1. This was a suit to recover the Mittas or estates called Peruruni and Karaikuruchi and the Pannai or home-farm lands thereon which had formed part of the Zamindari of Maniachi, situated in the District of Tinnevelly. The Subordinate Judge of Tinnevelly who tried the suit dismissed it with costs. Appellant-plaintiff is the present Zamindar of Maniachi which is admittedly an impartible estate belonging to a joint Hindu family but capable of being enjoyed by but one member of the family at a time, and respondents are alienees who are in possession of the property in dispute.
2. The transactions which have given rise to this litigation are fully set forth by the court of first instance in paragraphs 25 to 57 of its judgment. The Subordinate Judge has also sufficiently stated the substance of the pleadings, the contentions of the several respondents, and the questions arising thereupon for determination, and we do not think it is necessary for us to recapitulate them in this judgment.
3. Of the fourteen issues recorded for decision, the 13th and 14th relate merely to improvements and mesne profits. To the decision on the first three issues, no exception is taken at the hearing before us. The 4th, 6th and 7th issues relate to preliminary grounds of objection urged against the suit whilst the other issues refer to the merits.
4. The first question for determination is that raised by the fourth issue, viz,, whether the suit is barred by the Act of Limitations. The facts from which it arises are shortly these. At the commencement of the year 1866 and for some years before it, one Bhulokapandiya, Chokka Talavar was the Zamindar of Maniachi and the properties now in dispute were then comprised in the Zamindari. He died on the 14th January 1866 leaving him surviving seven widows and five minor sons as shown in the subjoined pedigree.
Bhuloka Pandia Chokka TalavarZamindar of Maniachi, whodied in January 1866.His seven wives.|________________________________________________________________________| | | | | | |No. 1 No. 2 No. 3 No. 4 No. 5 No. 6 No. 7Kattama Rama Udayanna Rama Shanmukha Shanmukha (diedTalavachi Talavachi Talavachi Talavachi Vadivu Vadivu childless)(died (died (died | Talavachi Talavachi childless) childless) childless) | | |son, Chokka | son, Subrah-Talavar | mania PandiaNo. 8. | Chocka Talavar| (Plaintiff| Appellant)| No. 12.|__________________________________| | |Subrahmania Vellaya SenduraPandia Chokka Pandian PandianTalavar No. 10. No. 11.No. 9. (died unmarried)
5. On the death of Bhulpka Pandia in 1866, the Government at first recognised as his lawful successor his son by the fourth wife, Chokka Talavar, No. 8 in the pedigree. He was, however, junior in years to the eldest son by the fifth wife, Subrahmania Pandia Chokka Talavar No. 9 in the pedigree. But the Government considered that his mother's prior marriage was a legitimate ground of preference. As he (No. 8) was a minor, the Court of Wards assumed management of the Zamindari under Reg. V of 1804. The late Zamindar's fifth wife then instituted 0.S. No. 25 of 1866 on the file of the Civil Court of Tinnevelly disputing the action of the Government and asserting her eldest son's preferable claim by right of primogeniture. In May 1868 the Civil Court decreed in his favour. Meanwhile, the Government recalled their recognition of the junior son by the fourth wife and recognised in his stead the eldest son by the fifth wife, No. 9 in the pedigree, Subrabmania Pandia Chokka Talavar, and the Court of Wards since continued in management on his behalf.
6. Of the three sons by the fifth wife, the second son Vellaya Pandian died unmarried during his minority, and the eldest Subrahmania Pandia Chokka Talavar, the last recognised Zamindar and lawful holder died during his minority in 1873 leaving him surviving one uterine brother named Sendura Pandian No. 11 in the pedigree and two half-brothers, Chokka Talavar No. 8 and the plaintiff-appellant No. 12 in the pedigree. It is an undisputad fact that of the three surviving brothers, the plaintiff is the eldest. It is also admitted that the Zamindari of Maniachi is an impartible estate belonging to a joint Hindu family constituted by its male coparceners and that the last lawful Zamindar was appellant's and Chokka Talavar's half-brother, and the uterine brother of Sendura Pandian No. 11 in the pedigree.
7. Appellant rests his title to the Zamindari in this Court as in the court below, on his position as the eldest of the surviving brothers of the last; Zamindar, while the respondent's case is that the uterine brother Sendura Pandian excludes him from succession. With reference to this contention it was alleged for the appellant that Sendura relinquished his interest in the Zamindari, if any, in favour of the appellant by document C which bears date the 15th August 1885. The plaint which is dated the 9th June 1885 prayed, for a decree (1) establishing appellant's right to the properties in dispute, canceling the decree in Original Suit No. 14 of 1866 and the auction sale in its execution, and (2) awarding him possession of the properties mentioned in the plaint. It stated also that the decree and the execution sale were vitiated by fraud and that the circumstances constituting fraud came to appellant's knowledge only in March 1885. The decree in Original Suit No. 14 of 1866 was passed on the 4th May 1867 and the sales, in execution of it took place on the 11th and 13th August 1870 and were confirmed by the Civil Judge on the 14th September 1870 by Exhibits M and P and LIV. The purchasers were placed in possession on 7th and 29th September 1870.
8. These are the facts which have to be. borne in mind whilst dealing with the question of limitation with reference to the arguments addressed to us at the hearing. Treating this suit as one brought to recover immovable family property unlawfully alienated during appellant's minority, the Subordinate Judge has found that it is barred by limitation. He rests his opinion on the ground that appellant was born on the 5th May 1861 and completed his twenty-first year on the 4th May 1882 and not as alleged by him on 11th June 1882. It is urged on appellant's behalf that this finding is contrary to the weight of evidence.
9. The date of appellant's birth formed the subject of the 6th issue and the evidence cited with reference to it is partly or and partly documentary. It must be observed that in the case of the appellant, no horoscope has been kept so as to throw light on the precise date of his birth. Both parties admit that appellant was in existence from the 12th June 1861, the contest being as to whether he was born on that date or as found by the Subordinate Judge in the 5th May 1861.
