brown their reputation as dacoits and brigands being too strong for them to face a Government officer without fear of the consequences. In the case of Dumri, however the ghatwals finding that in their absence a settlement had been made of their tenure, returned and obtained a sanad settling it with them under the Raja of Gidhaur. Of the estates settled with ghatwals only two are now held by their descendants, viz., Tilwa and Kewal. The others have passed into the hands of the Maharaja of Gidhaur, Chetru Rai, Akleswar Prasad and others of Rohini."

6. The statement that Tilwa and Kewal were the only two estates still held by the descendants of the original ghatwals, although possibly accurate at the present day was hardly quite accurate in 1909 when it was written, as at that time a part at least of the Dumri estate still remained in the hands of the descendants of Jungle Singh although the other kismats and part of that originally granted to Jungle Singh had then been acquired by the Maharaja. The evidence shows that were parwanas were issued by the Collector to the ghatwals appointed by Captain Brown and their descendants called upon them to perform certain duties attaching to their office up to about the middle of the last century or even later and it may be that the grant of the tenure was regarded as a concomitant of the ghatwali office. The question is not free from difficulty but on the whole we are not prepared to disturb the Subordinate Judges finding upon this part of the case and propose to treat the tenure for the purposes of this decision as a ghatwali tenure.

7. It was argued on behalf of the appellant that all ghatwali tenures are inalienable and reference was made to Regulation XXIX of 1814 which regulates the settlement of the Birbhum ghatwali mahals. In our opinion the estate in the present case is in no way comparable to the Birbhum ghatwali tenures and Regulation XXIX of 1814 does not apply to it, but in its origin it is rather of the nature of the Kharagpur ghatwalis. One of the main distinctions between these two classes is that the former are inalienable except with the consent of Government by whom the settlements were made and to whom the revenue is paid direct, whereas the latter are alienable subject to the consent of the landlord to whom the rent or revenue is paid. The Regulation of 1814 applies to the former only. The grant in the present case made with the sanction of Captain Brown would appear to bear a close resemblance to some of those mentioned as having been made in the Kharagpur estate by Mr. Cleveland and referred to in the case of Raja Lelanund Sing Bahadoor v. Government of Bengal. In fact in argument before the Subordinate Judge the late Sir Rash Behari Ghose who appeared on behalf of the appellant admitted that the estate in this case was a Kharagpur and not a Birbhum ghatwali. It is highly improbable that a lawyer of his experience and learning would make the admission without good cause and we consider his admission that it was not a Birbhum ghatwali was justified. The incidents that are clearly proved or are admitted to attach to the tenure are: (1) that it is impartible and permanent; (2) that it descends by lineal primogeniture; and (3) that it is alienable at least with the consent of the zamindar. Proof of the last incident is supported by the fact that considerable portions of the estate have been alienated since Jungle Singhs time by the holder for the time being and at least one if not more of the other three 4-annas interests in Dumri has passed out of the hands of the original grantee and his descendants and is now held by the Maharaja of Gidhaur. In our opinion the tenure was not inalienable but could be alienated by the ghatwal for the time being at least with the consent of the zamindar. In the present case the zamindar was the brother of the respondent, the purchaser, and as he has made no attempt to question the transaction of the 13th October, 1898, under which the respondent holds, it may be presumed that he is a consenting party.

8. The question then arises as to the course of succession of a tenure of this nature. The family of the appellant is governed by the Mitakshara law and the devolution of immovable property in the family must be governed by that law subject to the question of impartiality, unless either there be some special custom of the family to the contrary or unless there be some peculiar feature inherent in ghatwali tenures which prevents the operation of the Mitakshara rule of succession in the case of impartible property. It is the appellants case that Pairu Singh, the brother of Ghanasyam Singh, and his son, Mukhtar Singh, were separate from and not living jointly with Ghanasyam Singh at the time of his death in 1880, and that, therefore, even under the Mitakshara law the widows would be entitled to succeed to the family property in preference to the separated gotias but that owing to the impartible nature of the property only one ghatwal can inherit at a time and that, therefore, the senior widow would take first and after her the junior. This is also said to be in accordance with the family custom relied upon. It is next contended that all ghatwali property is the exclusive separate property of the holder for the time being and devolves according to the rules affecting separate property subject again to the question of impartibility.

