Judgement Consolidated Appeals from two decrees of the High Court (April 10, 1905), one of which affirmed a decree of the Subordinate Judge of Mozufferpur (March 29, 1901), the other reversing a decree of the same Court (July 13, 1903). The question decided was as to the validity of a mortgage executed in favour of the Maharaja on April Law Rep. 36 Ind. App. 176 ( 1908- 1909) Durgadut Singh V. Maharaja Sir Rameshwar Singh Bahadur 79 14, 1892, of the property in suit, being babuana property, that is, property the usufruct of which is granted by the head of a family to its junior members in lieu of maintenance. Maharaja Madho Singh executed a sanad on June 18, 1807, by which he transferred the raj and its appurtenances to his eldest surviving son, Chhatar Singh, and at the end of the document he recorded that a sanad in respect of pergunnah Jabdi had been already granted to his son Kirat Singh and two other pergunnahs to his two other sons, the language used being as follows "Giving the same to them for their maintenance as babuana grants. .... The Babus will enjoy the malikana dastur and profits of the said pergunnahs. They will continue to pay the Government revenue of the said pergunnahs to you and you will pay into the Collectorate the same together with the Government I revenue of the raj." In 1839 Chhatar Singh executed a similar document in favour of his eldest son, Rudar Singh, and by the grant of the pergunnah to his second son, Basdeo Singh, provided for his maintenance. He also recited in this document that pergunnah Jabdi had been granted by his grandfather to Kirat Singh and two other pergunnahs to Kirat Singhs brothers "as babuana grant for their maintenance." Kirat Singh was succeeded by his son Durgadut Singh, who on April 14, 1892, executed in favour of the respondent the mortgage in suit of the share of his family in fifty villages of pergunnah Jabdi with other property. In 1895 and in 1896 the respondent mortgagee obtained two decrees against Durgadut Singh, his sons and grandson, for arrears of interest due on the mortgage, and the amount decreed in each case was declared to be a charge on the property mortgaged. The fifth son and the grandson alone defended, being minors represented by their guardians. In 1895 and in 1896 the respondent mortgagee obtained two decrees against Durgadut Singh, his sons and grandson, for arrears of interest due on the mortgage, and the amount decreed in each case was declared to be a charge on the property mortgaged. The fifth son and the grandson alone defended, being minors represented by their guardians. The respondent on December 14, 1899, sued the mortgagor, Durgadut Singh, his five sons, and a grandson named Taradut Singh, to recover the amount due on the mortgage and for sale. Both the Subordinate Judge and the High Court held that the babuana properties were not, as contended by the defendants, inalienable, and decreed a sale. The second suit was brought on August 14, 1901, by the fifth son of Durgadut and the said Taradut Singh, a minor, by his mother and next friend. The defendants were the mortgagee and the mortgagor and his four other sons. The plaint alleged that the babuana grants were inalienable and the mortgage invalid, and that the two decrees obtained by the mortgagee in 1895 and 1896 were fraudulent and collusive in that the guardian ad litem did not put in a proper defence. It sought their reversal and a declaration that the mortgaged property was babuana and not liable to be transferred. The Subordinate Judge decreed in favour of the plaintiffs. The High Court declined to set aside the two decrees, holding that the suits had been properly defended, and ruled that the babuana property was alienable. Simon, K.C., and Ross, for the appellants, contended that this ruling was erroneous. The incidents of the property in suit are of such a nature that the holders thereof for the time being cannot have absolute and transferable rights. The evidence, moreover, established a family custom against alienation, sufficient to support the contention that babuana grants were inalienable. On the construction of the grant and having regard to its object and intention, the property could not be alienable, for alienation would defeat the common purpose of donor and donee, which was to make a sufficient provision for the maintenance of the donee. This view is corroborated by the provision that Government revenue should be paid through the grantor and directly to the Collector by the grantee. It Law Rep. 36 Ind. App. This view is corroborated by the provision that Government revenue should be paid through the grantor and directly to the Collector by the grantee. It Law Rep. 36 Ind. App. 176 ( 1908- 1909) Durgadut Singh V. Maharaja Sir Rameshwar Singh Bahadur 80 was intended that the paramount interest should remain in the grantor, the grantee taking simply the usufruct. If the grantee was reduced to want, the duty of the grantor to maintain would revive. There was an implied con tract not to aliene. Reference was made to Gunesh Dutt Singh v. Moheshur Singh (( 1855) 6 Moo. Ind. Ap. 164.), recording previous litigation in the family and shewing that the eldest son took the raj on condition of making provision for the