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ivatury Atchamma Vs. Ivatury Bapiah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1921Mad24; 60Ind.Cas.583; (1921)40MLJ83
Appellantivatury Atchamma
Respondentivatury Bapiah and ors.
Cases ReferredSachindra Kishore Roy v. Rajani Kant Chuckarbutty
Excerpt:
.....arises and that they do not coalesce. a strong bench consisting of cotton lord justice, lindley, lord justice and bowen, lord justice came to the conclusion that it was not lost. the expression 'the right to such property' in section 28 must include the right to joint enjoyment as well as the right of survivorship. 340). if there can be an assignment of another's estate for life, i fail to see why there should not be an acquisition of an estate for the life of another......contention ignores the fact that this so called right of survivorship is incident to the right of joint possession and enjoyment of the estate with the others who are jointly entitled and cannot exist separately when the right of joint possession and enjoyment has been lost. this in my opinion is a rule of general jurisprudence applicable to all cases of joint tenancy. it is laid down in coke onlittle on 188(a) where the right of survivorship is treated as a jus accrescendi or right of accretion to the existing interest of the surviving joint tenant, and a latin maxim is cited to the effect that there can be no such right of accretion in the absence of an existing interest.2. it has also been expressly applied to india in katama nachiar v. the rajah of sivaganga (1863) 9 m.i.a. 563.....
Judgment:

Wallis, C.J.

1. In this case the estate of the last male owner descended to his widow and on her death a in 1877 to their four surviving daughters. According to the law in this part of India they inherited jointly a woman's estate in their father's property determinable on the death of the last survivor when the succession would devolve on the next heir of their father the last male owner. Sundaramma, one of the four daughters, excluded and held adversely to her three sisters, and, on the expiration of the statutory period of twelve years, their right of suit became barred and their rights in the property were extinguished under Section 28 of the Limitation Act. The present plaintiff, one of the excluded sisters survived Sundaramma who died in 1905 and instituted within 12 years the present suit in which she sought to recover the estate by the right of survivorship from Sundaramma's alienees and her son, the seventh defendant, who is at once heir to his mother's separate estate and the next reversioner to the estate of the last male owner. At the hearing of the appeal the plaintiff's claim to the whole of the estate was hardly pressed, but it was contended that, though she might have become barred as to her own share and the shares of her excluded sisters, she was at any rate entitled to succeed by survivorship to the share of her sister Sundaramma who continued in possession and enjoyment of the estate until, her death, on the happening of which event it was argued the plaintiff became entitled for the first time to succeed to her share. In my opinion this contention is untenable. It has never, so far as I know, been suggested that a member of an undivided family who has been excluded for the statutory period is entitled on the death of any undivided coparcener leaving no direct heirs to represent him, notwithstanding his own exclusion and the statutory extinguishment of his rights in the joint family property, to succeed with the other co-parceners by right of survivorship to the share of such deceased co-parcener. This contention ignores the fact that this so called right of survivorship is incident to the right of joint possession and enjoyment of the estate with the others who are jointly entitled and cannot exist separately when the right of joint possession and enjoyment has been lost. This in my opinion is a rule of general jurisprudence applicable to all cases of joint tenancy. It is laid down in Coke onLittle on 188(a) where the right of survivorship is treated as a jus accrescendi or right of accretion to the existing interest of the surviving joint tenant, and a Latin maxim is cited to the effect that there can be no such right of accretion in the absence of an existing interest.

2. It has also been expressly applied to India in Katama Nachiar v. The Rajah of Sivaganga (1863) 9 M.I.A. 563 where the Lords of the Judicial Committee in negativing the right of the other coparceners to succeed to theseparate property of a deceased coparcener, lay down that the right of survivorship cannot exist apart from the right of joint possession and enjoyment.

According to the principles of Hindu Law, there is no co-parcenership between the different members of a united family, and survivorship following upon it. There is a 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 of a united family, the other members of that family have neither community of interest nor unity of possession. The foundation therefore of a right to take such property fry survivorship fails.