9. We propose first to consider whether Pairu and his own son and other members of his family were living jointly with Ghanasyam or not at the time of the latters death. It appears from a petition, dated the 5th March, 1843, presented in the Court of the Principal Sadr Amin at Bhagalpur by Lal Behari Singh, the father of Ghanasyam Singh that Jungle Singh and the others who were appointed ghatwals in the time of Captain Brown each held a fourth-share in the mahal. Whether they took jointly in the first instance and afterwards separated or whether they each took a 4-annas share originally is not very clear, but, however that may be, the 4-annas kismat of Jungle Singh has come down from him to his descendants in the direct male line without a break until the time of Ghanasyam Singh, the husband of the appellant, who died childless in 1880. During that time many of the mauzas comprised in the estate have been granted by way of maintenance to members of younger branches of the family and not resumed. The evidence on this point is dealt with by the learned Subordinate Judge at length and need not be repeated. These branches have separated from the main stock and are no longer connected with it in mess or estate. The family house of Ghanasyam Singh and his ancestors is at Panjbhajan and some attempt was made to prove that one of the villages of the estate, mauza Chauki, had been given by Ghanasyam to his brother Pairu as a maintenance grant and that Pairu and his son Mukhtar and other members of his family lived there separate from Ghanasyam. No document was produced in support of this story. Many documents on the other hand have been put in evidence by both parties in the case from the year 1881 up to 1918. Many of them are executed by members of the family and in one instance by the appellant herself. Others are plaints and decrees in suits in which the family was interested and in every case Pairu and Mukhtar, where their names are mentioned, and the instances are numerous, are described as residing at Panjbhajan. It is admitted that they had no separate residence there and some of the appellants principal witnesses admit that Pairu and Mukhtar lived jointly with Thakur Ghanasyam Singh during his life-time and with his widows afterwards, although others say that they were separate. Kishori Kumari, the senior widow, during her life-time, executed one document at least, a mortgage bond, dated the 15th July, 1895, in which she describes herself and Pairu as members of a joint family and joint in mess and business. The learned Subordinate Judge has dealt at length with this part of the evidence and has arrived at a clear finding that Pairu and Mukhtar were not separated from Ghanasyam during his life-time but lived jointly with him and had continued to live jointly with the appellant after his death up to the present day. In our opinion his finding was amply justified upon the evidence and should not be disturbed.

10. This being so unless there is some feature peculiar to this tenure which distinguishes the course of succession from other impartible estates or unless there be some family custom controlling the inheritance, on the death of Ghanasyam Singh the estate would devolve under the Mitakshara law upon the male agnates entitled by survivorship, to the exclusion of the widows, and the estate being impartible it would go to Pairu Singh, the eldest surviving brother of Ghanasyam, and after him to his son Mukhtar Had the family been separated the widows would have taken in turn in priority to the next male collateral heirs. There are no doubt dicta to be found in the cases dealing with ghatwali estates which go the length of saying that the succession is not governed by the Mitakshara law and in particular the case of Mussammat Kustoora Koomaree v. Monohur Deo was relied on. In that case the question of succession to a ghatwali tenure arose. The claimants were Mussammat Kustoora Koomaree, the mother of the last male holder, a posthumous son who died about a year after his birth, and the plaintiff Monohur Deo, a distant cousin of the deceased holder. It does not appear from the report whether these cousins were joint or separate in estate but their common ancestor was the great-great-grandfather