(1.) The principal question in the case is whether the estate now known as the zamindari of Udayarpalayarn is the partible property of the plaintiff's family or is held as an impartible estate, The District Judge has found that the original palayam as it stood until the expulsion of the first defendant's ancestor in 1765 was, like other palayams in the Karnatic, an impartible estate. Having read the evidence discussed by him and heard arguments upon it, we are of opinion that the conclusion at which he has arrived is right, and that there can be no doubt that the palayam was up to 1765 held by one member of the family only, not being subject to the ordinary rule of Hindu Law.
(2.) The question regarding which there is the chief contest is whether, in view of the circumstances in which the sanad was granted in 1817, the estate comprised in that sanad came to be held by the family on terms different from those on which the original palayam was enjoyed. The plaintiff's case is that the estate comprised in the sanad was an entirely new estate, and that the quality of impartibility was never attached to it. The main grounds for this contention are that from 1765 till 1817 the zamindari was not, it is alleged, in the possession of the family at all, and the estate granted in 1817 comprised only part of that which the former palayagars had held. It is urged that a new grant was made of free grace to the istimirar zamindar, and that there was no intention that he should take it with the incident of impartibility which attached to the old palayam. What little is known of the palayam prior to July 1801 is contained in Mr. Wallace's report of 30 May 1802 (exhibit LIII). From this it appears that the palayagars of Arialore and Udayarpalayam had held uninterrupted possession of their respective palayams from very early times until after the siege of Madura in 1765, when they were expelled by the Nawab of the Karnatic and fled to Mysore. It further appears that with Hyder's aid, they returned in 1780 and drove out the Nawab's amildars and held "precarious possession" or their palayams until 1783 when they ware won over to support the Company, and that during the first assignment, of the revenues of the Karnatic to the Company in 1785, they were replaced in possession of their palayams as renters, but having failed to pay their kist punctually, were imprisoned and the management of the palayams was entrusted to one of the chief servants of the palayagar of Udayarpalayam until the country was restored to the Nawab. In 1790 the Company again assumed the control of the country, and during this period, which is referred to by Mr. Wallace as the second assignment, the palayagars again held possession as renters under the Company. The palayagar during the period from 1765 to 1792 was the father of the istimirar zamindar. On his death in 1792 he was succeeded by the istimirar zamindar's elder brother of the half blood who died in 1801. In 1798 Mr. Wallace goes on to say that Chinnaya Mudali became the manager, and that a monthly allowance of Rs. 1,000 was made to the palayagar who also retained his allowance as kavalgar and his cumbatum lands. In an earlier letter of August 1801 (exhibit BU) Mr. Wallace had spoken of this Chinnaya Mudali as a mortgagee, There is no further evidence as to the terms on which he held. In the same letter (dated 30 May 1802, exhibit LIII) Mr. Wallace points out that whatever was the reason for the expulsion of the palayagars by the Nawab in 1765, it was, in fact, disregarded by the Company's Government for, as he says, "During the assignments of the country the palayagars were restored to every degree of power which our temporary authority over the Karnatic and southern provinces admitted of our conferring in acting thus." The fact that the palayagar retained his position as kavalgur appears from other documents, e.g., exhibit I and II, dated, respectively, 1792 and 1797, as also from later documents. That he was not in actual possession of the palayam lands, but held his fort only when the Company took possession of the country in 1801 seams abundantly clear. But whit precise cause led to his deprivation and whether a temporary dispossession or an absolute forfeiture was intended by the Nawab is matter for conjecture. What is clear is that on both occasions when the Company had the power to do so they reinstated him in possession as renter, and when Chinnaya Mudali was in possession for a short time, the palayagar received an allowance and also retained throughout the office of kavalgar with its emoluments.
(3.) Some stress is laid on the way in which the palayam is dealt with in the treaties of 1787 and 1792. In the latter treaty it does not. appear in the list of estates, the peishcush of which is by the fifth article assigned to the Company, It is mentioned in the second schedule containing a list of the districts, the management of which the Company was in certain events authorised to assume. Then it is associated with Trichinopoly, the phrase being "Trichinopoly including Worriorpollium and Arialore." It will be seen from the language of Mr. Wallace's letter of 10 August 1801 that at that time palayam was not considered part of the district of Trichinopoly. It would have been a strong point in favour of the defendant if the palayam had been mentioned in the first schedule, and the omission of it is certainly a point to be noted against him. But the point is of no great importance because there is no certainty that the enumeration of the palayams given in the first schedule is an exhaustive enumeration. By the former treaty of 1787 palayams as well as other lands were pledged to the Company. That seems clear from Art. 5, yet the schedule mentions no palayam by name except Worriorpollium, while it includes the provinces of Trichinopoly and Madura. If there were Palayama in Trichinopoly and Madura other than those mentioned in the first schedule of the second treaty, then it would seem that those palyama must have been intended to be included in the second schedule. Otherwise it must be supposed that the Company gave up in 1792 some of the security which they had under the earlier treaty, which seems highly improbable. Altogether, we do not think that the treaties throw any new light on the question. We know from other sources that in 1787 and 1792 the palayagar was not in actual possession. On the 31 July 1801 the final treaty was concluded with the Nawab, and a proclamation of even date announces to all zamindars, palayagars and kavalgars, etc., that the government of the country and in particular the right of collecting revenue has passed to the Company (exhibit T). In December of the same year, a further proclamation is issued dealing with be matter of disarmament and also announcing the indention of introducing a system of permanent assessment (page 584). Meanwhile Mr. Wallace had taken charge of the district of Trichinopoly (exhibit BM), and he writes several letters which are filed--the last dated in December refers to the fort occupied by the palayagar.;