Judgement Consolidated Appeals (No. 104 of 1946) from a judgment and two decrees of the High Court (December 16, 1940) which reversed two decrees (March 11, 1938 and October 15, 1937) made respectively by the District Court, Akola, and the Subordinate Judge, Malkapur. These appeals arose out of two suits brought by the respondent against his elder brother, the appellant, claiming in the main suit a half share in the annual income derived from two villages, called Deodhaba and Kamardipur, and in the second suit a half share in a portion of the annual income derived from the village of Makodi. The question for determination was whether the respondent was a co-sharer in the jagir villages or whether they were impartible and could be held only by a single heir. Both the District Court and the Subordinate Judge held against the respondent that he was not entitled to a half share. The High Court (Stone C.J. and Bose J.) in one judgment covering both matters, held in the respondents favour that he was entitled to a half share. The facts appear from the judgment of the Judicial Committee. The grants of the villages in question to the great grandfather of the appellant and the respondent were subject to the Berar Inam Rules of 1859, the material rules being III. and TV., which provided " Rule III. Personal jagirs to be continued, subject to a " legacy duty or succession fee, graduated on a scale according to the degree of relationship of the heir as follows " Widows, lineal heirs, or undivided, -brothers, 2 percent, on the real value of the property estimated at "10 years annual rental; " Heirs by adoption, 3 per cent. ; " Collateral heirs of one remove, 5 per cent. ; "Collateral heirs of two removes, 8 per cent.; " and further degrees of relationship disallowed except under " special orders. "Rule IV. 1. ; " Collateral heirs of one remove, 5 per cent. ; "Collateral heirs of two removes, 8 per cent.; " and further degrees of relationship disallowed except under " special orders. "Rule IV. 1. If the Inam was given for religious or " charitable objects, such as for the support of temples, " mosques, colleges, choultries or other public buildings or " institutions or for service therein, whether held in the " names of the institutions or of the persons rendering the " service, it will be continued to the present holders and " their successors, so long as the buildings or institutions " are maintained in an efficient state and the service " continued to be performed according to the conditions " of the grant." 1948. June 16, 17. Rewcastle K.C. and Subba Row for the appellant. The point is within a very narrow compass, and is simply whether these jagirs are impartible property and by their nature descendible to a single heir, or whether they are property divisible among the co-heirs. It is purely a question of construction of the Berar Inam Rules of 1859. Here, except for the dates on which they were granted, we have no facts about the terms of the original grants, which were not produced. Rule III. of the Rules of 1859 is a general rule applicable to inams, and looked at by itself there could be a succession to a widow, but when it is seen that this particular grant is limited to "lineal heirs" that cuts down r. III. by making succession to a widow impossible. If, as here, the original grant was to one person, it is more likely that it should go on being held by one person. The main basis of the decision of the courts below, except the High Court, was the decision in Kutubuldin v. Gulam Rabbani (( 1925) 21 Nag. L. R. 185, 189.), where it was held that an estate in Berar granted under r. V. of the Inam Rules of 1859 cannot be divided up among the persons beneficially interested in it, nor are those persons entitled to any defined shares in the income; they are entitled to get from the life-holder only so much as is sufficient to provide them with suitable maintenance. It was said in that case that " from r. III. It was said in that case that " from r. III. itself it " appears that the estate of a Jagirdar of the first class of " inams mentioned in r. I. is impartible/* That case, although it has been cited before this Board, has apparently never been questioned, and it has undoubtedly been followed, after it was cited to the Board, by subsequent decisions in Nagpur. It is relied on here, and it is submitted that the High Court took a wrong view of it. It is precisely the same case as this, and it was followed in (a) a judgment of November 28, 1933, in Second Appeal No. 197-B of 1931 of the Court of the Additional Judicial Commissioner, Central Provinces, Berar Jurisdiction, and in (b) a judgment of January 5, 1934, in Second Appeal No. 154-B of 1932 of the Court of the Additional Judicial Commissioner, Central