3. In the present case the plaintiff had no community of interest or unity of possession with her sister Sundaramma at the time of the latter's death, and therefore in their Lordship's language the foundation of the plaintiff's right to take her sisters' share by survivorship fails. This view is also supported by the decision of Jenkins, C.J. in Sachndra Kishore Roy v. Rajani Kant Chuckerbutty (1914) 27 I.C. 250. It would appear though it is unnecessary to decide the point, that the effect of the interests of the other sisters being barred and their rights being extinguished under the Limitation Act was to enlarge the estate of Sundaramma and to give her an estate for her own life and the lives of her sisters determinable on. the death of the last survivor. I concur in the order proposed by my learned brother.

Seshagiri Aiyar, J.

4. One Veerasalingam died in 1864 leaving a widow and five daughters. The widow, Bangarammal died in 1877. On her death, one of her daughters, Sundarammal took possession of the entire estate and was in sole enjoyment of it till she died in 1905. She made various alienations during her lifetime. Defendants 1 to 6 are the alienees. Th seventh defendant is the son of Sundarammal. Theplaint is the sole surviving daughter of Veerasalingam. She sues for the recovery of the property on the ground that, on the death of Sundarammal, she became entitled to it by survivorship.

5. One of the contentions of the defendants was that Veerasalingam was succeeded by a son and that consequently the plaintiff was not the nearest heir to the property, being the sister of the last male owner.

6. The Subordinate Judge held that Veerasalingam died last and we agree with him. The defendants have also raised the plea of limitation. The Subordinate Judge says with reference to it in para. 27 of his judgment that the plaintiff's right to recover the properties is barred by limitation. He has however decreed to her some items of the property apparently on the ground that she succeeded to the estate of her sister by survivorship. The plaintiff has preferred A.S. No. 247 in respect of the items disallowed and some of the alienees from the 7th defendant's mother have filed A.S. No. 266. A.S. No. 266 was allowed to be argued first as that raised a contention, which, if successful, would render the hearing of the other appeal unnecessary.

7. It relates to portions of items 2 and 3. A decree was given to the plaintiff for the other items, but as no appeal was preferred by the person affected, we do not think that this is a proper case for exercising our power under Order 41, Rule 33 of the Civil Procedure Code in their favour.

8. I shall now consider the plea of limitation. The estate which Sundarammal and the plaintiff had under the Hindu Law was only for life. On their death, the grandson tracing descent from his grandfather will succeed to the full estate. To him the cause ofaction would arise under Article 141 of the Limitation Act on the death of the last of the life estate holders, namely, the plaintiff. Under the Limitation Act XIV of 1859, adverse possession acquired against a life-owner was held to bar the reversioner as well. The language of Article 141 of the present Act has been advisedly changed and the cause of action against the reversioner starts only on the death of the last life estate holder.

9. Now, the question arises whether on the death of Sundarammal, who held adversely to the plaintiff, the latter had any title to succeed to the property by survivorship. Mr. Rama Rao contended that what was lost by the plaintiff was her light of enjoyment along with her sister Sundarammal and that her right of survivorship was unaffected by the adverse enjoyment. Mr. Narayanamoorthy for the defendant contended that the plaintiff lost both the rights. It was held in Jijoyiama Bayi Saiba v. Kamakshi Boyi Saheba (1868) 3 M.H.C.B. 424. after a very elaborate examination of the authorities, by Scotland C.J. and Ellis. J. that 'two or more lawful wives of a Hindu take a joint estate for life in their husband's property, with rights of survivorship and of equal beneficial enjoyment.' The Judicial Committee in Sri Gajapath Nilamani Patta Mahadevi Garu v. Sri Gajapath Radhatmani Patta Mahadevi Garu (1377) 4 I.A. 212 . quote with approval this statement of the law. The Privy Council had already held in Bhugwandeen Dubey v. Myna Baee (1807) 11 M.I.A. 487. that one of the widows had no power of disposition over an estate which she may enjoy conjointly with her co-widow. In Kathaperumal v. Venkaba I.L.R.(1880) Mad 194. and in Mussammat Dal Koer v. Mussammat Panbas (1904) 8 C.W.N. 658 . the same view was expressed. It is now well settled that co-widows and daughters are on the same footing in this respect.