10. As regards the oral evidence, it is that of plaintiff's witnesses Nos. 4 and 25 and defendant's witnesses Nos. 11 and 12. The two former state that plaintiff was born in the month of Vaiyasi Andu 1036 corresponding to May--June 1861 and the two latter depose that the plaintiff's birthday star or lunar mansion was 'Satayam' or the 24th lunar day or star in the month of Chittirai. Both the witnesses for appellant are related to him, the 4th being a distant relative and the 25th witness being his maternal uncle. The evidence of the maternal uncle is open to the observation that he is unable to remember the month and the year in which his own eldest and other sons were born, though he professes to recollect the month and year in which appellant was born. The evidence of the 4th witness is also open to the remark that the date of the temple festival at Tiruchendur in the District of Tinnevelly in the year 1861 with which he connects appellant's birth shows, (as explained by the Subordinate Judge) when it is computed from the calendar, that appellant was born on the 5th May and not on' the 12th June?
11. On the other hand, respondents' 12th witness does not name the month in which special worship or Archani is performed in the Tiruchendur temple on appellant's Janma Nakshatram day or the day of his birth fixed with reference to the lunar asterism or mansion. According to respondent's 11th witness it is clear that the appellant's Janma 'Nakshatram or the star under which he was born was the 'Satayam' or the 24th lunar mansion day in the month of Chittirari which corresponds to the 5th May 1861 according to the calendar. Respondents' witnesses are not connected with them. The Subordinate Judge describes the evidence at length in paragraph 21 of his judgment and comes to the conclusion that appellant was born on the 5th May 1861; and after carefully considering it we see no reason to disturb his finding. In the first place, respondents' 11th witness is a disinterested witness. The fact deposed to by him is in the nature of circumstantial evidence. It is a fact which he was in a position to remember from the Archanai or special service being performed every year on the same lunar day of the same solar month. It is corroborated by the date of the Tiruchendur festival in the year 1861 with which event the 4th witness connects appellant's birth. Respondents' 12th witness corroborates the 11th so far as the performance of a special service in the Tiruchendur temple on the Zamindar's birth day and the name of his Jantna Nakshatram or the star under which he was born, are concerned.
12. On the other hand, the onus of showing that the suit was brought in time is on the appellant. Both his witnesses are related to him and their evidence is open to the observations mentioned above. The appellant's pleader suggests that his 4th witness may have made a mistake, but it is not likely. The allusion to the Tiruchendur festival as the event which enabled him to fix the month and star of appellant's birth appears to be natural.
13. The documentary evidence bearing on the 6th issue consists of two Exhibits H and XV. The former is a Takid sent on the 31st May 1882 by the Sub-Collector of Tinnevelly to the Tahsildar of Ottapidaram Taluk. It states that the Maniachi Zamindar attains his majority on the 12th June and directs the Tahsildar to close the accounts of the estate and be ready to deliver the Zamindari on the 13th June. Exhibit XV is the letter written by the Sub-Collector to the Collector on the name date and is to the following effect:--'It appears the eldest minor of the Maniachi estate has no horoscope and the exact date of his birth is not known. The Tahsildar on examining the previous records and on due enquiry approximately fixes the date on which the minor attains his age as the 12th June 1882. I propose to issue orders to the Tahsildar to make over the estate to the minor on the 13th proximo.' The report of the Tahsildar to which reference is made in Exhibit XV is not before us. We cannot say that the Exhibits which name the 12th June 1882 approximately as to the date on which the appellant attained his majority are inconsistent with the finding that the actual date of birth was the 5th May 1861. It is then said that the Zamindari was actually made over to the appellant on the 13th June 1882, but this fact does not carry the case further. No correspondence is produced from which we can infer that the real date of birth was ascertained by the Court of Wards and it was enough for that court that on the 13th June 1882 when they transferred the estate, the appellant had ceased to be a minor. The Subordinate Judge appears to us to have come to a correct finding as to the date of appellant's birth.
14. With reference to the latter part of the 6th issue, it is argued by respondents' pleader that under the Indian Majority Act IX of 1875, Section 3, the appellant should be treated as having attained his Majority on the completion of 21 years only in case he had lawfully been under the jurisdiction of the Court of Wards and that he must otherwise be treated as having attained his majority on the completion of 18 years. We shall presently consider the question whether Sendura Pandian excludes the appellant from succession and whether an uterine brother succeeds to an impartible estate in preference to a half-brother though the latter is senior in years to the former. Assuming, for the purpose of dealing with the question of limitation and for that purpose only, that the appellant was not only the de facto but also the de jure Zamindar, we see no reason to doubt the correctness of the Subordinate Judge's decision that appellant attained his majority on the completion of 21 years on the 4th May 1882.
15. There are three more matters in connection with which the question of limitation has been considered by the Subordinate Judge. Adverting to the prayer in the plaint that the decree in Original Suit No. 14 of 1866 and the sales, in execution of it, of the properties in dispute be cancelled, the Subordinate Judge observes that there is no doubt that as a suit to set aside court sales in execution of a decree to which appellant was a party, it must be governed by the one year's limitation prescribed by Article 12, Schedule II of the Act of Limitations. He adds, however, that as the plaintiff was a minor, a period of two years must, under illustration (6) attached to Section 7 of the Act, be added to the one year. It is argued on appellant's behalf that this is a misapprehension of the scope of the illustration and that the period, of limitation prescribed by Art. 12 is applicable to minors as well as to adults.
16. That article premises a suit to set aside a sale in execution of a decree and prescribes as the period of limitation one year from the date on which the sale is confirmed. The case premised by illustration (b) of Section 7 is one in which the right to sue for a legacy accrues to A during his minority and A attains his majority 11 years after such accrual; he would have under the ordinary (Sic) one year remaining within which to sue, but under this section an extension of two years will be allowed him making in all a period of three years from the date of his attaining majority within which he may bring his suit. The Subordinate Judge considers that by reason of the illustration (6.) a minor who is a party to a suit has three years to set aside a sale therein from the date on which he attains his majority. He relies in support of his opinion on Mahomed Hossein v. Purundur Mahto I.L.R 11 C 287 and on Suryanna v. Durgi I. L. R, 7 M 258 but neither of them is in point. The question whether illustration (b) of Section 7 is an authority for giving a minor the right to sue to set aside a sale falling under Article 12 three years from the date on which he attains his majority though Article 12 prescribes only one year in the case of adults, was not raised or considered in those cases.