Provinces, Berar Jurisdiction. In the former of those two cases it was pointed out that " it is clear, " however, from the judgment of their Lordships of the Privy " Council in Mir Subhan Ali v. Imami Begum (( 1925) 21 Nag. L.R. 117.) that the " devolution and incidents of an inam estate in Berar are " regulated by the Inam Rules of 1859 only in matters not " expressly mentioned in the sanad or certificate evidencing " the special terms of the grant in the particular case,” and that supports the view about taking widows out of r. III. in the present case. The judgment in that case, (a) (supra), concludes by saying that u it follows then that Shankar is " entitled to possession of the inam property and that the " plaintiff cannot claim partition or a declaration that he is " entitled to a specific share in the estate or its profits, though " the co-sharers are entitled to maintenance,” and that supports the submission that the property in the present case passes to a single person—the elder brother, the appellant. The High Court in this case said that "we are dealing with a " Hyderabad jagir. By custom that jagir is not personal to "the grantee but continues to his descendants and r. III.,. " in our opinion, limits who those descendants are .... " Rule III. indicates that the property will pass to the lineal " heirs of the grantee inter alios. By custom that jagir is not personal to "the grantee but continues to his descendants and r. III.,. " in our opinion, limits who those descendants are .... " Rule III. indicates that the property will pass to the lineal " heirs of the grantee inter alios. No one else is suggested here, " and it appears to us plain that the defendant and the plaintiff "respectively are alike lineal heirs." They base the whole of their decision on that conclusion there is, however, no evidence about custom, it is not mentioned in any of the authorities which were cited, and it is submitted that it is a pure misapprehension. The decision of the District Court and of the Subordinate Judge that the jagirs are impartible and that the respondent is not entitled to share in the income is correct, while the decision of the High Court to the contrary is erroneous as it is based on an incorrect interpretation of the Berar Inam Rules. Subba Row followed. A jagir is a personal grant and a grant for life Baden-Powells Land Systems of British India, vol. 3, p. 376; Gulabdas Jugjivandas v. Collector of Surat (( 1878) L.R.6 I. A. 54, 60.) ; Ram Narayan Singh v. Ram Saran Lai (( 1918) L.R.46 I.A. 88, 95.) and Raghojirao Saheb v. Lakshmanrao Saheb (( 1912) L.R.39 I. A. 202, 213.). Jayakar and L. E. H. Fellows for the respondent. The decision in Kutubuldins case (4) is really based on the assumption that partition amounts to alienation; partition is entirely different from alienation, and that case was decided on the wrong basis. Partibility is not prohibited by the Inam Rules. Partition is not mentioned in rr. III., IV. or V., and it would have been mentioned if it had been intended to attach any condition of partibility. We are here concerned with rr. III. and IV. and not with r. V., but even considering r. V., though it mentions other restrictions, it does not lay down the restriction that asubsistence inam is not partible. Kutubuldins case (21 Nag. 185.) must be regarded as not good law, and Krishnaji v. Nilkanth (( 1921) 18 Nag. L.R. 163.) is quite inconsistent with it. The natural presumption, therefore, is that neither Government nor the framers of the Inam Rules intended to attach the condition of impartibility to every kind of inam. Kutubuldins case (21 Nag. 185.) must be regarded as not good law, and Krishnaji v. Nilkanth (( 1921) 18 Nag. L.R. 163.) is quite inconsistent with it. The natural presumption, therefore, is that neither Government nor the framers of the Inam Rules intended to attach the condition of impartibility to every kind of inam. [Reference was made to Sahebrao v. Jaiwantrao (( 1933) L.R.60 I. A. 231; 29 Nag. L. R. 210.) where it was said that " a co-sharer "is entitled to possession of his share appearing from the inam " statement."] A village granted to a person and his heirs is partible among the heirs Bodhrao Hunmont v. Nursing Rao (( 1856) 6 Moo. I. A. 426.). With regard to there being a certificate in the name of one man—the appellant—in a Hindu family the head always take the responsibility for the benefit of the family. Further, recognition of one man as Inamdar or certificate holder is for the convenience of Government, e.g., payment of revenue and other Government purposes, but that is no reason to refuse partition to co-sharers. Impartibility is an exception which has to be established, and strictly proved, and reading rr. III. and IV. the appellant has failed to establish