10. The characteristics of joint tenancy have been described by ancient text writers. In 2 Blackstone, it is stated:

The properties of a joint estate are derived from its unity, which is fourfold, the unity of interest, the unity of title, the unity of time and the unity of possession, or in other words, joint tenants have one and the same interest accruing by one and the same conveyance commencing at one and the same time and held by one and the same undivided possession.

11. This definition deals no doubt with a case of conveyance; but there is no reason for holding that cases of inheritance differ in any material particulars from it. The Judicial Committee in Katatma Nachiar v. The Rajah of Sivaganga (1863) 9 M.I.A. 583 . applied it to a case of ordinary coparcenary.

12. The argument of the learned vakil for the plaintiff is that each one of the characteristics is capable of being separated and enjoyed when occasion arises and that they do not coalesce. On the other hand, Mr. Narayanamoorthy contended that it is of the essence of this class of rights that they are inseparable and that each of them is dependent on the other. This contention seems to be supported by the authorities.

13.Coke on Littleton, Vol. II. 188(a) is the foundation for all the propositions which have been subsequently deduced by writers and recorded in judicial decisions. The law is thus laid down there:

And this is to be observed, that there shall be no survivor, unless the thing be in enjoyment at the instant of the death of him that first dyeth; for the rule is nikil de re arccosine, quinihil in requando jus accrescret habet.

14. In commenting upon it, in Williams Law of Property, (21st Edition p. 140) the author says:

As joint tenants together compose but one owner, it follows, that the estate of each must arise at the same time; so that if A and B are to be joint tenants of lands, A cannot take his share first and then B come in after him'. And again he says:The incidents of joint tenancy, above referred to, last only so long as the joint tenancy exists.

15. Blackstone comments upon the same passage in these terms: ' This right of survivorship is called by ancient authors the jus accrescendi because the right, upon the death of one joint tenant, accumulates and increases to the survivors.' See Stephen's Commentaries 16th Edn. Vol. I, p. 236.

16. The authorities to which I shall presently draw attention establish that where there is a disruption of the joint tenancy the right of survivorship is gone. For example where one of the joint tenants releases his interest in favour of the others, the joint tenancy comes to an end and a tenancy in common is created, see Chester v. Willan (1670) 2 W S 96 .

17. It has also been held that a joint tenancy will be put an end to by operation of law, for example when one of the joint tenants becomes a bankrupt. Vide Thomason v. Frere (1809) 10 East 418, Morgan v. Marquis (1853) 9 Ex, Rep. 145. In re Butler's trusts: Hughes v. Anderson (1888) 38 Ch. D. 286.

18. In the latter case, a male and a female became joint tenants under a bequest. They subsequently married. The question was whether the female's right of survivorship was lost by this marriage. A strong bench consisting of Cotton Lord Justice, Lindley, Lord Justice and Bowen, Lord Justice came to the conclusion that it was not lost. Bowen,L.J. thus states the Law:

It depends on whether the marriage divests the property from the wife and vests it in the husband. If it does, the joint tenancy severs. If it does not, there is no severance.

19. Applying the same principle to the present case, if by virtue of limitation, the right of enjoyment to the exclusion of the plaintiff vested in Sundarammal the joint tenancy was severed.

20. This leads me to the consideration of the effect of the law of limitation in this case. Article 127 of the Limitation Act is not in terms applicable, because it has been held from the earliest times that widows and daughters taking as joint tenants are not entitled as a matter of right to alienate their share, or to enter into a partition. No doubt for the sake of convenient enjoyment, they may ask the Court, if they cannot agree among themselves, toallot particular portions of the property for them during their lives. The Madras High Court appears to have gone farther than the other High, Courts, but even on the authority of one decision Article 127 of the Limitation Act cannot be applied as between co-widows and daughters. The proper article is 144. That article read with Section 28 of the Limitation Act makes it clear that by non enjoyment for the statutory period the right of survivorship is lost. The expression ' the right to such property' in Section 28 must include the right to joint enjoyment as well as the right of survivorship. In Subbammal v. Lakshmana Aiyar (1913) 26 M.L.J. 479 the learned judges of this court held that the right of survivorship is not separable from the right of enjoyment.