younger sons. The admitted impartibility of the estate was in favour of the appellants contention. [Lord Macnaghten referred to Udaya Aditya Deb v. Jadub Lal Aditya Deb. (( 1881) L. R. 8 Ind. Ap. 248.)] See Maynes Hindu Law, 7th ed., p. 524, s. 395; Rameshar Baksh Singh v. Arjun Singh (( 1900) L. R. 28 Ind. Ap. 1.); Karim Nensey v. Heinrichs (( 1901) L. R. 28 Ind. Ap. 198.); and Azizunnissa v. Tassadduk Husain Khan. (( 1901) L. R. 28 Ind. Ap. 65.) Sir R. Finlay, K.C., De Gruyther, K.C., and E. U. Eddis, for the respondent mortgagee, contended that the property was alienable. Impartible property was not inalienable by virtue of its impartibility Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards. (( 1899) L. R. 26 Ind. Ap. 83.) There was no evidence establishing a custom not to alienate ; on the contrary, the evidence shewed that the grantees of this property for the time being had alienated. Reference was made to Maynes Hindu Law, 7th ed., p. 415, s. 321, as to alienation by a father. No intention to restrict alienation was either expressed or implied in the grant, and if such a condition had been annexed it would have been void as tending to create a perpetuity; and an estate tail would also be illegal see Tagore v. Tagore (( 1872) L. R. Ind. Ap. Supp. 47, 66 - 70.), Raikishori Dasi v. Debendranath Sircar (( 1887) L. R. 15 Ind. Ap. 37.), and Transfer of Property Act, s. 10. The absence of alienation is no proof by itself of inalienability. Ap. Supp. 47, 66 - 70.), Raikishori Dasi v. Debendranath Sircar (( 1887) L. R. 15 Ind. Ap. 37.), and Transfer of Property Act, s. 10. The absence of alienation is no proof by itself of inalienability. Occasions requiring or justifying alienation would have to be shewn, and then it would be necessary to prove that no attempt was made to aliene because of a recognized custom to the contrary. Simon, K.C., in reply. The judgment of their Lordships was delivered by LORD ATKINSON. In this litigation two. appeals, numbered 10 and 11 of 1908, and subsequently consolidated, have been lodged against two decrees of the High Court of Calcutta, both dated April 10, 1905. The first decree, in appeal No. 10 of 1908, affirmed a decree of the Subordinate Judge of Mozufferpur, dated March 29, 1901, pronounced in a suit, No. 114 of 1899, brought by Maharaja Sir Rameshwar Singh Bahadur (hereinafter called the mortgagee) against Durgadut Singh (hereinafter called the mortgagor) and others to enforce a mortgage dated April 14, 1892, described therein, of a certain pergunnah named Jabdi. The second decree, in appeal No. 11 of 1908, reversed a decree of another Subordinate Judge of Mozufferpur, dated July 13, 1903, pronounced in a suit, No. 89 of 1901, instituted by Taradut Singh, the grandson of the mortgagor, a minor, through his mother, his guardian and next friend, against the mortgagee, the mortgagor (his grandfather), and others, to have it declared that the said mortage was void and that the two decrees based upon it hereinafter mentioned should be cancelled. The mortgage was given for the large sum of Rs. 470,858 8a. 5 ½ p., repayable on April 15, 1897. It reserved interest at the rate of 10 per cent per annum, payable on April 15 in Law Rep. 36 Ind. App. 176 ( 1908- 1909) Durgadut Singh V. Maharaja Sir Rameshwar Singh Bahadur 81 each year. Compound interest at the same rate was to be charged in case of default in the payment of the interest on the days named, and a right was given to the mortgagee to sue for arrears of interest as they became due. A considerable portion of the sum secured was paid in cash to the mortgagor, who was then heavily indebted, and the balance was paid to his creditors. A considerable portion of the sum secured was paid in cash to the mortgagor, who was then heavily indebted, and the balance was paid to his creditors. The interest having fallen into arrear, the mortgagee, on July 3!, 1894, instituted a suit in the Court of the Subordinate Judge of Mozufferpur against the mortgagor and all the members of the family of which he was the head, two of whom were minors, to recover interest and compound interest due on the mortgage from April 14, 1892, to April 15, 1894. Of all the members of the family made defendants the two minors alone appeared and pleaded, to the effect that the mortgage was unconscionable, that it was not executed for necessity, and that their shares in the pergunnah as joint Hindu property should be released. The Subordinate Judge found in favour of the plaintiff in the suit on the issues raised on these pleas, and on February 11, 1895, gave a decree for the amount sued for. The interest due on April 15, 1895, having fallen into arrear, the mortgagee, on September 12, 1895, again instituted a suit in the same Court against the same parties to recover the arrears. The same defendants appeared and pleaded the same pleas with the same result, that the Subordinate Judge found in favour of the plaintiff, the mortgagee, and on April 21, 1896, gave a decree for the amount claimed. The suit out of which the first of the present appeals arises was instituted on December 14, 1899, by the mortgagee in the same Court against the same parties to recover the sum due upon the mortgage for principal and interest