that specifically. The rule of devolution enunciated here, namely, "widows, lineal heirs, or undivided brothers,” is the general rule unless there is something special in the certificate, which would then prevail. In the certificate in question nothing is stated as to the devolution, and in the absence of any such statement the personal law of the parties and the Inam Rules would govern. [Reference was also made to Krishnaji v. Nilkanth (18 Nag. L. R. 163.); Krishnaji v. Manwar Ali (( 1908) 6 Nag. L. R. 72.); Aman Ali v. Imambi (( 1913) 9 Nag. L.R. 188.); Gulabdas Jugjivandas v. Collector of Surat (L. R. 6 I. A. 54.) and Ram Narayan Singh v. Ram Saran Lai (L. R. 46 I. A. 88.).] The old theory that sharers are entitled only to suitable maintenance no longer holds good, and it is submitted that it is now clear that if two sons succeed to a father then both are equally entitled to the inam in spite of the fact that the certificate is in the name of the elder son only. According to orders of the Government of India inam estates in Berar are as a rule heritable; they are therefore more than life estates. By custom a Hyderabad jagir is not personal to the grantee, but continues to his descendants, and in so far as r. III. is concerned both the respondent and the appellant fall within the class of lineal heirs, and in so far as r. IV. is concerned both are equally successors. Rewcastle K.C. replied. Sahebrao v. Jaiwantrao (( 1933) L.R. 60, I. A. 231; 29 Nag. L. R. 210.) does not in any way interfere with Kutubuldins case (21 Nag. L. R. 185.) . [Reference was also made to Krishnaji v. Nilkanth (18 Nag. L. R. 163.) and Mullas Principles of Hindu law, 10th ed., para. 584.] July 13. The judgment of their Lordships was delivered by LORD SIMONDS. These consolidated appeals from a judgment and two decrees of the High Court of Judicature at Nagpur arise out of two suits brought by the respondent claiming a share of the income of certain jagir villages which are registered in the name of the appellant and they jeveal a conflict of judicial opinion on a matter of substantial importance in Berar. Before stating the facts, which are peculiar to this case, it will be convenient to refer briefly to the background of history and law in which they are set. By a treaty made in the year 1853 the territory of Berar was ceded by the Nizam of Hyderabad to the British Crown. At once (as was contemplated by the treaty) the work began of investigating claims, briefly to be called jagir and- inam claims, to hold lands free of revenue under or by virtue of sanads granted by the Nizam or his Ministers, and it may be regarded as significant that the Government of India deemed it necessary, in view of the fact that conditions in Berar differed from those in other parts of India, to frame a separate set of rules for the settlement of such claims. In 1859 the Berar Inam Rules were sanctioned and brought into force, and they are applicable, subject to what will hereafter be said, to all grants made by the British Government or recognized by it as valid. Rule I. provided for the manner in which the validity of grants should be established. In 1859 the Berar Inam Rules were sanctioned and brought into force, and they are applicable, subject to what will hereafter be said, to all grants made by the British Government or recognized by it as valid. Rule I. provided for the manner in which the validity of grants should be established. It may be observed here that, though in their origin these rules were intended only as instructions to the executive authority, they have been held to acquire the force of law. Rule II. provided for the division of inams into classes, the first class being described as " Personal jagirs," the second as " Grants or " endowments to religious or charitable institutions and for " service therein," the third as " Personal or subsistence "grants." Two other classes need not be mentioned. The distinction between " jagir" and " inam," which is sometimes made, in Berar at least, lies in this that the term " jagir " is applied to a grant of a village or group of villages while "inam" means a lesser grant. But generally a jagir is an inam. Rules III. and IV. are of importance in this case. They are as follows. [His Lordship stated the terms of rr. III. and IV. and continued] their Lordships observe (1.) that amongst those contemplated by r. III. as possibly constituting the " heir," to whom a personal jagir may be continued, are a wide variety of persons, including widows; (2.) that r. III. does not itself, except in its final words of disallowance, purport to control the succession, but merely prescribes the rate of duty; (3.) that r. IV., on the other hand, does purport by the use of the words " to the present holders and their