17. The illustration no doubt recognizes the principle that when the period of limitation prescribed by the ordinary law exceeds three years but expires within three years from the date on which he attains his majority, the minor will have the whole period of three years from the date of his majority. But it does not warrant the inference that it gives three years in cases which are governed by Art. 12. If the minor were an adult at the date of the sale which he seeks to set aside he would have to sue within one year from the date of the confirmation of the sale; and on attaining his majority, he stands in the position of an adult and there is no reason why he should have three years instead of one year from the date of majority. Section 7 ought to be read together with each Article in the second schedule, and when the period prescribed by the latter extends to three years or more and expires within three years from the date of attainment of majority, the intention is that the late minor should have the full three years. But when the period of limitation prescribed by the schedule, as for instance by Art. 12, is less than three years and the minor has that period from the date of his majority, we see no warrant for holding that the intention was to enlarge the period of limitation prescribed by the schedule to three years. We are unable to adopt the view of the Subordinate Judge that the appellant had more than one year to set aside the court sales if he were a party to Original Suit No. 14 of 1866.
18. In paragraph 147 pf his judgment, the Subordinate Judge observes that as a suit to set aside the decree in suit No. 14 of 1866 toy fraud, the suit is governed by Art. 95 which allows the appellant a period of three years from the date on which the fraud came to his knowledge. As he finds, however, that no fraud has been proved, the question does not arise in this case and we shall consider in connection with the merits whether this finding is correct.
19. The Subordinate Judge also refers to Article 44, though he considers it to apply only to voluntary sales. But, for the appellant, it is contended that, by analogy to that Article, he is entitled to sue to set aside, within three years from the date of his majority, an improper court sale which took place during his minority with the privities of his guardian. We cannot accede to this contention as Art. 12 must be read together with Art. 44 and there can be no true analogy when there is an express provision to the contrary. With Arts 12 and 144 before us, we do not think that Art. 120 which presupposes the absence of a special provision applicable to the case under consideration can apply. The conclusion we come to on the 4th issue, is that the present suit is time-barred as a suit failing under Art. 144 or Art. 12 and that either Art. 120 or 44 or 45 has no application.
20. In dealing with the question of limitation it was assumed that appellant was a party to Original Suit No. 14 of 1866 by his guardian and that as the eldest surviving brother though of the half blood he is lawfully entitled to the Zamindari. We now proceed to consider these questions.
21. The question raised by the 5th issue is, whether appellant is entitled to the Zamindari of Maniachi in preference to Sendura Pandia Talavar who is still alive. The facts upon which it arises for determination are, (1) that the Zamindari is an impartible estate, (2) that it belongs to the coparcenaries family consisting of the appellant and his brothers, (3) that the propositus was Subramania Chokka Talavar, No. 9 in the pedigree who died without male issue, (4) that Sendura Pandian is his uterine brother, whereas appellant is only his half-brother; and (5) that the latter is older than the former and is the eldest of the surviving sons' of Bhuloka Pandia Chokka Talavar. It is admitted that Subramania Chokka Talavar was the eldest son of the previous Zamindar and that he succeeded his father by right of primogeniture, no special custom being alleged by either party as controlling the right of primogeniture in case of disputed succession to the Zamindari. The point for consideration is whether, under the Mitakshara law, nearness of blood is a ground of preference as between brothers of the half and full blood in case of disputed succession to impartible coparcenaries property.
22. The Subordinate Judge decides it in the affirmative, but in that opinion we are unable to concur. Apart from authority we are of opinion that on general principles the question should be answered in the negative. The first of them is that a rule of decision in regard to succession to impartible property is to be found in the Mitakshara law applicable to particle property, subject to such modifications as naturally flow from the character of the property as an impartible estate. The second principle is that the only modification which impartibility suggests in regard to the right of succession, is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were particle under the general, Hindu Law. The third principle is that in the absence of a special custom, the rule of primogeniture furnishes a ground of preference. In determining who the single heir is according to these principles, we have first to ascertain the class of heirs who would be entitled to succeed to the property if it were particle, regard being had to its nature as coparcenaries or separate property, and we have next to select the single heir by applying the special rule indicated above.
23. Applying the principles mentioned above to the case before us, there can be no doubt that if the property in dispute had been the separate property of the last lawful Zamindar from whom succession has to be traced, the uterine brother would be preferred to the half-brother. In enumerating the classes of heirs to separate property with reference to the Smriti of Yagnavalkya cited in Mitakshara, Chapter II, Section I, Sloka- 2, the Commentator observes in Chapter II, Section 4, Sloka 5, that 'among brother such as are of the whole blood take the inheritance in the first instance' under the text already cited, ' to the nearest sapinda, the inheritance next belongs, since those of the half blood are remote through the difference of the mothers.' Vignanesvara Yogi proceeds then to state in Section 6 that 'if there be no uterine brothers, those by different mothers inherit the estate, and adds in Section 8 that in case of competition between brothers and nephews, nephews of the whole blood have no title to the succession in preference to brothers of the half blood,' for their right of inheritance is declared to be on failure of brothers. If the Zamindari of Maniachi, from which the property now in litigation was severed by court sales, had been the separate of self-acquired property of Subramania Talavar, Sendura, Pandiya, his uterine brother, would certainly have succeeded to it in preference to the appellant who is his brother by a different mother. The principle which determines the class of kindred entitled to succeed is that, in case of disputed succession to such property, remoteness of blood furnishes a rule of exclusion. This being so, the further question arises whether the same principle applies when the property is the coparcenaries property, though impartible, belonging to a joint Hindu family consisting of the deceased Zamindar and his brothers. Looking again to the Mitakshara law of succession as applied to particle coparcenaries property, the right of survivorship is mentioned as a dominant right which controls the rule of succession applicable to separate property. In Chapter II, Section 1, Sloka 20 of the Mitskshara, the Commentator premises a case of competition between the coparceners and widows of a deceased person, refers to the text of Narada ' let them allow a maintenance to his women for life,' and concludes that the widows are entitled only to maintenance, the coparceners being entitled to the property. It follows that in case of coparcenaries property, the doctrine of survivorship furnishes an additional rule whereby the class of heirs has to be found. It is also a controlling or dominant right for the reason that, according to Hindu theory, coparcenaries property belongs to the coparcenaries family, that though coparceners are tenants in common, they have no specific property, but only an interest which may ripen into specific property on partition, and that if the existing coparceners die without male issue, they are to be treated as if they had never been born and as if the partible property actually belonged to the body of coparceners who are alive at the time of partition. When therefore partible property belongs to a coparcenary family and when a coparcener dies without male issue, leaving one uterine brother and one half-brother surviving him, the half-brother is entitled to share the property equally with the uterine brother at the time of partition, the deceased brother being considered as if he never had been born, and the property being treated as always vested in the family as a unit, and as never absolutely vested for purposes of inheritance in any one coparcener in preference to another, how much soever the family may change as to the number of coparceners from time to time during coparcenary. To say, therefore, that nearness of blood is a ground of preference in such cases would be tantamount to ignoring the preexisting coparcenary interest of half-brothers. Nearness of blood being thus no ground of preference under the Mitakshara law in case of disputed succession to coparcenary property when it is partible, it is likewise no ground of preference, when such property is impartible. It is conceded that the Zamindari belongs to the coparcenary family consisting of all the brothers of the propositus and the nearest class of kindred in which the single heir ought to be found is that of brothers, whether of the whole or half blood, and applying the rule of primogeniture as a subsidiary rule of selection, since there is no specific custom, the brother' that is entitled to the Zamindari is the eldest in years, viz., the plaintiff or appellant.