of the plaintiff. Incidentally it may be mentioned that the ghatwali in that case was situated in Birbhum and a distinction is drawn in the judgment between Birbhum ghatwalis in which the evidence showed that females succeeded and those in Ramgarh where the evidence showed they did not. The plaintiff relied on family custom but this was decided against him on the evidence. The trial Court had decided in favour of the plaintiff. The High Court reversed this decision and pronounced in favour of Kustoora cromaree, the mother of the last male holder. The High Court appears to have approached the question for decision upon the assumption that the mother would: succeed unless the contrary could be proved. There are two passages in the judgment which are relied on. In the first the Court expresses the view that succession to "these ghatwalis," by which I gather Birbhum ghatwalis are referred to, was regulated by no rule of koolachar nor by Mitakshara law but solely by the nature of the ghatwali tenure. The latter passage reads thus: "Even under the Mitakshara law the widow and mother would be entitled to succeed if the property left by the deceased were not held in common and we have stated above that we do not think that the ghatwali tenure could ever be said in the sense used in the Mitakshara to be held in common." This passage whilst no doubt true in the sense that the property is impartible and the sons and other members of the family take no immediate interest at birth entitling them to claim partition, does not satisfactorily dispose of the real question for determination which arises in the present case, namely, whether in a joint Mitakshara family the course of succession to ghatwali property is any different from that which regulates the succession of other impartible property. For there is abundant authority for the proposition that in a Mitakshara family living in commensality the inheritance even of impartible estates is confined to male members to the exclusion of females unless the estate itself is separate or self-acquired property. We shall consider some of these cases presently but before doing so it will be convenient to refer here to the case of Chhatradhari Singh v. Saraswati Kumari upon which special reliance was placed. It is a decision of the Calcutta High Court and although not binding upon this Court is entitled to the greatest respect. The subject of that suit was one of the ghatwali tenures of Birbhum to which Regulation XXIX of 1814 applies. One of the main questions for decision was whether the word "descendants" in the Regulation meant heirs of the body or heirs generally including widows. The latter construction was preferred and the learned Judges, Chose and Gordon, J.J, held that as between the widow and the separated brother of the last ghatwal the widows right to inherit should prevail. It may be pointed out that it was found on the evidence that the brothers had separated and that the estate was the exclusive property of the late ghatwal. Upon this finding the right of the widows was established but although the Court considered it unnecessary to determine what was the original character of the Birbhum tenures as described in Regulation XXIX of 1814, they expressed the view that they were the exclusive property of the ghatwal for the time being and not joint family property in the proper sense of the term. It is unnecessary for present purposes to express an opinion either of concurrence or dissent upon this proposition as stated in the judgment as it was a dictum based upon the construction of a Regulation which is not applicable to the present case. But if it means that the members of the family acquire by birth no immediate rights in the property entitling them to partition or creating a restraint upon the holders powers of alienation such as they may be, it appears to us to do no more than to define the tenure as impartible. The case of Rajah Leelanund Singh v. Doorgabutty, a decision of the Calcutta High Court, was also referred to where it was held that a ghatwali tenure in Kharagpur was not alienable without the consent of the landlord. In the present case, however, we have already held that the transfer to the respondent was with the landlords consent.