by sale of the mortgaged property. The suit out of which the first of the present appeals arises was instituted on December 14, 1899, by the mortgagee in the same Court against the same parties to recover the sum due upon the mortgage for principal and interest by sale of the mortgaged property. Several defences were put in by the different defen dants, not only raising the issues already decided upon in the two previous suits, but raising, for the first time, the issue upon which the decision of these appeals mainly, if not entirely, turns, and to which the arguments addressed to their Lordships on behalf of the parties on both sides were chiefly directed, namely, whether the fact that the grant of the pergunnah Jabdi, made originally in 1807 by the then head of the family, Maharaja Madho Singh, to his son, Kirat Singh, was admittedly a babuana grant—that is, a grant for the maintenance of the grantee and his family, descendible to his male descendants—rendered the property inalienable by the mortgagor, Durgadut Singh, the son of the original grantee, to whom it had descended, and the mortgage therefore void. The Subordinate Judge delivered his judgment on March 29, 1901, holding that, notwithstanding the fact that the grant was a babuana grant, the property was alienable, and the mortgage therefore valid; and the High Court, by their decree of April 10, 1905, upheld that decision. The second suit was instituted on August 14, 1901, about five months after the date of the decree of the Subordinate Judge in the former suit against the mortgagor and mortgagee and others. It claimed, amongst other things, to have it declared that the mortgage of April 14, 1892, and also the two decrees of February 11, 1895, and April 21, 1896, were invalid and ineffectual, and that the decrees should be set aside; and also that the sale in execution of these decrees of certain properties, mentioned in the schedule No. 2 attached to the plaint, should be set aside, and that the plaintiffs should obtain a decree for possession of the same. The fundamental ground on which the claim to this relief was based is set forth in paragraph 4 of the plaint in these words " 4. The fundamental ground on which the claim to this relief was based is set forth in paragraph 4 of the plaint in these words " 4. That the said pergunnah Jabdi which was given as babuana grant was given for maintenance of Maharajkumar Babu Kirat Singh and his male descendants; and the said Maharajkumar Babu Kirat Singh or any of his male descendants had no right to transfer it." But nothing whatever is alleged in the plains as to whether this inalienability is one of the incidents attaching to all babuana grants of this kind, or is only attached to this particular babuana grant by virtue of some custom prevailing in the family or tribe to which all the parties concerned belong. Law Rep. 36 Ind. App. 176 ( 1908- 1909) Durgadut Singh V. Maharaja Sir Rameshwar Singh Bahadur 82 Neither the grant by the Maharaja Madho Singh, the head of the family, to his son Kirit, or Kirat, Singh, nor a copy of it, was produced, but an attested copy of a sanad dated 13th Jeth Sudi, 1214 (June 8, 1807), granted by the Maharaja to his eldest son and successor Sri Chhattar Singh, was produced. It contains the following statement or recital—"A sanad in respect of pergunnah Jabdi has been already granted to Maharajkumar Babu Kirit Singh, in respect of pergunnah Pariharpur Ragho, to Maharajkumar Babu Gobind Singh, in respect of pergunnah Pachahi to Maharajkumar Babu Ramapat Singh, giving the same to them for their maintenance as babuana grants. Two horses and one elephant for riding have been given to each. The said Maharajkumar the Babus will enjoy the malikana dastur, and profits of the said pergunnahs. They will continue to pay the Government revenue of the said pergunnahs to you and you will pay into the Collectorate the same together with the Government revenue of the raj. Two horses and one elephant for riding have been given to each. The said Maharajkumar the Babus will enjoy the malikana dastur, and profits of the said pergunnahs. They will continue to pay the Government revenue of the said pergunnahs to you and you will pay into the Collectorate the same together with the Government revenue of the raj. The said Babus will attend upon you properly and you will treat them as Babus." It was conceded that the lands, or usufructs granted by this babuana grant to Kirat Singh, the father of Durgadut Singh, were impartible—descending to the eldest male heirs of the grantee to be held, or managed, by the person to whom they descend for the maintenance of the family—and that, on failure of male descendants, they reverted to the raj and became the property of the Maharaja for the time being, or that the interest granted then ceased to exist, whatever it might be; and, further, that meanwhile the Government revenue should be paid by the grantee, or the person to whom the property should descend through the Maharaja. There is no provision express or implied, that the interest granted should be inalienable. It is no doubt impartible—that is to say, those who for the time being are entitled to be maintained out of it cannot have it divided amongst them by