24. This view is in accordance with the course of decisions to which our attention has been called at the hearing.
25. The first is the Sivaganga case reported in 9 M. I. A 539 Katama Natchiar v. The Rajah of Shivagunga. The point decided in that case was that the Zamindari of Sivaganga was the self-acquired property, of Gouri Vallabha Tevar, the prior lawful Zamindar, that the competition being between his daughter and brother's son, there was no right of survivorship as in the case of coparcenary property, and that according to the ordinary rule of succession, the class of kindred among whom the single heir was to be found was represented by the daughter and not by coparceners. The question now in dispute did not arise in that case but there are observations made by the Privy Council which indicate the principles that should guide our decision in this case. Their Lordships say there are 'two principles on which the rule of succession according to the Hindu law appears to depend. The first is that which determines the right to offer the funeral oblation and the degree in which the persons making the offering are supposed to minister to the spiritual benefit of the deceased; the second is the right of survivorship. It is generally intelligible that upon the principle of survivorship the right of the coparceners in an undivided estate should prevail. Their Lordships say further that in coparcenary property according to the principles of Hindu law, there is coparcenership between the different members of a united family and survivorship following upon it; for there is community of interest and unity of possession between all the members of the family and upon the death of any one of them, the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession. But the law of partition shows that as to the separately acquired property of one member, the other members of that family have neither unity of interest nor unity of possession and the foundation, therefore, of a right to take such property by survivorship fails. It is said that these observations are in the nature of obiter dicta, but if so, they are the dicta of the highest judicial tribunal for India followed in several later cases. Moreover the two main principles of succession mentioned above are those embodied in the text of Manu, 'that the inheritance belongs to the nearest sapinda' and in the text of Narada to the effect that in an undivided family the brother takes the coparcenary property in preference to the widow.
26. The second case is what is known as the Tipperah case reported at 12 M. I. A 523 Neelkisto Deb Burmons v. Beerchunder Thakoor. That was a suit in the nature of ejectment brought by a brother of the half-blood against the uterine brother on the ground that as he was the eldest of the class of heirs from whom a Jobraj should be selected according to family custom, the appointment by the deceased Zamindar of his younger brother, the then defendant, as Jobraj, was invalid. The Privy Council held that the appointment was valid by family custom or Kulachar which imposed no restriction on the power of the reigning Raja to appoint a Jobraj from among his kindred. On this point, the Lords of the Judicial Committee remarked that 'where there, is evidence of a power of selection the actual observance of seniority even in a considerable series of successions cannot of itself defeat a custom which establishes a right of free choice; and had the instances been uniform and without exception, that alone would' have been sufficient to support the appellant's case. Such uniformity of practice was however not proved, for, several instances appear of infants appointed to the office of Jobraj, whilst relatives within the custom and older in years were living. It is this finding of fact that was the ratio decidendi but the decision is an authority for the proposition that in determining the right of succession to an impartible estate, we should first ascertain the class of kindred from whom a single heir is to be selected, next see whether family custom or Kulachar discloses a special rule of selection, and that in default of such custom, seniority of age constitutes a title by descent to the impartible estate by analogy to general Hindu law. The Judicial Committee say further that by general Hindu law, the uterine brother would be the heir in preference to the half-brother, were it a disputed succession to divided property.
27. This limitation is also in accordance with the text of the Mitakshara in Chapter II, Section IV, Slokas 5 and 6 and is an authority for the proposition that in case of disputed succession to impartible property which was acquired by or belonged exclusively to the deceased Zamindar, nearness of blood is a factor to be considered in determining the class of kindred from whom the single heir has to be selected. Respondents' pleader lays considerable stress en the passage in the judgment of the Privy Council which deals with, the contention on behalf of the appellant, in the Tipperah case, to the effect that the preference of the whole to the half-blood does not extend to a Raj and that, when the estate is ancestral and undivided, brothers of the whole and half-blood are on the same footing. Their Lordships observe as follows.:--'When a Raj is enjoyed and inherited by one sole member of a family, it would be to introduce into the law, by judicial construction, a fiction, involving also a contradiction to call this seperate ownership, though coming by inheritance, at once sole and joint ownership and so to constitute a joint ownership without the common incidents of coparcenership. The truth is, the title to the throne and to the royal lands is, in this case, one and the same title. Survivorship cannot obtain in such a possession from its very nature and there can be no community of interest; for, claims to an estate is lands and to rights in others over it, such as to maintenance, are distinct and inconsistent claims. As there can be no survivorship, title by survivorship, when it varies from the ordinary title by heirship, cannot, in the absence of custom, furnish the rule to ascertain the heir to a property which is solely owned and enjoyed and which passes by inheritance to a sole heir.' It is further argued on behalf of the respondents that the doctrine of survivorship as a dominant right has no operation as well in the case of impartible coparcenary as in the case of impartible separate property and that we are not at liberty to introduce a distinction so as to vary the ordinary rule of succession which it is contended applies alike to both. We are unable to accede to this suggestion for several reasons. In the first place, later decisions of the Privy Council recognized survivorship as a material factor when the impartible estate is coparcenary property. In the next place, the Tipperah estate is situated in a part of India governed by the Dayabhaga (School of Hindu law which explains away the Smriti of Narada as inapplicable to married women and denies a place to the doctrine of survivorsoip in its scheme of succession. It may be as suggested by Mr. Bhashyam Aiyangar on respondents' behalf, that when the Tipperah case was decided by the Privy Council, there was an impression at Calcutta that, even under the Dayabhaga law, there was survivorship as an exception to the general scheme of inheritance in the case contemplated by Jitnutavahana in Verse 34, Section 5, Chapter 11 of the Dayabhaga. But such a notion was held to be erroneous by the Full Bench of the High Court at Calcutta in Rajkishore Lahoory v. Gobind Chunder Lahoory I. L. R 1 C 27 and see Sheo Soondary v. Pinthee Singh L. R 4 1 A. 147 wherein it as decided that by the Hindu law current in Bengal, a brother of the whole blood succeeds in the case of an undivided immoveable estate, in preference to a brother of the half-blood. The ratio decidendi is that the doctrine of survivorship has no operation under the Dayabhaga law either as part of the general scheme of inheritance or as an exception to it.