successors" to indicate the mode of descent. It is possible, however, that these words mean no more than the u successors according "to the terms of the sanad or grant." Rule V., relating to personal or subsistence grants, is not strictly relevant to the present case. For it is common ground between the parties that the grants here in question fall under rr. III. and IV. It is possible, however, that these words mean no more than the u successors according "to the terms of the sanad or grant." Rule V., relating to personal or subsistence grants, is not strictly relevant to the present case. For it is common ground between the parties that the grants here in question fall under rr. III. and IV. Reference, however, is made to r. V. in certain authorities and it may be noted that a grant covered by it was to be confirmed according to its actual tenure and that if the then present incumbent was a descendant of the original grantee, the inam would be continued to him hereditarily subject to certain conditions, which, inter alia, limited the right of succession and prohibited alienation of the inam. A number of other con-ditions, including a right of conversion into a perpetual freehold, which it is unnecessary to mention, were annexed to these grants. Amongst the other rules it is necessary only to mention r. IX., which provided that the settlement would be made with the " head member of the family holding the "office or enjoying the inam," and r. XV., which provided that on the validity of an inam being established by inquiry in accordance with the rules, a title deed would at once be furnished to the Inamdar by the Inam Commissioner or Settlement Officer acknowledging his title to the inam on its present tenure and specifying the terms on which this tenure might be converted into a freehold. As has already been stated, this appeal arises out of two suits. In the first suit, which was brought in the Court of the Subordinate Judge, Malkapur, the respondent claimed against the appellant to be joint owner with him of two villages, Deodhaba and Kamardipur, and to recover from him Rs. 3,076 as his share of the income of these villages. In the second suit, which was brought in the Court of Small Causes, Malkapur, the respondent claimed against the appellant and one, Shankar Rao, the sum of Rs. 125, being one-half of the sum of Rs. 250 payable by Shankar Rao to the appellant in respect of the village of Makodi. It is convenient to state here that the respondents claims in both suits were rejected by the trial judges. His appeal in the first suit to the District Judge, Akola, was dis missed. 125, being one-half of the sum of Rs. 250 payable by Shankar Rao to the appellant in respect of the village of Makodi. It is convenient to state here that the respondents claims in both suits were rejected by the trial judges. His appeal in the first suit to the District Judge, Akola, was dis missed. He appealed from that dismissal to the High Court at Nagpur and at the same time appealed for a revision of the order of the Subordinate Judge in the second suit. On December 16, 1940, the High Court delivered one judgment covering both matters, in which they upheld the claims made by him in both suits. Hence the appeal of the present appellant to His Majesty in Council. The facts relevant to the respondents claims, which have thus been upheld, can now be stated. The appellant is the elder brother of the respondent. They are the great-great-grandsons of Raja Govind Narayan Bahadur, to whom before the year 1853 the villages of Deodhaba and Kamardipur with other villages, including Makodi, had been granted as jagir villages. The history of the matter in the intervening years is obscure, but it appears that in or before 1869 in accordance with their policy of investigation and settlement the Government of India had, on a claim being made by Harihar Rao, a son of the Raja, directed an inquiry into these and other villages. The Inam investigating officer reported that none of the patents under which they were held having been produced, they had been treated as Government villages, but that in the case of Kamardipur on the representation of the Poojarir of the temple, on account of which the village was held, a certain allowance had been made. But, his report being otherwise favourable, in 1877 orders were in due course made by the competent authorities in favour of the claimant, Harihar Rao, of which the material parts provided that the villages of Deodhaba and Makodi should be restored to him under r. III. and the village of Kamardipur under r. IV. of the Berar Inam Rules. But, his report being otherwise favourable, in 1877 orders were in due course made by the competent authorities in favour of the claimant, Harihar Rao, of which the