proceedings in the nature of partition. It by no means follows, however, that it is, by reason of this fact, inalienable Raja Udaya Aditya Deb v. Jadub Lal Aditya Deb (L. R. 8 Ind. Ap. 248.) ; Rani Sartaj Kuari v. Rani Deoraj Kuari (( 1887) L. R. 15 Ind. Ap. 51, at pp. 65, 66.) ; Sri Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards. (L. R. 26 Ind. Ap. 83.) On the contrary these authorities establish that property, though impartible, may be alienable. Ap. 248.) ; Rani Sartaj Kuari v. Rani Deoraj Kuari (( 1887) L. R. 15 Ind. Ap. 51, at pp. 65, 66.) ; Sri Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards. (L. R. 26 Ind. Ap. 83.) On the contrary these authorities establish that property, though impartible, may be alienable. In the present case it was almost, if not entirely, conceded by the appellants counsel—indeed it could not be successfully disputed—that, if the male descendant in whom the property or interest granted was for the time being vested failed to pay the stipulated £ Government revenue to the Maharaja for the time being, and the latter was himself obliged to discharge the claim of the Government, he might sue the former for the amount so paid, and, if necessary, recover the amount decreed to him by sale of the interest granted for maintenance, since it never could be permitted that the subject of the grant should be enjoyed and the condition upon which it was made disregarded. But an involuntary alienation of this kind, brought about by the default of the person in whom the property or interest was for the time being vested, would as effectually defeat the claims of all the members of the family who were at the time, or might thereafter become, entitled to maintenance out of this property or interest as would any voluntary alienation of it. Yet the main contention of Mr. Simon on behalf of the appellants was, as their Lordships understood it, this, that every member of a family of which a Maharaja, as owner of a raj, was the head had such an inextinguishable right to maintenance out of the raj that, if the property or interest, the subject of a babuana grant, made, as in the present case, for the maintenance of a particular branch of the family, was permitted to be alienated, the right to maintenance of the present and prospective members of that branch against the raj would revive toties quoties, which would be most unjust and oppressive to the owner of the raj, and destructive or injurious to the rights of the members of all the other branches but no authority in support of this theory as to "the peculiar nature of the right to maintenance was cited, and those above mentioned refute it. The result of the authorities as to the right to alienate is thus summed up in Maynes Hindu Law, 7th ed., p. 415 " In cases governed by the Mitakshara law, a father may sell or mortgage not only his own Law Rep. 36 Ind. App. 176 ( 1908- 1909) Durgadut Singh V. Maharaja Sir Rameshwar Singh Bahadur 83 share but his sons shares in family property, in order to satisfy an antecedent debt of his own, not being of an illegal or immoral character, and .... such transaction may be enforced against his sons by a suit and by proceedings in execution to which they are no parties." Notwithstanding the impartibility of property granted by a babuana grant, it comes apparently, in the absence of some special family custom regulating its enjoyment, within this principle. Pressed by this state of the law, the appellants endeavoured to prove the existence, in the family to which the parties on both sides belonged, of a family custom to the effect that property granted for maintenance by a babuana grant, such as that proved in this case, was inalienable. It is not necessary for their Lordships to express any opinion as to the legal validity of a custom such as is suggested, tying up, as it would, property for, ^possibly, many generations, because they are clearly of opinion that not only have the appellants failed to prove the existence of this custom, but that the only evidence given in reference to dealings with the estate disproves it. " The absence of evidence of an alienation, without any evidence of facts which would make it probable that an alienation would have been made, cannot be accepted as proof of a custom of inalienability" Rani Sartaj Kuari v. Rani Deoraj Kuari. (L. R. 15 Ind. Ap. 51, at p. 66.) But in this case numerous instances were proved in which alienations of small portions of the property took place, and in not a single instance was it proved that any objection, based upon the alleged custom, was raised by any one to an actual, or threatened, alienation. It was raised in the present suits for the first time. Their Lordships are therefore clearly of opinion that both the decrees of the High Court were right and should be affirmed, and that both appeals should be dismissed, and they will humbly advise His Majesty accordingly. It was raised in the present suits for the first time. Their Lordships are therefore clearly of opinion that both the decrees of the High Court were right and should be affirmed, and that both appeals should be dismissed, and they will humbly advise His Majesty accordingly. The appellants must pay the mortgagees costs of the appeals.