28. Again the recognized foundation of the right of survivorship is the Smriti of Narada cited in Mit., Ch. II, Section 1, Verse 7. But , Jimutavahana notices this Smriti in Ch. XI, Section 1, Verse 48 of the Dayabhaga, and concludes after a consideration of the other Smritis, especially the Smriti of Vrihaspati, that Narada contemplated the case of wives of an inferior rank who do not possess the status of a Patni or the lawful wife of approved rank. On the construction suggested by him in Verse 54 there is no foundation in the Smriti law on Which the doctrine of survivorship can rest. As the Mitakshara, however, differs from the Dayabhaga, the decision in the Tipperah case, although it is in perfect accordance with the Dayabhaga law, has no application in the Mitakshara country.
29. It is further urged by the learned pleader for respondents that assuming that the Tipperah Hills and estate are governed by the Dayabhaga law, the reason assigned by the Privy Council for their decision suggests that the character of impartible property as one capable of sole enjoyment by the incumbent for the time being is so much in the nature of separate property, that it is inconsistent with the theory of coparcenary of which unity of ownership and unity of possession quoad the property in litigation, are essential incidents.
30. This contention is sound only in the Dayabhaga country, for, as explained by this Court in Naraganti Achamma Garu v. Venkatachalapati Nayanivaru I. L. R 4 M 250 at p. 266 the modifications of coparcenary which flow from impartibility consists in this-- ' Where from the nature of the property, possession is left with one co-parcener, the others are not divested of co-ownership. Their necessary exclusion from possession imposes on the co-owner in possession two obligations to his coparceners in virtue of their co-ownership the obligation to provide them with maintenance and the obligation to preserve the corpus of the estate. The rights of possession and maintenance are to this extent distinct and inconsistent that they cannot co-exist and be enjoyed by the same persons, that the one is a right to the immediate perceptions of the fruits of the property, the other a right to an indirect benefit, but both rights have a common origin, unity of ownership. * * * Separate possession but not separate ownership, is the characteristic of property, which although impartible is ex hypothesi joint. Co-ownership, which is the cause of survivorship, was held not to exist in the case of the Tipperah Raj. We should have hesitated to express an Opinion at variance with that ruling f 'we could find no support for our views in a ruling- which is equally imperative upon us, here from which, in the Tipperah case their Lordships expressed (Sic) to dissent. In Katama Natchiar v. The Rajah of Shivagatinct 9 M. I. A, 593 their Lordships declared that in the abseitle by proof of a special custom of descent, the succession to a Zahirship, impartible and capable of enjoyment by one member only tain the family at a time, is governed by the general Hindu law (Sic) which in that part of India with such qualifications only as flow (Sic) on impartible character of the subject. The impartiality of (Sic) a ject does not necessitate the denial of the right of survivorship, (Sic) there are not wanting in the admitted rules which govern and enjoyment of such property and the succession to it indicia (Sic) co-ownership and consequent survivorship.' This case is (Sic) authority in this Presidency for the proposition that the very (Sic) torn by which coparcenary property is rendered impartible (Sic) survivorship, as a necessary incident of impartibility and that it (Sic) not correct to say that there is no coparcenership in regard (Sic) such property, the difference being only in the form in which (Sic) exists in respect of partible and impartible property.
31. In this connection our attention is drawn to the decision (Sic) the Privy Council in Rani Sartaj Kuari v. Rani Deoraj Kuari L. R 15 I. A 51 This case modifies the opinion expressed in the last preceding case to this extent and no further, ' When the estate is governed by the Mitakshara law and it is impartible by the usage and custom of family and descends according to the law of prrmogeniture on the male heirs of the original grantee, the estate is not inalienable except on proof of special custom.' The case is therefore an authority for the proposition that inalienability is not one of the modifications which flow necessarily from the impartiality of the subject. As regards survivorship as a cause of succession, their lordships expressly save it and say, 'By the custom or usage, the eldest son succeeds to the whole estate on the death of the father as he would if the estate were held in severalty. It is difficult to reconcile this mode of succession with the rights of a joint family and to hold that there is joint ownership which is a restraint on alienation. It is not so difficult where the holder of the estate has no son and it is necessary to decide who is to succeed.-' Referring to the Sivaganga case, their lordships add 'the saying in the Sivaganga case that the Zamindari though impartible was part of the family property must be understood with reference to the question which was then before their lordships.' That question was one of succession and not of alienation inter vivos.
