DAVEY, J. - (1.) THIS is an appeal against a decree of the High Court of Madras affirming a previous decree of the District Court of Vizagapatam. The appellant who was defendant in the action is the widow of the late zemindar of Belgam, who died on October 29, 1888, without leaving any issue and intestate. She claims to be entitled to a widow's estate in the entire zemindari. The respondent (plaintiff in the action) claims to be entitled in possession to one moiety of the zemindari on the ground that the zemindari was part of the joint property of his and the late zemindar's family, and he alleges that, the zemindari being partible in title, his brother Surandara Narayana (who was made a defendant in the action, but is not a party to this appeal) is entitled to possession of the other moiety. On the other hand, the widow and appellant contends that the zemindari was impartible in title, and that owing to certain family arrangements it had become the separate property of her late husband.
(2.) THE zemindari of Belgam was originally created by a sunnud dated October 21, 1803, granted by the Government to Soma-sundara Narayana (the first zemindar). The sunnud itself has been lost, but the contents of it sufficiently appear from the kabuliat or counterpart executed by the zemindar, and dated April 28, 1804, which was put in evidence. It appears from this document to have been in a form which is stated to have been usual in grants by the Madras Government of that period. It conferred on the zemindar liberty to transfer by sale, gift, or otherwise his proprietary right in the whole or any part of the zemindari, and granted the estate to him, his heirs, successors, and assigns, at the permanent assessment therein named. It would seem from the arrangements made in the family that the zemindari was regarded as impartible. But whether that be so or not, it has been now decided in the case of Venkata v. Narayya (1879) L.R. 7 Ind. Ap. 38. on the construction of a sunnud of similar form and granted about the same date, that the zemindari thereby created was not impartible or descendible otherwise than according to the ordinary Hindu law. It must be taken, therefore, that the zemindari of Belgam was not impartible whatever the parties may have thought, and the misapprehension of the parties could not make it so or alter the legal course of descent. It will, however, be found that, as between the appellant and the respondent, the question whether the zemindari is partible or not is of no importance. Even if impartible it may still be part of the common family property and descendible as such, in which case the widow's estate of the appellant would be excluded. The real question, therefore, is whether it has ceased to be part of the joint property of the family of the first zemindar, or (in other words) whether there has been an effectual partition so as to alter the course of descent. Somasundara Narayana, the grantee and first zemindar, died in the year 1814, leaving two sons, Dhananjaya No. 1, and Visvambhara No. 1. Dhananjaya was allowed by his brother to succeed to the estate, and became second zemindar. Two documents, dated February 16 and 18, 1816, were executed on this occasion, and were the first transaction relied on by the appellant in proof of the separation of estate or partition which she alleged had taken place. The first document was a "Pharikat sunnud" given by Visvambhara in the following terms:-
(3.) "As we have both equally divided and taken all the cash, jewels, and other (property) in the palace to which both of us are entitled, I bind myself not to claim (anything) from you at any time. I shall reside in the village of Addapusila, which you were pleased to give me for my maintenance, and act according to your wishes.";