11. We may now refer to some of the more important cases which deal with the question of the course of succession in impartible estates. In Tekaet Doorga Pershad Singh v. Tekaetnee Doorga Kooeree it was decided that an impartible ghatwali estate might descend to the widow or mother of the deceased ghatwal in preference to a collateral male agnate, but in that, case reliance was placed on the fact that the plaintiff was separated from and not joint with the last male holder. In Katama Natchiar v. The Raja of Shivagunga the dispute was between the late, holders widow and daughters on the one hand and his brothers son and grandson on the other. The last male holder was found to have been joint in estate, with his brother. His son and after his death his, grandson claimed the zamindari which was in the nature of an impartible principality. It was found that the zamindari in dispute was the separate property of the late zamindar in which his brother had no interest as a member of the joint family, and it was upon this finding that the decision of the Privy Council ultimately turned. It was held that the property being, separate or self-acquired, devolved upon the widows and daughters in preference to the brothers son and grandson in the same manner as other self-acquired property under the Mitakshara law which prevailed in that part of Madras, where the parties resided. It is important, however, to bear in mind that if their Lordships had found that the zamindari was not, separate property they would have decided in favour, of the brothers descendants in reference to the; daughter, as the following passage from the judgment at page 593 of the report shows: "Hence if the zamindar, at the time of his death, and his nephews were members of an undivided Hindu family, and the zamindari, 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. If, on the other, hand, the zamindar, at the time of his death, was separate in estate from his brothers family, the zamindari ought to have passed to one of his widows, and failing his widows to a, daughter, or descendant of a daughter, preferably to nephews; following, the course of succession which the law prescribes for separate estate. These proposition are incontestable." It will, be observed from the passage quoted from the judgment of the Judicial Committee in 1863 that an impartible zamindari was not necessarily the separate estate of the holder for the time being. It may be held as common family property in which case, subject to impartibility and the rule of primogeniture, it will descend according to the canons of devolution applicable to such property, that is to say, the joint male agnates will succeed to the exclusion of females, and of the agnates the eldest in the most direct line will take. Again in 1875, in the case of Chintamon Singh v. Nowlaiha Konwnri, their Lordships held that the fact that an estate is impartible does not imply that it is separate and in a Mitakshara family whether the general status of the family be joint or divided, property which is joint will follow one, and property which is separate will follow another course of succession. The judgment refers to the earlier decision of the Board in 1870 in the case of Maharani Hiranath Koer v. Ram Narain Singh where the Shivagvnga case had been quoted in argument for the proposition that impartible property was always separate, but without success, and their Lordships had observed on that occasion as follows: "The authority invoked, however, affords no ground for this argument. The decision in the Shivagvnga case will be found to proceed solely and expressly on the finding of the Court that the zamindari in question was proved to be the self-acquired and separate property of Gowery Vallabha Taver. It assumes that if this had not been so the decision would have been the other way." The case of Kali Pershad v. Anand Roy may here be referred to as it was relied on by he appellant, partly for the proposition that a ghatwali tenure is inalienable and partly for the proposition that it is not governed by the Mitakshara law. The suit was by the son of a former ghatwal to recover the estate which had been sold in execution of a decree obtained against his father on a bond. The arguments advanced on behalf of the plaintiff, the appellant, before their Lordships, were, first, that the estate was inalienable except to the extent of the incumbents life interest, and, secondly, that by the Mitakshara law the son acquired a right at birth which could not, without his consent, be defeated by the act of his father. Their Lordships held that a Kharagpur ahatwali, which the property in suit was, could be alienated with the zamindars consent and, secondly, that such a tenure was in some particulars distinct from and could not be governed by either the general objects of Hindu inheritance or the rule of the Mitakshara. The general objects of Hindu inheritance referred to are explained as the selection of heirs capable of exercising certain religious rites for the benefit of the deceased, and the Mitakshara rule as the right of the son immediately on his birth to share equally with his father in the ancestral irrfmoveable estate. But their Lordships were particular to limit their decision to this, that the Mitakshara law and the general Hindu law of inheritance were not to their full extent applicable to a ghatwali tenure. There is nothing in this decision which necessarily implies that a ghatwali tenure may not be held as common property of the joint family for some purposes as in the case of other impartible estates.