32. Another case referred to is what is called the Totapalli case, 13 M. I. A 333 Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora. In that case an impartible estate belonging to a joint Hindu family was usurped by one of the members of the family. The Zamindar by the aid of another member of the family ousted him and afterwards entered into an agreement with him to pay the revenue. There was no division in the family. It was argued in that case by appellant's counsel that the estate being impartible must from its very nature be taken to be separate estate and consequently that according to the decision in the Sivaganga case, the succession was determinable by the law which regulates the successsion to a separate estate, whether the family be divided or undivided. With reference to the first contention, their lordships' answer was, ' It is clear that the mere impartibility of the estate is not sufficient to make the succession follow the course of succession to separate estate^ Their lordships apprehend that if they were to hold that it did so, they 'would affect the titles to many estates held and enjoyed as impartible in different parts j, of India. Has it then been shown that, though the family was undivided, the estate was in fact the separate property of the appellant's husband ?' After answering the above question in the negative their lordships answer red the second question in these terms.--' In the Sivaganga case, the Zamindari had escheated to Government which was free to deal with at as it chose. By a new Sannad the Government granted it to Gouri Valiabha, conferring a legal title which none could dispute. But what was done in this case?' After referring to the facts of that case their lordships state, 'this account shows no legal forfeiture, no fresh grant by any person competent to grant a legal title. It only shows that on a dispute between Mallappa Dhora and his superior, another member of the family came in and, with the strong hand and in concert with the superior, succeeded in ousting Mallappa Dhora and in assuming the position and right of the Zamindar.' This case is an authority for the position that forcible dispossession produces no change in the nature and tenure of the impartible property.
33. Another case is that of Maharani Hiranath Koer v. Babooi Ram Narayan Sing 9 B. L. R 274 at page 324 in which the Tipperah case was dissented from.
34. Two other cases were also referred to at the hearing,--Ranganayakamma v. Ramaya, Mayne 599 and the Padamathur case I. L. R 1 M 312 They follow the Sivaganga case.
35. The latest case is that of Raja Jogendra Bhupati Harri Chundun Mohapatra v. Nityanund Mansingh L. R 17 I A 128 In that case the contest was as to the right of succession to an impartible Raj and a Zamindari, the rival claimants being the last male holder, Nandikishore's three widows and daughter on the one side and his illegitimate brother on the other. The joint family belonged to the Sudra caste. Their Lordships of the Privy Council held that the illegitimate brother was entitled under the Mitakshara law to succeed by survivorship and observed as follows:--' According to the decision in the Sivaganga case which, as their Lordships understand is not now disputed, the fact of the Raj being impartible does not affect the rule of succession. In considering who is to succeed on the death of the Raja, the rules which govern the succession to a partible estate are to be looked at and therefore the question in this case is, what would be the right of succession, supposing instead of being an impartible estate it were a partible one.' After discussing the point and concluding that the right of survivorship existed as between the deceased Zanindar and his illegitimate brother, their Lordships held that the latter was entitled to succeed to the Raj by virtue of survivorship. This case is the latest authority for the position that when the impartible estate belongs to a co-parcenary family, the right of survivorship determines the heir entitled to succeed.
36. The next question is whether the suit is barred by Sections 13, 244, and 312 of the Code of Civil Procedure. It is conceded that if the 8th issue is determined against the appellant, this question must likewise be decided against him.
37. The 8th issue is whether the plaintiff and his predecessor in title were properly represented in Original Suit No, 14 of 1866. The Subordinate Judge states the facts of the case so far as they bear on this question in paragraphs 86 to 57 of his judgment and comes to the conclusion that the appellant and the Zamindar whom he succeeded, were represented for the reasons mentioned in paragraphs 58 to 103. To this finding several, objections are taken on behalf of the appellant.
38. The first objection is that though the appellant and his predecessor in title were made defendants in Original Suit No. 14 of 1866, yet they were then minors and they were not described either as defendants by their mothers and guardians, nor were their mothers, who were also defendants, described as the guardians of their minor sons. It appears from the decree in that suit (Exhibit XXII) that the first eleven defendants consisted of the six widows and the five minor sons of the former Zamindar, Bhuloka Pandia, including the plaintiff and his predecessors in title, the mother's name being entered first as that of a defendant and the minor's name being entered next as that of her minor son. It is not stated in terms that the mother of each minor was appointed or made a party as his guardian ad, litem but it is clear that, in each case, the mother was her minor's son's natural guardian and that the object in including both as defendants was presumably to make both parties to the suit, the mother as Bhuloka, Pandia's widow, and the minor son by his mother and natural guardian. It was Act VIII of 1859 that was in force when the suit was brought and it contained no provisions as to appointment by the court of guardians ad litem for minor defendants. According to the then practice of the Court, it was sufficient if the mother was made a party as guardian, and permitted to act as such on his behalf. It is also in, evidence (Exhibits XXIX to XXXII) that the, mother of Subhramania Pandia Chokka Talavar, plaintiff's predecessor in, title, applied by Exhibit XXXI for a postponement of the sale and preferred an appeal to the High Court from the order of the Civil Judge refusing her application. The conclusion, we come to is that in the suit of 1866, as originally framed, appellant and his predecessor's mothers were included to act as their guardians, that the court allowed them to act as such, that one of them endeavoured in execution proceedings to obtain a postponement of the sale and that, though the description is defective, the defect is merely one of form and the minors were in no way prejudiced thereby.
39. Even assuming that the description is insufficient, we must still hold that the minors were adequately represented and their interest carefully protected by the Collector of the District, as the agent of the Court of Wards and as their guardian ad litem Original, Suit No. 14 of 1866 was instituted subsequent to the death of Bhuloka Pandia Chokka Talavar but prior to the recognition of his son, Chokka Talavar, by the Government as his successor and to the assumption of management of the Zamindari by the Court of Wards. After the court entered on the management of the estate, the Civil Judge included the Collector of the District as the 12th defendant and Exhibit XXI shows that he was made a party as the ex-officio guardian of the minor heirs. It is clear, therefore, that the minors were sufficiently represented by the Collector as their guardian ad litern if not also by their mothers previously. But it is urged on behalf of the appellant that the Collector as agent of the Court of Wards was the lawful guardian only of the then recognised Zamindar on whose behalf the Court of Wards held the Zamindari but not of his brothers including the plaintiff and his predecessors in title, the then fifth and ninth defendants. We do not, however, attach weight to this contention as it is open to the judge to appoint any competent person as guardian ad litem provided that there is no antagonism between his interest and that of the minors in the subject-matter of the suit. Exhibit F 4 shows that the Collector accepted the appointment and acted as guardian of all the minor sons. Representation by him of all minor sons as their guardian under the order of the court is sufficient, even if it were held that the Collector could only treat under Reg. V of 1804 the particular minor on whose behalf the Court of Wards then managed the Zamindari as their proper Ward.
