JUDGMENT

1. This appeal arises out of a suit for declaration of title to and recovery of possession of the Dhalbhum Raja Estate, for mesne profits and other reliefs. The plaintiff Jagadish Chandra Deo Dhabal claimed the estate under the will of Raja Satrughna Deo Dhabal dated the 11th May 1905. The properties belonging to the estate are situated partly in Singbhum, and partly in the district of Midnapur.

2. The parties are governed by the Mitakshara School of Hindu Law, and their ancestors are said to have migrated from Rajputna, centuries ago. The history of the family is stated in Mohesh Chander Dhal v. Satrughan Dhal (1901) 29 Cal. 343 and a geneological table is given at page 344. The defendant Protap Chandra is descended from one Jugal Kishore who belonged to the main family and the plaintiff is descended from one Raja Karnala Kant the brother of Jugal Kishore, who founded the Jambuni branch of the family.

3. The Dhalbhum Raj is an impartible estate, the succession to which has devolved by family and local custom according to the rule of lineal primogeniture from ancient times. The estate was settled by the British Government with Raja Jagannath, the ancestor of the parties at a revenue of Rs. 4,000 in 1777. Raja Satrughna got the Dhalbhum estate according to the ancient family and local custom, on his death dispute arose as to succession to the estate between the defendant who is his nearest heir, and the plaintiff who claimed the estate under his will.

4. Satrughna, as stated above, executed his will on the 11th May 1905, and died on the 1st March 1916. The plaintiff on the 6th April 1916, applied for probate of the will. The defendant contested the will, but it was found to be genuine and probate was ordered to be granted on the 30th May 1917. In the meantime the defendant obtained possession of the estate, and his name was registered under the Land Registration Act by the Deputy Commissioner Singbhum overruling the plaintiff's objections. The order was upheld by the Commissioner, and finally by the Board of Revenue on the 13th July 1917 who held that in the jungle mahals there was no custom of divisibility by will.

5. It appears that before the death of Raja Satrughna the estate came under the Encumbered Estates Act (Bengal Act VI of 1876) upon the complaint of the defendant's father Madhu Sudan on the 2nd August 1905. After Satrughna's death, the defendant, as his heir, got the estate released in October 1920 from management under the Encumbered Estates Act, but upon his application as a disqualified proprietor the Court of Wards took over the management of the estate. The present suit was instituted on the 17th March 1921, and after it was decreed by the trial Court, a receiver of the estate was appointed by this Court.

6. The defence, inter alia was that the Dhalbbum estate had been held and enjoyed by the predecessors of the defendant as an ''ancestral joint undivided and impartible raj" and is still held and enjoyed as such, that the estate is the joint property of a joint undivided family governed by the Mitakshara Law as modified by the custom prevailing in the family and in the locality known as the jungle mahals from time immemorial, that the estate was in its origin in the nature of a "feudal tenure in chief" and was and is by its nature inalienable, that the defendant and his father Madhu Sudan were all along joint with the deceased Raja Satrughna and used to be maintained by the latter, though according to family custom, they had a separate house to live in. The defendant denied that the proprietor for the time being of the Dhalbhum estate had or has any right to dispose of any of the properties of the estate by will or otherwise or to nominate any person as his heir or successor.

7. The Court below by its judgment and decree dated the 21st August 1922 held that the estate being an impartible one was alienable, that the defendant had failed to prove that either by custom or by its nature, it was inalienable, that