12. In Durga Prashad Singh v. Tribeni Singh the Privy Council again had to consider the nature of a ghatwali tenure in Kharagpur, and expressed the view that it is ordinarily heriditary, the estate descending to such male members of the family as the zamindar approves as competent, and that, it, is the right of the family as long as they have male members competent to perform the duties to have one or more of them appointed ghatwals Their Lordships also agreed with the view of the Courts in India that the incidents of a ghatwali tenure were not such as to give the family any rights over the property while it is in the hands of the ghatwal This decision proceeds upon the view that a ghatwali tenure in Kharagpur ordinarily descends to the male members of the family as long as there is any competent to perform the duties. We are unable to interpret this decision as any authority for the proposition that in the event of the ghatwal dying without issue the succession should be regulated according to the rules affecting the devolution of separate property in a Mitakshara family which prefers the widow to the collateral male relations. The view expressed in that case as to the rights of the family over the property while in the hands of the ghatwal, applies as it seems to us with equal force to all impartible estates. The only other case that need be referred to upon this point is that of Baijnath Prasad Singh v. Tej Bali Singh decided by the Judicial Committee in 1920. It was the case of an impartible raj held by a Mitakshara family. Most of the earlier authorities were there reviewed and it is unnecessary to refer to them here. The conclusions arrived at were that the fact that a raj is impartible does not, in a case governed by the Mitakshara law, make it separate or self-acquired property. It may be self-acquired or it may be the property of a joint undivided family. In the latter case succession will be regulated according to the rule of survivorship but as one person alone can hold the estate at a time the person designated is the eldest male member of the senior branch of the joint family. We can see no reason for applying a different rule of succession in the present case from that which governs other impartible estates. The history of the estate, so far as we know it, does not appear to afford any ground for treating the property as the separate or self-acquired property of the holder. The incidents of the tenure before Jungle Singhs period are unknown. Tile earliest documents show that it was claimed to have been the property of Jungle Singhs ancestors before the advent of British rule in Bihar. At about the time of the permanent settlement a fresh grant was made to Jungle Singh by the Raja of Gidhaur at a fixed rent in perpetuity. It then descended in the direct male line for about one hundred years. The junior branches of the family have, from time to time, acquired interests in certain mauzas of the estate by way of maintenance grants and have separated from the main branch retaining the estates so acquired in their own families. Ghanasyam is found living jointly with his brother and nephew at the time of his death and the family is admittedly a Mitakshara family. Assuming, as one must that the members of a joint Mitakshara family do not acquire in impartible property the same rights as in partible property belonging to the family such as the right of joint enjoyment, the right of partition or the right of restraint on alienation, they at least retain the right of survivorship and we consider that the burden of proving that the property is separate or self-acquired in the present case rests upon the plaintiff who asserts it. That burden, in our opinion, she has failed to discharge.

13. The only question remaining to be determined is whether the custom relied upon by the appellant is made out. Were it not for the admission in the written statement that Kishori Kumari succeeded to the estate by some family custom we should have been inclined to find that no custom of the family had been proved whereby even the senior widow was entitled to succeed in preference to the brother or nephew; but assuming this matter to be Concluded on the pleadings we consider that no custom has been proved in favour of the junior widow. Since 1780 the succession has been from father to son without a break. No case has arisen in which the widows claim could ever have been considered. Some of the appellants own witnesses even admit that no other thakur, by which term the holder of the title is designated, left two widows before Ghanasyam, and it would be difficult to find in favour of a special custom applicable to a case which has never arisen so far as can be ascertained, unless there were some very strong evidence of tradition. After more than twenty witnesses had been called for the appellant most of whom alleged the custom to exist without being able to refer to any instances, a witness, Sadho Singh, was called who mentioned an instance in which, before the time of Jungle Singh, one Pratap Singh had died childless leaving two widows who succeeded one after the other. This he says he heard from his grandfather but he is unable to mention the names of the widows. It is significant that none of the earlier witnesses, many of them gotias of Ghanasyam, had ever heard of it. On the other hand they admitted, when asked, that they knew of no case of even one widow succeeding. Some sixty witnesses altogether were called for the appellant and of these two later ones also mentioned the case of Pratap Singh. There is no document to support it and the pedigree of the family produced in evidence does not go back further than Maniyar Singh, the father of Jungle Singh. It is perhaps significant that Pratap Singhs widows are said to have been the immediate predecessors of Maniyar so that it is impossible