40. The 2nd objection is that the mother of the minors allowed the trial to proceed ex parte and that summonses were not served upon them. As regards non-service of summonses the allegation was attempted to be supported by oral evidence which the Subordinate Judge has discredited. As to the weight due [to the oral evidence on this point, we concur in his opinion. It is true that Exhibit XXI, copy of the judgment in Original Suit No. 14 of 1866, shows that the Collector alone defended the suit, but the circumstances of the case suggest the inference that the minors' mothers left the defence to be conducted by that officer acting under the direction of the Court of Wards as he was more competent than themselves adequately to protect the minors' interests. We may here observe that the interests of the then de facto minor Zamindar who was the ward of the Court of Wards under Reg. V of 1804, were identical with those of his brothers so far as they related to the subject matter of that suit.
41. The third objection is that the admission by the Collector of the claim was an act not compatible with his position as guardian ad litem and prejudicial to the minors. Exhibit XXI proves that the Collector acknowledged the correctness of the plaint in Original Suit No. 14 of 1866 but requested that the debt sued for and other debts might be permitted to be paid rateably from the income of the estate as it was realised. If the claim was true and valid (it will appear later on from this judgment that such was really the case), it is preposterous to say. that the guardian should not have acknowledged the claim but put the plaintiff to the proof of it. Such conduct on his part would add to the costs of the suit which would be a needless burden on the estate. We are of opinion that the Collector's action was bona fide and abundantly warranted by the actual facts of the case.
42. It is here argued that of the six instalments for which a decree was asked for in the plaint, only three were overdue at date of suit, that the 4th, 5th, and 6th instalments had not then accrued due, and that the Collector ought to have resisted the claim for a declaratory decree in respect of the last mentioned instalments. It is true that the plaint prayed for an order of the court directing defendants to pay into court the 4th, 5th and 6th instalments as agreed on in the Razinamas on which the suit was based. It is also true that the Civil Court decided that there must be a decree for the then plaintiff for the amount sued for and for an order that the 4th, 5th and 6th instalments be paid as they fell due. Assuming that no such order should have been made the then plaintiff might have obtained separate decrees for these instalments with costs prior to the date of the court sale. The omission, therefore, of the Collector to take the technical objection now argued saved the minor costs of other suits which the creditor was at liberty to institute as each installment fell due. Considering that he put in the written, statement in communication with the Court of Wards and with its sanction, and seeing also that the Collector then asked the Civil Court for indulgence as to payment of the decree amount from the income of the Zamindari, his action was perfectly bonafide. It was not then unusual for the Civil courts in order to avoid multiplicity of suits (though the practice is now considered loose) to include a direction in the decree passed on instalment bonds to pay future instalments due on those bonds as they fell due.
43. Another objection taken to the finding on the 8th issue is that the decree was merely declaratory in so far as it related to the 4th, 5th and 6th instalments and that the decree was nevertheless executed against the minor's estate.
44. It must be observed, however, that the decree was not declaratory but contained an order for payment as those instalments fell due and in fact the sale now impugned by the appellant took place long after they had become overdue. In our opinion this objection is entitled to no weight.
45. Another objection is that the Collector ought to have objected to the execution of the decree on the ground mentioned in the last paragraph when he represented the plaintiff's predecessor in title in execution proceedings. In fact the Collector did not then take the objection; but if it had been taken, it must have been disallowed for the simple reason that on its true construction, the decree was not declaratory after the future instalments became due any more than a decree for payment of future maintenance at a fixed rate would be and that in execution courts do not go behind the decree sought to be executed, but take it as they find it unless it is impugned for fraud or want of jurisdiction patent on the face of the record.
46. It is also an admitted fact that neither the plaintiff's predecessor in title nor any one else on his behalf objected to the execution of the decree at any time before his death and we do not think that the plaintiff is now at liberty to rip open the decree and to undo proceedings held in its execution and completed during his predecessor's lifetime except on the ground of fraud or collusion.
47. The next objection is that the Collector should have obtained an adjournment of the sale and not allowed the property in dispute to be sold, The Subordinate Judge refers to the several applications made for adjournments of the sale, to the several adjournments actually granted, to the order of the Civil Judge refusing the last application and to the several attempts made to prevent the sale and to its being at last found unavoidable as shown by Collector Mr. Longly's letter. We agree in the opinion that the sale was not due to any laches on the Collector's part as guardian of the plaintiff's predecessor in title, but to its being found otherwise impracticable to clear off the heavy debt left by Bhuloka Pandia Chokka Talavar.
48. The next objection is that there was no attachment prior to the sale. This is not well founded in fact and it is inconsistent with the appellant's admission in the plaint. There are also several exhibits which prove that an attachment preceded the sale. On this point we agree with the Subordinate Judge that the objection has no foundation in fact.
49. Passing on the ninth issue, we observe that there is not a particle of evidence in support of the alleged fraud. The learned pleader for the appellant states that he relies on the objections taken by him to the decision of the Subordinate Judge on the 8th issue as constituting together a case of fraud. We are of opinion that they do not amount to fraud.
50. The last question which remains to be considered in this appeal is that, raised by the 10th issue. The plaintiff's case was that the decree debt was vicious and immoral and that although it had originally been contracted by his father yet it was not one binding upon him. The contention for the defendants was that the debt was incurred for purposes binding on the former Zamindar, Bhuloka Pandiar's family, and therefore on the plaintiff. The Subordinate Judge has stated the evidence on each side and after carefully considering it at length has come to the finding that, the debt was neither vicious nor immoral as alleged by the appellant, but was a debt contracted by a Hindu father for purposes binding on his family. In this opinion we entirely concur. The evidence for defendants clearly traces the nucleus of the decree debt to debts contracted by appellant's father in 1845 and 1849 whilst the plaintiff was born only in 1861. Original Suit No. 1 of 1845 was brought by an illegitimate son of appellant's grand-father and to that suit the grand-father and Bhuloka Pandia', appellant's father, were made parties. The object of that suit was to recover possession of a pannai land or home farm on the ground that it had been sold to the then plaintiff by appellant's grandfather. Appellant's father resisted the claim, but the suit ended in a compromise, Exhibit V, whereby it was agreed that appellant's grand-father should pay the then plaintiff Rs. 7000, that the sale in favor of the latter should be cancelled, and that appellant's father should succeed to the pannai land given up by the then plaintiff. After the compromise appellant's grand-father died and appellant's father succeeded to the Zamindari and the pannai land in November 1845.