material parts provided that the villages of Deodhaba and Makodi should be restored to him under r. III. and the village of Kamardipur under r. IV. of the Berar Inam Rules. It was, however, expressly provided that these inams should continue to be held by the Inamdar on the usual condition of loyalty and good behaviour and during the pleasure of the British Government, which reserved to itself the right of resuming them at any time it might think proper to do so. Further, in regard to the villages falling under r. III. the inams were continuable only to lineal heirs of the original grantee, while that falling under r. IV. was expressed to be continuable to the grantees successors, whether lineal heirs or not, on the conditions stated in r. IV. Thus Harihar Rao, the great-grandfather of the parties to these suits, had restored to him Deodhaba and Makodi under a grant to him and his lineal heirs and Kamardipur under a grant to him and his successors, subject to the conditions of rr. III. and IV. respectively. There is neither in the grants nor in the rules a word which suggests that primogeniture is to be the order of descent or that the estate is to be impartible. For reasons, into which it is not necessary to enter, an arrangement was subsequently made between Harihar Rao and his brother Janardhan Rao whereby the former retained Deodhaba and Kamardipur but surrendered Makodi to the latter, retaining nevertheless an annual sum of Rs. 250 out of its income. This arrangement was challenged at a later date by the family of Janardhan, but was upheld. It is only necessary to mention it to explain why not Makodi itself but an annual sum of Rs. 250 payable out of its income is the subject of dispute between the present litigants, who claim through Harihar Rao. It is to be noted, however, that the appellant and respondent made common cause against the family of Janardhan, and were in revenue proceedings in the year 1903, which were taken from the Deputy Commissioner to the Commissioner and thence to the Resident at Hyderabad, established to be the heirs of Harihar. It is to be noted, however, that the appellant and respondent made common cause against the family of Janardhan, and were in revenue proceedings in the year 1903, which were taken from the Deputy Commissioner to the Commissioner and thence to the Resident at Hyderabad, established to be the heirs of Harihar. So, also, in civil proceedings commenced in the year 1904 there was the same alignment of parties, the appellant and the respondent as plaintiffs claiming, and successfully claiming, against Laxmanrao, the son of Janardhan, that they were entitled to the villages and sum of rupees in question. But, united against Laxmanrao, they fell out among themselves, and in the year 1916 submitted to arbitration the very question which in the present proceedings has found its way to their Lordships board. In that arbitration it was decided in favour of the respondent that the brothers should divide the whole revenue of the villages in equal shares after deducting the expenses and also that one-half of the sum of Rs. 250 out of the income of Makodi should go to each of them. It has not been contended before the Board that this award precluded the appellant from again raising the question, and their Lordships express no opinion on that matter. They will dispose of the mater, as did the High Court of Nagpur, on the footing that the single question is what are the rights of the parties, regard being had to the terms of the grants and of the Inam Rules. On this question they see no reason to doubt that the decision of the High Court is right. The Subordinate Judge would, it appears, have come to the same conclusion but that he thought that he was bound to decide otherwise by the authority of Kutubuldin v. Gulam Rabbani (( 1925) 21 Nag. L.R. 185.). On this question they see no reason to doubt that the decision of the High Court is right. The Subordinate Judge would, it appears, have come to the same conclusion but that he thought that he was bound to decide otherwise by the authority of Kutubuldin v. Gulam Rabbani (( 1925) 21 Nag. L.R. 185.). In that case (which has been followed in two other cases, the judgments in which are printed in the Record in the present appeal) it was decided according to the headnote, which appears to be accurate, that an estate in Berar granted under r. V. of the Inam Rules of 1859 cannot be divided up amongst the persons beneficially interested in it, nor are those persons entitled to any denned shares in the income, but they are entitled to get from the life holder only so much as is sufficient to provide them with suitable maintenance. In the course of his judgment in that case Hallifax A.J.C. referred to a decision to the contrary effect