21. Some argument was based on the decision of the Judicial Committee in Amirtolal Bose v. Rajonikant Mitter (1875) 15 B L.R. p. 10 and on Ghotay Lall v. Chunnoo Lall (1874) 14 B. L.R. 235. In both these cases, the question was considered with reference to a right of preference which a married daughter having issue has over barren and unmarried daughters. From the nature of the right, it would necessarily follow that the right of survivorship would revive when the preference was gone. I do not think these cases are of any assistance in dealing with this case.

22. I feel no difficulty in holding that Sundarammal acquired adversely the right of survivorship possessed by her sister. The only doubt in my mind is whether on the death of Sundarammal, succession will be in abeyance until the death of the plaintiff, because the grandson under Article 141 of the Limitation Act and the Hindu Law does not take the inheritance so long as the last life estate holder is alive. In English Law under similar circumstances, a civil death is spoken of so as to let in the next heir but I do not think we need apply that principle. In my opinion the analogy of the English Law regarding estates pur autre vie can be extended to this case. The estate for the life of her sister which Sundarammal acquired does not come to an end with her death. An estate pur autre vie may arise by express limitation or by assignment of an existing life estate (See 24 Halsbury para. 340). If there can be an assignment of another's estate for life, I fail to see why there should not be an acquisition of an estate for the life of another. It is now settled by legislation in England that this estate pur autre vie can be bequeathed and would descend in a particular manner to the heir, at law or to the personal representative of the holder of the estate. No doubt, it will come to an end with the death of the cestui que vie : But till his death, the legatee, donee or the heir is entitled to possession. The death of the holder of the estate purautre vie does not put an end to it.

23. Now applying that analogy to the present case, If Sundarammal, by excluding the plaintiff, not only acquired a full right of enjoyment in the property but also acquired an estate purautre vie, that is for the life of the plaintiff, this estate would descend to Sundarammal's heirs. This view received support from the decision of Sir Lawrence Jenkins, C.J. and Chatterji, J. in Sachindra Kishore Roy v. Rajani Kant Chuckarbutty (1914) 27 I.C. 250 . The learned Chief Justice says this:- So far as the original title to a moiety is concerned, it is not suggested before us that the claim of the plaintiff could be resisted but it is said that inasmuch as Harasundari died in 1306, the plea of adverse possession and the consequent extinguishment cannot prevail as to the eight annas that originally survived to Kasiswari on Harasundari's death. So the problem that arises in this case is what was the effect of adverse possession against the two daughters who succeeded on the death of their father under the Dayabhaga system of Law.'

24. Then after discussing some of the cases, he concludes:

The result appears to me to be that so far as Kasiswari is concerned, her right was extinguished not only in the original eight annas that devolved on her, but in respect of the whole 16 annas which passed to her and her sister as a single inheritance on the death of their father.

25. No doubt in the case before the Calcutta High Court, the acquirer was a stranger, but the principle of that decision seems applicable to the present case.

26. On the whole I have come to the conclusion though not without some hesitation that the true rule is that enunciated by Sir Lawrence Jenkins in Sachindra Kishore Roy v. Rajani Kant Chuckarbutty (1914) 27 I.C. 250. That view is in accordance with the English authorities to which I have referred. I must therefore hold that the plaintiff lost her right of survivorship by the operation of Section 28 of the Limitation Act and that this suit so far as a portion of item No. 2 is concerned should be dismissed.

27. A.S. No. 266 of 1918 is allowed with costs.

28. A.S. No. 247 of 1918 is dismissed with costs.


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