51. In order to pay the sum of Rs. 7000 due under the Razinatna, to pay peishcush, and the than Zamindar's installation expenses and palace expenses, appellant's father borrowed Rs. 22,000 from one Vellayan Chetti. That this debt was contracted for the above mentioned purposes is, as observed by the Subordinate Judge, proved by defendant's witnesses Nos. 1, 3, 4, 7 and 8, by plaintiff's witnesses Nos. 4 and 22 and by the compromise V.
52. Vellayan Chetti instituted Original Suit No. 1 of 1849 against appellant's father and another and the suit terminated also in a compromise, whereby appellant's father undertook to pay the debt in certain instalments (Exhibits VI and XVIII).
53. In order to pay Vellayan Chetti, appellant's father borrowed from one Venkatachellam Chetti, who subsequently brought Original Suit No. 3 of 1854 which suit terminated in a compromise which secured the debt on the Zamindari and moveable property of appellant's father. In execution of the decree several Razinamas were filed, the last of which was for Rs. 36,000. Venkatachellam assigned his right under the Razinama to Chidambaram Chetti, the plaintiff in Original Suit No. 14 of 1866 in execution of the decree in which the court sales now in dispute took place.
54. Thus the nucleus of the decree debt is traced by a series of public documents to the money borrowed from Vellayan Chetti prior to Original Suit No. 1 of 1849 of which Rs. 7,000 was the amount undertaken to be paid to secure to appellant's father the succession to certain pannai land yielding an annual income of Rs. 10,000 and Rs. 15,000 were borrowed for payment of (1) peishcush, (2) installation expenses, and (3) palace expenses. It is argued by the appellant's pleader that the Razinama entered into by appellant's father with Venkatachella Chetti does not operate to create a charge but only evidences a money debt. We should be inclined to hold that it did create a charge, for the language of the instrument suggests an intention to secure the debt on specific property. The insertion of general words moveable property in addition to the Zamindari cannot defeat that intention which is the key to the right construction. However, it is not necessary to determine this question for the purposes of the present appeal as we concur in the opinion of the Subordinate Judge that before the property in dispute was sold, it had been attached in execution of the decree. On the other hand the appellant's contention that the decree debt was immoral rests on mense oral evidence. The Subordinate Judge sets out the evidence and considers it not trustworthy and the reasons assigned by him support his conclusion. On reading the evidence we do not see our way to coming to a different finding. Thus on the one side there is unimpeachable documentary evidence whilst on the other side there is only questionable oral evidence in regard to transactions which took place more than 40 years ago, the evidence being produced at a late stage of the final hearing and several of the witnesses being in a position to be influenced by a person in the appellant's position. We have therefore no hesitation in adopting the finding of the Subordinate Judge on the 10th issue. Apart from the weight due to the evidence, there are also several reasons why the appellant should not now be permitted to question the virtue of the debt. (1). It was held by the Privy Counsel in the case refer red to in paragraph 30 and reported in L. R 15 IndAp 51 the a Hindu son has no power unless he has it by special custom to question the alienation of an impartible estate by his father and in the present case there is no proof of such custom. (II). There is also the fact that the debt sued for in Original Suit No. 14 of 1866 had been contracted more than 10 years previous to the birth of the appellant. (III) Again the original debt merged into a decree debt during the life time of appellant's predecessor in title and in a suit to which both appellant and his predecessor in title were substantially parties and there is no proof of fraud nor any other material fact upon which appellant can repudiate the decree is Original Suit No. 14 of 1866 or the court sales in its execution.
55. We shall here briefly notice another question which respondents argued at the hearing of this appeal with reference to the relinquishment in favour of the appellant of any interest which they possessed in the Zamindari. Exhibit 0 evidences such relinquishment and it is admitted by both the brothers of the full blood, Sendura Pandia Talavar and Chokka Talavar. Also in their evidence as the 3rd witness for the plaintiff and as the court first witness, they acknowledge the appellant's right to the Zamindari. The Subordinate Judge held that on the true construction of the document, their rights of survivorship to the Zamindari were not the interest relinquished but we are unable to support this construction, having regard to the language of paragraph 6 of document C. It is in these terms in further, as we have given up in consideration for this, all our right, interest, and title, &c.;, in the movable and immovable properties such as the Zamindari &c;, capable of improvement by you as far as our share of maintenance is concerned, and as what we have received is sufficient for our share of maintenance suitable to our dignity as per Zamindari custom and our shares, you and we are not undivided, but divided Guathis (Bandhus) and we shall live in separate families. The words ' such as the Zamindari' and ' we are divided' disclose an intention to regard the Zamindari as appellant's exclusive property from the date of the document.
56. The respondent's contention is that appellant's claim as based on Exhibit C would be time-barred and that the relinquishment is not available to appellant as an additional ground in support of his claim. It is argued that though Sendura Pandian, the next junior brother of the appellant and the eldest of the surviving brothers of the whole blood might not be time-barred by reason of his having attained his majority within three years before he executed C, yet the privilege conferred upon minors by Section 7 of the Limitation Act is personal to them and does not extend to their adult transferees and that the transfer of their right after a period of 12 years from the date on which the sale was conferred and before the expiry of three years a period which is allowed to them as a personal privilege, is not actionable if the transferee had attained his majority more than three years before. In support of this contention reliance is placed on the decisions reported at I. L. R 9 C 663 Rudra Kant Surma Sircar v. Nabo Kishore 'Surma Biswas and 15 B. L. E 357 Mahomed Arsad Chowdhry v. Yakoob Ally. Those decisions involve, however, the apparent anomaly that a minor cannot transfer his title to property though at the date of transfer it is a subsisting interest so far as he is concerned. In the view which we take of the question whether a brother of the whole blood is entitled to succeed to an impartible Zamindari in preference to his elder brother of half blood, it is not necessary for us to determine this question for the purposes of this appeal. Thus the appellant's claim is barred first by limitation, and next by Sections 13, 244, and 312 of the Code of Civil Procedure, and lastly it also fails on the merits.
57. As this is a case which maybe taken to the Privy Council and as the Original Suit was instituted in 1885 and the appeal preferred in 1891, we have deemed it fit to consider at length all the questions argued before us on appeal in order that no occasion may arise for further investigation. The result is that the appeal cannot be supported and must be dismissed with costs.