of Dhobley A.J.C. in Krishnaji v. Nilkanth (( 1921) 18 Nag. L.R. 163.), and observed on it that he was apparently unware of earlier rulings of the court in Krishnaji v. Manwar Ali (( 1908) 6 Nag. L.R. 72.) and A man Ali v. Imambi (( 1913) 9 Nag. L.R. 188.). It is clear, then that there has been some conflict of judicial opinion at any rate in regard to grants that are governed by r. V. of the Inam Rules, though it may be that the distinction between impartibility and inalienability has not always been very clearly kept in mind. It appears, how ever, to their Lordships that the decision in Kutubuldin v. Gularn Rabbani (21 Nag. L. R. 185.) disregards the principle which was established two months later in Mir Subhan Ali v. Imami Begum (( 1925) 21 Nag. L. R. 117.). In that case it was decided by this Board that the devolution and incidents of an inam estate in Berar are regulated by the Inam Rules of 1859, but only in matters not expressly mentioned in the sanad or certificate or other document evidencing the special terms of the grant in the particular case. L. R. 117.). In that case it was decided by this Board that the devolution and incidents of an inam estate in Berar are regulated by the Inam Rules of 1859, but only in matters not expressly mentioned in the sanad or certificate or other document evidencing the special terms of the grant in the particular case. In the particular case, which their Lordships have to consider, this means that they must determine what is the effect of a grant in the one case to the grantee and his lineal heirs, in the other to the grantee and his successors. Here they are guided by the old authority of Bodhrao Hunmont v. Nursing Rao (( 1856) 6 Moo. I A. 426.). In that case the sanad was to the grantee that "he " and his sons and sons sons should enjoy the same in male "line all succeeding generations in inam,” and it was held that there was no reason why the inam villages in question should not be governed by general principles of Hindu law respecting partition of the fathers estates among his heirs. So, also, in Mir Subhan Alis case (( 1925) 21 Nag. L. R. 117.), already cited, where the grant was " in perpetuity to the present holder and his male descendants " it was decided that, notwithstanding the language of the Inam Rules, female descendants were excluded, but their Lordships do not find any suggestion that among male descendants of equal degree the elder was to be preferred to the exclusion of the younger. Nor, again, does this view appear to be consistent within the recent decision of this Board in Sahebrao v. Jaiwantrao (( 1933) L. R. 60 I. A. 231 ; 29 Nag. L. R. 210.), which recognized that an inam village might be held after the death of the grantee by his " lineal descendants " and co-sharers." There is, in fact, no justification for the view which found favour with the court in Kutubuldin v. Gulam Rabbani (21 Nag. L. R. 185.) that inam villages are necessarily held on a tenure involving impartibility and primogeniture. L. R. 185.) that inam villages are necessarily held on a tenure involving impartibility and primogeniture. That is a form of tenure which might be prescribed by the grant and, if the grant contemplated that certain personal services would continue to be performed or a certain office to be enjoyed by the holder of the inam land, it might be easy so to construe it, if its terms were ambiguous. But in the present case there is neither ambiguity in the grant nor any special circumstance which should lead to a departure from the ordinary principles of Hindu law. On this footing the appellant and the respondent have an equal title to be considered the " lineal heirs " and the " successors " of the original grantee. It remains to consider a contention advanced on behalf of the appellant that he alone was entitled, since to him alone a certificate of title had been issued in 1914. On this question their Lordships so fully agree with the judgments both of the learned Subordinate Judge and of the High Court that they need add but little. The certificate, if it is issued to one who has no right to it in the judgment of the civil courts, or if it requires amendment, must be cancelled or .amended accordingly. In the present case, as was pointed out in the judgment of the High Court, the officer inquiring into the matter had already made the necessary adjustment before that judgment was delivered and, as their Lordships have been told, an appeal from his order was dismissed while the appeal to the Board was pending. The appellant can get no assistance from an error which has now been recognized. For the reasons above appearing their Lordships will humbly advice His Majesty that this appeal should be dismissed. The appellant must pay the costs of the appeal.