to check this statement from the pedigree produced which goes no further back than Maniyar, the father of Jungle Singh. Had the case been true it seems difficult to suppose that those responsible for presenting the plaintiffs case to the Court would not have been able to verify it and produce some more convincing evidence and further particulars with the names of the widows in question who succeeded in their family. Daleep Singh, an old man of seventy, called by the appellant, whose name appears in the pedigree and who is the grandson of one of Jungle Singhs brothers, says positively that in the family of the appellant no thakur ever had two wives, and, apart from Kishori Kumari, no thakurain got the gadi at any time. The next witness, Taran Singh also a gotia of Ghanasyam, says no female had succeeded to the gadi in the family except Kishori Kumari and the appellant, and no other thakur left two widows nor did he ever see a junior widow succeed after the senior widow at any other place. It may also be assumed that he never heard of it either. Evidence that such a custom exists is easily given but it is difficult to refute when the witnesses themselves can give no instances; and, when it is admitted that no such case has occurred, evidence of this nature should be treated with the greatest reserve. The respondents witnesses who live at Dumri and the neighbourhood, deny the custom whereby the junior widow succeeds, and, in our opinion, the learned Subordinate Judge who refused to accept the evidence of the appellants witnesses on this point and who described them as having given their evidence as if by rote, arrived at a proper appreciation of that evidence when he refused to believe it. It is also not without significance that no later than the year 1914 the appellant herself instituted a suit against her co-widow Kishori Kumari and Mukhtar Singh, in whose favour Kishori had relinquished the estate, to recover a half share alleging not, as now, that she was entitled to succeed on the death of Kishori but that she succeeded jointly with her upon her husbands death and was entitled to a half share in the estate which she claimed to recover back, and at the same time sought to set aside a number of mortgages and transfers of portions of the estate effected by Kishori Kumari, Pairu and Mukhtar. The basis of the title which she asserted at that time is entirely inconsistent with the custom which she now sets up. The truth appears to be, as found by the learned Subordinate Judge and as would appear from the evidence of Daleep Singh and others of the appellants witnesses, that when Ghanasyam died his brother Pairu claimed the gadi and as the result of a family council, in which a number of the gotias took past, the respective claims of Pairu and Kishori were mooted and an arrangement was come to that Kishori should be the gadinashin for the time being and after her death it would be seen whether Pairu would succeed. As a matter of fact Pairu had de facto control of the estate and was given a general power-of-attorney by the widow in 1881 and he took no active steps to assert his legal right in the circumstances. The learned Judge considered that this am-mukhtar-nama, or general power-of-attorney, was a device by which Pairu was made to acquiesce in the position assigned him by the family council, the title remaining with Kishori but the estate being under the control of Pairu. As the family of Pairu and Mukhtar increased the expenses rose in proportion and the family got into debt. A great number of alienations and mortgages in order to raise money were executed. In Pairus time they could be executed by himself under the general power-of-attorney, but after his death in 1899 Kishori Kumari no doubt found it inconvenient to manage the estate and execute documents in her own name, and accordingly in 1900 relinquished in favour of Mukhtar Singh. There is evidence to show that everything she did was done in consultation with the appellant and no exception was taken. In 1914 judgments were obtained in mortgage suits for considerable amounts against Kishori, Mukhtar and the other members of the family. Seeing the property pass from their possession the present appellant was put forward in 1914 to endeavour to recover half the property by alleging that she and Kishori were jointly Interested on the death of Ghanasyam Singh. The suit although in form against Kishori and Mukhtar was in substance an endeavour to annul the alienations made by them and it was admitted by the appellant that Kishori paid the expenses of that suit. That suit failed and Kishori Kumari herself in 1915 brought another suit challenging all the acts of Pairu and Mukhtar as fraudulent. She died before it came to trial. The appellant attempted to get herself substituted in Kishoris place to carry on the suit but this came to nothing and the suit subsequently abated. In the opinion of the learned Subordinate Judge the present suit was merely a third attempt on behalf of Mukhtar to save something out of the family property. Unfortunately for the appellant the plea she now sets up is entirely at variance with the case previously pleaded that she and Kishori Kumari succeeded jointly on the death of her husband. This part of the case was dealt with by the learned Judge in considering the question whether the appellant ever got possession of any part of the property after the death of Kishori Kumari. He found that she did not in fact do so, but that Mukhtar Singh was always in possession after the bazidawa deed was executed in his favour in 1900. This aspect of the case, however, also has a bearing in considering the plea now put forward by the appellant as to custom. In our opinion the learned Subordinate Judge was right in the conclusions at which he arrived and we consider that this appeal should be dismissed with costs.